A A AGA - LTC Forum

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R. Bonfiglio - Direct by Mr. Cohen

MARY BETH PERKO, RMR (412) 350-5414

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MR. COHEN: May it please the Court,

Plaintiffs call Dr. Richard Bonfiglio.

(Oath administered.)

- - -

RICHARD BONFIGLIO, M.D.

a witness herein, having been first duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MR. COHEN:

Q. Can you state your name, please.

A. Richard Paul Bonfiglio.

Q. You are a medical doctor?

A. Yes, sir.

Q. Dr. Bonfiglio, what is your specialty of medicine?

A. I specialize in the field of physical medicine and

rehabilitation.

Q. Would you explain to the jury what that specialty of

medicine is.

A. Yes. Physicians in physical medicine and

rehabilitation deal with children and adults who

have various disabling conditions. So we routinely

work with people that have had brain injuries,

spinal cord injuries, strokes, amputations, also

individuals who are deconditioned because of organ

system failures, problems with their heart, their

LATTAKER v. MAGEE

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lungs, kidney, liver, and we also deal with chronic

pain issues as well.

The major difference between

rehabilitation medicine and other fields of medicine

is that we focus on trying to improve the level of

functioning for the individuals that we're working

with. So whether they have problems with walking,

talking, doing day-to-day activities, we try to

improve their level of functioning. Sometimes it's

a matter of ordering the appropriate diagnostic

testing. Oftentimes it's providing treatment that

includes therapies as well as medicines.

We oftentimes work in a team along with

physical therapists, occupational therapists, speech

therapists, vision therapists, rehabilitation

nurses, psychologists, social workers or case

managers, vocational specialists, depending upon the

particular needs of the individual, again, the whole

focus being trying to help the individual to be more

independent with day-to-day activities.

Q. Dr. Bonfiglio, at my request did you conduct several

examinations of Julian Bolton?

A. Yes. I've had the opportunity to see him twice

before today.

Q. You've come here today at our request to render

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certain opinions about his current condition and his

future condition and his future needs?

A. Yes, sir.

Q. Before we get into that, Doctor, let me review your

educational background.

Where did you grow up?

A. So I was born in Lima, Ohio. When I was two my

parents moved to Greenville, Ohio. I grew up there.

It's a town of 12,000 close to Dayton, Ohio.

Q. Where did you go to college?

A. I went to the University of Michigan both for

undergraduate and medical school and graduated from

the medical school in 1978.

Q. Why don't you take us up through your education

experience.

A. Yes. So I graduated from medical school in 1978. I

then did an internship at Riverside Methodist

Hospital in Columbus, Ohio, did a residency in

physical medicine/rehabilitation at Ohio State

University, and I completed my residency in 1981.

Q. What did you do after you completed your residency?

A. When I finished my residency in 1981 I came here to

Pittsburgh and worked at the Harmarville

Rehabilitation Hospital. I was the medical director

of the outpatient department. At that time I

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primarily worked with injured workers, people hurt

on the job, focused on helping people get back to

work, and I did that initially from 1981 until 1985.

Q. Then what did you do professionally?

A. I then moved down to Birmingham, Alabama, tried to

develop a similar program at Lakeshore Hospital in

Birmingham. I also worked at Medical Center East

Hospital for an inpatient rehabilitation unit taking

care of primarily patients with strokes and people

that had total joint replacements.

I did that for two years and then moved to

Chicago where I was the medical director of the

Schwab -- that's S-c-h-w-a-b -- Rehabilitation

Hospital, was also a residency program director.

So there were residents in physical

medicine/rehabilitation at the hospital, and I was

in charge of their educational program. I was also

the chairperson of rehab medicine at Mount Sinai

Hospital in Chicago, did that from 1987 to 1991. I

then moved to Philadelphia where I was the medical

direct of Bryn Mawr, B-r-y-n M-a-w-r, Rehabilitation

Hospital. I was there from 1991 until 1996.

I then came back to Pittsburgh and went

back to Harmarville. Instead of being medical

director of the outpatient department, I was medical

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director of the whole hospital. I did that for

about eight years.

For about the last 13 years I've just been

doing an outpatient practice. So I've given up my

administrative responsibilities. I'm just seeing

outpatients, and I have an office out in

Murrysville, which is just beyond Monroeville. So

I'm seeing primarily adults but some children with

various disabling conditions, as I already talked

about, mainly on an outpatient basis.

Q. Dr. Bonfiglio, you've held some academic positions.

Can you tell us about your academic experience.

A. Yes. Throughout the time I've been in practice,

I've had one or more medical school affiliations.

So when I came back to Pittsburgh I was on the

faculty of the University of Pittsburgh in the

Department of Occupational/Environmental Medicine.

That program subsequently closed.

I do still have faculty positions at the

Temple Medical School, which is in Philadelphia, but

they have a branch campus here in Pittsburgh, and I

also have a faculty position with LECOM, the Lake

Erie College of Osteopathic Medicine.

Q. Are you board certified in physical medicine?

A. I am board certified in the field of physical

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medicine/rehabilitation. I've been board certified

since 1982.

Q. How did you become board certified in that

specialty?

A. To become board certified in physical

medicine/rehabilitation you have to take a two-part

examination, a written exam and an oral exam. The

oral exam is just given once a year at the Mayo

Clinic in Rochester, Minnesota. Obviously you have

to complete medical school, residency. You have to

successfully complete the written part and the oral

examination, and I did that and finished that in

1982.

Q. I'm going through your resume and summarizing it. I

see that you've attended about 80 or so continuing

professional education courses?

A. Yes.

Q. You are licensed in Ohio, Pennsylvania, Alabama,

Illinois, Maryland, West Virginia, and Florida, or

have you had those --

A. Yes, I have had licenses. So presently I'm licensed

in Pennsylvania, Ohio, West Virginia, North

Carolina, Florida, and Michigan.

Q. Have you published in the field?

A. I have published in the field of physical medicine.

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Q. Can you tell us about that.

A. I published a number of things in physical medicine

and rehabilitation, both journal articles and book

chapters. The two major areas of focus have been on

pain management, evaluating and treating individuals

with different pain issues. Particularly early on

in my practice that was a lot of what I did. So I

published with regards to that.

Secondly, I've been involved in evaluating

people that have had catastrophic illnesses and

injuries, and it's an area of medicine called life

care planning.

A life care plan is a plan outlining what

are the future care needs for somebody that's had a

catastrophic injury or illness. What medical care

are they going to need in the future? What

therapies? What medications, housing, day-to-day

care? So all of that goes into a life care plan.

My involvement as a physician has been to

provide a medical foundation for life care plans, so

to establish what are the ongoing needs for the

injury? What can be expected as far as future

improvements, future problems? And what kind of

care would make a difference in improving both the

quality and quantity of life for an individual who

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has such a problem?

Q. So your necessary input to a proper life care plan

finds you consulting in court cases. Is that true?

A. Yes, sir. So life care plans are developed for

other reasons, but oftentimes they are developed for

situations where there is potential for litigation

and there is the potential for coming to court, as

today, and explaining what the needs are for someone

like Julian.

Q. You have given quite a few lectures over the years.

Can you give us an idea of the lectures and where

you've --

A. Yeah. I've given I believe over 500 lectures over

the course of my career. It averages out to about

one a month over the 36 years that I've been in

practice.

The lectures, again, are on different

areas of physical medicine and rehabilitation,

everything from treating patients with different

disabling conditions including pain, spinal cord

injury, brain injury, stroke, as well as helping

with teaching about life care planning, the medical

foundation of life care planning.

The University of Florida has had a

program teaching life care planning, and individuals

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can then become certified with that. My particular

focus has been on giving lectures on the medical

foundation of life care plans for children and

adults with brain injuries. So I have done that.

I had the privilege of lecturing at

various residency programs across the country as

well as I've given a number of talks around the

world as well including Brazil, Japan, China,

Portugal. So I've been to a few different countries

to give talks as well.

Q. Talk about your book chapters, journal articles. I

see your resume has about 26.

A. Sounds about right, yes, sir.

Q. Could you give us an idea of the professional

societies to which you subscribe or are a member.

A. Yes. So in addition to the county, state and

American Medical Association, I'm also a member of

several organizations that involve physicians in

physical medicine and rehabilitation including the

American Academy of Physical Medicine and

Rehabilitation.

There's also one specifically for

rehabilitation physicians that teach at medical

schools and universities, and there's one that's the

American College of Rehabilitation Medicine

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including not only physicians but therapists,

psychologists and others, everybody involved in the

rehabilitation process.

Q. And finally your resume lists a quite a number of

community activities. Can you give us a sampling of

that.

A. Yes. So I have done a lot of different community

activities including I've started working with the

homeless here in Pittsburgh to try to help get them

off the streets, back into some residential

situation. I've also this year went to Nigeria in

the middle of Boko Haram and surveyed a hospital

there to try to improve the care. It's an Anglican

hospital, but 90 percent of the patients are Muslim.

Boko Haram kidnapped all those young women, aren't

happy about us giving care to Muslims. So I went

there and did that.

I've also been involved with an

organization that provides free assessments to

individuals and families of patients with very

severe brain injuries, people that are in what's

called a persistent vegetative state, and I'm on a

board for that.

I'm also on the board of what's called the

Miracle League in Murrysville. We have a baseball

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R. Bonfiglio - Voir Dire by Mr. Conti


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field for children and adults with disabilities. If

you can imagine being able to play baseball, a lot

of kids are very disabled, and they have to have a

buddy, an able-bodied child who will help them swing

and then help push them in their wheelchairs around

the bases and things. So that's been an exciting

activity as well.

MR. COHEN: Thank you. I offer

Dr. Bonfiglio as an expert in the field of

physical medicine.

- - -

VOIR DIRE EXAMINATION

BY MR. CONTI:

Q. Good morning, Doctor.

A. Good morning.

Q. Just so we have some idea more broadly of your

background, you have been reviewing medical-legal

cases for decades?

A. Yes, sir.

Q. And you've given thousands of depositions, haven't

you?

A. Yes, sir.

Q. And you've testified in court hundreds of times, by

deposition or live testimony?

A. Yes, sir.

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Q. And you, Dr. Bonfiglio, are paid hundreds of

thousands of dollars a year to do this?

A. Yes, sir.

Q. As much as 400 or 500 thousand dollars a year?

A. Yes, sir.

Q. To testify?

A. Well, that includes -- I don't get paid that to

testify but to do the evaluations, review the

records, all the different aspects of it, yes, sir.

Q. You charge $5,000 just to agree to take on a case?

A. Yes, sir.

Q. You charge $575 an hour to review medical records?

A. Yes, sir.

Q. Doctor, you also have a private practice?

A. Yes, sir.

Q. So you get $575 an hour to review medical records.

How much would you get paid to examine a patient for

one hour?

A. So it depends upon the funding source. The billing

is comparable. It's around $600 an hour.

Q. What would you get paid?

A. It depends on the funding source.

Q. How much would you get paid? About a hundred

dollars?

A. I would say between $100 and $300. Some patients I

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see for free, too. So it can be anywhere from

nothing to up to $300.

Q. You charge $350 an hour travel time?

A. Yes, sir.

Q. So just to get in your car or on an airplane to

testify in a case in Georgia, you charge whoever is

paying the bill $350 an hour?

A. Yes, sir.

Q. Now, you've testified the work you do in

medical-legal, this medical-legal work, about

80 percent or more is for plaintiffs; correct?

A. So of the cases referred to me, about 70 percent are

plaintiff and about 30 percent's defense.

Q. And you've testified in court cases in at least 33

states around the country?

A. I believe so, yes, sir.

Q. Georgia, Alabama, Florida certainly; correct?

A. Yes, sir.

Q. Now, do these states -- Let's take Georgia. Let's

take Florida. Are there qualified physiatrists,

rehab specialists, in those states?

A. Yes, sir.

Q. Are there qualified rehabilitation physicians in

California and other states where you testify?

A. Yes, sir.

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Q. But the lawyers there are willing to pay you -- I'm

sorry.

What's your travel expense? $350 an hour

just to travel there; correct?

A. Yes, sir.

Q. And then once you get there you charge them for your

testimony close to $800 an hour?

A. Well, $750 for the first hour and then I believe

$600 for each hour thereafter.

Q. The fee schedule I have says $775 an hour. To me

that's close to $800.

A. Yes, sir.

Q. Nice work if you can get it.

MR. COHEN: Is that a question?

MR. CONTI: Well, it is, but I'll

withdraw it.

Q. For video conferencing you've charged $850 an hour?

A. Yes, sir.

Q. If somebody asks you to do something quickly, we

call that an expedited review. You charge them a

50 percent surcharge?

A. I don't know that we've ever done that, but it is on

the fee schedule.

Q. 50 percent surcharge for expedited review; correct?

A. Yes, sir.

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Q. What's the lowest hourly rate you quote on your fee

schedule?

A. I believe it's the $575, other than the travel,

$350.

Q. $575 an hour for deposition; right?

A. For record review, patient evaluation.

Q. Who sets these hourly rates? You do?

A. Yes, sir.

Q. How many hours a week do you devote to medical-legal

matters of any sort, litigation matters of any sort?

At least 20; right?

A. No. It's about 10 to 12 hours a week.

Q. Have you ever in the past said you devote close to

15 or 20?

A. There are times that I'll do more. It varies from

week to week, but I'd say 10 to 12 on average.

Q. Years ago you actually started a company to help

lawyers findings expert witnesses or to help lawyers

in medical-legal matters, didn't you?

A. Yeah, back in 2001, yes, sir, around 2000, 2001.

Q. That company didn't work out?

A. That is correct. So the major focus was trying to

help attorneys to organize records, found that the

attorneys weren't that interested in that, but they

were interested in finding expert witnesses. But

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there were a lot of other companies that do that, so

the company only existed for about a year and a

half.

Q. On most cases you get paid between $10,000 and

$25,000?

A. Well, it varies tremendously. There are some cases

that end up settling before I even do an evaluation

of a patient. There are other cases -- if it goes

to trial, for instance, I would say that's true.

Very few of the cases go to trial, though. This is

only the third trial I've done this year.

Q. This year?

A. Yes, sir.

Q. So you consider just three appearances in court over

nine months to be a slow year for you?

A. Well, it normally is five to eight per year is

typically how many cases. So this year has been a

little bit slower, yes, sir.

Q. And those are the cases that would be generating at

least $25,000 in fees for you?

A. Well, I'd say between the 10 and 25 thousand dollar

number you quoted for cases that go to trial.

Q. And you fly anywhere in the country to do this?

A. If I'm asked to evaluate, I certainly will fly to

places to see patients, yes, sir.

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Q. And you've written articles on litigation? You've

written an article called the Role of the

Physiatrist in Neuro Litigation?

A. Yes, sir.

Q. Neuro litigation is litigation involving neurologic

injuries, brain injuries?

A. Brain injury and spinal cord injury, yes, sir.

Q. You've written an article called, quote,

"Medical-Legal Testimony and the Expert Witness,"

end quote?

A. Yes, sir.

Q. Now, your field is physiatry or rehabilitation

medicine; right?

A. Yes, sir.

Q. But you've actually given standard of care testimony

against family practitioners and practitioners in

internal medicine and orthopedic surgery?

A. So I've given testimony in standard of care in

situations like pressure ulcers. A pressure ulcer

is a bedsore that can develop if an individual's not

turned frequently. So I've certainly given

testimony about that. And from time to time then

that includes physicians in other specialties.

As far as standard of care with regards to

orthopedic surgery, I know there was a case where I

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was on the defense, somebody with back pain, and a

physician was being sued about it, and it was my

opinion that nothing the physician had done had

contributed to that. That's the only one I can

think of that dealt with orthopedic surgery. That

was a long time ago.

Q. You worked for a time in Birmingham, Alabama?

A. Yes, sir. I worked for two years down in

Birmingham, Alabama.

Q. You were terminated from your position at a facility

in Birmingham?

A. Yes. I was at Lakeshore Hospital, and I was

planning to go to Medical Center East. They found

out about it before Medical Center East opened their

rehab unit, so a number of physicians left around

the same time. So they did terminate me before I

left. That is correct.

Q. These, quote, life care plans that you talk about,

life care plans are almost always used in litigation

by plaintiffs to describe what they are going to

argue are the damages and the injuries; correct?

A. So life care plans are most often used for

litigation, more often by Plaintiff but sometimes

also by defense to outline what future needs are for

an individual. I use the same principles that are

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used in life care planning, though, in every patient

that I see in outlining what their future needs are.

Most patients with a catastrophic injury that I am

seeing clinically want to know what the future's

going to bring. So I utilize the same kind of plan

in my reports for those individuals as well.

But I would agree that they're certainly

used for litigation. And as in this case, they're

more often used by the plaintiff's side than

defense, which I believe is why I end up testifying

more often for the plaintiff's side. But oftentimes

the defense doesn't develop its own plan.

Q. Doctor, in fact, life care planners, that's an area,

a purported specialty that, in fact, grew out of

litigation?

A. I do believe so. The two people that started it

were Roger Weed, who's a vocational specialist in

Atlanta, and Paul Deutsch, a psychologist in

Florida. And I believe the two of them had served

as expert witnesses, and they did develop life care

planning at least in part, in large part for

litigation, yes, sir.

Q. It grew out of litigation and largely or almost

exclusively for plaintiffs?

A. Again, 30 percent of the time I've worked for

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defense, and my job has been to create life care

plans. So it's both Plaintiff and defense but more

often Plaintiff.

MR. CONTI: That's all, Your Honor.

THE COURT: Okay.

- - -

DIRECT EXAMINATION (Continued)

BY MR. COHEN:

Q. Dr. Bonfiglio, you have prepared these life care

plans for defendants?

A. I have been involved in developing life care plans

for defense, absolutely.

Q. And that is where there are areas of a life care

plan that are in dispute, Plaintiff's life care

plan, defense life care plan?

A. Yes, sir.

Q. Are you aware of any defense life care plan in this

case?

A. No, sir.

Q. Are you aware of anything in your findings that is

at all in dispute in this case?

MR. CONTI: I object to the form of

that question, Your Honor, asking him to

conclude what is in dispute. He can't

possibly know the defense position in this

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case.

THE COURT: Well, if he doesn't know,

he'll say he doesn't know.

MR. COHEN: I'll rephrase.

Q. Have you reviewed anything, any materials in this

case that are in any respect disputing any of the

findings that you put in your detailed reports?

A. No. I have not seen any report by the defense to

dispute anything that I've said in my reports, no.

To the best of my knowledge, there isn't a defense

witness who's going to testify about anything that I

have to say.

Q. Dr. Bonfiglio, you've prepared two reports in this

case and have conducted two examinations of Julian;

is that right?

A. Yes, sir.

Q. And the reason you did this is there was a

postponement of this trial, and you, as I understand

it, wanted to -- Your examination would have been

more than a year old had you not reexamined Julian;

is that right?

A. Absolutely.

Q. So for that reason you examined Julian twice so

submitted two separate reports?

A. Yes, sir. Kids change over time, so I wanted to see

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him within a short period of time before testifying

today.

Q. The first of your reports was June in 2016, and the

second of your examinations and reports was July of

2017, just a month or so ago?

A. Yes, sir.

Q. What I'd like you to do is -- Do you have reports

with you?

A. Yes, sir.

Q. I'd just like you to go through your report for the

jury. Can you begin with the clinical history. Do

you want to summarize that, please.

A. Sure. Clinical history is the outline of the care

that he's gotten over his lifetime. So Julian was

born back on July 26, 2011, and his early life was

complicated by respiratory problems, breathing

problems. He also was found to have some

neurological problems as well.

So they did a number of different tests

including CT scans and MRIs, and it showed

abnormalities in the front part of his brain, also

particularly on the left side of his brain, in parts

called the parietal lobe and occipital lobe -- the

occipital in the back, parietal on the side -- and

then the frontal. And, again, the injury was more

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on the left side than the right.

There was a lot of different consideration

about the nature of his neurological problems. By

the time he was discharged from the hospital, he had

the diagnosis of hypoxic-ischemic encephalopathy.

Encephalopathy means brain injury. Hypoxic means

lack of oxygen. Ischemic means lack of blood flow.

So he had a brain injury as a result of

decreased blood flow and oxygenation to his brain.

The brain is one of the most sensitive tissues in

the body to lack of oxygen. The kidneys are also

fairly sensitive. Other organs tend to do somewhat

better.

He did also have some seizure activity as

well. He ended up being discharged from the

hospital and went to another facility for ongoing

care. So he was discharged August 12, 2011.

Q. He went to a place called the Mario Lemieux

Children's Center where he remained for a couple

weeks?

A. Yes. So, again, the admission diagnosis to the

facility included hypoxic-ischemic encephalopathy,

seizure disorder, that he had respiratory distress

syndrome but that that had resolved.

So he was receiving medicine to help

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prevent additional seizures from occurring. He was

having some trouble with nutrition, so they were

supplementing his nutrition.

Since that time he has been followed by a

number of different medical specialists including

Dr. Painter, who's a neurologist, who has diagnosed

him with the hypoxic-ischemic encephalopathy. He's

also been followed at a cerebral palsy clinic as

well where he was seen by a rehabilitation

physician, a physician in my field, a Dr. Patterson,

who also diagnosed him as having hypoxic-ischemic

encephalopathy and also global developmental delays.

So development includes things like

mobility. He's six years of age now. Normally a

six-year-old would be walking, running, that sort of

thing. He's able to roll over, but he's not able to

independently sit, walk, stand.

Another area of development is the

development of language. He does produce sounds,

and he produces a couple of words, somewhat

inconsistently, but does not have normal language

for a six-year-old.

Another area of development is

socialization. He does interact with other

individuals, smile, laugh, cry, those sorts of

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things in response to interactions with other people

but not normally. He does interact differently with

his mother, say, than he does with me, but he still

isn't able to do things that a six-year-old would

normally do.

He does also have visual impairment as

well. So he's been going to school at the School

for the Blind and gets lots of therapies there as

well.

So he has a global developmental delay in

that he has motor problems, he has language

problems, socialization problems, as well as visual

problems.

Q. Julian is making his one and only appearance here

today. Can you do an examination of Julian in front

of the jury to demonstrate the deficits that you've

described?

MR. CONTI: May we approach, Your

Honor?

(Following discussion held at sidebar:)

MR. CONTI: Your Honor, I move to

preclude any effort to, quote, examine Julian

in front of the jury. I believe that is

extremely prejudicial. I certainly can't

cross-examine it. I don't know what he's

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going to do. I don't know what he's going to

find. It's done for the purpose of eliciting

sympathy. It's extremely prejudicial. He's

examined Julian. He can explain his findings

as can Dr. Katz.

And if counsel proceeds, I'm going to

ask for the withdrawal of a juror. I believe

it's that prejudicial to have him now put

Julian on display so he can go through his

routine. It's extremely prejudicial.

MR. COHEN: The injuries in this case

are severe. This would not be abnormal if we

were dealing with somebody who had a broken

leg. A physiatrist would testify

demonstrating the degree of impairment with a

person with a broken leg. This happens to be

a devastating injury, so the demonstrative

proof should be the same. Frankly, this is

something that Dr. Bonfiglio does virtually

in all of his cases.

MR. CONTI: Your Honor, my view is, he

examined Julian twice, and he can testify as

to his findings. First of all, what he does

in court can't be captured. The only thing

that can be captured is what's said verbally

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42

by Dr. Bonfiglio. So we can't make a record

of how Julian reacts or any other aspect of

the examination.

I have no idea what the examination

will consist of or what it will review, and

certainly I would have no ability to

cross-examine it beyond what I think of at

that very moment.

I believe there's case law, for

example, where an effort to have a physician

have let's say an amputee remove his or her

artificial leg in front of jury and

demonstrate to the jury what is involved in

attaching the leg, if you will, is deemed

error.

I object.

MR. COHEN: Removing an artificial limb

in front of a jury has nothing at all to do

with what we're trying to demonstrate here.

He's demonstrating Julian's deficits. The

fact that they're profound doesn't -- it

makes it even more challenging to demonstrate

what Julian can and cannot do and the

struggles that he lives with now and will for

the rest of his life.

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It may be graphic, but it's necessary

to understand the degree of his disability.

MR. CONTI: Your Honor, if I could add

one further thought, I think this explains

the point. What if in a case involving a

personal injury the defense called a

physician who had previously conducted an IME

and instead of testifying as to what the IME

showed, the independent medical exam, he

asked that the plaintiff come up and he

perform another independent medical exam in

front of the jury to illustrate the findings

that he uncovered at the time he did the

original IME.

The plaintiff I believe would be

apoplectic at the notion that somehow a

defense physician be permitted to examine his

client in front of the jury to demonstrate

anything. This is simply the opposite side

of the same coin.

I object.

THE COURT: I am not sure if

"examination" is the proper word for what

you've proposed to do here.

MR. COHEN: Demonstration.

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THE COURT: That was my understanding.

That was my view.

MR. COHEN: Demonstration of

disability.

THE COURT: He's just going to point

out, You can see this feature. You can see

that feature.

MR. COHEN: That's right.

THE COURT: Similar to, Here's my scar.

Here's the scar, you know. Only this much

can be done for it.

MR. CONTI: Your Honor, I respectfully

completely disagree. A scar can be seen and

evaluated by a jury. And if a person says,

This is my scar, he's displaying it. Now

you're talking about a child with a profound

disability that he's clearly going to show

the jury in terms of limitations. Then the

jury's going to draw whatever conclusions

they draw from whatever the examination is.

I don't know what examination he's

going to do that might elicit some physical

response or some emotional response that I

can't either understand or be able to

cross-examine him about.

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45

If he wanted to conduct it on video, it

would have been filmed, have taken a video of

him conducting a physical examination of

Julian and then provide that to defense

counsel. Then we'd have an opportunity to

critique it and to respond to it.

But this is effectively saying, I want

to conduct an examination of the patient in

front of the jury in realtime, and let's see

what happens.

MR. COHEN: As a matter of fact, that's

exactly what we did. We filmed him. We sent

the film to the defense. Defense chose not

to, as was their right, to have him

independently examined.

And to say that we should be showing a

film rather than in court, rather than doing

it live, a lesser quality of evidence, they

say they wouldn't object to it? What could

be accomplished by --

Well, I've made my point.

MR. CONTI: I think I can cross-examine

and evaluate a video. I can't cross-examine

an expert witness doing a physical exam and

display on a disabled child.

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MR. BOWLUS: It's a demonstration.

MR. COHEN: If you want to

cross-examine him, I acknowledge you can't

cross-examine Julian. If you want to

cross-examine Dr. Bonfiglio about some trick

you think he's pulled or something, he's

available for your cross-examination.

MR. CONTI: The prejudice very

substantially outweighs the probative value.

I object.

THE COURT: Objection's overruled.

MR. COHEN: Thank you.

(Sidebar discussion concluded.)

BY MR. COHEN:

Q. Dr. Bonfiglio, can you with Julian demonstrate some

deficits that you have been talking about?

A. Yes, sir.

Q. All right. Will you step off the witness stand?

A. Yes, sir.

THE WITNESS: So when I do my

evaluation, I listen to heart and lungs, all

sorts of things, but I do focus on his

neurological involvement.

Again, he's six years old. He has some

things that are pretty straightforward. He's

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47

got some involvement of both his arms and

legs. He does have some ability to move both

arms and both legs, but he has somewhat

increased tone.

Normally if a child is relaxed and

allowing me to take their joints through

range of motion, I can go through a whole

range of motion. He's got some tightness,

especially on the right side, so doesn't have

as much ability to go through a range of

motion.

The tightness is also on his leg as

well. So I can't easily get his knee

extended. I don't want to cause him pain so

I'm not going to force it, but you can see

that there's tightness and his legs don't

extend as easily as they normally would.

He's getting big and heavy.

So he also, as you've probably been

hearing, can vocalize. His words, though,

are limited to just a couple of words.

Do you remember me? I doubt it.

The other thing, it's amazing that kids

don't have headaches as they -- The skull,

the bones around the brain only enlarge in

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48

response to the growth of the brain. So he

has a condition called microcephaly. His

head is smaller because his brain was

injured. It's not growing as much so then

the skull hasn't grown as much.

Where's mom? Where's Mom?

So he does also have visual impairment.

The problem isn't with his eyes. It's about

the back of his brain, the occipital region

that was damaged that would normally

interpret vision. So he does have some

ability to see, and we're trying to kind of

improve his visual perception, but it is

still somewhat affected.

They're also working on improving his

range of motion, his strength, his ability to

do day-to-day activities, so all of that's a

part of the program.

Most six-year-olds would be running

around this room at this point.

Unfortunately, that's not the situation with

Julian, something Julian can do. So he does

have global developmental delays.

Want to go back to Mom?

Q. Dr. Bonfiglio, following both of your examinations,

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did parts of your examinations go through Julian's

routines?

A. Yes.

Q. Could you talk about that.

A. Yes. So he is dependent upon others for both

mobility and day-to-day activities. So he's not

able to do anything independently, dress, bathe, any

of those things. Someone else has to do all of that

for him.

He does go to the School for the Blind and

does have a full day of both schooling type

activities as well as therapies. So he gets

physical therapy, occupational therapy, speech

therapy, and vision therapy.

The vision therapy is to help him perceive

what he's seeing. The physical therapy is to help

him improve his ability to use his arms and legs to

move about. The occupational therapy works on

day-to-day activities, dressing, bathing, those

sorts of things.

So he has made some progress. He has

improved range of motion, improved strength with

these different therapies. He does with therapy

have the potential for continuing to make progress

over the years. It's going to be slow, and he's

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50

never going to catch up with his peers, but he will

make progress.

I do expect that he's going to be able to

produce more words. He'll be able to use

technology, computers and things to be able to

interact, to make his needs known. He'll be able to

assist with day-to-day activities.

Unfortunately, though, he's still always

going to need somebody there helping him. He's

never going to be completely independent with

day-to-day activities, but he'll be doing better

than he is now.

Q. What's Julian's life expectancy?

A. So my first opinion about his life expectancy is

that it's very dependent upon the care that he

receives in the future. So in the past, children

like Julian often ended up in nursing homes that

were not well designed to meet his specific needs.

Those are more designed for older individuals, end

of life sort of situations.

There are some good long-term care

facilities, but, unfortunately, even hospitals where

I've been medical director have bacteria that's

resistant to antibiotics that you don't generally

find out in the community. So it would be much

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51

better for him to be in a home setting over his

lifetime instead of an institutional setting.

Now, he may need to go into the hospital

from time to time for complications of his brain

injury, but if he gets the therapy he needs -- and

there are a lot of different kinds of care.

Medicine is very specialized now.

He needs a neurologist to manage his

seizures. He needs a urologist to manage his

bladder. He needs a rehab physician to help make

sure he gets all the therapies that he needs. So if

he gets all the different cares that he needs, the

medications, the adaptive equipment, it is my

opinion that he'll have either a normal life

expectancy or nearly so.

But it is dependent on him getting all the

care that he needs. If he doesn't get the care that

he needs, as you can imagine, in medicine, if

somebody has high blood pressure and they don't get

it treated, things don't work out as well.

On average, people die sooner if they

don't get treatment. The same is much more true for

him. If he doesn't get all the care that he needs

in the future, he will die sooner.

Now, there are things that can happen. So

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I would say that his life expectancy is normal or

nearly so. Nearly in my opinion is about

10 percent. So it's my expectation that he should

live into his 70s at least, if he gets all the care

that he needs.

Q. I want to talk about what's necessary to sustain

Julian now and in the future. You mentioned that

he's incontinent, bowel and bladder. What does that

necessitate?

A. So just like he has problems with coordination of

his arms and legs, most of us take it for granted

but the muscles that control our bladder and our

bowels also have to interact.

So normally what happens is the kidneys

produce urine. It gets collected in the bladder.

As our bladder fills, the muscles of the bladder

relax to allow that to happen. The urine's produced

by the kidneys, goes down into the bladder. The

bladder relaxes and fills.

At the same time there's sphincters or

valves that start contracting more and more so that

the urine doesn't leak out. When we go to the

bathroom, just the reverse happens. The bladder

begins to contract and the valves relax.

Unfortunately for Julian, he doesn't have

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53

that coordination. So when urine gets into his

bladder, his bladder contracts and it comes out, and

it has to be collected in a diaper.

So he will never become continent. It's

very unlikely he'll ever be continent. He'll have

to wear diapers the rest of his life.

What's more important, though, is that you

can get the bladder muscles to contract at the same

time that the valve contracts. When it happens in

the bladder, just the muscles get stronger. In

itself it's not a big problem.

What can be a problem is if the bladder

contracts and the valves contract, urine can go back

towards the kidneys. The medical term for that is

hydronephrosis. It just means water in the kidneys,

water coming back up to the kidneys. That can

damage the kidneys, can actually cause the kidneys

to fail, and then the person has to go on dialysis.

Trying to do dialysis on him would be very

problematic.

It's exhausting for anybody that goes on

dialysis, but for him I just -- I think behaviorally

he just would have a lot of trouble accepting it.

So he needs to see a urologist to prevent the

bladder injury from happening.

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Now, the bowels aren't as complicated as

the bladder. Usually you can put a person on a

bowel program so that you use some sort of physical

stimulation to get them to empty their bowels the

same time every day. So someone would have to do

that for him, but that should be possible.

There are gastroenterologists that can

work on getting his GI system to work as well as it

can so he doesn't become constipated because that's

a problem for some of these kids and that he be on a

program so that he goes about the same time each

day. He may have some bowel accidents in between

times, especially, say, if he got spicy food or

something like that. But the bowels are not nearly

as problematic as the bladder is.

Q. Julian isn't on a feeding tube? He eats solids?

A. Yes. Some of these kids need feeding tubes, which

is a tube that goes directly into the stomach. He

doesn't have that. He's able to swallow food, and

that's certainly a good thing for him.

Q. And what is necessary for his regular eating? What

type of assistance?

A. So he needs assistance with eating, especially with

liquids, to make sure that he gets them at a

reasonable rate. He also needs things given to him

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55

with a spoon. He isn't able to control a spoon or

fork. So someone has to feed him those kind of

foods. My expectation is over time he should be

able to do finger foods himself, things he can put

into his mouth. He'll be able to eventually do

that. But he'll still need help with things like

soups, someone supervising him.

Q. Would you address what areas of medicine Julian will

have to be treated with in the future and the degree

of regularity with him.

A. Yes. So he has had seizures, and he has been on

seizure medicine. He needs to be followed by a

neurologist, especially during his teenage years.

Teenage years are stressful for all kids with

hormonal changes and things. For someone like

Julian, he's more likely to have seizures during

that time period. Neurologists monitor neurological

development, also help prevent seizures from

happening. So he really should be followed by a

neurologist twice a year.

He should also be followed by a physician

in rehab medicine, at least now during developmental

years at least twice a year. After age 21, seeing

someone in rehab medicine once or twice a year would

be fine.

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He also needs to be followed by a

urologist. Kids that are able bodied are oftentimes

incontinent until age four or five. He really by

age 10 needs to be seen by a urologist again to make

sure that the pressures aren't going up into the

bladder and causing the urine to go back up to the

kidney causing kidney damage. So he should see a

urologist twice a year beginning at age 10. He'll

need that for the rest of his life.

He needs the gastroenterologist once or

twice a year to deal with constipation, deal with

developing a bowel program, those sorts of things.

He also needs to be followed by a

neuroophthalmologist. Everybody ought to be seen by

an eye doctor at least once a year. He, though,

needs a specialized doctor, a doctor that focuses on

how the brain and the eye interact, again to

maximize his ability to see things. Again, that

should be twice a year.

Everybody needs a family doctor, a

pediatrician for children, family doctor for adults.

In addition to the once or twice a year all of us

should go, he really should be followed two or three

times a year to deal with the consequences of his

brain injury by a family physician. So that's

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57

something he's going to need for the rest of his

life because there are problems that can arise as a

result of brain injury.

Q. You pointed out to the jury a deficit or feature

that Julian has called spasticity.

A. Yes, sir.

Q. What is that and how is it going to impact his

treatment, necessary treatment?

A. So most of us when we think about what the brain

does, you think about feeling, and you think about

moving muscles.

There are other aspects of the brain,

though, and one of them is coordination of muscles.

Normally if I want to pick up a piece of paper, I

just reach over, pick it up. My body activates

those muscles that are needed to make that happen,

to contract those muscles that I need.

Unfortunately for Julian, he has increase

in tone and problems with coordination of the

muscles. So his muscles should normally be relaxed

when he's not reaching for something. Those muscles

are still tight, and that's called spasticity. It's

an increase in the tone of the muscle that happens

because of the brain injury. There's a lack of

coordination between sensation, feeling, and the

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58

muscle activity so that his muscles are always

active and they're tight.

In and of itself, spasticity's not bad. I

have some patients that have a lot of weakness, and

their spasms actually allow them to do things

because they use their spasticity to be able to move

their arm and leg better than they could because of

the weakness they have.

Unfortunately, though, spasticity can also

lead to bad things including contractures. So if

you notice, he tends to hold his arm flexed, bent.

It can stick that way. Again, he's getting a lot of

therapy, so they're stretching it out so it's not

the case, but his knees, for instance, were pretty

tight when I went to examine him. I'm sure the

therapist working for an hour with him, they're able

to get his legs out normally, to get his knees

extended. But it is an issue for him.

So what that means is that he's going to

need therapy, especially during his developmental

years as he grows so that his muscles stretch out,

you know. What happens normally is the bones grow,

and then in response to that our muscles and the

connection of muscles, tendons also grow.

If you have problems with spasticity, the

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59

muscles don't grow as well. They tend to be

relatively short compared to the bones, and that's

how the contractures develop.

So he's going to need therapies up through

what's called skeletal maturity, until the bones

stop growing. After that time it's not as much of

an issue, but at least through the growth period it

is.

So in addition to the therapy improving

his range of motion, he'll also need medicines by

mouth to help deal with the spasticity. And Botox,

which is used for wrinkles, is also used to treat

spasticity. So I'm also expecting that he'll need

botulinum toxin injections as well.

Q. Is Julian aware of his surroundings and the people

involved in his life?

A. He certainly is aware. He certainly distinguished

between his mother and me when I was evaluating him.

In other words, he responds differently to his

mother than he does to me, who he doesn't know. So

he certainly recognizes voices. He knows family

versus strangers.

I'm sure he's gotten to know his

therapists and teachers and that sort of thing. He

does certainly have awareness of his environment.

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He did remarkably well in the courtroom, because

sometimes kids just kind of freak out with the

lights and everything going on in the courtroom.

So he did well with that, but I'm sure he

recognized this was not his classroom that he would

normally be in today. So this was different for

him.

So, yes, he definitely has awareness of

his environment, of the people in his environment.

He can feel threatened. He can be sad. He can be

hungry. So he does have awareness. He has

difficulty expressing to people "I'm hungry now" or

"I want to go outside" or that sort of thing that a

six-year-old would normally be able to do, but he

certainly does have awareness.

Q. Can Julian ever be left alone?

A. I don't know that you would leave any six-year-old

alone, but not only can he not be left alone now,

he's not going to be left alone throughout his life.

So he would not have the wherewithal to recognize an

impending disaster, say if there was a fire or a

robbery, whatever. He would not be able to protect

himself and evacuate the location. So there's

always going to need to be someone there keeping an

eye on him.

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61

I do expect he's going to be able to do

more for himself as he gets older, some

self-feeding. I expect he'll be able to use a power

wheelchair, be able to navigate that. So he's

definitely going to make progress, but he's not

going to get to the point where he could ever live

independently.

Someone is always going to need to be

there to help him with day-to-day activities, to

supervise, to deal with any difficult situations, do

all the financial kinds of things. He's never going

to be independent.

Q. Julian on a daily basis attends the School for the

Blind but he's not blind. Can you describe that.

A. Well, he has visual impairment. So someone who's

100 percent blind can't see anything. His eyes are

working fine. The problem that he has is for his

brain to interpret what he's seeing. So he does

see. His eyes move together. He does see things,

but he has trouble interpreting exactly what he's

seeing.

So they're working on that with him, and I

expect again he'll make progress with that in the

future. So he certainly does have the ability to

see. It's just not normal.

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Q. Are there modalities that Julian will need to

enhance his life and extend his life such as braces,

computer, things of that nature?

A. Yes. He definitely is going to need adaptive

equipment over the course of his lifetime to help

him deal with day-to-day activities, so everything

from computers to help with his thought process and

his visual issues as well as adaptive equipment,

braces to help deal with the spasticity that he has,

also wheelchairs to help with his mobility.

There are also walking aids that would

support him in a standing position, allow him to

take some steps in this supported position. It's

called a gait trainer. That's definitely something

that I would believe would be helpful for him over

time as well.

So fortunately at this point in time there

are lots of different pieces of equipment that are

available to him that weren't around when I first

started practice 36 years ago. There were only a

couple of kinds of wheelchairs back then. Now there

are myriad kinds, both manual and powered.

There are all kinds of gait trainers that

can be used, all kind of braces that can be used.

So there are a lot of things available to him that I

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do believe will improve his ability to do day-to-day

activities.

Q. And you touched on this briefly, but what are the

necessary things that Julian will need to keep him

in a residential setting versus an institution?

A. Yes. So he's going to need somebody there with him

24 hours per day. Now, some individuals like this

have a lot of skilled needs. They have a feeding

tube. They have significant respiratory problems.

There are all kinds of issues like that.

He needs someone to do range of motion

with him, stretching. He needs someone to monitor,

make sure he's not choking, having swallowing

problems. So he does have some skill needs, but a

lot of his daily care can be provided by individuals

who are not nurses, for instance, but he's going to

need somebody with him 24 hours a day for the rest

of his life, again to keep an eye on him to help him

with his bowel program, to help him with his range

of motion, all of those sorts of things. So he does

need ongoing care.

Q. Dr. Bonfiglio, have all the opinions you've offered

been given with a reasonable degree of medical

certainty?

A. Yes, sir.

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R. Bonfiglio - Cross by Mr. Conti


64

MR. COHEN: Thank you.

THE COURT: Take a recess before we

start?

MR. CONTI: As you wish, Your Honor.

THE COURT: Take a recess.

THE TIPSTAFF: All rise.

(Jury recessed.)

(Short recess taken.)

THE TIPSTAFF: All rise.

(Jury present in open court.)

THE COURT: Cross-examine.

MR. CONTI: Thank you, Your Honor.

- - -

CROSS-EXAMINATION

BY MR. CONTI:

Q. Dr. Bonfiglio, you wrote actually two reports in

this matter; is that correct?

A. Yes, sir.

MR. CONTI: Jake, can we put up just

the top of 42.

Q. I want to summarize your report in terms of the care

that Julian's receiving. Julian is receiving care

by a primary care physician; correct?

A. Yes, sir.

Q. And you put that in your report?

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65

A. Yes, sir.

Q. And that's on a regular basis?

A. Yes, sir.

Q. A regular basis and as needed?

A. Yes, sir.

Q. Next, Julian is followed at the dental clinic at

UPMC Children's Hospital; correct?

A. Yes, sir.

Q. So he gets dental care there; correct?

A. Yes, sir.

Q. According to your report, he's also followed by a

neurologist once per year and as needed; correct?

A. Yes, sir.

Q. He's seen and followed by a gastroenterologist once

a year and as needed; correct?

A. Yes, sir.

Q. And a gastroenterologist, again, is a doctor that

deals with digestive disorders?

A. Yes, sir.

Q. Next --

MR. COHEN: May we approach the bench?

THE COURT: Yes.

(Following discussion held at sidebar:)

MR. COHEN: If counsel's going to get

into the costs of what has been spent and

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66

what is likely to be spend, I'm going to

object because that is not a part of this

witness's testimony.

THE COURT: I don't think you're going

there, are you?

MR. CONTI: No, sir.

THE COURT: I can see where he's going.

He's not going there.

MR. COHEN: Okay.

(Sidebar discussion concluded.)

Q. You also comment in your report that Julian is being

seen by an ophthalmologist who monitors his vision

annually and as needed; correct?

A. Yes, sir. It's actually an optometrist, not

ophthalmologist, but it's an eye doctor.

Q. Oh. I apologize. That should read optometrist?

A. Yes, sir.

Q. Okay. I stand corrected on that. Thank you. Next,

Julian is seen at the Cerebral Palsy Clinic

regularly?

A. Yes, sir.

Q. And that's through Children's Hospital?

A. Yes, sir.

Q. Next, he's seen, Julian is, by a pediatrician

regularly or as needed?

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67

A. Yes, sir.

Q. Continuing, to go to school, you mentioned that

Julian goes to the Western Pennsylvania School for

Blind Children. He attends five days a week;

correct?

A. Yes, sir.

Q. That's a full school day?

A. Yes, sir.

Q. He gets at school there physical therapy; correct?

A. Yes, sir.

Q. Vision therapy; correct?

A. Yes, sir.

Q. Occupational therapy?

A. Yes, sir.

Q. Behavioral therapy; correct?

A. Yes, sir.

Q. Aquatic therapy; correct?

A. Yes, sir.

Q. I assume the aquatic therapy has to do with issues

of muscle and then strength and reflexes and range

of motion?

A. So it helps with strengthening range of motion, and

just the sensation of the water helps with

coordination, so all of those things.

Q. And he also receives at the school horticultural

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68

therapies?

A. Yes, sir.

Q. I'm afraid you're going to have to explain that to

me. I think I understand.

A. It's just working with plants and things. I don't

believe he does much with that, but that is a

service available at the school.

Q. Okay. And then continuing, Julian participates

through the school in a three-week summer program?

A. Yes, sir.

Q. According to your report?

A. Yes, sir.

Q. And, again, according to your report, that's five

days a week?

A. Yes, sir.

Q. And then next, additional care, according to your

report, Dr. Bonfiglio, Julian receives care at his

home by a nurse aide five days a week for

approximately four hours a day?

A. Yes, sir.

Q. And according to your report, these are the services

that Julian's been receiving since birth?

A. Well --

Q. As needed?

A. He wasn't going to the school from the time of

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69

birth, but --

Q. That's why I corrected myself.

A. Yes, sir.

Q. As needed as he progressed; correct?

A. Yes.

Q. To move perhaps to a slightly different subject, you

examined Julian and you said that he became

irritable when he was bored?

A. Yes.

Q. In fact, in another part of the report that you

wrote, I'll show it to you if you wish, but you say

Julian is nearly six years old. He frequently

displays irritability but is otherwise in no acute

distress.

I'll show that to you just to --

A. It's in my report. That was my reevaluation of him

in the office, and he was somewhat irritable that

day.

MR. CONTI: Thank you, sir. That's

all.

THE COURT: Any redirect?

MR. COHEN: No further questions.

THE COURT: Okay. Thank you.

THE WITNESS: Thank you, sir.

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