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Filing # 79954336 E-Filed 10/26/2018 04:58:43 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
DAVID T. LUCEY and CASE NO. 2016-CA-001509
MONICA LUCEY,
Plaintiffs,
vs.
SOVI JOSEPH, M.D.;
SOVI JOSEPH, M.D. P.A;
STEVEN GOLDIN, M.D.; and
21% CENTURY ONCOLOGY, LLC,
Defendants.
/
PLAINTIFFS’ NOTICE OF FILING
COME NOW, the Plaintiffs, DAVID T. LUCEY and MONICA LUCEY, His Wife, by
and through the undersigned counsel and hereby give notice of filing of the following for
purposes of discovery, motions, trial, or for such other purpose(s) as authorized by law and the
Florida Rules of Civil Procedure:
1 Transcript of deposition of Malcolm Branch, M.D. taken August 15, 2018.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
this 26" day of October, 2018, filed with the Clerk of the Court using the ECF system, and by E-
Mail designations to:
Kevin Crews, Esquire
Andrew Vogt, Esquire
Wicker Smith O’Hara McCoy & Ford PA
9128 Strada Place, Suite 10200
Naples, FL 34108-2683
Tel: (239) 552-5300
Fax: (239) 552-5399
Email: napertpleadings@wickersmith.com
Attorneys for Steven B. Goldin, M.D. and 21" Century Oncology, LLC
Jeffrey M. Goodis, Esquire
Goodis Thompson & Miller
150 2™¢ Avenue North — 15" Floor
St. Petersburg, FL 33701
Tel: (727) 823-0540
Email: gimservice@gtmlegal.com; fmoschenik@gtmlegal.com:
choopes@gtmiegal.com
Attorneys for Sovi Joseph, M.D. and Sovi Joseph, M.D., P.A.
/s/ Kevin J. Carden
J. Clancey Bounds
FBN: 0981631
Kevin J. Carden
FBN: 451071
BOUNDS LAW GROUP
1751 North Park Avenue
Maitland, Florida 32751
Tel: (407) 644-5151
Fax: (407) 644-4566
kevin@boundslawgroup.com
Servic boundslawgroup.com
deedee@boundslawgroup.com
Counsel for Plaintiffs
Malcolm Branch, M.D.
August 15, 2018
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CASE NO. 2016-CA-001509
DAVID T. LUCEY and
MONICA LUCEY,
Plaintiffs,
VS.
SOVI JOSEPH, M.D.; SOVI
JOSEPH M.D., P.A.;
STEVEN GOLDIN, M.D.;
and 21ST CENTURY
ONCOLOGY, LLC,
10
Defendants.
11
12
13
14
15
DEPOSITION
16 OF
MALCOLM STANLEY BRANCH, MD
17
18
19
20
21
22
23
24 At Durham, North Carolina
August 15, 2018 - 10:16 a.m.
25 Reported by: Mary Lynn Fuller, CVR
U.S. LEGAL SUPPORT
www.uslegalsupport.com
Malcolm Branch, M.D.
August 15, 2018 2 to 5
38 Page 2 Page 4
APPEARANCE PROCEEDINGS
FOR THE PLAINTIFFS: whereupon,
MALCOLM STANLEY BRANCH, MD,
Kevin J. Carden having first been duly sworn,
Bounds Law Group
751 North Park Avenue was examined and testified as follows:
Maitland, Florida 751 DIRECT EXAMINATION
(407) 644-5151 BY MR. CARDEN:
kevin@boundslawgroup.com
Good morning, Doctor. Could you tell
FOR THE DEFENDANTS: us your full name, please.
10 10 Malcolm Stanley Branch
Jeffrey M. Goodis
a oodis Thompson & Miller dl Qe And, Doctor, what is your professional
150 2nd Avenue North, 19th Floor 12 address?
12 St. Petersburg, Florida 33701 13 My professional address is -- do you
(727) 823-0540
13 jgoodis@gtmlegal.com 14 want the box number or just Duke
14 15 University?
15 Andrew EB. Vogt
16 Qe Duke University will be fine.
Wicker, Smith, O'Hara, © Coy
16 & Ford 17 Yep. I'm a member of the Department of
9128 Strada Pla’ , Suite 10200 18 Medicine, the Gastroenterology Division,
a7 Naples, Florida 34108-2683
(239) 552-5300 19 at Duke University Medical Center
18 avogt@wickersmith.com 20 Qe And how long have you been at Duke?
19 21 This is my 30th anniversary this year
20
21 22 Qe You are a gastroenterologist?
22 23 Yes, sir.
23 24 Qe Are you boarded in gastroenterology?
24
25 25 Yes.
Page 3 Page 5
TABLE ° F c ONTENTS As well as internal medicine?
Yes.
EXAMINATION ~ ATTORNEY PAGE
Are you what would be characterized as
Dizec - Mr. Carden
an academic gastroenterologist?
EXBIBITS PAGE Well, I guess I'm not sure what your
No cv definition of an academic
No Correspondence aL gastroenterologist would be, but I would
No Fee S edule 14
No List of Materials assume so.
9 Reviewed 18 You -- And I guess my question is: Do
No Invoice a8 10 you have a practice -- a private
10 il practice outside of the confines of Duke
a 12 and the Duke Medical Center?
(wore: Plaintiffs’ Exhibit 5 to be provided by Mr
12 Goodis to the court reporter at a later time per 13 No, sir. My -- All clinical practice
agreement of counsel. As of time of production of 14 would be at -- involved in the medical
13 transcript, this exhibit still has not been received.) 15 center or our affiliated hospitals or
14 16 clinics.
1s 17 Do you have a copy of your current CV?
16
18 I do.
a7
18 19 MR. CARDEN: Ma'am, can we
19 20 mark that as Plaintiffs’ Exhibit 1.
20 21 THE COURT REPORTER: Yes, sir.
21 22 (EXHIBIT NO, 1 WAS MARKED.)
22
23 23 BY MR. CARDEN:
24 24 Dr. Branch, can you give me a little
25 idea of your day-to-day activities at
U.S. LEGAL SUPPORT
www.uslegalsupport.com
Malcolm Branch, M.D.
August 15, 2018 6 to 9
Page 6 Page 8
Duke? with the standard of care?
So it might be easier for me to As accurate as we can make it.
describe it as a week. So during the Yes, sir. In identifying the various
week, I usually have three days of anatomical areas within the colon, for
clinical activities. Some weeks, when instance, the hepatic flexure or the
I'm covering the consult service, it splenic flexure, both you and your
would be the entire week. I take call residents and fellows should be accurate
-- general call and then specialty call when identifying any potential mass
for some of the advanced endoscopy within that area of the colon?
10 procedures and patient care that I'm 10 Yes, sir. We would do our best to be
il involved with, and then I have il as accurate as we can.
12 administrative duties for the division 12 All right. If you or one of your
13 and for our physicians practice, and 13 residents or fellows identifies a
14 then that also includes teaching, which 14 potential malignant tumor in an area of
15 is often done during my clinical 15 the hepatic flexure, is it fair for a
16 activities, and I have a small amount of 16 subsequent surgeon to rely on that?
17 research that I still participate with 7 Yes, they would use a report and --
18 but not as much as I used to. 18 that we have done our best to be as
19 What area do you spend most of your 19 accurate, as I mentioned, about
20 time during the week? 20 localizing the lesion. As I think
21 The biggest percentage is in clinical 21 you're implying, unfortunately, we are
22 care. 22 not always 100 percent accurate.
23 Do you do colonoscopies? 23 Is it -- The standard of care, does it
24 Yes. 24 require that a colonoscopy be conducted
25 How many during a given week do you do 25 in a manner and reported in an accurate
Page 7 Page 9
currently? manner by a gastroenterologist?
During a week, it could range from 5 or My sense is the standard of care would
6 to 20. be you would try to report as accurately
And when you do the colonoscopies, do as you can within the accuracy of the
you generate the -- a report? procedure and document that
I do. appropriately.
And when you -- the colonoscopies that Do you agree with me that Dr. Joseph in
you're involved with, do you do those this case inaccurately reported the
yourself, or are you observing them as location of the tumor in Mr. Lucey's
10 the residents or fellows are conducting 10 case?
il them? il I guess my statement would be he
12 A mix. 12 reported where he felt the tumor was
13 A mix? Do you generate the reports or 13 from his exam and that ended up, as we
14 author the reports yourself, or do you 14 know happens, to be in a different
15 let the residents or fellows do that? 15 location.
16 That would be a mix, as well. I would 16 Yes, sir. That is to say that the
17 review every report and eventually sign 17 location at which Dr. Joseph reported,
18 it. If it's just myself performing the 18 in a number of instances in his
19 procedure, I generate the report Ifa 19 colonoscopy report from 10/2/14, was, in
20 trainee is working with me, they will do 20 fact, inaccurate. You'd agree with
21 the initial report, and then I will 21 that, wouldn't you, sir?
22 review that and correct or make 22 The tumor was not where he thought it
23 additions and then finalize it. 23 was.
24 Is it fair to say that the reports 24 All right. In fact, the tumor was
25 should be accurate in order to comply 25 reported by Dr. Joseph in a place in
U.S. LEGAL SUPPORT
www.uslegalsupport.com
Malcolm Branch, M.D.
August 15, 2018 10 to 13
Page 10 Page 12
which it was not? colon that was a malignant lesion and
That is correct. that the report suggested it was at the
All right. And you would agree that hepatic flexure.
that reporting was inaccurate to such an Okay. When were you contacted in this
extent that it deviated from the case?
standard of care? MR. GOODIS: I probably have
No. the correspondence, if you want to know
You don't agree with that? that, Kevin.
I do not. MR. CARDEN: Sure.
10 What is the basis of a 10 BY MR. CARDEN:
il gast roenterologist,such as Dr. Joseph, il Do you have any correspondence with you
12 reporting that this tumor is in the 12 today, Doctor?
13 hepatic flexure when, in fact, it's not? 13 MR. GOODIS: I brought the
14 How is that not a deviation from the 14 letters from my office -- or the emails
15 standard of care? 15 from my office to Dr. Branch and then
16 Well, I think the standard of care 16 the letters, too. I have all of them
17 would be you report it as accurately as 7 with me. It looks like May 15, 2017,
18 you think you can, where you think the 18 was the first
19 lesion is located. We know, from 19 MR. CARDEN: Okay.
20 experience and education and our 20 THE WITNESS Right.
21 teaching, that we are not always 21 MR. CARDEN: can we get copies
22 accurate. So we, again, attempt to be 22 attached as Composite No. 2?
23 as accurate as we can, but, 23 MR. GOODIS: Absolutely. I'm
24 unfortunately, especially in that region 24 giving them to the court reporter now.
25 of the colon, you are not 100 percent 25 MR. CARDEN: Sure. Let me
Page 11 Page 13
sure where the lesion is. You do your know when you're ready, ma'am.
best based on what landmarks you can (EXHIBIT NO, 2 WAS MARKED.)
identify. The only two places you can BY MR. CARDEN:
be 100 percent sure you are are the Had you worked with doctor -- or,
beginning and the end. Doctor, have you worked with Mr. Goodis
Do you agree that Dr. Goldin's before?
preoperative diagnosis subsequent to I have not.
this colonoscopy report was based on a Have you worked with anyone at his
preoperative diagnosis of a splenic firm?
10 flexure tumor? 10 Not that I'm aware of.
il No, sir. il Andrew Vogt is there with the Wicker
12 All right. Do you disagree with the 12 Smith firm, Have you ever worked with
13 preoperative diagnosis? I'm sorry. I 13 him or Kevin Crews of his office?
14 misspoke there. 14 Not that I'm aware of.
15 Do you disagree with 15 Any Wicker Smith folks in the other
16 Dr. Goldin's preoperative diagnosis of a 16 Florida offices, be they Orlando or
17 hepatic flexure tumor? 17 Tampa?
18 No, I don't disagree with that. 18 No, sir.
19 All right. And do you agree that that 19 You don't know how Mr. Goodis got your
20 was based upon the colonoscopy -- in 20 name?
21 large part on the colonoscopy report 21 I do not.
22 generated by Dr. Joseph? 22 Have you served as an expert in other
23 MR. GOODIS: Object to the 23 cases involving allegations of medical
24 form. You can answer. 24 negligence?
25 A So he knew there was a lesion in the 25 I have.
U.S. LEGAL SUPPORT
www.uslegalsupport.com
Malcolm Branch, M.D.
August 15, 2018 14 to 17
Page 14 Page 16
How long have you been doing this? actually made those decisions.
20-plus years. What is your fee for deposition?
And how did you get into the field of It is -- For the half day, I think it
expert testimony? was 3 -- I think it's three grand for
One of my mentors asked me would I be ac
interested at the time to cover a case MR. GOODIS: Depo or trial?
that he could not, and I said yes then THE WITNESS: Yeah, I guess —-
And have you formed all the opinions could you clarify that?
that you intend to offer at trial in MR. GOODIS: He was asking
10 this case? 10 deposition.
il Yes, based on all the records I il THE WITNESS Oh, deposition.
12 reviewed so far. 12 MR. CARDEN: Yeah. I was
13 MR. GOODIS: Hey, Kevin. 13 asking about a --
14 MR. CARDEN: Yeah. 14 THE WITNESS Depo --
15 MR. GOODIS: I meant to tell 15 MR. CARDEN: -- deposition.
16 you that I didn't send him the Tampa 16 THE WITNESS I'm sorry. A
17 General Hospital records until two days 7 deposition is $600 an hour.
18 ago, but if they generate any changes of 18 BY MR. CARDEN:
19 opinion, I'll certainly let you know, 19 Now, your trial appearance is 300 --
20 but I can't imagine that they would. 20 3,000 for a half day?
21 MR. CARDEN: Okay. 21 I'd have to go back and look at it. I
22 BY MR. CARDEN: 22 apologize. I can't tell you
23 Do you hold the Florida expert 23 specifically. It's -- There's a
24 certificate Dr. Branch? 24 printout that we get from our practice
25 I don't. I'm not sure what that is. 25 that we use, but I could provide that
Page 15 Page 17
What is the fee that you charge for for you.
reviewing cases? Is that the --
$600 a hour is our practice's fee. Mr Goodis may have that.
And when you say it's our practice, are - fee structure that you have?
you talking about the Duke medical Yes, sir.
community? Is that something you can provide to
Yes. Our Physician's Practice has a our court reporter?
standard fee structure. I don't have it immediately available,
All right. Do the fees that you but I could.
10 generate in your review of cases and 10 MR. GOODIS: I'll get it for
il testimony, do they -- are they to your il you, Kevin.
12 benefit, or do they flow to the 12 MR. CARDEN: Okay. We'll mark
13 university in some fashion? 13 that as Plaintiffs’ 3
14 Well, it depends on how I structure it. 14 (EXHIBIT NO. 3 WAS MARKED.)
15 So there is a portion of it that will go 15 BY MR. CARDEN:
16 to our practice and then, if I want to, 16 Have you ever advertised your services
17 I can have some of this money go into a 17 as a -- an expert, Doctor?
18 discretionary account that I can use for 18 No. Huh-uh. No, sir
19 various activities or I can have the 19 Have you spoken to Dr Joseph?
20 monies come to me directly. 20 I have not.
21 And what are you doing with the monies 21 Have you spoken to Dr Goldin, the
22 that you generate in connection with 22 surgeon in the matter?
23 this Lucey matter? 23 I have not.
24 I've not turned an invoice in for this 24 Can you give me some idea as to the —-
25 as of yet. So I -- as I say, I've not. 25 in the last 20 years, how many cases
U.S. LEGAL SUPPORT
www.uslegalsupport.com
Malcolm Branch, M.D.
August 15, 2018 18 to 21
Page 18 Page 20
have you been involved with? Q I'm sorry, Illinois?
Approximately 20 cases or so. Yes, sir. I believe that's correct.
Somewhere in the ballpark. What percentage of your personal income
I'm sorry. I didn't hear you. is generated by virtue of your
I'm sorry. Approximately 20 or so involvement with these kinds of cases?
cases. Less than 5 percent.
20 cases over the past 20 years? Do you have all the records that you
Somewhere in that range. There'd be reviewed in connection with this case?
some years I would do no cases, some Do I have them with me now?
10 years do one or two. More recently, 10 Yes, sir.
il I've been asked to do many more, but I il Yes.
12 only have a limited amount of time, 12 I'm sorry. You may have answered and I
13 oO -- 13 missed it.
14 Sure. How many cases do you have 14 Yes.
15 pending? 15 Okay. Incidentally, do you have any
16 Counting this case, it's either two or 16 kind of a case list compiling the
17 three. I've been asked to review a 7 matters that you've been involved with?
18 case, but I think I'm going to tell them 18 I do not.
19 no because I just don't have the time. 19 Ever testified in federal court?
20 Sure. Of the cases -- the 20 cases or 20 No, sir.
21 so that you've reviewed over the past 21 Can you inventory me or list for me the
22 couple of decades, can you tell me which 22 materials that you've looked at in the
23 ones have been on behalf of the 23 case?
24 healthcare provider versus a patient? 24 MR. GOODIS: I have a list,
25 The specific number or just give you a 25 Kevin. Do you want me to just have him
Page 19 Page 21
percentage? read it, or do you want to -- me —-
A percentage. maybe I could just take a picture of it
Probably in the 80 percent defense, 20 and send it to you.
percent plaintiff. MR. CARDEN: Yeah. Actually,
The two or three cases that you have you can just take a picture of it and
pending, are any of those on behalf of attach it as an exhibit. That'd be
the patient or plaintiff? fine.
one is. MR. GOODIS: Okay. The list,
When is the last time you testified in by the way, does say Tampa General
10 connection with a case on behalf of a 10 Hospital, and that -- he -- he's not
il patient? il reviewed those records.
12 Actually testified? 12 MR. CARDEN: Okay. So the
13 Yes, sir. 13 list of materials that were sent to you,
14 It's been a few years. I couldn't tell 14 with the exception of the Tampa General
15 you the exact time frame. 15 Hospital records, we'll make that No. 5.
16 When is the last time you've testified 16 MR. GOODIS: All right.
17 in a trial setting? 17 THE COURT REPORTER: No. 4.
18 In a trial? It would have been earlier 18 MR. GOODIS: No. 4.
19 this year. 19 MR. CARDEN: Okay.
20 And was that in North Carolina or 20 MR. GOODIS: I'm emailing
21 somewhere out of state? 21 it to you too, Kevin.
22 That was out of state. 22 MR. CARDEN: Thanks.
23 Where was that? 23 (EXHIBIT NO. 4 WAS MARKED.)
24 That was in -- let me think for a 24 BY MR. CARDEN:
25 second -- Illinois. 25 Q The -- You have a number of
U.S. LEGAL SUPPORT
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Malcolm Branch, M.D.
August 15, 2018 22 to 25
Page 22 Page 24
publications I note on your CV, Doctor. 1 textbooks that I've got listed here,
Are there any of those publications that other than the gastrointestinal bleeding
you think are particularly germane to -- I would use some information from the
this case? -- that latest edition in some of the
No, sir. teachings, we would, for our --
Any of the texts or treatises that Okay.
you've been involved with authoring, do -- trainees.
you consider those -- any of those Ever been involved in a case, in terms
authoritative? of your involvement as an expert, in
10 No, sir. 10 which it was alleged that the suspected
il Do you utilize those -- any of those il malignant tumor was misidentified in
12 textbooks in your teachings at Duke? 12 terms of its location?
13 We certainly use textbooks and manuals 13 No, sir.
14 as part of our teaching. Yes, sir. 14 All right. So, in terms of the facts
15 Sure. And that would include the 15 of this case as it relates to
16 principals of practice of 16 Dr. Joseph, you've never had any
17 gastroenterology and hepatology? 7 involvement in a case like that?
18 yes, sir. 18 No, sir.
19 Okay. As well as current 19 If it's not a deviation from the
20 gastroenterology? 20 standard of care to misidentify the
21 Yes, sir. Some of the texts that I've 21 location of this particular tumor as
22 been involved with are from -- are 22 being in the hepatic flexure, how would
23 becoming outdated. 23 you characterize that?
24 All right. 24 MR. GOODIS: Object to the
25 Textbooks in general are becoming 25 form. You can answer.
Page 23 Page 25
outdated as soon as they come out now, Could you ask me that question again,
as we know. please?
All right. Well, which -- let me ask Sure. If you're of the opinion that
you this. In your teaching of the Dr. Joseph, in identifying this
residents and fellows at Duke, currently potentially malignant tumor as being in
which text do you use that are listed on the hepatic flexure, is not a deviation
your CV? from the standard of care, how would you
Yeah. characterize it?
I'm looking at pages 8 and 9. MR. GOODIS: The same
10 Just 8 and 9? 10 objection.
il Well, I -- I'm not limiting it to pages il Okay. So I would -- I guess I would
12 8 and 9 12 characterize it as that the standard of
13 Oh, okay. 13 care would be to do your best to
14 -- but I'm just looking at your 14 identify the lesion and localize it as
15 chapters in books as well as books -- 15 best we can, but we know there is an
16 Yeah. 16 inherent problem with trying to localize
17 -- that you've identified in your CV 17 a tumor in that region of the colon.
18 I'm just curious as to which ones you 18 And that ranges to about 30 percent of
19 use in teaching your residents and 19 the time we are -- we're wrong in where
20 fellows at Duke. 20 we think the tumor is.
21 Actually, the text we predominantly use 21 Again, that -- we use our best
22 would be Schlesinger and Fordtran, which 22 judgement and our skills to identify it
23 is not on this list, and current reviews 23 as best we can, and then we have
24 in journals that are from the various GI 24 subsequently developed a technique, just
25 societies. I'm not sure any of the 25 because of this problem, of tattooing
U.S. LEGAL SUPPORT
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Malcolm Branch, M.D.
August 15, 2018 26 to 29
Preview
Filing # 79954336 E-Filed 10/26/2018 04:58:43 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA DAVID T. LUCEY and CASE NO. 2016-CA-001509 MONICA LUCEY, Plaintiffs, vs. SOVI JOSEPH, M.D.; SOVI JOSEPH, M.D. P.A; STEVEN GOLDIN, M.D.; and 21% CENTURY ONCOLOGY, LLC, Defendants. / PLAINTIFFS’ NOTICE OF FILING COME NOW, the Plaintiffs, DAVID T. LUCEY and MONICA LUCEY, His Wife, by and through the undersigned counsel and hereby give notice of filing of the following for purposes of discovery, motions, trial, or for such other purpose(s) as authorized by law and the Florida Rules of Civil Procedure: 1 Transcript of deposition of Malcolm Branch, M.D. taken August 15, 2018. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished this 26" day of October, 2018, filed with the Clerk of the Court using the ECF system, and by E- Mail designations to: Kevin Crews, Esquire Andrew Vogt, Esquire Wicker Smith O’Hara McCoy & Ford PA 9128 Strada Place, Suite 10200 Naples, FL 34108-2683 Tel: (239) 552-5300 Fax: (239) 552-5399 Email: napertpleadings@wickersmith.com Attorneys for Steven B. Goldin, M.D. and 21" Century Oncology, LLC Jeffrey M. Goodis, Esquire Goodis Thompson & Miller 150 2™¢ Avenue North — 15" Floor St. Petersburg, FL 33701 Tel: (727) 823-0540 Email: gimservice@gtmlegal.com; fmoschenik@gtmlegal.com: choopes@gtmiegal.com Attorneys for Sovi Joseph, M.D. and Sovi Joseph, M.D., P.A. /s/ Kevin J. Carden J. Clancey Bounds FBN: 0981631 Kevin J. Carden FBN: 451071 BOUNDS LAW GROUP 1751 North Park Avenue Maitland, Florida 32751 Tel: (407) 644-5151 Fax: (407) 644-4566 kevin@boundslawgroup.com Servic boundslawgroup.com deedee@boundslawgroup.com Counsel for Plaintiffs Malcolm Branch, M.D. August 15, 2018 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO. 2016-CA-001509 DAVID T. LUCEY and MONICA LUCEY, Plaintiffs, VS. SOVI JOSEPH, M.D.; SOVI JOSEPH M.D., P.A.; STEVEN GOLDIN, M.D.; and 21ST CENTURY ONCOLOGY, LLC, 10 Defendants. 11 12 13 14 15 DEPOSITION 16 OF MALCOLM STANLEY BRANCH, MD 17 18 19 20 21 22 23 24 At Durham, North Carolina August 15, 2018 - 10:16 a.m. 25 Reported by: Mary Lynn Fuller, CVR U.S. LEGAL SUPPORT www.uslegalsupport.com Malcolm Branch, M.D. August 15, 2018 2 to 5 38 Page 2 Page 4 APPEARANCE PROCEEDINGS FOR THE PLAINTIFFS: whereupon, MALCOLM STANLEY BRANCH, MD, Kevin J. Carden having first been duly sworn, Bounds Law Group 751 North Park Avenue was examined and testified as follows: Maitland, Florida 751 DIRECT EXAMINATION (407) 644-5151 BY MR. CARDEN: kevin@boundslawgroup.com Good morning, Doctor. Could you tell FOR THE DEFENDANTS: us your full name, please. 10 10 Malcolm Stanley Branch Jeffrey M. Goodis a oodis Thompson & Miller dl Qe And, Doctor, what is your professional 150 2nd Avenue North, 19th Floor 12 address? 12 St. Petersburg, Florida 33701 13 My professional address is -- do you (727) 823-0540 13 jgoodis@gtmlegal.com 14 want the box number or just Duke 14 15 University? 15 Andrew EB. Vogt 16 Qe Duke University will be fine. Wicker, Smith, O'Hara, © Coy 16 & Ford 17 Yep. I'm a member of the Department of 9128 Strada Pla’ , Suite 10200 18 Medicine, the Gastroenterology Division, a7 Naples, Florida 34108-2683 (239) 552-5300 19 at Duke University Medical Center 18 avogt@wickersmith.com 20 Qe And how long have you been at Duke? 19 21 This is my 30th anniversary this year 20 21 22 Qe You are a gastroenterologist? 22 23 Yes, sir. 23 24 Qe Are you boarded in gastroenterology? 24 25 25 Yes. Page 3 Page 5 TABLE ° F c ONTENTS As well as internal medicine? Yes. EXAMINATION ~ ATTORNEY PAGE Are you what would be characterized as Dizec - Mr. Carden an academic gastroenterologist? EXBIBITS PAGE Well, I guess I'm not sure what your No cv definition of an academic No Correspondence aL gastroenterologist would be, but I would No Fee S edule 14 No List of Materials assume so. 9 Reviewed 18 You -- And I guess my question is: Do No Invoice a8 10 you have a practice -- a private 10 il practice outside of the confines of Duke a 12 and the Duke Medical Center? (wore: Plaintiffs’ Exhibit 5 to be provided by Mr 12 Goodis to the court reporter at a later time per 13 No, sir. My -- All clinical practice agreement of counsel. As of time of production of 14 would be at -- involved in the medical 13 transcript, this exhibit still has not been received.) 15 center or our affiliated hospitals or 14 16 clinics. 1s 17 Do you have a copy of your current CV? 16 18 I do. a7 18 19 MR. CARDEN: Ma'am, can we 19 20 mark that as Plaintiffs’ Exhibit 1. 20 21 THE COURT REPORTER: Yes, sir. 21 22 (EXHIBIT NO, 1 WAS MARKED.) 22 23 23 BY MR. CARDEN: 24 24 Dr. Branch, can you give me a little 25 idea of your day-to-day activities at U.S. LEGAL SUPPORT www.uslegalsupport.com Malcolm Branch, M.D. August 15, 2018 6 to 9 Page 6 Page 8 Duke? with the standard of care? So it might be easier for me to As accurate as we can make it. describe it as a week. So during the Yes, sir. In identifying the various week, I usually have three days of anatomical areas within the colon, for clinical activities. Some weeks, when instance, the hepatic flexure or the I'm covering the consult service, it splenic flexure, both you and your would be the entire week. I take call residents and fellows should be accurate -- general call and then specialty call when identifying any potential mass for some of the advanced endoscopy within that area of the colon? 10 procedures and patient care that I'm 10 Yes, sir. We would do our best to be il involved with, and then I have il as accurate as we can. 12 administrative duties for the division 12 All right. If you or one of your 13 and for our physicians practice, and 13 residents or fellows identifies a 14 then that also includes teaching, which 14 potential malignant tumor in an area of 15 is often done during my clinical 15 the hepatic flexure, is it fair for a 16 activities, and I have a small amount of 16 subsequent surgeon to rely on that? 17 research that I still participate with 7 Yes, they would use a report and -- 18 but not as much as I used to. 18 that we have done our best to be as 19 What area do you spend most of your 19 accurate, as I mentioned, about 20 time during the week? 20 localizing the lesion. As I think 21 The biggest percentage is in clinical 21 you're implying, unfortunately, we are 22 care. 22 not always 100 percent accurate. 23 Do you do colonoscopies? 23 Is it -- The standard of care, does it 24 Yes. 24 require that a colonoscopy be conducted 25 How many during a given week do you do 25 in a manner and reported in an accurate Page 7 Page 9 currently? manner by a gastroenterologist? During a week, it could range from 5 or My sense is the standard of care would 6 to 20. be you would try to report as accurately And when you do the colonoscopies, do as you can within the accuracy of the you generate the -- a report? procedure and document that I do. appropriately. And when you -- the colonoscopies that Do you agree with me that Dr. Joseph in you're involved with, do you do those this case inaccurately reported the yourself, or are you observing them as location of the tumor in Mr. Lucey's 10 the residents or fellows are conducting 10 case? il them? il I guess my statement would be he 12 A mix. 12 reported where he felt the tumor was 13 A mix? Do you generate the reports or 13 from his exam and that ended up, as we 14 author the reports yourself, or do you 14 know happens, to be in a different 15 let the residents or fellows do that? 15 location. 16 That would be a mix, as well. I would 16 Yes, sir. That is to say that the 17 review every report and eventually sign 17 location at which Dr. Joseph reported, 18 it. If it's just myself performing the 18 in a number of instances in his 19 procedure, I generate the report Ifa 19 colonoscopy report from 10/2/14, was, in 20 trainee is working with me, they will do 20 fact, inaccurate. You'd agree with 21 the initial report, and then I will 21 that, wouldn't you, sir? 22 review that and correct or make 22 The tumor was not where he thought it 23 additions and then finalize it. 23 was. 24 Is it fair to say that the reports 24 All right. In fact, the tumor was 25 should be accurate in order to comply 25 reported by Dr. Joseph in a place in U.S. LEGAL SUPPORT www.uslegalsupport.com Malcolm Branch, M.D. August 15, 2018 10 to 13 Page 10 Page 12 which it was not? colon that was a malignant lesion and That is correct. that the report suggested it was at the All right. And you would agree that hepatic flexure. that reporting was inaccurate to such an Okay. When were you contacted in this extent that it deviated from the case? standard of care? MR. GOODIS: I probably have No. the correspondence, if you want to know You don't agree with that? that, Kevin. I do not. MR. CARDEN: Sure. 10 What is the basis of a 10 BY MR. CARDEN: il gast roenterologist,such as Dr. Joseph, il Do you have any correspondence with you 12 reporting that this tumor is in the 12 today, Doctor? 13 hepatic flexure when, in fact, it's not? 13 MR. GOODIS: I brought the 14 How is that not a deviation from the 14 letters from my office -- or the emails 15 standard of care? 15 from my office to Dr. Branch and then 16 Well, I think the standard of care 16 the letters, too. I have all of them 17 would be you report it as accurately as 7 with me. It looks like May 15, 2017, 18 you think you can, where you think the 18 was the first 19 lesion is located. We know, from 19 MR. CARDEN: Okay. 20 experience and education and our 20 THE WITNESS Right. 21 teaching, that we are not always 21 MR. CARDEN: can we get copies 22 accurate. So we, again, attempt to be 22 attached as Composite No. 2? 23 as accurate as we can, but, 23 MR. GOODIS: Absolutely. I'm 24 unfortunately, especially in that region 24 giving them to the court reporter now. 25 of the colon, you are not 100 percent 25 MR. CARDEN: Sure. Let me Page 11 Page 13 sure where the lesion is. You do your know when you're ready, ma'am. best based on what landmarks you can (EXHIBIT NO, 2 WAS MARKED.) identify. The only two places you can BY MR. CARDEN: be 100 percent sure you are are the Had you worked with doctor -- or, beginning and the end. Doctor, have you worked with Mr. Goodis Do you agree that Dr. Goldin's before? preoperative diagnosis subsequent to I have not. this colonoscopy report was based on a Have you worked with anyone at his preoperative diagnosis of a splenic firm? 10 flexure tumor? 10 Not that I'm aware of. il No, sir. il Andrew Vogt is there with the Wicker 12 All right. Do you disagree with the 12 Smith firm, Have you ever worked with 13 preoperative diagnosis? I'm sorry. I 13 him or Kevin Crews of his office? 14 misspoke there. 14 Not that I'm aware of. 15 Do you disagree with 15 Any Wicker Smith folks in the other 16 Dr. Goldin's preoperative diagnosis of a 16 Florida offices, be they Orlando or 17 hepatic flexure tumor? 17 Tampa? 18 No, I don't disagree with that. 18 No, sir. 19 All right. And do you agree that that 19 You don't know how Mr. Goodis got your 20 was based upon the colonoscopy -- in 20 name? 21 large part on the colonoscopy report 21 I do not. 22 generated by Dr. Joseph? 22 Have you served as an expert in other 23 MR. GOODIS: Object to the 23 cases involving allegations of medical 24 form. You can answer. 24 negligence? 25 A So he knew there was a lesion in the 25 I have. U.S. LEGAL SUPPORT www.uslegalsupport.com Malcolm Branch, M.D. August 15, 2018 14 to 17 Page 14 Page 16 How long have you been doing this? actually made those decisions. 20-plus years. What is your fee for deposition? And how did you get into the field of It is -- For the half day, I think it expert testimony? was 3 -- I think it's three grand for One of my mentors asked me would I be ac interested at the time to cover a case MR. GOODIS: Depo or trial? that he could not, and I said yes then THE WITNESS: Yeah, I guess —- And have you formed all the opinions could you clarify that? that you intend to offer at trial in MR. GOODIS: He was asking 10 this case? 10 deposition. il Yes, based on all the records I il THE WITNESS Oh, deposition. 12 reviewed so far. 12 MR. CARDEN: Yeah. I was 13 MR. GOODIS: Hey, Kevin. 13 asking about a -- 14 MR. CARDEN: Yeah. 14 THE WITNESS Depo -- 15 MR. GOODIS: I meant to tell 15 MR. CARDEN: -- deposition. 16 you that I didn't send him the Tampa 16 THE WITNESS I'm sorry. A 17 General Hospital records until two days 7 deposition is $600 an hour. 18 ago, but if they generate any changes of 18 BY MR. CARDEN: 19 opinion, I'll certainly let you know, 19 Now, your trial appearance is 300 -- 20 but I can't imagine that they would. 20 3,000 for a half day? 21 MR. CARDEN: Okay. 21 I'd have to go back and look at it. I 22 BY MR. CARDEN: 22 apologize. I can't tell you 23 Do you hold the Florida expert 23 specifically. It's -- There's a 24 certificate Dr. Branch? 24 printout that we get from our practice 25 I don't. I'm not sure what that is. 25 that we use, but I could provide that Page 15 Page 17 What is the fee that you charge for for you. reviewing cases? Is that the -- $600 a hour is our practice's fee. Mr Goodis may have that. And when you say it's our practice, are - fee structure that you have? you talking about the Duke medical Yes, sir. community? Is that something you can provide to Yes. Our Physician's Practice has a our court reporter? standard fee structure. I don't have it immediately available, All right. Do the fees that you but I could. 10 generate in your review of cases and 10 MR. GOODIS: I'll get it for il testimony, do they -- are they to your il you, Kevin. 12 benefit, or do they flow to the 12 MR. CARDEN: Okay. We'll mark 13 university in some fashion? 13 that as Plaintiffs’ 3 14 Well, it depends on how I structure it. 14 (EXHIBIT NO. 3 WAS MARKED.) 15 So there is a portion of it that will go 15 BY MR. CARDEN: 16 to our practice and then, if I want to, 16 Have you ever advertised your services 17 I can have some of this money go into a 17 as a -- an expert, Doctor? 18 discretionary account that I can use for 18 No. Huh-uh. No, sir 19 various activities or I can have the 19 Have you spoken to Dr Joseph? 20 monies come to me directly. 20 I have not. 21 And what are you doing with the monies 21 Have you spoken to Dr Goldin, the 22 that you generate in connection with 22 surgeon in the matter? 23 this Lucey matter? 23 I have not. 24 I've not turned an invoice in for this 24 Can you give me some idea as to the —- 25 as of yet. So I -- as I say, I've not. 25 in the last 20 years, how many cases U.S. LEGAL SUPPORT www.uslegalsupport.com Malcolm Branch, M.D. August 15, 2018 18 to 21 Page 18 Page 20 have you been involved with? Q I'm sorry, Illinois? Approximately 20 cases or so. Yes, sir. I believe that's correct. Somewhere in the ballpark. What percentage of your personal income I'm sorry. I didn't hear you. is generated by virtue of your I'm sorry. Approximately 20 or so involvement with these kinds of cases? cases. Less than 5 percent. 20 cases over the past 20 years? Do you have all the records that you Somewhere in that range. There'd be reviewed in connection with this case? some years I would do no cases, some Do I have them with me now? 10 years do one or two. More recently, 10 Yes, sir. il I've been asked to do many more, but I il Yes. 12 only have a limited amount of time, 12 I'm sorry. You may have answered and I 13 oO -- 13 missed it. 14 Sure. How many cases do you have 14 Yes. 15 pending? 15 Okay. Incidentally, do you have any 16 Counting this case, it's either two or 16 kind of a case list compiling the 17 three. I've been asked to review a 7 matters that you've been involved with? 18 case, but I think I'm going to tell them 18 I do not. 19 no because I just don't have the time. 19 Ever testified in federal court? 20 Sure. Of the cases -- the 20 cases or 20 No, sir. 21 so that you've reviewed over the past 21 Can you inventory me or list for me the 22 couple of decades, can you tell me which 22 materials that you've looked at in the 23 ones have been on behalf of the 23 case? 24 healthcare provider versus a patient? 24 MR. GOODIS: I have a list, 25 The specific number or just give you a 25 Kevin. Do you want me to just have him Page 19 Page 21 percentage? read it, or do you want to -- me —- A percentage. maybe I could just take a picture of it Probably in the 80 percent defense, 20 and send it to you. percent plaintiff. MR. CARDEN: Yeah. Actually, The two or three cases that you have you can just take a picture of it and pending, are any of those on behalf of attach it as an exhibit. That'd be the patient or plaintiff? fine. one is. MR. GOODIS: Okay. The list, When is the last time you testified in by the way, does say Tampa General 10 connection with a case on behalf of a 10 Hospital, and that -- he -- he's not il patient? il reviewed those records. 12 Actually testified? 12 MR. CARDEN: Okay. So the 13 Yes, sir. 13 list of materials that were sent to you, 14 It's been a few years. I couldn't tell 14 with the exception of the Tampa General 15 you the exact time frame. 15 Hospital records, we'll make that No. 5. 16 When is the last time you've testified 16 MR. GOODIS: All right. 17 in a trial setting? 17 THE COURT REPORTER: No. 4. 18 In a trial? It would have been earlier 18 MR. GOODIS: No. 4. 19 this year. 19 MR. CARDEN: Okay. 20 And was that in North Carolina or 20 MR. GOODIS: I'm emailing 21 somewhere out of state? 21 it to you too, Kevin. 22 That was out of state. 22 MR. CARDEN: Thanks. 23 Where was that? 23 (EXHIBIT NO. 4 WAS MARKED.) 24 That was in -- let me think for a 24 BY MR. CARDEN: 25 second -- Illinois. 25 Q The -- You have a number of U.S. LEGAL SUPPORT www.uslegalsupport.com Malcolm Branch, M.D. August 15, 2018 22 to 25 Page 22 Page 24 publications I note on your CV, Doctor. 1 textbooks that I've got listed here, Are there any of those publications that other than the gastrointestinal bleeding you think are particularly germane to -- I would use some information from the this case? -- that latest edition in some of the No, sir. teachings, we would, for our -- Any of the texts or treatises that Okay. you've been involved with authoring, do -- trainees. you consider those -- any of those Ever been involved in a case, in terms authoritative? of your involvement as an expert, in 10 No, sir. 10 which it was alleged that the suspected il Do you utilize those -- any of those il malignant tumor was misidentified in 12 textbooks in your teachings at Duke? 12 terms of its location? 13 We certainly use textbooks and manuals 13 No, sir. 14 as part of our teaching. Yes, sir. 14 All right. So, in terms of the facts 15 Sure. And that would include the 15 of this case as it relates to 16 principals of practice of 16 Dr. Joseph, you've never had any 17 gastroenterology and hepatology? 7 involvement in a case like that? 18 yes, sir. 18 No, sir. 19 Okay. As well as current 19 If it's not a deviation from the 20 gastroenterology? 20 standard of care to misidentify the 21 Yes, sir. Some of the texts that I've 21 location of this particular tumor as 22 been involved with are from -- are 22 being in the hepatic flexure, how would 23 becoming outdated. 23 you characterize that? 24 All right. 24 MR. GOODIS: Object to the 25 Textbooks in general are becoming 25 form. You can answer. Page 23 Page 25 outdated as soon as they come out now, Could you ask me that question again, as we know. please? All right. Well, which -- let me ask Sure. If you're of the opinion that you this. In your teaching of the Dr. Joseph, in identifying this residents and fellows at Duke, currently potentially malignant tumor as being in which text do you use that are listed on the hepatic flexure, is not a deviation your CV? from the standard of care, how would you Yeah. characterize it? I'm looking at pages 8 and 9. MR. GOODIS: The same 10 Just 8 and 9? 10 objection. il Well, I -- I'm not limiting it to pages il Okay. So I would -- I guess I would 12 8 and 9 12 characterize it as that the standard of 13 Oh, okay. 13 care would be to do your best to 14 -- but I'm just looking at your 14 identify the lesion and localize it as 15 chapters in books as well as books -- 15 best we can, but we know there is an 16 Yeah. 16 inherent problem with trying to localize 17 -- that you've identified in your CV 17 a tumor in that region of the colon. 18 I'm just curious as to which ones you 18 And that ranges to about 30 percent of 19 use in teaching your residents and 19 the time we are -- we're wrong in where 20 fellows at Duke. 20 we think the tumor is. 21 Actually, the text we predominantly use 21 Again, that -- we use our best 22 would be Schlesinger and Fordtran, which 22 judgement and our skills to identify it 23 is not on this list, and current reviews 23 as best we can, and then we have 24 in journals that are from the various GI 24 subsequently developed a technique, just 25 societies. I'm not sure any of the 25 because of this problem, of tattooing U.S. LEGAL SUPPORT www.uslegalsupport.com Malcolm Branch, M.D. August 15, 2018 26 to 29