David Chao deposition

7/28/2019 David Chao deposition

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

*TOM FAGAN, *

*Plaintiff, *

*vs. * Case No. 37-2008-

* 00077411-CU-MM-CTL

SCRIPPS MEMORIAL HOSPITAL; JAIME *VERCHER; PATRICIA BILINSKI; P. *BALINSKI; JAMES CHAO, M.D., and *DOES 1-100, Inclusive, *

*Defendants. *

*

DEPOSITION OF DAVID J. CHAO, M.D.

VOLUME I

Taken at San Diego, CaliforniaMay 15, 2008

T. A. Martin, CSRCertificate No. 3613


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1I-N-D-E-X

2DEPOSITION OF DAVID J. CHAO, M.D. PAGE

3 May 15, 2008

4 Examination by Ms. Mulligan 6

5

6 EXHIBITS: PAGE

7 1 Deposition Notice 11

8 2 Curriculum Vitae of Dr. David J. Chao 11

9 3 Civil Subpoena (Duces Tecum) 11

10 4 Delegation of Services Agreement BetweenSupervising Physician 11

11 5 Three pages Medical/Surgical Flowsheet12 PM Patient Assessment 75

13 6 Extremity Neurovascular Assessment Record 76

14 7 Progress Record 93

15 8 Duplex study report 93

16 9 Operative Report, February 9, 2007 107

17 10 Operative Report, February 10, 2007 116

18 11 Preop Physician Orders 213

19 12 Progress Record 217

20 13 Medical/Surgical Flowsheet AM PatientAssessment 220

21

22 INFORMATION REQUESTED:

23 1 Name of intensive care physician

24 2 Names of other physicians

252


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1DEPOSITION OF DAVID J. CHAO, M.D.

2 VOLUME I

3 Pursuant to Notice to Take Deposition, and on

4 the 15th day of May, 2008, commencing at the hour of

5 9:00 o'clock a.m., at 402 West Broadway, Suite 2800, in

6 the City and County of San Diego, State of California,

7 before me, T. A. Martin, Certified Shorthand Reporter in

8 and for the State of California, personally appeared:

9 DAVID J. CHAO, M.D.,

10 who, called as a witness by the Plaintiff, being by me

11 first duly sworn, was thereupon examined as a witness in

12 said cause.

13 APPEARANCES

14 FOR THE PLAINTIFF:

15 MULLIGAN & BANHAMBy: JANICE F. MULLIGAN, ESQ.

16 2442 Fourth AvenueSan Diego, California 92101

17

18 FOR DR. DAVID CHAO and A.J. DURFEE:

19 DEUPREY & ASSOCIATESBy: DAN DEUPREY, ESQ.

20 402 West Broadway, Suite 2800San Diego, California 92101

21

22 FOR SCRIPPS MEMORIAL HOSPITAL:

23 LOTZ, DOGGETT & RAWERS, LLPBy: DEBORAH C. BRICKNER ESQ.

24 101 West Broadway, Suite 1110San Diego, California 92101

253


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1APPEARANCES - (CONTINUED)

2

3 FOR DR. JAMES CHAO:

4 NEIL, DYMOTT, FRANK, McFALL & TREXLERBy: HUGH A. McCABE, ESQ.

5 1010 Second Avenue, Suite 2500San Diego, California 92101

6

7 VIDEOGRAPHER:

8 Alan Peak, Videographics

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1 VIDEOGRAPHER: This is the depositions of

2 Dr. David Chao, being taken on behalf of plaintiffs in

3 the matter of Thomas Fagan versus Scripps Memorial

4 Hospital, et al., in the Superior Court of California,

5 County of San Diego, Case No. 37-2008-00077411. This

6 deposition is being held in the offices of Deuprey &

7 Associates, 402 West Broadway, Suite 2800 in San Diego,

8 California on May 15, 2008 at 9:43 a.m.

9 My name is Alan Peak. I'm the Legal Video

10 Specialist with Videographics, 1448 15th Street, Imperial

11 Beach, California. The Certified Shorthand Reporter is

12 Tadzia Martin with San Diego Court Reporting.

13 Will counsel please state their appearances for

14 the record.

15 MS. MULLIGAN: Good morning. Jan Mulligan. I

16 have the privilege of representing Tom Fagan.

17 MS. BRICKNER: Deborah Brickner on behalf of

18 ScrippsHealth and Scripps Memorial Hospital.

19 MR. McCABE: Hugh McCabe on behalf of Dr. James

20 Chao.

21 MR. DEUPREY: Dan Deuprey on behalf of Dr. David

22 Chao, and I'm also representing Mr. Durfee.

23 VIDEOGRAPHER: And the witness may now be sworn.

24 (Whereupon, the witness, Dr. David Chao, was

25 duly sworn.)5


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1 EXAMINATION BY MS. MULLIGAN:

2 Q. Good morning, Doctor.

3 A. Morning.

4 Q. Have you ever had your deposition taken before?

5 A. Yes.

6 Q. On approximately how many occasions?

7 A. A couple dozen.

8 Q. By a couple dozen do you mean your best estimate

9 is approximately 24?

10 A. Sure.

11 Q. Okay. You may be familiar with the ground rules

12 of the taking of a deposition because of your prior

13 experiences, but I'm going to go through a few of those

14 ground rules on the record to make sure we have a common

15 understanding.

16 You have been placed under oath. Do you

17 understand what that means?

18 A. Yes.

19 Q. So even though your deposition today is taken in

20 relatively informal surroundings in your attorney's

21 office, you understand that your testimony is subject to

22 the penalty of perjury?

23 A. Yes.

24 Q. Is there any reason that you're aware of, such

25 as fatigue, illness, use of medication or anything else6


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1 that would preclude you from giving me your best

2 testimony today?

3 A. I don't think so. I'm a little bit under the

4 weather, but I think I will be fine.

5 Q. If at any point in time you believe that your

6 health, fatigue or anything else prevents you from giving

7 me your best testimony, would you please tell me and we

8 will stop the deposition until you are ready to resume?

9 A. Okay.

10 Q. Because I want to make sure that you can give me

11 your best testimony. So as of right now you think that

12 your health doesn't prevent that, correct?

13 A. No. I'm fine right now.

14 Q. Good. If you need breaks at any time, if that

15 will help, just tell us and we will accommodate you as

16 well. Okay?

17 A. Okay.

18 Q. The court reporter will transcribe what has been

19 said into a booklet form called a transcript. You'll

20 have an opportunity to review the deposition transcript

21 and to make any changes to it that you deem necessary.

22 Do you understand that?

23 A. Yes.

24 Q. I want to you caution, though. Insofar as you

25 have been placed under oath today, if you make7


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1 A. A little bit.

2 Q. What did you review?

3 A. Some limited records that my attorney provided

4 to me. I believe they were the same set that were

5 provided to Mr. Durfee.

6 MS. MULLIGAN: Mr. Deuprey, is it in fact the

7 same set that was provided to Mr. Durfee that was made an

8 exhibit to Mr. Durfee's depo, the records that Dr. Chao

9 was given by you?

10 MR. DEUPREY: Yes. And it also included the

11 memorandum made by Mr. Durfee about his phone contacts

12 and text messages which was marked as an exhibit together

13 with the separate record -- redacted phone record. And

14 also Dr. Chao has reviewed portions of Mr. Durfee's

15 deposition transcript.

16 MS. MULLIGAN: Thank you, Mr. Deuprey.

17 Q. Other than what you and your attorney have now

18 identified, have you reviewed anything else whatsoever to

19 prepare for your deposition?

20 A. I looked at -- I guess we talked about the phone

21 records.

22 MR. DEUPREY: The phone records.

23 MS. MULLIGAN: Those were Exhibits 4 and 5 from

24 Mr. Durfee's deposition.

25 Q. Were there any other phone records that you9


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1 reviewed other than those exhibits to Mr. Durfee's

2 deposition.

3 MR. DEUPREY: I don't know about the exhibit

4 numbers. I'd have to looked at them, but there is only

5 one phone record with redactions that was made an

6 exhibit. And then also you subpoenaed the some records.

7 In connection with responding to the subpoenas, I believe

8 Dr. Chao probably reviewed those documents.

9 MS. MULLIGAN: I'm going to hand those documents

10 to you and I will mark them today. These are the

11 documents that were produced to my office yesterday.

12 Mr. Deuprey, did you also produce those to other

13 counsel?

14 MR. DEUPREY: No. I just responded to the

15 issuer of the subpoena.

16 MS. MULLIGAN: That's fine. While Dr. Chao is

17 looking at that --

18 MR. DEUPREY: Is this Exhibit 1?

19 MS. MULLIGAN: No. Let me mark, if I may, the

20 notice of today's deposition as Exhibit 1. I'll mark as

21 Exhibit 2 Dr. Chao's C.V. which was responsive to that

22 notice. Exhibit 3 is the subpoena that has been the

23 subject of recent testimony. Exhibit 4, collectively,

24 the documents that were produced in response to that

25 subpoena.10


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1 (Exhibits 1 through 4 marked for

2 identification.)

3 MR. DEUPREY: May I see Exhibit 4 for a moment?

4 I'll incorporate by reference the objections we

5 made to the subpoena when we produced these.

6 MS. MULLIGAN: There was no formal verification

7 nor formal response, but rather I think you're referring,

8 Mr. Deuprey, to a letter that you communicated to me?

9 MR. DEUPREY: That's correct.

10 BY MS. MULLIGAN:

11 Q. Doctor, have you reviewed anything else to

12 prepare for the deposition other than the items we have

13 now identified?

14 A. I don't think so.

15 Q. I'm going to go through the subpoena which is

16 Exhibit 3 so I can understand what documents may exist

17 that were not produced because of Mr. Deuprey's

18 objections.

19 MR. DEUPREY: That assumes facts not in

20 evidence; that Dr. Chao is, A, familiar with the

21 objections I made when we produced these, and, B, is able

22 to make any judgment as to the legal objections.

23 Go ahead and ask him questions about what exists

24 or doesn't.

2511


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1 BY MS. MULLIGAN:

2 Q. Dr. Chao, did you personally identify and

3 retrieve documents in response to my subpoena, or did

4 someone else do that for you?

5 A. Both.

6 Q. Can you tell me what documents you personally

7 retrieved?

8 MR. DEUPREY: By "retrieve" -- you know, that is

9 a little ambiguous.

10 BY MS. MULLIGAN:

11 Q. Of the documents that are before you, sir,

12 Exhibit 4, which if any of these items did you identify

13 and give to your attorney?

14 MR. DEUPREY: You mean the ones he looked at?

15 I'm not sure what you mean by identify and give to your

16 attorney.

17 THE WITNESS: Yeah. I'm not clear on the

18 question.

19 MS. MULLIGAN: That's fine. We have got all day

20 and longer if necessary.

21 Q. Exhibit 4: Are any of the documents that are in

22 Exhibit 4 documents that you personally gave to

23 Mr. Deuprey?

24 A. No.

25 Q. Did you have somebody else assist you in12


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1 identifying documents to give to Mr. Deuprey in response

2 to the subpoena?

3 A. Yes.

4 Q. Who helped you?

5 A. I simply asked the office staff to produce these

6 documents. They know where they are filed; I don't. And

7 it was a combination of Beth, Beverly, Susan and maybe

8 even Leslie.

9 Q. Are there any last names that you can identify

10 for any of these four individuals?

11 A. Beth Allen.

12 Q. A-l-l-e-n?

13 A. Yes.

14 Q. Thank you.

15 A. Beverly Mize.

16 Q. Can you spell Mize, please?

17 A. M-i-z-e.

18 Q. Thank you.

19 A. Who else did I say?

20 Q. Susan.

21 A. Susan Cook.

22 Q. C-o-o-k?

23 A. Yes.

24 And Leslie Majors.

25 Q. For whom do these four individuals work?13


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1 A. They work for me/Oasis.

2 Q. What is your relationship to Oasis?

3 A. As a medical doctor, I am an independent

4 contractor that practices out of the location.

5 Q. Are you a shareholder in Oasis?

6 A. Yes.

7 Q. Do you have any positions as an officer or

8 director?

9 A. Yes.

10 Q. What are your positions?

11 A. President.

12 Q. Who are the other shareholders in Oasis?

13 A. There are none, no.

14 Q. Are there any other officers in Oasis?

15 A. I believe they are reflected in the corporate

16 documents.

17 Q. Who are they?

18 A. I'm not sure.

19 Q. As the president of Oasis, is it your testimony

20 that you don't know who the other officers are?

21 A. There are forms that were filled out, and

22 through the officers I don't recall which is in which

23 category.

24 Q. Okay. While you may not recall the category,

25 can you identify the individuals that hold any of those14


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1 positions?

2 A. I'm not sure right now.

3 Q. So you are neither sure of any of the

4 individuals by name nor of any positions, correct?

5 MR. DEUPREY: I'm sorry. What do you mean by

6 any other physicians? I'm not sure I follow you.

7 MS. MULLIGAN: Positions.

8 Q. So in other words, you know that you're

9 president, correct?

10 A. Yes.

11 Q. How long have you been president?

12 A. Since probably -- I want to say November of '07,

13 but actually it might be '06, to tell you the truth.

14 November of '06.

15 Q. And from the time you became president to date,

16 can you identify anybody that was a shareholder other

17 than you in Oasis?

18 A. No.

19 Q. You have been the only shareholder since the

20 time that you became president?

21 A. Yes.

22 Q. And with respect to officers, can you identify

23 anybody, even if you don't recall exactly what their

24 title was -- can you identify any individual that held an

25 officer position with Oasis since you became president?15


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1 A. I remember a series of meetings with different

2 attorneys and business advisors, and I would have to go

3 back and rely on formal minutes to give that you detail.

4 Q. Now, with respect to documents that were

5 produced, you told me that none of the things that are

6 before us as Exhibit 4 were documents that you personally

7 identified, correct?

8 MR. DEUPREY: That's not what he said. He said

9 he didn't personally give them to me.

10 MS. MULLIGAN: Did you -- I'm sorry,

11 Mr. Deuprey. Go ahead.

12 MR. DEUPREY: But he had help in locating them.

13 BY MS. MULLIGAN:

14 Q. Did you personally identify any of the documents

15 and retrieve them yourself, or was it one of the four

16 individuals that actually took these records from --

17 MR. DEUPREY: He's already said he didn't

18 retrieve them, so answer whether or not you identified

19 any of these documents.

20 THE WITNESS: Can you clarify the question

21 because I think it was a two-part question.

22 BY MS. MULLIGAN:

23 Q. Did you get any of those documents yourself?

24 A. Physically get them?

25 Q. Yes, sir.16


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1 A. No.

2 Q. What's -- excuse me. Beth Allen; what is her

3 job?

4 A. She is -- she does a lot of things in the

5 office.

6 Q. You're lucky to have her.

7 Is she the office manager?

8 A. No.

9 Q. Do you know if she has a job title?

10 A. She is perhaps the business office supervisor,

11 probably is the closest description.

12 Q. How about Beverly Mize; what is her job?

13 A. Primarily credentialing and paperwork.

14 Q. How about Susan Cook?

15 A. Susan serves in that similar capacity.

16 Q. Credentialing?

17 A. Yes.

18 Q. How about Leslie Majors?

19 A. More of an executive assistant.

20 Q. Executive assistant to you?

21 A. Yes.

22 Q. Now, with respect to things that were requested

23 in the subpoena, which is our Exhibit 3, the first thing

24 asks for any and all calendars and/or schedules for David

25 Chao, M.D., for 2/9/07 and 2/10. Take them one at a17


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1 time.

2 Do any calendars exist for you from that time

3 frame?

4 MR. DEUPREY: Okay. I just want to make sure my

5 objections are recorded.

6 MS. MULLIGAN: Of course.

7 MR. DEUPREY: I don't want to get in the middle

8 of the questioning, but we are objecting to any calendars

9 relating to personal life, personal information, as

10 protected by the right to privacy and irrelevant. And

11 the term "any and all calendars" as phrased is ambiguous.

12 But bearing those objections in mind, and

13 without testifying to private, personal calendars,

14 Doctor, you can respond to the question.

15 MS. MULLIGAN: Actually I'd like to know if any

16 personal calendars exist. I don't think it violates his

17 right of privacy to tell me --

18 MR. DEUPREY: You're just asking if they exist?

19 MS. MULLIGAN: Yes, sir.

20 MR. DEUPREY: Certainly you can respond to that.

21 BY MS. MULLIGAN:

22 Q. Do any personal calendars exist for you,

23 Dr. Chao, for the time frame of February 9th and February

24 10th of '07?

25 A. Not that I'm aware of.18


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1 Q. How about a palm pilot? Do you know what I mean

2 by a palm pilot?

3 A. In the vernacular, sure.

4 Q. Have you ever used a palm pilot to keep your

5 personal calendar?

6 A. At one point I actually did use a palm, but have

7 switched from a palm to different versions.

8 Q. Do you have any information saved about where

9 your personal calendar was like in the time frame of

10 February 9th and 10th of '07, whether it be

11 electronically saved somewhere in cyberspace, in a phone,

12 in a laptop, in a computer, in any format whatsoever?

13 MR. DEUPREY: Objection. Ambiguous.

14 Go ahead and try to respond.

15 THE WITNESS: I did not find any.

16 BY MS. MULLIGAN:

17 Q. You looked?

18 A. Yes.

19 Q. What was your custom and practice in terms of

20 keeping a personal calendar in February of '07?

21 A. In February of '07 it would have been through my

22 secretary and largely through a personal device. I don't

23 know what you call it. Palm, for lack of a better word,

24 but I don't know that it was a palm.

25 Q. But you mean that generically in the sense of19


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1 some sort of a device that has the ability to retain

2 information such as calendaring?

3 A. Some sort of calendaring function.

4 Q. I'm holding up a BlackBerry. Generically when

5 you say palm pilot, you don't necessarily mean that it

6 was that brand or a BlackBerry brand, but something that

7 served that purpose, correct?

8 A. Sure.

9 Q. Is it your testimony that you no longer have

10 that device that you had in February of '07?

11 A. I'm not positive as to which device I was using

12 in February of '07. I have had some troubles where I

13 have switched different devices over time. I'm not sure

14 which specific device I was using in February of '07, but

15 devices that I had at my disposal and on my laptop I

16 looked and there was nothing for those dates.

17 Q. Who is your provider for Internet access or

18 telephone access with a mobile device?

19 A. Today or that point in time?

20 Q. Thank you. Good question.

21 In February of '07 who was your provider?

22 A. I'm not positive.

23 Q. Who would know? Your secretary?

24 A. Except my secretary -- current secretary wasn't

25 with me in February of '07.20


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1 Q. Who was your secretary in February of '07

2 A. I believe it would have been April.

3 Q. April's last name, please?

4 A. Greene.

5 Q. G-r-e-e-n?

6 A. I believe an e on the end.

7 Q. G-r-e-e-n-e?

8 A. I think so.

9 Q. Okay. Does April Greene work for you or Oasis

10 anymore?

11 A. No.

12 Q. What happened to April Greene?

13 A. She moved away with her husband.

14 Q. Where to?

15 A. Somewhere in Northern California.

16 Q. Was her husband's last name Greene, to the best

17 of your knowledge?

18 A. Yes.

19 Q. Now, with respect to the bills that were used to

20 pay for -- we will use the term palm pilot. You know

21 that I'm talking about our generic use of that as has

22 been described. Is that okay with you?

23 A. Okay.

24 Q. So when you had a palm pilot type device, was

25 the bills paid for the service through Oasis?21


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1 A. Not positive, but I believe they may have been.

2 Q. Okay. Who would have been paying those bills?

3 A particular employee responsible for writing the checks?

4 A. The office manager and/or accountant.

5 Q. Who was the office manager in February of '07?

6 A. Louisa Creech.

7 Q. C-r-e-e-c-h?

8 A. Yes.

9 Q. Is she still your office manager?

10 A. No.

11 Q. What happened to Ms. Creech?

12 A. She took a new job.

13 Q. Here in San Diego?

14 A. Yes.

15 Q. How is your current officer manager?

16 A. I don't have one right now.

17 Q. How about accountant; who was your accountant in

18 February of '07?

19 A. The accountant may have been Janet.

20 Q. What is Janet's last name, please?

21 A. I don't remember.

22 Q. Does Janet work for a company or did she work

23 for Oasis?

24 Excuse me, Dr. Chao. I'm sorry for the

25 interruption.22


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1 Did Janet work Oasis?

2 A. There was a combination where she worked for

3 Oasis but somehow was a consultant.

4 Q. Did she have a company?


6 Q. What is Janet's last name?

7 A. I don't recall.

8 Q. Okay. She still does your accounting work?

9 A. No, she doesn't.

10 Q. Who does it now?

11 A. Kim.

12 Q. What is Kim's last name?

13 A. N-g-y-u-e-n.

14 Q. And does Ms. Ngyuen have a company or is she an

15 employee of Oasis?

16 A. She contracts independently.

17 Q. And are all of your bills and records such as

18 phone bill records from 2007 maintained at Oasis?

19 A. I wouldn't know.

20 Q. When you changed one palm pilot device to

21 another, did you have a custom and practice of

22 downloading all of the old information from one device to

23 another device?

24 A. It was certainly my goal when I switched to get

25 all the information transferred, and I don't know that I23


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1 ever dealt with it hands on, not being that tech savvy,

2 but the requirement for me to transfer would always be at

3 least to have phone numbers transferred and at least to

4 have some sort of functioning schedule, whether it had to

5 be recreated or transferred. I didn't pay much attention

6 to history, more of what I need to do today this week and

7 this month going forward.

8 Q. Are you familiar with a term sync, to sync

9 information between a BlackBerry and a laptop or between

10 a BlackBerry and computer?

11 A. Yes.

12 Q. When I say BlackBerry, I'm now again talking

13 generically about these devices.

14 Did you have any sync function between whatever

15 device held your calendar and any computers?

16 A. There were various different methods of syncing

17 over time.

18 Q. How about in 2007?

19 A. There may have been various methods during 2007.

20 Q. Okay.

21 A. They varied from -- currently there is an

22 automatic sync that broke down two weeks ago and created

23 havoc, and at different points in time there was some

24 sort of manual or nearby infared sync that would happen.

25 Q. So there was some method of syncing that was24


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1 available to you between your hand-held device -- palm

2 pilot, if you will -- and your computer, correct, in

3 2007, February?

4 A. In general there probably was some sort of

5 interaction, yes.

6 Q. Was there a person that was responsible for

7 handling your technical data such as the transfer of

8 information or setting up your palm pilot or things of

9 that nature?

10 A. Pretty much it would have been my secretary.

11 Q. April Greene?

12 A. In 2007 it probably was April Greene, yes.

13 I take that back. It may not have for sure been

14 April Greene because there was an interim secretary

15 between April and Leslie that didn't really work out.

16 Q. Who was that person?

17 A. Paulette.

18 Q. What is Paulette's last name?

19 A. A-m-i-g-b-l-e, I believe. Something like that.

20 Q. I assume that because for tax purposes you have

21 to send employees -- I don't know -- their W-2s at the

22 end of the year that you have an address for where April

23 Greene moved after she left her employment in 2000?

24 A. I wouldn't personally know one way or the other.

25 Q. Who would know?25


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1 A. We'd have to go through someone at the office.

2 As I am thinking about it, April may have been

3 gone by April 2000 -- sorry -- February 2007.

4 Q. It would have been Paulette?

5 A. We could go back and look at the specific

6 records, but I believe that may be the case.

7 Q. Who would be the person most knowledgeable in

8 your office as to the identity of such staff people and

9 their addresses?

10 A. We probably could go through the employment

11 records and look. Typically the office manager, but

12 unfortunately that position is vacant right now.

13 Q. And in that vacancy is Beth Allen fulfilling

14 those job functions more or less?

15 A. Pretty much whoever is best able to fulfill it

16 is fulfilling.

17 Q. Now, with respect to calendars, is it your

18 testimony that the only calendar that kept track of any

19 of your personal appointments in February 2007 was on an

20 electronic device such as a palm pilot?

21 A. Fortunately or unfortunately I think the best

22 and most reliable one in terms of things were actually

23 here, in my head, but, yes, I did use this palm,

24 BlackBerry -- whatever you want to call it -- device to

25 help me with that.26


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1 Q. And there were no other entries made anywhere

2 else, to the best of your knowledge?


4 Q. All right. Now, aside from personal calendar --

5 when I use the term personal calendar, I hope you and I

6 have had a common understanding. I meant for social

7 occasions or those outside of the workplace.

8 Did you understand that's what I meant?

9 A. Yeah. My definition might have expanded towards

10 business meetings and/or charitable functions or board

11 meetings. I probably interpreted it to mean non-direct

12 patient care functions.

13 Q. That's what you mean by personal, correct?

14 A. In general.

15 Q. Anything non-direct patient care; is that your

16 definition?

17 A. I never sat down to define it, but I guess as I

18 sit here that is probably accurate.

19 Q. If you lost your palm pilot in February of '07,

20 you would have had no means whatsoever of knowing where

21 to go for these non-patient -- excuse me -- non-direct

22 patient care appointments; is that your testimony?

23 A. I would hope if I lost it in February '07 --

24 like if I lost it today -- that I would have a means of

25 retrieving what is currently on the books for things27


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1 coming up.

2 Q. What do you mean "on the books"?

3 A. Appointments and things that I needed to do or

4 go to, schedules.

5 Q. Can you describe for us what books existed that

6 would have carried such non-direct patient care

7 appointments in February of 2007?

8 A. I guess I was using "on the books" in the

9 vernacular. I don't know that there were any -- I don't

10 think that there were any books. Everything was done on

11 a laptop.

12 Q. So in addition to this palm-pilot-type device,

13 the laptop also carried calendaring information for your

14 non-direct patient care appointments?

15 A. At you pointed out, I believe there was some

16 sort of syncing function between the laptop and what I

17 carried around.

18 Q. Do you still have the same laptop from February

19 of 2007?

20 A. No, I don't.

21 Q. What happened to it?

22 A. Well, I was actually relatively unhappy recently

23 when my computer -- my laptop started to do all sorts of

24 funny things, and my secretary actually switched it out

25 and got me a new computer and set me up with a new28


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1 system.

2 Q. Cool. Which secretary was that?

3 A. That was Leslie.

4 And just to clarify, she actually did use some

5 outside help I believe.

6 Q. That was Leslie Majors?

7 A. Yes.

8 Q. Okay. And what happened to your old computer?

9 A. I'm not sure.

10 Q. And to the best of your knowledge, was the

11 information from your old computer transferred onto your

12 new computer?

13 A. That was my goal and belief.

14 Q. With respect to the calendaring that was used in

15 your laptop in February 2007, what kind of software was

16 it, if you know?

17 MR. DEUPREY: I have to object. Assumes facts

18 not in evidence. He didn't say he had a calendar on his

19 laptop, but go ahead and try to answer the question.

20 BY MS. MULLIGAN:

21 Q. Did I misunderstand you, Doctor? Did you not

22 have some form of calendaring system for your non-direct

23 patient care on your laptop in February 2007?

24 MR. DEUPREY: That is a little different from

25 calendar -- quote, "some form of calendaring system," end29


30/239

1 quote, but go ahead and try to clarify, Doctor.

2 THE WITNESS: The whole point obviously of the

3 laptop is to have some method of recovery if you break,

4 lose your device or something, or the battery runs dead,

5 whatever the case may be. And I certainly had some

6 reasonable form of that, yes.

7 BY MS. MULLIGAN:

8 Q. Did you keep information on something like a

9 Yahoo calendar, or did you have any particular software

10 that was used or Internet provider?

11 A. I'm not aware of the specific, but there was

12 something that I utilized, yes.

13 Q. And Leslie Majors still works for you, correct?

14 A. Yes.

15 Q. Oh, good. Now, with respect to information

16 about appointments that is outside of the non-direct

17 patient care -- that which I have called personal

18 calendaring -- was there any track of your other

19 appointments?

20 A. I'm not sure I understand the question.

21 Q. Okay. We have used the term "personal

22 calendar." You told me that in your mind a personal

23 calendar was any non-direct patient care.

24 Do you remember that testimony?

25 A. Yes.30


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1 MR. DEUPREY: It's ambiguous, but go ahead.

2 BY MS. MULLIGAN:

3 Q. So now I'm talking about anything else. How did

4 you keep track of appointments that were other than

5 personal calendaring in February 2007?

6 A. I'm not sure I understand your question.

7 Q. How did you know where to go when you woke up in

8 the morning and it was a work day?

9 A. For the most part I know what my work schedule

10 is and I would go.

11 Q. Okay.

12 A. The calendaring function was really more for --

13 for example, if I had like a deposition today, it would

14 be in there as out of the norm and I would be able to

15 look at it and find Mr. Deuprey's address in it and come

16 to the appointment.

17 Q. How about with respect to days that you were

18 going to be out of town; did that ever happen in February

19 of 2007?

20 A. I don't recall what my travel schedule was in

21 February 2007.

22 Q. How would you have known what your travel

23 schedule was? How was that maintained in February 2007?

24 A. Travel schedules would typically be in that

25 calendar.31


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1 Q. What we have called the personal calendar?

2 A. The -- whatever palm device that we are talking

3 about.

4 Q. Okay. And how about surgery schedules?

5 A. Typically, no.

6 Q. Where were the surgery schedules maintained?

7 A. At the office.

8 Q. How were they maintained? In paper form,

9 computer form, a combination?

10 A. I'm told from my investigation of -- to the

11 office staff to go look for it that they were maintained

12 on something called Medical Manager.

13 Q. Is Medical Manager a software system?

14 A. Software or computer or technical system.

15 Q. Who is the one that told you that your schedules

16 for surgery for February of '07 were maintained on

17 Medical Manager?

18 A. I don't know that they told me specifically

19 schedules for surgery. It was schedules for patients in

20 general were all maintained on Medical Manager.

21 Q. And who told you that?

22 A. I believe it was Beth.

23 Q. Beth Allen?

24 A. Yes.

25 Q. So if I understand correctly, we have covered32


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1 everything regarding the existence of any calendars in

2 any format that were maintained either personally,

3 professionally or any other capacity for February of '07,

4 correct?

5 MR. DEUPREY: That is ambiguous, assumes facts

6 not in evidence.


8 BY MS. MULLIGAN:

9 Q. Are there any other types of calendars that were

10 maintained in any form whatsoever for any purpose

11 whatsoever regarding you in February of '07 that we

12 haven't talked about?


14 Q. Good.

15 You're the Chargers -- how do you identify it?

16 I don't mean to be disrespectful -- Chargers head team

17 physician; did I get it right?

18 A. Sure.

19 Q. And you were that in February of '07?

20 A. Yes.

21 Q. Did you go to games?

22 A. No.

23 Q. Never? You'd think that would be a perk.

24 You didn't have the responsibility of being in

25 attendance at games at all?33


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1 A. I didn't say that.

2 Q. Okay. I'm sorry. Where did I get it wrong?

3 A. You asked if I went to games and I said no.

4 Q. So you were present, but you weren't there for

5 watching the game. Is that what you mean by

6 distinguishing it?

7 A. To help you out, there are no games in February

8 of '07.

9 Q. Okay. See, you could tell I'm not a football

10 fan.

11 In general, though, when there were games you

12 were present?

13 A. Yes.

14 Q. How did you know where to go and when to go?

15 A. A combination of public knowledge. I think

16 anyone involved with the team or even as a fan probably

17 knows week to week where the Chargers are playing, and

18 that should have been an entry in my palm-type device as

19 well.

20 Q. How about bowl games -- b-o-w-l -- or charity

21 events or anything else that the Chargers may have

22 engaged in; is it your custom and practice to ever be

23 present at such events?

24 A. Sometimes.

25 Q. Were there any in February of '07?34


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1 A. Not that I specifically recall.

2 Q. And if they were, that would have been

3 information that was contained in your palm-pilot-type

4 device?

5 A. Typically, yes.

6 Q. How about rugby -- I'll show you how little I

7 know about almost every sport. Is rugby played in

8 February of '07?

9 A. Yes.

10 Q. As a matter of fact, I see on your C.V., Exhibit

11 2, that it says on Page 2, medical director,

12 International Rugby Board Sevens Tour, 16 Nation,

13 February 2007.

14 Did I get that right?

15 A. I think so.

16 Q. What is that?

17 A. It's a -- IRB is International Rugby Board.

18 It's the international governing body for rugby, and they

19 sanction a -- I don't know if it's an eight nation or ten

20 nation or seven nation -- some tour of the world and San

21 Diego is now one of their stops.

22 Q. Cool.

23 Did you participate in any of the meetings for

24 the International Rugby Board Sevens Tour in February

25 2007?35


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1 A. Yes.

2 Q. When in February was that?

3 A. It was in early February.

4 Q. Was it on either February 9th or 10th?

5 A. I believe it was that weekend.

6 Q. Where was it?

7 A. In San Diego.

8 Q. On the evening of February 9th, say, around

9 midnight, were you in San Diego?

10 A. I believe so.

11 Q. Did you ever tell anybody that you were in Los

12 Angeles on the evening of February 9th or the morning of

13 February 10th?

14 MR. DEUPREY: You are not to refer to any

15 conversations with counsel in answering any questions,

16 but insofar as the question calls for you to respond as

17 to non-attorney conversations, you can respond.

18 BY MS. MULLIGAN:

19 Q. I'm going to repeat the question, and your

20 attorney's objection is noted.

21 Did you ever tell anybody that you were in Los

22 Angeles on February 9th or February 10th?

23 A. I think I did.

24 Q. Were you in fact ever in Los Angeles on February

25 9th or February 10th?36


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1 MR. DEUPREY: You know, you keep saying the 9th

2 and the 10th, Counsel, and I would just ask to have a

3 continuing objection as compound. And he's certainly

4 free to explain when he was in L.A. or not if you want to

5 get to the heart of it.

6 BY MS. MULLIGAN:

7 Q. Were you ever in Los Angeles at any time on

8 February 9th?


10 Q. Were you ever in Los Angeles at any time on

11 February 10th?

12 A. Yes.

13 Q. When?

14 A. Late at night and early in the morning, I guess.

15 Q. Okay. I'm going to assume that we have a common

16 understanding of a clock and time, but -- I don't mean to

17 be sarcastic with you, but I just want to make sure we

18 are on the same wavelength.

19 So at 11:59 on February 9th, we would agree that

20 that is still February 9th, correct?

21 A. Okay.

22 Q. When midnight occurs, is that now February 10th

23 in your mind?

24 A. We can define it that way, sure.

25 Q. Okay. So from any time after 11:59 on the37


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1 evening of February 9th through to midnight the following

2 24 hours later, were you in Los Angeles?

3 MR. DEUPREY: By Los Angeles you mean sometime

4 north of the L.A. county line.


6 THE WITNESS: Repeat the question again so I get

7 the exact time.

8 BY MS. MULLIGAN:

9 Q. That is fine.

10 Any time after 11:59 on the evening of February

11 9th until 24 hours later -- 11:59 on the evening of

12 February 10 -- were you ever in Los Angeles?

13 A. Yes.

14 Q. About what time did you arrive in Los Angeles?

15 A. I'm not sure specifically.

16 Q. Can you give me an estimate?

17 A. In the early morning hours.

18 Q. So sometime after midnight on February 9th?

19 A. Yes.

20 Q. How did you get to Los Angeles?

21 A. I drove.

22 Q. With whom did you drive?

23 A. By myself.

24 Q. Where did you go?

25 A. I was heading to my mom's house.38


39/239

1 Q. What is your mom's name?

2 A. Betty.

3 Q. I assume the last name is the same as yours?

4 A. Yes.

5 Q. Where does your mom live?

6 A. In L.A.

7 Q. Can you tell me what part of L.A.?

8 A. West side.

9 Q. Can you tell me the closest intersection?

10 A. Closest intersection? I guess you want a big

11 one, so Benedict Canyon and Mulholland.

12 MR. DEUPREY: The question assumes facts not in

13 evidence as to whether he ever actually made it to his

14 mother's house.

15 MS. MULLIGAN: We will get there.

16 MR. DEUPREY: Okay.

17 BY MS. MULLIGAN:

18 Q. So if I understand correctly, then, earlier in

19 the evening of February 9th you were present at the

20 International Rugby Board Sevens Tour, 16 Nation. And

21 according to your C.V. that was at Petco Park?

22 MR. DEUPREY: He didn't say that.

23 MS. MULLIGAN: Well, that's the question.

24 MR. DEUPREY: All right.

2539


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1 BY MS. MULLIGAN:

2 Q. Were you present there?

3 MR. DEUPREY: On February 9th she's asking --

4 THE WITNESS: Repeat the question again.

5 BY MS. MULLIGAN:

6 Q. Sure.

7 At any time on February 9th were you at the

8 International Rugby Board Sevens Tour, 16 Nation, at

9 Petco Park?

10 A. I might have gone by there, but specifically

11 there were no games at that point in time, to my

12 recollection.

13 Q. I'm sorry. I didn't mean to interrupt you.

14 Did you meet with anybody that was involved in

15 the International Rugby Board Sevens Tour anywhere at any

16 time on February 9th?

17 A. I don't remember specifically. I know that

18 there were some meetings that week. There were some

19 meetings that led up to the events, and it's my

20 recollection that the games were on Saturday and Sunday,

21 and that -- I'm not sure if there was much going on that

22 Friday or not.

23 Q. So my question was did you meet with anybody at

24 any time, at any place on February 9th as related to the

25 International Rugby Board Sevens Tour? I don't care if40


41/239

1 it was game or social event or a meeting or an exam that

2 you were doing of a player. Did you meet with anybody

3 for any reason from that rugby tour at any time on

4 February 9th?

5 A. I don't know for sure. I know there were a

6 number of meetings from some rugby officials to medical

7 staff that led up to it. I don't recall specifically if

8 it was Friday or Thursday or Wednesday. I know there

9 were several things in the week leading up.

10 Q. Now, what individual or individuals would you

11 meet with? Can you give me names of anybody from that

12 International Rugby Board?

13 A. I don't know that I can give you any names off

14 the top of my head from the International Rugby Board

15 because, A, I don't know them that well and they are

16 usually foreign officials.

17 Q. Other than you, is there anyone else in San

18 Diego that was in any way involved in that International

19 Rugby Board Sevens Tour, whether or not they were

20 technically on the board?

21 A. Involved with the tournament in general?

22 Q. Yes, sir.

23 A. Sure.

24 Q. Who is that?

25 A. Ed Ayub.41


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1 Q. How do you spell his last name?

2 A. A-y-u-b.

3 Q. Anyone else?

4 A. Ed was sort of the right-hand guy assisting with

5 the medical stuff, so he would have had involvement.

6 Q. Does Mr. Ayub reside in San Diego County?

7 A. Yes.

8 Q. And what does he do when he's not involved with

9 international rugby, unless that's his full-time job? Is

10 it?

11 A. No. He does spend time on it, but he's a

12 physical therapist.

13 Q. Where does he work?

14 A. In San Diego.

15 Q. Is he a personal friend of yours?

16 A. I've had a long association with him. I would

17 like to call him a friend.

18 Q. Okay.

19 A. But we don't socialize much together at all.

20 Q. What physical therapy company does he work with?

21 A. I don't know the exact name, but it bears his

22 name.

23 Q. Okay. Is there anyone else you can identify

24 that was involved in any capacity in this International

25 Ruby Tour?42


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1 A. I don't recall any of the other board members.

2 Q. So as you sit here today, you don't have any

3 specific recollection of any meetings of any nature that

4 you had any time on February 9th with anybody from the

5 International Rugby Tour; is that your testimony?

6 A. That's not what I said.

7 Q. I'm sorry. What do you recall?

8 A. I recall that during that week that there were a

9 number of different meetings. I went to the hotel a

10 number of times for medical and other purposes. There

11 were a number of different functions, meetings, that led

12 up to that event, and I don't recall specifically which

13 ones were specifically on February 9th versus the 8th

14 versus the 7th.

15 Q. Would all the meetings that you attended of any

16 nature have been maintained in that palm-pilot-type

17 device we discussed earlier?

18 A. I think some of them would have been, but

19 certainly not all of them.

20 Q. Are there any other places that you are aware of

21 that would contain such information? Files, brochures,

22 memos, anything at all?

23 A. As sophisticated and difficult as the

24 International Rugby Board sounds -- and it is a

25 professional body -- this was a first-time San Diego43


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1 event, and I recall in general that there was -- Dr.

2 Chao, can you come by this meeting at this time. And it

3 would be essentially a mental note, yeah, sure I can.

4 Anything that was officially scheduled was indeed

5 officially scheduled through my secretary and then would

6 have been entered into the device. Anything that I

7 agreed to when they called me directly, I typically don't

8 always know how to officially enter it in and certainly

9 sync everything up.

10 Q. Were any of these meetings arranged through

11 e-mail?

12 MR. DEUPREY: Arranged by e-mail?

13 MS. MULLIGAN: Yeah.

14 Q. Did somebody send you an e-mail saying Dr. Chao

15 can you come to X or Y, and you respond?

16 A. There might have been. I'm not sure. There

17 might have been.

18 Q. Now, you mentioned a hotel; that you may have

19 gone by the hotel for meetings and other purposes. What

20 hotel are you talking about?

21 A. There was a host hotel in Mission Valley.

22 Q. Which hotel?

23 A. It was -- it was a main hotel. I mean I don't

24 remember if it was the Hyatt or the Hilton. It was big

25 hotel. It was a name that we would all recognize in the44


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1 heart of Mission Valley.

2 Q. Did you ever stay there overnight during this

3 international rugby visit?

4 A. No.

5 Q. You said for meetings and other purposes you

6 would go there. What kinds of other purposes were there

7 that you would go to the hotel during this International

8 Rugby Sevens Tour?

9 A. Medical clinics, checks, seeing patients.

10 Q. The patients being the rugby players or

11 employees?

12 A. Yes.

13 Q. Did you go to any cocktail parties or

14 receptions?

15 A. I think there was a meeting -- a general meeting

16 were there was -- were a lot of people but there was some

17 sort of reception involved.

18 Q. Did you attend it?

19 A. There was one meeting -- a bigger meeting that I

20 went to, but I know I didn't stay for all of it.

21 Q. So you went to part of the reception, correct?

22 A. Reception meeting.

23 Q. And was that on the evening of Friday the 9th,

24 if you recall?

25 A. My best estimate is it was earlier in the week.45


46/239

1 Q. Was there any kind of a dinner that you recall

2 on the evening of the 9th?

3 A. There was -- there wasn't any sit-down dinner of

4 any type that I remember, but I remember being invited

5 to -- and going to -- going to some sort of thing where

6 you met some of the International Rugby Board members in

7 a formal fashion, etcetera. I don't remember if that was

8 on Thursday night or Friday night.

9 Q. Do you recall having dinner on Friday night, the

10 9th?

11 A. Specifically, I'm not sure. The function I'm

12 talking about did have some sort of heavy apps or

13 pass-around things.

14 Q. That was the reception that -- I think you

15 called it a general meeting that you were present for

16 either on Thursday night or Friday night, correct?

17 A. There were -- I mean I'm trying to just rack my

18 brain and figure out what night it was for sure and

19 searching for context clues.

20 It was probably either Thursday or Friday. I

21 would imagine it wasn't something on Monday, although

22 there was certainly an organizational meeting on Monday

23 or Tuesday.

24 Q. So this International Rugby Sevens Tour went

25 through the weekend of February 9th and 10th?46


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1 A. Pretty much it was an event that was on the

2 weekend.

3 Q. Do you recall anything that you did at any time

4 after you left Scripps Hospital on the evening of the 9th

5 and before you started driving up to Los Angeles?

6 MR. DEUPREY: That assumes he left Scripps

7 Hospital on the evening of the 9th. Assumes facts not in

8 evidence.

9 MS. MULLIGAN: Whenever you left the hospital.


11 BY MS. MULLIGAN:

12 Q. Sure.

13 From the time that you left Scripps Hospital --

14 whenever it was on February 9th -- until the time you got

15 in your car and were driving north towards L.A., what did

16 you do?

17 A. I believe after I left Scripps I believe I went

18 to my office and saw patients.

19 Q. About what time did you leave the hospital?

20 A. I don't recall specifically.

21 Q. Do you recall if you did any surgeries other

22 than Mr. Fagan's that day?

23 A. Specifically, no, but typically, I do do

24 surgeries.

25 Q. Mr. Durfee told us that your calendar was such47


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1 that you would typically do all surgeries at one hospital

2 on a given day rather than go from hospital to hospital.

3 Did I state that generally correct?

4 A. That would be our general goal, yes.

5 Q. Do you have any reason to believe that you

6 performed any surgeries of any type anywhere other than

7 at Scripps Hospital on February 9th?

8 A. I may have, because typically Friday is a

9 popular day for surgery.

10 Q. And are you aware of any records that exist,

11 either in electronic format, computer entry, paper or

12 anything else, that would reflect what surgeries you did

13 or what patients you saw on February 9th, 2007?

14 A. We talked about Medical Manager at my office

15 being a mechanism to track the appointments. And I was

16 told by and through Beth that for some reason the Medical

17 Manager -- A, we don't use it anymore, and, B, it's not

18 readily retrievable.

19 Q. So the question is are you aware of anything

20 that exists that shows what patients you saw or what

21 surgeries you performed on February 9th?

22 MR. DEUPREY: You're talking about records in

23 his office or personal records or -- as opposed to

24 hospital records?

25 MS. MULLIGAN: Anywhere, because he's now told48


49/239

1 me that they may even be at more than one hospital.

2 Q. If I understood your testimony correctly; is

3 that right, Doctor?

4 MR. DEUPREY: Well, you can try to respond to

5 that, Doctor.


7 MS. MULLIGAN: Sure. I'll have her read it

8 back.

9 (The record was read.)

10 BY MS. MULLIGAN:

11 Q. So, Doctor, are you aware of anything in any

12 format whatsoever that exists that will identify all the

13 surgeries you did and all the patients you saw on

14 February 9th of 2007?

15 MR. DEUPREY: Ambiguous.


17 THE WITNESS: I was informed by Beth when she

18 told me that she doesn't have access to any of those

19 records, and I asked can you get it, and she says the

20 Medical Manager won't give it to her. Perhaps there is a

21 way to try and hire a company to try and retrieve records

22 off of old computer systems. And she did say that it was

23 potentially possible to recreate a new record based off

24 of auxiliary material in the office as in billing records

25 and what have you.49


50/239

1 BY MS. MULLIGAN:

2 Q. By auxiliary records you mean billing records?

3 A. Yes.

4 Q. So your own personal recollection is that you

5 went from Scripps Hospital back to the office?

6 MR. DEUPREY: If you remember, Doctor.

7 THE WITNESS: I don't remember specifically day

8 to day what the schedule was a year and a half ago;

9 however, normally I would do surgeries in the morning on

10 Friday and office in the afternoon on Friday. So it's my

11 assumption that I was at the office in the afternoon.

12 BY MS. MULLIGAN:

13 Q. Do you recall what you did after you left your

14 office on February 9th?

15 A. Specifically, no. It's certainly entirely

16 possible that I went by -- we had a standing, you know,

17 early evening deal if there was anyone that needed to be

18 seen for the rugby players. I don't remember the

19 specific days that I went down there. That happened the

20 whole week. I could have gone by there.

21 Typically I would go home and work out and grab

22 dinner. And it's quite possible, as we have indicated,

23 there were some sort of rugby something Thursday or

24 Friday evening.

25 Q. When you cared for any of the rugby players,50


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1 would you keep chart notes or any type of memorialization

2 of that?

3 A. If there was something that I was going to do

4 more active than an initial exam and rendering advice or

5 treatment, then typically I may try and dictate

6 something.

7 Q. You mentioned that your custom and practice may

8 have been to go home. Do you live alone?

9 A. Yes.

10 Q. You have mentioned that you were driving towards

11 L.A. in the early hours. That was sometime after

12 midnight on the evening of the 9th; is that correct?

13 A. I don't remember the specific time, but yes.

14 Q. Can you give me your best estimate as to what

15 time you -- excuse me. I'm making an assumption I

16 shouldn't make.

17 Is it your recollection that you went from your

18 home to driving north towards Los Angeles, or do you

19 recall anything else or any other place you were at any

20 time that evening?

21 MR. DEUPREY: Ambiguous.


23 THE WITNESS: I know I definitely left from my

24 house to go. I wouldn't have not go home to change or

25 other things before a drive. I'm not a big fan of51


52/239

1 driving, quite honestly, so I know I left from my house.

2 BY MS. MULLIGAN:

3 Q. Other than your home, the hotel in Mission

4 Valley where the International Rugby Board Sevens Tour

5 had meetings, Scripps Hospital and your office, do you

6 recall anywhere else that you were at any time on

7 February 9th?

8 MR. DEUPREY: Where he might possibly have been?

9 He hasn't testified he definitely was at the hotel, but

10 go ahead, Doctor, and try to answer the question the best

11 way you can.

12 THE WITNESS: Well, I don't -- I mean you're

13 asking me for a specific Friday a year and a half ago.

14 MS. MULLIGAN: Yes.

15 THE WITNESS: Certainly I think we all remember

16 things that stand out in life, but I don't know what --

17 when I think about it, what I did last month on Friday

18 for sure unless there was something special.

19 I think I have testified to the fact that there

20 may have been -- and I don't want to say yes for sure and

21 then say no, it was on Thursday or say no for sure and it

22 was on Friday -- but there was some rugby something that

23 I went to in the early evening hours on one of those days

24 that I would recall, but I can't for sure pin it to

25 February 9th.52


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1 BY MS. MULLIGAN:

2 Q. Do you recall anywhere else you were on February

3 9th other than what we have discussed?

4 A. I can't think of any right now.

5 Q. I understand there was an ACSM -- American

6 College of Sports Medicine -- conference in San Diego

7 that weekend. Are you member of ACSM?

8 A. No.

9 Q. So am I right in assuming that you weren't at

10 any of their conferences on the weekend of February 9th

11 or 10th?

12 A. I am not a formal member of ACSM. I have been

13 asked to lecture for them and do some tasks for them, but

14 I'm not an official member. I don't specifically recall

15 in that meeting. I know I have participated in ACSM

16 meetings in the past in San Diego. And I remember

17 participating in one at the Torrey Pines -- is it a

18 Marriott or Hilton? I don't remember, but I remember it

19 being over by Torrey Pines Golf Course. But I don't

20 remember the time course and I don't remember if it was

21 this particular time.

22 Q. Can you give us your best estimate as to

23 approximately what time you left your house on the

24 evening of February 9th with the intent of driving to Los

25 Angeles?53


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1 A. It was late at night. It was something that I

2 thought about doing earlier in the day, because my mom

3 wasn't feeling that well. And in any case I had given

4 some thought about going up earlier in the evening,

5 decided not to because I hate driving in traffic, and it

6 was later that night that I decided, well, if I were to

7 go up now and not miss sleeping, and I'm kind of worried

8 about her, there isn't going to be much traffic. And

9 then I could go up and at least see her in the morning

10 and zip right back down to my other commitments.

11 Q. Can you give me an estimate as to approximately

12 what time you left your home with the intent of driving

13 to Los Angeles?

14 A. As a guess, I'd say midnight-ish.

15 Q. Now, Doctor, you have been deposed two dozen

16 times before. I assume you know the difference in the

17 law between a guess and an estimate.

18 Do you need me to define those for you?

19 A. Sure. Remind me.

20 Q. Sure. No problem.

21 The word "guess" usually means you're

22 speculating; there is no foundation upon which you could

23 base the answer. So if someone were to ask you how long

24 the conference table is in my office, assuming you hadn't

25 been there and no one else that you had communicated with54


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1 had told you about it, it would be shear speculation or

2 guesswork for you to give any answer whatsoever.

3 However, distinguish that, if you will, from an estimate.

4 If somebody were to ask you the length of the conference

5 table in this room, while you may not know the precise

6 dimension, if you had a range of information that you

7 were comfortable with, that would be an estimate.

8 When you use the term "guess" when you were

9 describing about what time you let for Los Angeles, I

10 don't know if you were using it in the common vernacular

11 which may mean that's your best estimate or if you meant

12 it's shear speculation and you have no clue.

13 So can you give me any estimate whatsoever as to

14 the time you left your home with the intent of driving to

15 Los Angeles?

16 A. It was late at night or early in the morning.

17 It would be at a time that I would normally be in bed.

18 And I'm I just proposing midnight as a general answer.

19 Q. What time did you receive the first phone call

20 from Mr. Durfee regarding Mr. Fagan?

21 MR. DEUPREY: By phone call are you including

22 text messages?

23 MS. MULLIGAN: Yes. Thank you, Mr. Deuprey.

24 MR. DEUPREY: Just indicate what you're

25 referring to in responding so the record is clear.55


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1 THE WITNESS: I'm looking at a compilation sheet

2 with times on it that was given to me by my attorney that

3 was prepared by A.J. Durfee. And it looks like on here

4 12:21.

5 BY MS. MULLIGAN:

6 Q. At 12:21 you received a text from Mr. Durfee,

7 correct?

8 A. Yes.

9 Q. Where were you at the time you received that

10 initial text?

11 MR. McCABE: This is a.m.?

12 MS. MULLIGAN: Yes, sir. It's about 21 minutes

13 after midnight.

14 THE WITNESS: In my car.

15 BY MS. MULLIGAN:

16 Q. What county were you in?

17 A. I'm not sure, but I would guess not L.A.

18 Q. Now, if your best estimate was that you left

19 your home at about midnight, am I correct in assuming

20 that you were still within San Diego County at 12:21 when

21 you received the first text?

22 MR. DEUPREY: That calls for deduction and

23 speculation and inference about which he's not sure.

24 Object to it. It assumes facts not in evidence, calls

25 for speculation.56


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1 Just do the best you can, Doctor.

2 THE WITNESS: I don't know for sure which county

3 I was in.

4 BY MS. MULLIGAN:

5 Q. Did you receive and read this text while you

6 were driving or did you pull over and read it?

7 A. I believe while driving.

8 Q. While you were driving down the freeway you were

9 reading the text; is that your testimony?

10 A. Maybe, yeah.

11 Q. Now, I know that there is ear pieces that help

12 people talk when you're on the phone, but at least as far

13 as I know when you're reading text you are actually

14 looking at that little screen. Is that how you read your

15 text messages?

16 A. Typically I read by looking.

17 Q. Did you pull over onto the side of the road when

18 you responded to Mr. Durfee's initial text, or did you do

19 that while driving, too?

20 A. I may have done it while driving.

21 Q. Is there a reason you just didn't talk to

22 Mr. Durfee when you received his initial text?

23 A. I think it was my natural response that if he

24 texted me, that I would respond in the same fashion. I

25 didn't give it much thought, I don't think. It's just57


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1 whatever is most convenient.

2 Perhaps somewhere in my mind there was a thought

3 that it is kind of late at night; I know he's got a wife

4 and a baby, and do I really want to call and wake people

5 up. And he texted me for a reason, so I texted him.

6 Q. According to the text messages Mr. Durfee gave

7 us, you never texted him and said please call me; is that

8 correct? Because certainly that would have taken care of

9 the problem with his wife and his baby being awake.

10 MR. DEUPREY: That's argumentative and compound.

11 BY MS. MULLIGAN:

12 Q. Did you ever text him and ask him to call you?

13 A. I don't recall doing that.

14 Q. Is it your testimony that each of these text

15 messages were received by you while you were driving on

16 the freeway?

17 A. Being that I'm putting together some general

18 statements and recollections and clearly referring to

19 this piece of paper to narrow down to 12:21, I don't

20 remember all of the specific circumstances, but in

21 general I was driving.

22 Q. You live in La Jolla, correct?

23 A. Yes.

24 Q. So approximately how long does it generally take

25 you to get from your home in La Jolla to your mother's58


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1 home on the west side of L.A. assuming no traffic?

2 A. Approximately two and a half hours.

3 Q. And am I correct in assuming there was no

4 traffic on the evening of February 9th and the morning of

5 February 10th?

6 A. I don't recall specifically, but I don't recall

7 there being any big traffic jam.

8 Q. From the time you received the first text

9 message at 12:21 until the time you received the last

10 text message at 2:42, is it your recollection that you

11 were in your car the entire time?

12 A. I don't recall where I was at when I received

13 the last text message, because there were more

14 communications than just this between me and other

15 people.

16 Q. And we will be going through those.

17 How about the second to the last text message at

18 2:41; Mr. Durfee said you texted him, do not need him; I

19 have it covered; go to bed, thanks.

20 Did you send that text message while you were

21 driving on the freeway?

22 A. I don't recall specifically, because as I was

23 dealing with this and driving and talking to other

24 physicians, and even after I stopped my text with A.J.,

25 the happenings of the evening did not stop for me, so I59


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1 don't know that I made mental note of where I was when

2 texting stopped or started.

3 Q. Did you ever reach your mother's home that

4 evening or that early morning?

5 A. Yes.

6 Q. About what time?

7 A. It was late.

8 Q. Give me an estimate.

9 A. Assuming I left around midnight, plus or minus,

10 that would put it at 2:30.

11 Q. Do you recall making any stops at any time from

12 when you first got in your vehicle at your home in La

13 Jolla until you arrived at your mother's place on the

14 west side of Los Angeles?

15 A. I don't recall stopping.

16 Q. We will go in detail into this latter, but you

17 mentioned that evening after you stopped communicating

18 with Mr. Durfee that you were still communicating with,

19 quote, "other physicians." I assume one of those

20 physicians is your brother James Chao, correct?

21 A. Yes.

22 Q. There has also been an emergency room physician

23 identified as Dr. Morikado, M-o-r-i-k-a-d-o. You spoke

24 with her?

25 MR. DEUPREY: Just -- your question, though, now60


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1 is getting a little ambiguous as to the time frames that

2 he spoke to these physicians.

3 BY MS. MULLIGAN:

4 Q. Anybody you spoke with on the evening of the

5 9th, morning of the 10th while -- from the time you

6 received the first text from A.J. Durfee while you were

7 still in Los Angeles at your mom's house. In other

8 words, before you got back into San Diego.

9 Do you understand the time frame?

10 MR. DEUPREY: So it's any -- the time frame is

11 before he got back to San Diego after traveling up north?


13 THE WITNESS: After I traveled or during?

14 MS. MULLIGAN: Any.

15 THE WITNESS: Any inclusive?


17 THE WITNESS: Okay. The question is?

18 BY MS. MULLIGAN:

19 Q. Identify all the physicians with whom you

20 communicated.

21 A. I spoke with Dr. -- this is in no order --

22 Q. Sure.

23 A. -- but I spoke with Dr. James Chao; I spoke with

24 Dr. Morikado; I spoke with Dr. Sanzone.

25 Q. Can you spell that name, please?61


62/239

1 A. S-a-n-z-o-n-e.

2 Q. What is Dr. Sanzone's first name?

3 A. Tony.

4 Q. Thank you.

5 Any others?

6 A. I spoke to one other physician and I'm pretty

7 sure it was Dr. David. It could have been Dr. King.

8 Q. Dr. Tal David, T-a-l?

9 A. Yes.

10 Q. And what is Dr. King's first name?

11 A. Byron.

12 Q. Dr. Byron King.

13 And you're not sure between Dr. Tal David or

14 Dr. Byron King --

15 A. It would typically be my first phone calls. And

16 I know I spoke to one of them and I'm not sure which one

17 it was, but I didn't have a very lengthy conversation.

18 Q. Who is Dr. Tony Sanzone?

19 A. He's an orthopedic trauma specialist.

20 Q. Is he part of Oasis or has he ever been?

21 A. No.

22 Q. What is his relationship to you, if any?

23 A. A colleague.

24 Q. Is there a reason you called him rather than any

25 other orthopedic specialist?62


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1 MR. DEUPREY: Well, he didn't say that. He

2 didn't say he didn't call any other orthopedic

3 specialist.

4 MS. MULLIGAN: Oh, I'm sorry.

5 Q. Did you call anybody else that we haven't yet

6 identified?

7 MR. DEUPREY: No, no. That is a different

8 question. He said before he's pretty sure he talked to

9 Dr. David. He knows he talked to another orthopedist; it

10 could have been King. Then you asked him who is Sanzone,

11 and he said an orthopedic trauma specialist. So I don't

12 want to interrupt, but --

13 MS. MULLIGAN: That's okay.

14 Doctor, do you need a break?

15 THE WITNESS: If you don't mind.

16 MS. MULLIGAN: Not al all. Go right ahead.

17 THE WITNESS: I didn't get coverage for this.

18 People know I'm in town.

19 MR. DEUPREY: Just be sure to take your

20 microphone off.

21 VIDEOGRAPHER: Off the record at 10:54.

22 (Recess taken.)

23 VIDEOGRAPHER: Back on the record at 11:12.

24 BY MS. MULLIGAN:

25 Q. Doctor, I'm torn between respecting your mom's63


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1 right of privacy and fear of being sandbagged at

2 arbitration or trial, so let me ask you a few questions

3 and we'll see how you and your attorney want to handle

4 it.

5 You talk about your mom not feeling well. Were

6 you going there to treat her medically as a doctor?

7 A. I was primarily going up there as a son that

8 feels guilty that I haven't seen her very often and that

9 she was alone and not feeling well. Certainly if there

10 was something that came up that I could treat, I probably

11 would try and step in, yes.

12 Q. Again, along those same lines, the question was

13 it something that you feared was a serious

14 life-threatening illness, or is it more the guilt of

15 being the dutiful son that wanted to see the mother or

16 something else?

17 A. Well, without being overly mellow-dramatic, my

18 mom is not the kind of person that if it really were bad

19 to say that it's really bad. She's always going to say,

20 as an immigrant, her personality and whatever, she's

21 going to say no, I'm fine; I know you're busy. And I

22 wasn't -- I'm not suggesting that I was speeding up there

23 to save her life in any way, shape or form, but I'm not

24 sure where she was. My assumption was that she just

25 wasn't feeling that well and there was nothing to take64


65/239

1 her to the emergency room for or anything else, but

2 perhaps my peace of mind would be better having just seen

3 her.

4 Q. Your mom lived alone?

5 A. She was alone at the time.

6 Q. I'm sorry. I don't understand. Did she live

7 alone?

8 A. Can we take a minute?

9 MR. DEUPREY: Well, you really need to get into

10 this sort of personal information, seriously?

11 MS. MULLIGAN: Well, again, I'm torn between how

12 much is going to come up later, and if she didn't live

13 alone and there is somebody else that's going to come in

14 as a witness one way or the other, now would be a good

15 time to know it. So I apologize.

16 MR. DEUPREY: I think he's said that she was

17 alone at the time, so doesn't that eliminate your concern

18 about some other witness coming in?

19 BY MS. MULLIGAN:

20 Q. At any time while you were with your mother on

21 the 9th or 10th -- I guess it was more the 10th -- did

22 anyone else come to her home?

23 A. Did anyone else what?

24 Q. Come to your her home.

25 A. No.65


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1 Q. And you were alone when you drove up there,

2 correct?

3 A. Correct.

4 Q. Now, your brother is also a physician. Do you

5 have other siblings?

6 A. No.

7 Q. So it's just the two of you?

8 A. Correct.

9 Q. Had your brother seen your mother within -- I

10 don't know -- three or four days prior to this drive you

11 took on the night of the 9th and 10th?

12 A. I don't think so, and I would doubt it.

13 Q. Now, did you expect your mom was going to be

14 awake when you arrived at her home that early morning?

15 A. No.

16 Q. And what, if anything, did you have to do in San

17 Diego the day of the 10th?

18 A. I needed to be back to serve my function for the

19 rugby event that we talked about.

20 Q. And what time were you scheduled to begin any

21 meetings or rounds with patients or anything else?

22 A. I think I had a drop dead of close to 10:00

23 o'clock.

24 Q. By drop dead, what do you mean by that?

25 A. Well, I mean, you know, the earlier I got there,66


67/239

1 perhaps the better. I was really targeting essentially

2 10:00 o'clock. There were other physicians involved, but

3 I felt like I needed to be there by 10:00 approximately.

4 Q. And where were you going to be at 10:00?

5 A. At the rugby event.

6 Q. And where was that going to be?

7 A. Downtown.

8 Q. At Petco Park?

9 A. Yes.

10 Q. And did you have the intent that you were going

11 to do rounds at the hospital before that rugby event or

12 anything else?

13 A. At what point in time?

14 Q. At any time on that Saturday, February 10th.

15 A. Well, my intent and custom and practice would be

16 to round as necessary, whether it's in the morning, in

17 the afternoon or both.

18 Q. You had staff privileges at several hospitals in

19 February of '07, correct?

20 A. Yes.

21 Q. Which hospitals?

22 A. I believe obviously Scripps Memorial, Scripps

23 Mercy, UCSD Thornton.

24 Q. Anything else?

25 A. I think Continental.67


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1 Q. Did you have an intent to do rounds at all four

2 hospitals on the 10th?

3 A. No.

4 Q. Which hospitals did you have an intent to do

5 rounds at?

6 A. Wherever necessary, but really the only one was

7 Scripps Memorial.

8 Q. And with respect to the rugby event, you told me

9 the drop dead time, if you would, was to be there by

10 10:00 o'clock in the morning, correct?

11 A. That was my target, yes.

12 Q. What was the time commitment that day with

13 respect to your involvement with rugby?

14 A. I believe there were matches through

15 approximately late afternoon or 6:00 o'clock.

16 Q. 6:00 p.m.?

17 A. I believe so.

18 Q. So you were going to do rounds after 6:00 p.m.?

19 A. Before and/or after, depending on the

20 circumstances.

21 Q. So when you drove up to L.A., I believe you told

22 me you got there -- I don't want to put words in your

23 mouth -- but about 2:40 in the morning, something like

24 that?

25 MR. DEUPREY: Well, it's been asked and answered68


69/239

1 and calls for speculation in light of his previous

2 answer.

3 BY MS. MULLIGAN:

4 Q. Let's do it this way: You said your best

5 estimate that you left Los Angeles -- excuse me -- left

6 San Diego about 2:00 o'clock, and without traffic it

7 would typically take you two and a half hours to get to

8 your mom's house, correct?

9 MR. DEUPREY: I think you misspoke.

10 MS. MULLIGAN: Oh, I'm sorry. Where did I get

11 it wrong?

12 MR. DEUPREY: I think you said he left San Diego

13 at 2:00 o'clock in your question.

14 MS. MULLIGAN: Let's start over again. I

15 apologize if I'm confusing the issue.

16 Q. Doctor, I believe you told me your best estimate

17 was you left San Diego approximately midnight on the 9th;

18 is that correct?

19 A. Approximately, with a plus or minus factor.

20 Q. And typically without traffic it would take you

21 two and a half hours to get to your mother's home?

22 A. I think that's about right.

23 Q. So if your best estimate as to your departure

24 time was at midnight, then your best estimate as to the

25 time you likely arrived at your mom's home is about 2:3069


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1 in the morning on February 10th?

2 A. Give or take the estimating that we are doing.

3 Q. Now, with respect to returning to San Diego the

4 next morning, if you had to be in San Diego by 10:00

5 o'clock -- and I assume you would have expected to it to

6 be a two and a half hour trip back to San Diego?

7 A. Sure.

8 Q. And so can you estimate for me what your intent

9 was in terms of what time you were going to leave San

10 Diego on the morning of the 10th?

11 A. My mom is usually an early riser. My intent was

12 just see her in the morning and say hello, offer to take

13 her out to breakfast knowing that she probably wouldn't

14 go and just hang out with her for an hour and then take

15 off.

16 Q. So if I'm doing the math correctly, was it your

17 intent to leave Los Angeles, your mother's home, no later

18 than 7:30 in the morning?

19 A. I think that would be affair intent, or sooner

20 if I --

21 Q. Or even earlier?

22 A. Potentially, yes.

23 Q. Did your mom know you were coming?

24 A. Yes.

25 Q. Was she awake when you in fact arrived?70


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1 A. No.

2 Q. I'm going to switch gears, if I may, and go back

3 to some of these documents and subpoenas later.

4 With respect to your own chart before you, I

5 assume that's the Oasis chart?

6 A. Yes.

7 MS. MULLIGAN: Is this the same chart that was

8 produced at Mr. Durfee's deposition?

9 MR. DEUPREY: Yes. In fact I think that rubber

10 band around it is from my office.

11 MS. MULLIGAN: I'm going to save a few tree

12 branches by not making another copy.

13 Q. But, Doctor, you have reviewed that chart,

14 correct?

15 A. Not really.

16 Q. You have not reviewed it to prepare for your

17 deposition?

18 A. I don't think I looked at it much at all.

19 Q. When was the last time you did review it?

20 A. Probably when he was in my office.

21 Q. To the best of your knowledge, based on your

22 recollection, has anything ever been added to that chart

23 that was not contemporaneous with the times and dates of

24 the entries contained in that?

25 A. I'm not aware of anything.71


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1 Q. Are you aware of anything that has been removed

2 from that chart at any time?

3 A. No.

4 Q. Are you aware of any changes that were made to

5 that chart at any time?

6 A. No.

7 Q. Now, with respect to the hospital chart, it's

8 voluminous. I'm assuming you haven't reviewed the whole

9 thing to prepare for your deposition?

10 A. That's correct.

11 Q. Good. With respect to the care and treatment

12 you gave to Mr. Fagan, you were his physician from the

13 time he was admitted to Scripps Memorial Hospital on

14 February 9th until his time of discharge, correct?

15 A. I was one of his physicians, yes.

16 Q. While you were his physician, I assume that you

17 have reviewed portions of this chart in order to evaluate

18 and treat him, correct?

19 MR. DEUPREY: She's asking during the treatment

20 time frame.

21 THE WITNESS: During the treatment I would look

22 at relevant portions as needed.

23 BY MS. MULLIGAN:

24 Q. To the best of your knowledge, did you ever

25 notice anything in the chart that looked to you like it72


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1 was falsified?

2 MR. DEUPREY: That is ambiguous as to what you

3 mean by, quote, "falsified."

4 BY MS. MULLIGAN:

5 Q. Do you know what I mean, Doctor?

6 MR. DEUPREY: Well, it's still ambiguous.

7 MS. MULLIGAN: That's fine. Your objection is

8 noted.

9 Q. Do you know what I mean by falsified?

10 A. I'm not sure.

11 Q. Well, I've heard the expression before as

12 doctored, but I didn't want any pun intended on the word

13 doctored.

14 When you were treating Mr. Fagan and had access

15 to the Scripps Memorial chart, did you see anything in

16 the chart that looked to you that it had been changed?

17 MR. DEUPREY: Same objection. Ambiguous.

18 THE WITNESS: While I was treating him did I see

19 anything that looked like it was changed?

20 BY MS. MULLIGAN:

21 Q. Yeah.

22 A. I'd have to go back in time course to while I

23 was treating him. I can say I certainly didn't look for

24 anything that was changed. I did note that there were

25 some corrections and/or inconsistencies on at least one73


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1 document at the time, but I didn't analyze it.

2 Q. What document are you talking about?

3 A. Immediately -- and I don't recall if it was -- I

4 guess it wouldn't be the 9th. It would be the 10th

5 and/or 11th I remember looking back at the history of how

6 we got here.

7 Q. And what did you -- what document are you

8 talking about that had inconsistencies or corrections in

9 it?

10 A. At that time I noted the corrections in a -- I

11 don't know what you would call it -- a nursing assessment

12 form of some sort. I don't remember the title.

13 Q. If I understand your testimony correctly, on

14 February 10th or 11th you were looking at a document.

15 It's not necessarily a document that was dated the 10th

16 or 11th.

17 Did I get that right?

18 A. Yes.

19 Q. And the document that you're describing is some

20 kind of a nursing assessment that must have been --

21 what -- from the 9th or from the 10th or from the 11th?

22 A. I believe it was from the 9th/10th.

23 Q. Because I don't know what you're talking about,

24 I'm going to show you some stuff and let's see if any of

25 those appear to be the document.74


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1 I'm showing you documents that are Bates stamped

2 second image 748, 749 and 750, which are med/surg floor

3 sheets P.M. patient assessment from February 9th and

4 10th.

5 Is that the document you're talking about?

6 A. This wasn't the specific document I was talking

7 about.

8 Q. Just so we have an identity of what I have given

9 you, I'll mark those pages from second image 748 through

10 750 as Exhibit 5.

11 Doctor, would you mind putting that sticky on

12 Exhibit 5.

13 (Exhibit 5 marked for identification.)

14 BY MS. MULLIGAN:

15 Q. I see you'r

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David Chao deposition

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