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INDEX
illNES.![ QillCT CRQ22
ROBERT J. BEAUDRY, JR., DMD
BYl MR. SCHWARTZ 3, 7
BYl MR. DORER 33
!!!!IBITS
DEFENDANT'S DEPOSITION EXHIBIT ~
REDillCT ~~SS
PRODUCED , MARKED
5 Clinical Notes 41
6 Patient History 39
7 Radiographic report dated 11/21/94 44
8 Report dated 8/26/97 46
(Exhibits retained by Mr. Dorer. )
3
1 ROBERT J. BEAUDRY, JR., DMD, called as a
2 witness, being duly sworn, testified as follows:
3 DIRECT EXAMINATION ON QUALIFICATIONS
4 BY MR. SCHWARTZ:
S Q We're at the deposition of Dr. Robert J.
6 Beaudry, Jr. The deposition is for use at the trial in
7 Kelly Smyser versus Chad Wagner. Doctor, could you
8 identify yourself by your name and business address?
9 A Robert J. Beaudry, Jr., 3600 Old Gettysburg
10 Road, Camp Hill, Pennsylvania.
11 Q What type of doctor are you?
12 A Oral and maxillofacial surgeon.
13 Q Could you describe for the jury what an oral
14 and maxillofacial surgeon is?
lS A Oral surgeon is a dentist who goes onto
16 specialty training three, four, or five years after dental
17 school, multiple residencies or one long single residency
18 trained to reconstruct basically the jaws, taking care of
19 ti.sue of the face, jaw bones, teeth, .alivary glands, jaw
20 jOints, head and neck and facial pain problems related to
21 the jaw structure., sort of between pla.tic .urgery and
22 orthopedic surgery in a sense related to a specific area
23 of the tace.
24 0 Could you give us your educational background
25 after you graduated froa high school?
4
1 A Did four years at Southern Connecticut
2 University, went straight to a Ph.D. program in Case
3 Western Reserve in Cleveland but decided to go onto dental
4 school at Washington University in St. Louis for dental
5 school, and spent one year in a general practice residency
6 in Woodbury, Connecticut and three years at the Johns
7 Hopkins Hospital in Baltimore for oral surgery training.
S Q Are you licensed to practice dentistry?
9 A Yes, in Pennsylvania.
10 Q Could you give us your employment and practice
11 history since you've been licensed to be a dentist in
12 Pennsylvania?
13 A Pennsylvania I was a partner in Miller Oral
14 Surgery and then we split the practice up in the last
15 year, and I've been on my own independently since March of
16 '96.
17 Q Were you employed -- were you working in
18 dentistry in any other state other than Pennsylvania?
19 A I was in Annapolis and Glen Burnie, Maryland
20 right after Johns Hopkins for two year.. That's pretty
21 much it except for teaching TMJ cour.e. at Thom.s
22 Jefferson university and .o.e lectures given down at John.
23 Hopkins, but tho.. w.r. ....nti.lly pr.ctic. r.l.t.d or
2. educ.tional r.l.ted.
25 0 Doctor, .re you. Board c.rtified or.l .urgeon?
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A Yes.
Q Could you explain to the jury what a Board
certified oral surgeon is?
A Board certification throughout the different
specialties both in dentistry and medicine requires that
you go through an approved training program in a
recognized specialty. And following that each of the
specialties have different types of tests and
requirements.
The oral surgery examination is approximately
eight hours of written and passing that you take
approximately four to six houre of oral examination by
membere of the oral eurgery community nationwide that are
aleo Board certified and picked to act on the committee.
Q Are all oral surgeons eventually Board
certified then or --
A No, you have a choice whether you want to go
for Board certification or not. It'. a very difficult
proce.s. and the pas. rate in oral surgery is pretty low.
o In your practice as an oral .urgeon, Doctor, do
you treat a condition known as teaporal mandibular joint
dysfunction or TMJ?
A Y.s.
o Also for the jury could you d.scribe what TMJ
is?
6
1 A Well, TMJ is just the name of the joint. It's
2 not doesn't denote specific pathology clinically, but I
3 think if you say that somebody has a TMJ to another
4 surgeon or dentist they essentially know what it means
5 without going into details. The jaw joint is a
6 specialized joint that is at the near end of the mandible
7 away from the teeth just under the base of the brain right
8 in front of your ears. And it involves a socket and a
9 ball that rotates in the socket and translates forward and
10 backwards within the socket also and then a small disc
11 cartilage in between the two tries to stay in position
12 adapted between the two bones, the ball and the socket.
13 The condition relates a direct problem within
14 those three structures plus associated muscles which can
15 become involved and occasionally the ear.
16 0 Whst percentage of your practice would you say
17 is related to treating persons with problems with their
18 TMJ?
19 A Without being held to -- it feels like 100'
20 because the patients are always there, but I would .ay on
21 a patient visit ba.is throughout the year .aybe 25 to 30
22 percent. Ti..wi.e those type. of patient. tate .uch .ore
23 ti.e. So.eti.e. a year the percentage vi.e i. relatively
24 higher.
25 0 So would it be fair to .a, that a .ignificant
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portion of your time is treating patients with those TMJ
type problemsl is that fair to say?
A And the vast majority of that is nonsurgical
management.
MR. SCHWARTZ: At this time I'd like to offer
Dr. Beaudry as an expert in the field of oral and
maxillofacial surgery and the treatment of TMJ related
problems.
MR. DORER: I have no questions as to
qualifications.
DIRECT EXAMINATION
BY MR. SCHWARTZ:
Q Doctor, when did you first become acquainted
with Plaintiff in this action, Kelly S.yser?
A That was April 8th, 1997.
Q And do you know how it was that she ca.. to --
A Excuse .e one second.
(Discussion held off the record.)
(Question read.)
BY MR. SCHWAR'tI1
Q Doctor, do you knov hov it vas that lelly
S.yser ca.e to see you?
A I think she told .e she vas referred b,
Attorne, Inauer for evaluation. Apparently ehe va. .till
havin9 proble.. and va.n't belft9 treated actively but --
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Q Doctor, have you had Attorney Knauer or his
office refer persons to you for evaluation and/or
treatment in the past?
A Yes, just like a number of lawyers and groups.
Q And likewise, Doctor, have there been times
when you have referred some of your patients to Attorney
Knauer or his office for legal work that they may need to
have done?
A Yeah, I think there's been a couple over -- a
few over the years, some not related to anything to do
with medical also.
Q Okay. Doctor, who had previously treated Ms.
Smyser for her jaw and her jaw problems?
A From the record I have Dr. Harry Hyers had seen
her following her accident and treated her broken jaw and
then I believe followed up treating her THJ problem from
that shortly thereafter.
Q As part of your evaluation of Hs. Smyser, did
you review any medical records?
A The -- they are .ort of .par.e. We called for
.ome record. and --
Q Can you identify ju.t the healthcare provider.
who you have reviewed record. from?
A Let'. .e.. Dr. Na.er .ent u. a note of the --
ba.ed on hi. record.. I didn.t .ee biB actual record..
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And they FAX'd that to us which I think is in the record
here. And I also talked to Dr. Naser by phone. Dr.
Percarpio, I know I talked to him by phone at one point.
I don't believe we got records from Dr. Percarpio per se.
Holy Spirit Hospital sent us just the radiology report.
And Dr. Myers, we hadn't received her report, and just
reviewed those when you gave them to me when you saw that
I hadn't had them by the time you had the report.
Q Doctor, those records that you reviewed from
Dr.
A Do you want coffee?
(Brief recess.)
BY MR. SCHWARTZ:
Q Doctor, the records you reviewed from Drs.
Naser, Percarpio, Holy Spirit Hospital, and Dr. Myers, are
those the type of records that you typically rely on when
you're evaluating a patient and their treatment history in
order to arrive at your diagnoses and opinions?
A Sometimes, if it appears important to the case,
a patient's file. She had a fracture so certainly wanted
to get an idea of what the level of the fracture was just
for general knowledge.
It wouldn't .ake much difference for what I vas
treating fro. that point on, but the type of injury for
the record. where a lot of ti.e. the general dental
10
1 records aren't -- they are more related to the teeth and
2 general dental work as opposed to any surrounding issues
3 before or after an accident.
4 Q Certainly those are the kind of records that at
5 times is necessary for you to review and rely upon as part
6 of your practice?
7 A Correct, correct, especially if there seems to
8 be a confusion about the injuries or type of injuries,
9 which there wasn't in this case.
10 Q Could you briefly give us the history that Hs.
11 Smyser gave you --
12 A I'm sorry to interrupt.
13 (Discussion held off the record.)
14 BY MR. SCHWARTZI
15 Q Back to the questions, Doctor, can you tell us
16 the history that Ms. Smyser provided you whsn ahe firat
17 came to you on April 8th of 1997?
18 A Let's see, motor vehicle accident -- there
19 seemed to be some confusion about the exact dates so I
20 stopped writing it until I could find out. Hit the right
21 side of her jaw into the daahboard and broke it. I don't
22 think ahe was seat belted at the time. She waa a
23 passenger, fractured her jaw, .andible right side.
24 At that time I had a question .ark of where.
25 It turned out from the other records it was at the right
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1 angle. She was wired shut for six weeks, closed reduction
2 it's called. They didn't open the bones up to do it.
3 Being that the fracture was right near the wisdom tooth,
4 they fried to fix that closed.
5 Apparently it was the only injury that she had
6 directly right from the accident from slamming into the
7 dashboard. I had down she was seen at the Holy Spirit
B Hospital emergency room. She had films taken. She was
9 diagnosed and released to the office for repair, which is
10 wouldn't be an uncommon thing.
11 You wouldn't have to repair that right in the
12 hospital, that type of accident. Depending on the day or
13 night the surgeon might take the call by phone. I can see
14 the ER doc saying this doesn't need to be repaired right
15 now, we can make her comfortable until they can see her in
16 the office.
17 It's much more convenient usually to treat
18 these in the office for the patient and doctor instead of
19 keeping them in the hospital, less costly too. She was
20 given a hard lower splint post-release her fixation for
21 diagnosis of a TMJ problem Dr. Myers .ade. Apparently she
22 had clenching and clicking right afterwards. She didn.t
23 have an MRI done after the injury to take a look at the
24 disc and .11. At that point Dr. Myers didn.t feel it
25 necessary apparently.
12
1 She was placed on Naprosyn for her headaches
2 and muscle inflammation by Dr. Myers. And she was on
3 Advil and Tylenol when I saw her just because the
4 prescription she was receiving from Dr. Myers had run out
5 and she didn't go back to him.
6 Q Doctor, you mentioned a fracture of her jaw as
7 a result of the motor vehicle accident. Could you explain
B what that fracture was, the type of fracture for the
9 jury's sake and why the treatment, this fixation, was done
10 for that and so forth?
11 A Well, I have not been able to get the films
12 that Dr. Myers had or from Holy Spirit, but from
13 description it was a nondisplaced fracture at the angle of
14 the mandible, which means that basically with the pressure
15 on the jaw hitting the dashboard the bone cracked right in
16 place, but the lining around the bone -- it's called the
17 periosteum -- didn't rip or get torn enough so that the
18 bones displaced.
19 That type of injury would be .i.ilar to just a
20 punch to the jaw or injury to the jaw where nothing break.
21 .nd you ju.t get. cru.h injury up into the joint area. A
22 full fr.cture where the bone. .plit .nd they are very
23 100.. .o.eti... i. an e..i.r injury on a joint b.cau.e the
24 pr...ure i. rel....d a little bit quicker before it get.
25 to the joint or go.. through the joint.
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1 The injury she has, she hit her right jaw into
2 the dashboard, She cracked that jaw directly and that
3 would force the jaw then to the left, pushing out the left
4 joint laterally out of socket. And very commonly,
5 probably most common injury for jaws, is most people are
6 right-handed and punch somebody in their left jaw and
7 breaks the left jaw at the angle that the right joint
8 breaks,
9 In her case, she suffered a direct contusion to
10 the tissues that related in the fractured bone underneath
11 right near the wisdom tooth area. And both joints then
12 would have also been traumatized deeply in the socket and
13 also laterally into the socket on the left side and pushed
14 inward into the socket on the right side.
15 Q Doctor, when Ma. Smyser came to be treated by
16 you, what symptoms or complaints did she present with?
17 A When I saw her she had an opening of
18 approximately 36 millimetera with alight deviation to the
19 left side. She could move her jaw to the right six
20 millimeters, eight to the left, and approximately five
21 forward, and stretching it as far as she could on her own
22 power though slowly,
23 We e.tablished a click on both right and left
24 joints, the left side a little bit gr.ater than the right,
25 She was more sore in the right -- I'. sorry -- Ihe was
14
1 more sore in the left joint than the right joint, though
2 both were sore and the same with the coronoid process
3 inside the mouth. The left side was more sore than the
4 right side.
5 That's the tendon that comes down from the big
6 muscle in the head, the temporalis muscle, the one you see
7 on the Anacin commercials throbbing for headaches. It's a
8 very large jaw muscle and it's usually the first one that
9 gets sore when people have problems with their jaws.
10 I also note at the bottom of the record no
11 prior history of THJ, any popping or clicking, which is
12 confirmed by her dentist as much as they could.
13 MR. DORER: I have an objection. I object to
14 the hearsay. I have no objection as to the history as far
15 as what the patient gave to him, but as far as what any
16 other dentist says is hearsay.
17 THE WITNESS: And the plan was to get an MRI
18 scan, to try to get whatever medical records we could and
19 revi.w her case and have her bring in the splint that she
20 had to se. if w. could reuse the .... .p1int.
21 BY MR. SCHWARTZ:
22 Q Let ae ask you then, Doctor, what -- a. you
23 were .entioning, wh.t diagno.tic exa.s or other te.ts did
24 you order or even have perfor.ed your.elf at that fir.t
25 vieit?
15
1 A She had a panorex taken I believe, which is a
2 standard oral surgery film just for reviewing the jaw
3 structures and in general, and then we sent her for the
4 MRI scanning to look at the jaw joint itself, especially
5 the disc and some tomography of the joints.
6 Q And eventually did she get that MRI done that
7 that was ordered?
8 A Correct. And she came back on April 29th to
9 review the MRI with her. And my reading on the left side
10 she had anterior displacement of the disc with biting of
11 the ball into the socket on what's called the bilaminar
12 zone, where the disc is slipped forward somewhat.
13 So instead of the pressure from the ball being
14 directly on the cartilage, it's on the tissues in back of
15 the cartilage. And on opening, the disc reduced and the
16 joint translated forward.
17 On the right side she had an earlier version of
18 anterior displacement and some thinning of the disc but
19 she had some slight beaking of the condylar head, which
20 represents sort of an arthritic change, represents what
21 was going on with the joints, joint. trying to callous
22 over by changing shape of the bone, .omething to be
23 vatched. And ve reco...nded that sh. have a splint .ad.
24 at that ti.e.
25 0 Were you able to co.e up vith -- b..ed on the
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history provided by Ms. Smyser and the records and the
exams performed, were you able to come up with a diagnosis
as to her condition?
A Well, diagnosis that we established, you know,
at the time was bilateral temporomandibular joint disc
displacement and early arthritic changes associated with
chronic pain in the tissues and muscle and secondary to
the car accident and the fracture as a follow up to the
same thing Or. Myers found during and immediately after
his treatment.
Q Now, Doctor, you mentioned the HRI's and the
results, a lot of medical terms, do the __
(Interruption. )
(Brief recess.)
BY HR. SCHWARTZ:
Q You were explaining a few minutes ago about the
results of the MRI using a lot of medical terms and so
forth. Did the MRI confirm the disc displacement that you
diagnosed?
A Yes, it confirmed what we felt was there just
from her clinical exam, both pain and symptom-wise,
history and physical, clicking and rubbing sounds, et
cetera, sort of to be expected by the type of injury.
Q Doctor, based on your educatlon. training, and
experience --
17
1 (Interruption.)
2 BY MR. SCHWARTZ:
3 Q Again, Doctor, based on your education,
4 training, and experience as well as the history provided
5 by Ms. Smyser, the records you reviewed of her healthcare
6 providers, your examinations and tests which you performed
7 on her, do you have an opinion to a reasonable degree of
8 medical dental certainty of what caused her fractured jaw
9 and subsequent TMJ problems?
10 A Well, that's not in question, the fractured jaw
11 and resulting TMJ problems is a direct result of the motor
12 vehicle accident both from the direct injury itself and
13 the common follow up that the TMJ's experience over a
14 period of months and years secondary to those types of
15 accidents when the jaw is fractured or not.
16 In this case the jaw was fractured and Dr.
17 Myers diagnosed the TMJ problem right after release of
18 fixation, which as I think he would have expected to. I
19 think he would have looked for that apecifically and
20 atarted to treat her for that.
21 HR. DORER: I object to hearaay again. You may
22 continue.
23 BY MR. SCHWARTZ:
24 0 Following up on that, Doctor, the TMJ problema
2S that were noted in the recorda of Dr. Myera, which you
18
1 reviewed, did your diagnosis agree with his diagnosis?
2 MR. DORER: Objection.
3 MR. SCHWARTZ: I just want to state on the
4 record my response is that the doctor has testified that
5 he relies on the records of the other healthcare providers
6 in the normal course of his evaluation of patients and can
7 therefore testify based on review of these records.
8 MR. DORER: Let me just respond to that just BO
9 our position it clear, and frankly it may make the balance
10 of the deposition easier if I may. I agree that the
11 doctor is absolutely entitled to review and consider other
12 records only insofar as such records may contain
13 references, however, to either patient history or clinical
14 findings.
15 Beyond that any indications as to diagnoses,
16 conclusions, or opinions remain hearsay notwithstanding
11 the doctor's reliance either in whole or in part of such
18 record. but you may continue.
19 THE WITHESS: Off the record a second.
20 (Discussion held off the record.)
21 MR. SCHWARTZ: Could you read back the question
22 that.e have those objections?
21 (Question re.d.)
2. 8Y MR. SCHWARTZI
2S Q Maybe it'. be.t to rephr.se lhe que.tion. With
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lOon's objection noted, the records from Dr. Myers which
2 you reviewed which indicated Dr. Myers was treating her
3 for TMJ problems, did your diagnosis agree with the
4 treatment and care that Dr. Myers was providing to her
5 after she got out of the fixation for the broken jaw?
6 A My diagnosis was similar to his diagnosis at
7 the start-up, a little different because of the time
8 between the two and the normal variation in joints that
9 occur, but basically the same style of diagnosis, same
10 type of diagnosis.
11 HR. DORERI I hate to interrupt. Let's go off
12 the record for a second.
13 (Discussion held off the record.)
14 MR. DORERI The objection is to the answer
15 similar to the objection given to the preceding question.
16 The question made was perhaps unartfu1ly phrased, but I
17 did not object to the question, but the answer beca.e
18 objectionable so I'. just .aking it on the record in that
19 regard. You .ay continue, sir.
20 BY MR. SCHWARTSI
21 0 Doctor, the treatment which Dr. Myers gave to
22 Ms. S.yser following her fixation being reaoved, could you
23 describe for the jury what treet.ent Dr. Myers rendered to
24 Ma. Sayserl
25 A He noted in his letter that -Baving attended to
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1 her now healed right mandibular fracture, the new
2 diagnosis established on March 10, 1995 included the
3 following, headaches from the masticatory muscles or the
4 jaw muscles as he states caused by her motor vehicle
5 accident and direct trauma to the mandible, left TMJ
6 capsulitis diagnosed -- which would be inflammation in the
7 left joint, sort of a term that you use when you push on
8 the joint and it's still sore -- right TMJ internal
9 derangement, clicking, which is something you would note
10 clinically by examination.
11 And he noted all these appeared proximately
12 caused by her car accident. He recommended some routine
13 behavioral instructions to stop any excessive use of the
14 jaw that might be normal for a normal patient. He
15 recommends muscle relaxants for her, anti-inflammatories,
16 and he recommended dental calibration and fabrication of
17 appliance to recapture her disc and unload her joints and
18 decrease her muscle spas. and any nighttime clenching that
19 she might have. What he is describing here is standard
20 TMJ.
21 MR. DORERI I have to rais. the same objection
22 again a. part of that wa. hearsay, part of it wasn't. Mr.
23 Schwartz, would you give me a continuing objection on this
24 i.sue.. f.r .. the extent to which Dr. Be.udry recites
2S other opinions. diagnoses, and conclusions from the
21
1 doctor, which refer and conject on a specific basis.
2 MR. SCHWARTZ: Yes, we can go on the continuing
3 objection.
4 BY MR. SCHWARTZ:
5 0 Doctor, let me just to bring you along step by
6 step, Doctor. If you could, without specifically noting
7 what Dr. Myers may have said in the letter, could you
8 indicate based on the records you have from Dr. Myers what
9 clinical findings he made following her release out of the
10 fixation for the jury?
11 A He made a finding of headaches, most likely
12 from and I'll paraphrase -- jaw muscles, caused by her
13 car accident and direct trauma to the jaw. He made a
14 diagnosis of left joint capsulitis or inflammation, which
15 is just a sign of something going wrong inside the joint
16 itself. Be made a diagnosis of right joint internal
17 derangement or clicking which is a sign of the disc
18 actually being displaced out of position. That's the most
19 common reason for a clicking noise.
20 He also .ade a judgment that those findings
21 that I just described all appear to be related to her car
22 accident.
23 0 Doctor, the clinical findings, including the
24 clicking of the joint which Dr. Myers found, did that
25 support your diagnosis of a TMJ probl..?
>
22
1 A Yeah.
2 Q Also for the jury's benefit we've been talking
3 about some type of procedure or surgery which Dr. Myers
4 performed in which Ms. Smyser was placed in fixation.
5 Could you explain to the jury what Dr. Myers did with the
6 fixation and what it is and so forth?
7 A In the records I have, you place her asleep in
8 the office which would require relatively light general
9 anesthesia or moderate general anesthesia usually. They
10 would have put a mouth prop in the jaw to crank the jaw
11 open during the first part of the procedure so to protect
12 the airway and to put in any local anesthesia they needed.
13 I saw a note somewhere that they put on IV
14 loop., I'm not sure, I didn't see that from Dr. Hyers
15 though. So he might have just used simple wires attached
16 to a series of teeth on the upper right and left sides of
17 the jaw and the lower right and left sides of the lower
18 jaw.
19 Q What's the purpose of that, Doctor?
20 A So when they take the mouth prop out and stuff
21 and wake her up they'll take and either place heavy
22 elastics between the wires between the upper and lower jaw
23 or wire. it.elf. So the patient i. placed in what's
24 called fi.ation to lock the lower jaw firmly up into the
25 upper jaw 80 you can.t open your jaw to move it and
23
1 displace so the fracture has a chance to heal in place.
2 It takes four to six weeks for most fractures,
3 more displaced fractures might take longer, or he might
4 have opened it but this one didn't need to be opened up
5 surgically.
6 Q How does a patient eat or get nourishment while
7 they are in this fixation for six weeks?
8 A Just straight liquid diet. I didn't have any
9 notations from Dr. Myers that she was allowed to release
10 her fixation to take nourishment so I'm assuming she was
11 placed firmly in fixation.
12 The other problem was being put to sleep and
13 having your iaw wired shut, while that's being done the
14 way we do it in oral surgery is the nurse anesthetist
15 stands behind the patient, as for any type of anesthesia,
16 you'll have to stand -- and they pull their jaw up to the
17 ceiling a bit by putting preasure on the anglea of the
18 mandibles. That'a the only way you can hold the jaw and
19 get the airway open.
20 So that while they have to do that at
21 treatment, it's aleo a little bit extra presaure to the
22 fracture aite and to the joints which are juat then
23 recently injured, but there'a no other way of doing it.
24 You have to get through that phase real quick.
25 Q You mentioned that Dr. Myer. treated Ma. Smy..r
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1 following the fixation with anti-inflammatory medication
2 with -- I believe you called it some type of hard plastic
3 splint
4 A Right.
5 Q -- as well? Now--
6 A And a muscle relaxant.
7 Q And a muscle relaxant. Now, that treatment
8 that was being given to her, was that for the jaw
9 fracture, or was that to treat TMJ problems?
10 A That was for the TMJ problem.
11 Q Again, for the benefit of the jury could you
12 explain what this plastic splint is and what it does in
13 relation to helping a TMJ problem?
14 A Well, the general idea of using a hard plastic
15 splint, and moat of ua now make them on the lower jaw, so
16 the patient can wear them 24 houra without affecting
17 apeech too much, the idea ia to create aome diatance
18 between the upper and lower teeth which ahould unload the
19 joint itaelf alightly by bringing the joint downward or
20 downward and forward a little bit.
21 So when tbe patient doea clencb and grind their
22 teetb, which ia normal for everybody to do. exce.aive in
23 ao.e people, they can't generate aa much pre.aure into the
24 joint to keep the initial injury ongoing. The jaw. move a
2S lot during a day for any patient. And you have to try to
25
1 contain that. Even when the mouth is wired shut the
2 that's a period when the jaw joints are taking a lot of
3 pressure for muscle spasm.
4 You have to imagine that most of us spend most
5 -- almost all of the day with the mouth apart, relaxed,
6 and now you're going to spend 24 hours a day with the
7 mouth wired shut and the joint locked right into the deep
8 part of the socket. On top of that you can still clench
9 harder and force -- bend the bone and force the joint up.
10 And all of the people who are wired shut go
11 through a period of muscle spasm because they try to fight
12 the fixation. And this is a reflex, not on purpose.
13 Q And when you .aw Ms. Smyser back in April of
14 this year, was she using a splint at that time? Do you
15 recall?
16 A She was using a .plint and I don't know -- she
17 didn't have it with her.
18 Q And as part of your tre.t.ent did you ..ke a
19 splint for her to we.r?
20 A Right.
21 Q Doctor, let's t.lk . little bit .bout TMJ .nd
22 the function of the jaw. You .t.ted earlier th.t you g.ve
23 h.r ....ur...nt. of h.r j.w op.ning. Did that indic.te to
24 you th.t the function of h.r j.w v.. li.ited?
25 A There'. . wide range of -- th.r.'. no on..t of
26
1 measurements that say normal. You have to take it all
2 clinical along with it. There's a generalized range that
3 in the books barring everything else normal range of
4 motion might be 35 to SO millimeters. For some people it
5 might be the low side, some might be the high side.
6 But some people can move between 35 and SO
7 millimeters of motion and opening and closing their jaw
8 and have severe THJ problems. And it doesn't limit the
9 motion portion because it's not effective motion.
10 Some people over SO, 55, we would diagnose as
11 hypermobile. I think most people would agree that
12 anything under 30, under 25, is a serious problem that has
13 to be diagnosed. Most people with THJ problems are able
14 to open their jaws within, quote, the normal range, but
15 they are not doing the motion normally, if it's slow or
16 painful, they have to be careful.
17 Q Would you say that a TMJ condition does impact
18 on the person's use and function of their jaw?
19 A Host definitely. We have -- the biggest
20
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2)
H
2S Morning h.adaches is a probl.m from nighttime clenching,
problem is chronic pain and headache, wearing out toward
the end of the day fro. use during the day, depending on
their job, fooda. Hoat. of the. with pain tend to avoid
certain foods just without t.hinking about it.
And t.hen we give th.m more reatrictions.
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and for some people it's a severe problem. We have to
send them to different therapies to try to get them to
change their normal habits.
Q Among changing normal habits, did you recommend
a set of risk management protocols to Kelly Smyser?
A Right.
Q Could you tell us what those are and what you
instructed her that she can and cannot do with the jaw?
A The protocol that I listed in the letter of
August 26th, 1997 are the standard basic protocols we tell
all of our TMJ patients.
Q For the jury, just briefly what i. -- what do
you mean by ri.k management protocol? What are you .aying
there?
A The TMJ problems, really by definition can't be
cured, and they don't go away. And what damage is done i.
done and you try to maintain it, and try to maintain it a.
painle..ly a. po..ible for the patient. So we c.n never
rever.e the. back to nor..l.
So what we try to do i. give the. -- .nd go
through a list of different thing. we found over the years
th.t c.n ..k. patient. worle. They can't ...rci.. to ..ke
it better like you c.n with lo.e .uacl. and joint .r....
So w. give th.. . liat of .re.a th.t th.y .re
going to encounter on . d.ily b.ala th.t they h.ve to be
28
1 careful with, including going to the dentist. The big one
2 that most patients don't know about is if you're put to
3 sleep in the hospital, after your asleep and your jaw is
4 yanked open essentially down to your chest and the tubes
5 are put in, they don't warn anesthesia people before the
6 surgery.
7 They are not going to take the care when
8 opening it. So there's things we try to warn a patient
9 about. We tell them not to chew anything that chews like
10 gum or ice cubes, to stay off of that and just be very
11 careful and conscious of the jaw motion.
12 Q Doctor, you stated that essentially the THJ
13 problems cannot be cured. In your opinion is this a
14 permanent or chronic injury?
IS A Well, it's permanent and it's chronically
16 progressive, in some patients very rapid and other
17 patients slow. It's hard to say when it starts and stops
18 on a patient. In her case she's had pain and headaches
19 throughout her joints. so it's still been the same problem
20 we're trying to manage. It's been a slow progress in her
21 over the two or three years, but it still needs to be
22 managed at the first or second level.
23 Soae of the patients who have more severe signs
24 and syaptoms, the risk management protocols are treated
25 aore s.vere1y. the restrictions are aore severe. She's
29
1 still in the early to moderate phase of that.
2 Q Getting into that, Doctor, what is your
3 prognosis for future treatment for Kelly Smyser?
4 A Well, we're going to keep her on her splint,
5 keep working with her on her risk management protocols.
6 She's to wear a splint 24 hours a day. We've placed her
7 on some anti-inflammatories and muscle relaxants because
8 of the headaches. That's a little bit worrisome. She's
9 had some recent increase in soreness in the joints. I
10 don't know what to relate that to. We're going to watch
11 and wait.
12 The next phase from here will be to possibly do
13 some joint injections under anesthesia in the office with
14 a steroid and a long acting local anesthetic. I'm not
15 planning that right now, but it's sort of in the back of
16 my mind. She's not scheduled for any surgery at this
17 point, though I can't -- I haven't seen her yet have a
18 period of low pain and good management to see what the
19 changes are. I haven't been able to get her to a level
20 she sort of plateaued off of just chronic sorenes..
21 Q Mentioning the pos.ibility of the surgery in
22 the future, if you can, can you give u. in your opinion
23 the percentage chance that you feel ~elly S.y.er viii have
24 of nece..itating .urg~cal invention for her care and
25 treat.ent?
30
1 A Well, the three or four basic levels of
2 surgical intervention I think in the next year she might
3 have a 30% chance of having a joint injection performed,
4 which is about as low level surgical invention, technical
5 intervention, you can get, maybe 20% chance, 15% chance of
6 arthroscopic surgery of the joints to loosen them up and
7 evaluate the joints.
a And this is in the next year, and I don't see
9 any chance of any major open joint surgeries from what I
10 know of her right now in the next year. Two years, three
11 years down the line, I can't speculate that far out.
12 Q Doctor, with lelly Smyser, these risk
13 management protocols, is this something she's going to
14 have to follow over the remainder of her life?
15 A Yes. And we I hound my patients about
16 making sure that they burn that into their brain,
17 especially during periods where they might not have lots
1a of signs and symptoms because that's when patient tend to
19 forget and start going back to things. And I keep making
20 sure they know that.
21 In her case, she's had pretty good levels of
22 chronic pain now for a while. And it's hard for me to
23 read her. It's going to take more time because she
24 doesn't complain a lot until you really poke something and
25 delve into it. Sbe's not -- she's more of a stoic it
31
1 appears than most of the patients. She's certainly a
2 little more depressed now with the risk management
3 protocols and the need for it.
4 Q Now, Doctor, you're talking -- you talked
5 earlier about the permanent nature of this injury. If she
6 should need these joint injections and/or the arthroscopic
7 surgeries, are they something that could cure her
8 problems?
9 A No. No, there's -- if cure means having the
10 tissues go back to their preaccident normal state, no,
11 there's nothing that can do that. The joint injections
12 would be for pain management and to help loosen the joint
13 up. Arthroscopic surgery would basically be for the same,
14 to rinse out the joint, get it moving again.
15 A joint that moves even with pain or symptoms
16 is better than a joint that gets stuck on and off. Those
17 tend to progress a little more rapidly, but there's no
18 cure for it in a term that a lay person would think of a
19 cure. It.s basically a management type of problem.
20 There's a quicker progression when a patient
21 starts joint injections and arthroscopic surgeries, that
22 we do that only when nonsurgical .anags.ents, treat.ents
23 are not handling the proble.. And there's a quicker
24 progression fro. those two levels up to the third level of
25 open joint surgery.
32
1 Generally because if you're in here for joint
2 injection arthroscopic, your problems have already been
3 diagnosed or considered severe enough that it's not going
4 to be handled just with the management of the splints, the
5 medication, and that your daily lifestyle is involved
6 enough and quality of lifestyle and it warrants those
7 interventions.
8 Q Doctor, when is the last time you saw Kelly
9 Smyser for an appointment?
10 A September 2nd.
11 Q And how often is she seeing you on a regular
12 basis at this point?
13 A She's scheduled from that to come back in two
14 weeks 80 the 12th or thereabouts. I guess Friday she'll
15 be in to check the splint to make sure the splint, the
16 changes we made were sufficient, and probably let her go
17 for another two weeks and try to get her on a monthly
18 basis.
19 Q Do you anticipate seeing her on a -- hopefully
20 on a monthly basis?
21 A Probably monthly basis for the next six months,
22 try to get a handle on where ahe's going. If ahe runs out
23 of medication, she knows to call in and we'll call in more
24 medications for her if she n.eda to.
2S MR. SCRWARTlt Thank you, Doctor. I have no
33
1 further questions.
2 (Interruption.)
3 (Brief recess.)
4 CROSS EXAMINATION
5 BY MR. DORERI
6 a Dr. Beaudry, as you testified to you first had
7 contact with Ma. Smyser on April 8th, 1997, earlier this
8 year?
9 A Right.
10 a Based on either your understanding from Ms.
11 Smyser or from your belated peruaal of Dr. Myers' clinical
12 note, can you tell me when Ma. Smyaer laat contacted Dr.
13 Hyera before she firat came to you in April of thia year?
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19 not received to beat of your knowledge any care for her
20 oral..
21 (Interruption.,
22 BY HR. DORIRI
23 0 .. condition for at leaat four .ontha, if not
24 longer than that?
2S AI'. aorry. C.n you repeat that?
A She had her wiadom teeth out in 1996 by Dr.
Hyera. That'a the 1aat tille I know that ahe aaw hill.
a Do you know when in 1996 th.t waa?
A No.
a So when ahe a.w you in April of 1997 ahe had
34
1 (Question read.)
2 THE WITNESS: I wouldn't put it that way. She
3 was using home anti-inflammatories over the counter,
4 anti-inflammatory medication, and using her splint.
5 Apparently that was, as I recall, that was the level she
6 was left at. There was nothing else she was told she
7 could do.
B BY MR. DORER:
9 Q Well, regardless of that, the fact remains she
10 had not been in contact with a health professional
11 concerning her mouth for at least four months~ i. that
12 correct?
13 A Well, I don't know. I'm assuming you know
14 something from December of '96 but I don't have that in my
15 records.
16 Q Did you obtain any history as to the dosage of
17 ho.e anti-inflaaaatory medication she had been ingesting
1B in the months leading up to your visit, initial visit?
19 A Not as exact dosage, but she was taking Advil
20 and Tylenol on basically a PftM ba.i. for pain.
21 0 Do you know vhat type of splint Dr. Myers
22 provided to her?
23 A The .plint that I va. told vas a lover hard
24 pla.tic splint, a hard plastic.
25 0 Tou te.tifi.d that you did not .e. the splint
,
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initially. Did you ever have an opportunity to see that
splint Dr. Myers gave her?
A I do not have a note of seeing the splint, that
we decided of 4/29 to make her a splint, but I didn't make
a note whether I saw the splint. And we couldn't reuse
it, so I don't have recollection of it either.
Q Do you know to what extent she was utilizing
Dr. Myers' splint in the months leading up to her first
contact with you in April of '97?
A From what I recall, it was generally nighttime
when she had severe pains and she was taking the
medications, but I don't have a specific note on that.
Q Other than what Ms. Smyser may have told you
and based on your review of prior records which you
indicated were characterized as being sparee, do you have
any direct knowledge or any pereona1 knowledge ae to the
treatment provided to Me. Smyeer prior to April of 1997?
A The only two people I talked to were Dr. Naeer
and Dr. Percarpio.
Q Let .e ask thie question, between the accident
and April of '91 vou1d it be fair to eay you would have no
direct personal knovledge ae to vhat treat.ent vae given
to her or vhat her clinical etatus vae during that
interval of ti..?
A Only by the hietory and the not.e I eav,
~
36
1 correct.
2 Q Would it be fair to say that Dr. Myers was her
3 primary oral surgeon as far as the post-accident treatment
4 was concerned?
5 A Correct, yeah.
6 Q And as far as the period of time shortly after
7 this accident and the treatment that was provided, would
8 Dr. Myers be the only oral surgeon in direct knowledge of
9 that information?
10 A I wouldn't know. I don't know where she might
11 have went or his partners or
12 Q Do you know if she went to anyone else?
13 A No.
14 Q As far as you know was Dr. Myers the priaary
15 oral surgeon in that post-accident period?
16 A Right.
17 Q Would he have the bsst direct knowledge as to
18 what her condition was and what he in fact actually did
19 for her in the weeks or aonths after this accident, at
20 least initially?
21 A At least initially until she stopped 90in9,
22 yu.
23 Q You acltnowledq...,t at the outs.t of the
24 deposition that Ms. Sayser was ref.rred to you by Attorney
2S David Knauer, an attorney here in Mechanicsbur9'
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A I don't know whether it was directly by David.
She just wrote down the office. It might have been by Mr.
Schwartz.
o Mr. Schwartz here, of course, is associated
with Mr. Knauer's office?
A Uh-huh.
o And you acknowledged that -- well, so I take it
then that in fact no doctor or dentist or oral surgeon
referred her here, is that correct?
A Correct.
o Okay.
A Referrals come self-referral, friend., doctors,
dentist, chiropractor, lawyers.
o They can come in a number of different ways,
but a. far a. you know this was not a medical --
A Yellow pages, right.
o You also acknowledged that Attorney Knauer or
other members of his office had referred patients to you
in the past, is that correct?
A Right. like other attorneys' offices I see
patients either directly for treat.ent or for IME's.
o I'. talking about Attorney Knauer's office at
the mo.ent, Doctor. When did Attorney Knauer, if you
recall, fir.t -- or any other .e.ber of hi. office --
first refer a patient here?
38
1 A Referred to Hiller Oral Surgery back in -- I
2 don't know -- must have been early '80's.
3 Q And since the early '80's, approximately how
4 many patients has Attorney Knauer or other members of his
5 office referred to you or other members of your practice?
6 A I don't have any -- over 15 years I wouldn't
7 have any real -- probably two or three a year maybe, maybe
8 more, maybe le8s, never added them up.
9 Q Do you have situations where -- and, of course,
10 you have situations where these patients are referred to
11 you for litigation purposes together with treatment
12 purposes?
13 A No, actaally, most of the ones I see really are
14 here for treatment.
15 Q Where they are initially referred to you for
16 treatment, are there occasions where you may end up
17 providing testimony on behalf of the patient represented
18 by Attorney Knauer if the case gets to Court?
19 A Oh, sure, I mean, like any patient. If I'.
20 aeeing a patient, I have records, I mean as a recipient of
21 all recorda and so is the treatment.
22 Q Were you aware that Ma. Smyaer waa in fact in
23 litigation and had filed a 1awauit in the Cumberland
24 County Courthouae at or during the time she first ca.. in
25 contact with you in April of 19977
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A No.
Q It wasn't apparent to you that she was in
litigation when you knew Attorney Knauer's office had
referred her here?
A No, I didn't know there was any suit, but when
it came from a law office, you can make assumptions one
way or the other. I've had occasions where patients would
come over referred from Attorney Knauer'. and other
attorneys' offices, and we would treat them and nothing
was planned or ever transpired as far as litigation.
Q And of course you knew that obviously when you
first contacted her and started taking history probably
within a few minutes you had learned she in fact had been
in an automobile accident?
A Right.
MR. DORER. I'm just going to mark this for the
record as Defense Exhibit 6. Let's go off the record.
(Discussion held off the record.,
(Patient history produced and .arked
Defendant's Ixhibit No.6.,
BY MR. DORER.
o Dr. Beaudry, you were kind enough to share your
file with .e before the outset of today's deposition here
this .orning. And I've .arked as Defendant.s Exhibit 6
what app.ars to be . three-pag_ patient history fora. A.
40
1 a matter of fact it's called the TMJ history form
2 referring to Kelly J. Smyser dated April 8, 1997. Do I
3 hold a correct copy of that form in my hand?
4 A Yeah, it appears to be but I don't know why the
5 red tags don't show up on the bottom of it. But it looks
6 like the same --
7 Q Just so we're clear what do the red tags on the
8 original form refer to?
9 A It's a system we use that when files are sent
10 out each sheet is timed and stamped where it was sent. So
11 if there are any changes made to a page or addendums made,
12 we can make sure that we mark that they are addedums so it
13 doesn't look like there's two sets of sheets.
14 Q Is it fair to say on the front page of the form
15 prepared by and evidently signed by Ms. Smyser when she
16 first saw you that she confirmed in response to the
17 question No.1, .What problem brought you to the office
18 today,. and the handwriting is, .car accident - Knauer -
19 my lawyer sent mei. is that correct?
20 A Right.
21 MR. DORERl I'. going to go aark as Exhibit 5,
22 Defendant's Exhibit 5, the copy of your clinical notes
23 which you also just shared with a. this morning con.isting
24 of your clinical not.s from April 8. 1997 through to
25 Septeaber 2. 1997 consisting of so.. .i. pag...
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(Clinical notes produced and marked Defendant's
Exhibit No.5.)
Q I'll just ask you if I hold a correct copy of
that in my hand?
(Discussion held off the record.)
BY MR. DORER:
Q Does Defendant's Exhibit 5 appear to be a true
and correct copy of the clinical notes?
A Yes.
Q Prepared relative to your care and treatment of
Ms. Smyser up to the present time?
A Right.
Q On the second page of the notes --
A What's the date?
Q April 29th.
Q -- there appeara to be a aquare-shaped
rectangle in the middle of the page, app.ara to b. .
atick-it not. copied over. Do you ae. that, Doctor?
A 29th, Holy Spirit Hospital.
Q Do you ae. that?
A Yeah, let .. aee that. Right.
Q And thia app.ars to be at or near the ti.e that
Ha. S.yaer had returned back in to diacua. the HRl re.ult.
with your is that corr.ct?
A IHl)ht.
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Q And in the what I assume is the stick-it note
copied over section as referenced to calling Holy Spirit
Hospi tal to try to get the x-rays relative to the
accident; is that correct?
A Right, never got them.
Q So for whatever reason you never had an
opportunity to see the x-rays generated from the emergency
room on the day of the accident?
A Right.
Q In any event the reBu1ts appear to be a star
type symbol and a cryptic reference to call Attorney
Knauer. Do you Bee that, Doctor?
A Well, I wouldn't characterize it as cryptic,
just call Holy Spirit, call Attorney Knauer. I guess the
girls wrote the number down, they left a message two or
three weeks later.
Q Does it appear that Attorney Knauer had called
you concerning the matter?
A No.
Q Do you agree that there'. .ome indication there
i. communication to or from Attorney Knauer or hi. office?
A It look. like I wa. .uppo.ed to call him, and
like I normally do. I don't do anything on time. It look.
like v. called and left a ae..age, what, two or three
week. later. And I don't reme.ber ever talking to
43
1 Attorney Knauer about it.
2 Q Do you recall talking to Attorney Knauer at any
3 time?
4 A Well, we go to the same church, yeah. I mean,
S about her case?
6 Q Yes.
7 A Few weeks ago when they said they really need
8 my letter on Smyser, the follow-up letter. And I'm not
9 real quick at writing letters.
10 Q You don't talk about cases with Attorney Knauer
11 in church, do you?
12 A No, even lawyers like to take a day off.
13 Q Do you agree that within about six weeks Ms.
14 Smyser's fracture from the accident was healed according
15 to Dr. Myers' notes?
16 A Well, I think when the healing process goes on,
17 gee, for a number of months after, healed in ter.s of
18 being out of fixation so you can start moving it is one
19 level of healing, but the final healing goes on for about
20 a year.
21 Q You agr.e there was radiographic evidence of
22 healing by March of '95 according to Dr. Myers- records?
23 A Re noted that her now right healed .andibular
24 fracture ae of June 4th in his letter.
25 Q AI you sit here today. do you have any reason
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to disagree with that assessment?
A No, her mandible is healed.
Q Do you have any question or concern as to the
treatment Dr. Hyers provided relative to the mandibular
fracture?
A No.
Q And you agree that -- you've used the word
fracture, but you agree this was an undisplaced fracture?
A Undisplaced is a radiographic term. I mean,
she had a fracture that didn't move out of position,
didn't require direct intervention. So it's just a
positional term, but that's what they called it. I have
to agree with what they said.
MR. DORER: Just 80 we're clear I'm going to
mark for the record Defendant's Exhibit 7 the Holy Spirit
Bospital radiographic report dated 11/21/94.
(Radiographic report dated 11/21/94 produced
and .arked Defendant'. Bxhibit No.7.)
BY MR. DORlRI
o And I simply ask if this i. a correct copy of
the report yo~ received?
A Ri9ht.
o And just .0 we're clear, Defense Exhibit 1
refars to . report that you receivad concerning her IR
x-ray., but a. you .entioned you did not reviav the film.
45
1 which this report pertains to, correct?
2 A Correct.
3 Q And Defendant's Exhibit 7 indicates as follows
4 relative to comments, "There is a linear undisplaced
5 fracture extending through the right aspect of the
6 mandible. The fracture continues in the posterior aspect
7 of the unerupted right third molar, no other fractures are
8 identified and the condyles are normal. Conclusion,
9 undisplaced fracture to the angle of the mandible on the
10 right side." Did I read that correctly?
11 A Right.
12 Q Aa you ait here today, I understand you're not
13 in a position to disagree with that radiographic
14 asseasmenti is that correct?
15 A No.
16 Q And just to make clear, once again you've
17 indicated that ahe'a had contact at varioua times in her
18 life with two other dentists, Drs. Naser and Percarpio and
19 aleo hae had contact with another oral aurgeon Dr. Myerai
20 ia that correct?
21 A What I know from my records, right.
22 Q Doea ahe have a family or general healthcare
23 provider?
24 A Mechanicaburg Family Practice.
2S 0 So far aa you're aware lhee. varioua other
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healthcare providers I have referenced as far as you're
aware are they generally considered to be competent
healthcare professionals?
A I'm not going on the record one way or another.
o Just for the record, Dr. Beaudry, you mentioned
you had prepared a report of your request of Attorney
Schwartz concerning your summary of your care provided to
Ms. Smyser dated August 26th, 1997~ is that correct?
A Right.
o And that consists of some five pages?
A Correct.
MR. DORBR, Off the record for a second.
(Discussion held off the record.)
MR. DORBR: For the record I've marked Dr.
Beaudry's report as Defendant'. Bxhibit No.8.
(Report dated 8/26/97 produced and marked
Defendant's Deposition Bxhibit No.8.)
BY MR, DORBR:
o And do I hold a correct copy of your report in
my hand, Doctor?
A Is that the one -- yeah.
o The answer is yes?
A Yes.
o And notvithstandin9 the initial reason for the
referral from Attorney Jnauer's offiee to you for
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12
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14
15
16
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18
19
20
21
22
23
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25
....,.,."
47
treatment, this report was prepared with litigation in
mind, I take it?
A Our report was prepared for -- to summarize her
treatment and for this deposition, right.
a And you know this deposition is for use in
trial next week in Cumberland County?
A If you don't settle or drop it.
a In your report on Page
A Off the record a second.
(Discussion held off the record.)
BY MR. DORER:
a Did you know it was going to trial?
A Yea, it waa acheduled for trial and I made the
report to aummarize thinga for thia deposition.
a In any event returning going back to the
emergency room ER report concerning the x-rays, and 4a
referenced in Page 2 of your report you wrote, "The
condylar heads of the joints were not fractured,. ia that
correct?
A I'm aorry. Where waa that?
a Midd Ie of Page 2.
A Right, that.. off the report.
0 You're reference in your report ia ai.p1y ba.ed
on your reliance of the Holy Spirit Ho.pital report?
A Right. there'. no fracture of the bone but
48
1 x-rays don't show the soft-tissue cartilage.
2 Q Is there any significance, if any, to the fact
3 that the condylar heads were not fractured in this
4 accident?
5 A There's a couple ways of looking at that. It's
6 nice that the neck of the condyle didn't break because the
7 treatment she might have needed from Dr. Myers might have
8 been a little more serious along -- a longer term
9 fixation. The difficulty with hitting your jaw that hard
10 is that the thick lower part of the jaw breaks, the
11 pressure has -- the only place the pressure can go is your
12 teeth get smashed together, the only other place your jaw
13 attaches physically is up in the joints.
14 So when you get your jaw punched or smacked
15 pressure has to go up through the joints. And the worse
16 injuries are the punches and traum.. where nothing breaks
17 .nd all pressure goes up to the head of the joint and
18 crushes the soft ti.sue. That's probably the moat common
19 problem. Some of the patients that we see where they have
20 a good condylar fracture, a lot of them don't have as .uch
21 TMJ proble.s because it.s .ort of like the front end of .
22 Volvo collapsing, a lot of the pr.ssure rel..ses b.for. it
23 causes a lot of crush injury to the head of the joint.
24 In orthopedic literatur., the crush injuries to
25 joint h..ds are r.ally long-term probl....
49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
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o Did you take x-rays when you saw her?
A Yes.
o You took a panorex?
A I took a panorex which is a general scanning
film of the upper and lower jaws and tomograms sent that
with the patient to the MRl center, so the radiologist
would have those to compare the soft-tissue thickness
lines.
o Were the panorex films, the tomograms you took,
you took those here?
A Correct.
o Did they show anything of any diagnostic
significance relevant to the opinions you've expressed
here this morning?
A As far as the hard tissues there's nothing
significant that -- most of the diagnosis and findings
came off of really the MRl scan and clinical.
Q Nov, vhere vas she sent for an MRl scan?
A She vent to Trindle Magnetic Center in
Mechanicsburg.
o And vhere vere those -- these are TMJ MRI's?
A Correct.
Q And vhen vere tho.e performed?
A 4/14/97.
Q Okay. Nov, vhen you s.nd someone out for an
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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.-I
50
MRl study, is it customary for those films to be taken by
or if not taken by certainly read by a radiologist at the
MRl center?
A Correct.
Q And do you customarily receive reports from the
MRl center concerning the films?
A Correct.
Q Did you receive such a report in this case?
A I did. I don't have it in the chart here. I
can call over and get one.
Q Please.
(Brief receu.)
51
1 COUNTY OF LEBANON
2 COMMONWEALTH OF PENNSYLVANIA
.
.
SS
.
.
3 I, Denise A. Sampson, a Notary Public, authorized
4 to administer oaths within and for the Commonwealth of
5 Pennsylvania, do hereby certify that the foregoing is the
6 testimony of Robert J. Beaudry, Jr., DMD.
7 I further certify that before the taking of said
8 deposition, the witness was duly sworn; that the questions
9 and answers were taken down stenographically by the said
10 Reporter-Notary Public, and afterwards reduced to
11 typewriting under the direction of the said Reporter.
12 I further certify that the said deposition was
13 taken at the time and place .pecified in the caption sheet
14 hereof. I further certify that I am not a relative or
15 employee or attorney or counsel to any of the parties, or
16 a relative or employee of such attorn.y or counsel, or
17 financially interested directly or indirectly in this
18 action.
19 I furth.r certify that the .aid deposition
20 constitute. a true record of the t..ti.ony giv.n by the
21 said witn....
22 IN WITNESS WHEREOF, I hav. h.r.unto ..t my hand
2J
this 12th day of S.pte.b.r, 19~7.
D.n~~ ;~~;~~~n~~~~.:;:L~____-
Reporter, Motary Public
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EXHIBITS
PAGE
IDENTIFICATION
IDENTIFIED
4/14/97
7
NOT ATTACHED
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SARGINT'S COURT RIPORTING SIRVICI, INe,
(114) 1$)6-.,08
1 OBJECTION PAGE
2 ATTORNEY PAGE
3
4 NONE OFFERED
5
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'UQINT'S COURT RIPORTINQ IIRVICI. tNC.
1114 ) 5U-UOI
10
1 mandibular condyle.
Did I read that part correctly?
2 A.
Correct.
3 Q.
And under conclusions says normal
4 examination of the temporomandibular joint. Thank
5 you for referring this patient to us, sincerely
6 Donald Buxton, M.D. First of all right, did I read
7 the report correctly?
8 A. Yeah.
9 Q. Is Doctor Donald Buxton to your knowledge a
10 qualified radiologist with regard to MRI
11 interpretation?
12 A.
I think he's a comp~tent radiologist in
13 general but he doesn't do the MRIs from the joint as
14 often.
I disagree with him on the report.
15 Q.
You disagree with him but you don't dispute
16 his qualifications?
17 A.
No.
I mean, people have different views of
18 things.
19 Q.
And I take it you, in fact, read the films
20 to which the report marked as Defendant's Bxhibit
21 Nine came?
22 A.
Films and the video of the film which i.
23 the kinematic portion listed.
H Q.
So unlike the emergency room x-ray. you, in
--~
2S1 fact, had acquainted yourself with the films to which
l_.________..__.____._______........_..'''.__________.__..___..,"'__..."......".._
SARGENT'S COURT REPORTING SERVICE, INC.
(8141 !d6-e90l!
13
1 A,
Well, they go through medical school and
2 they can specialize or not specialize in the
3 radiology.
4 Q.
And what's the typical length of time that
5 that training would consist of as far as the medical
6 school and the specialized training for radiology?
7 A.
I don't know.
8 Q.
Be about seven years?
9 A.
Yeah, and I think the average --- the
10 reports on the average training in oral care for
11 medical students is one hour compared to four years
12 and six years for the oral surgeons.
13 Q.
But you agree that the radiologist is
14 specialized and has received training in addition to
15 medical school for radiology?
16 A. Not specializing in TMJ but in general
17 radiology.
18 Q. And in addition to that would they also
~
19 would you expect" to go to various courses similar to
20 the courses you may go to in continuing education?
21 A.
Correct,
22 Q.
Doctor Beaudry, can a patient present on a
23 TMJ study with a disc out of position or a deranged
24 disc present with sy.pto.. or complaints of pain?
~
25 A.
I
Let me get this right. Can a patient
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6.020 (Civ) AUTO NEGLIGENCE: SERIOUS IMPAIRMENT
Under Pennsylvania law, the plaintiff may recover non-economic loss damages
in this case if the plaintiff can show by the greater weight of the evidence:
(1) The defendant was negligent in one or more ways as I described to you in
my instructions;
(2) The defendant's negligence was a substantial factor in bringing about
injury to the plaintiff; and
(3) The plaintiffs injury resulted in non-economic damages; and
(4) The plaintiff suffered serious impairment of a body function.
To decide this last and additional element of proof, you must decide. based upon
the evidence:
(1) Whether the injuries sustained by the plaintiff in the accident impaired one
or more body functions; and
(2) Whether that impairment of a body function was serious.
In determining whether the impairment of a body function was serious, you
should consider such factors as the extent of the impairment, the particular body
function impaired, the length of time the impairment lasted, the treatment required to
correct the impairment, and any other relevant factors.
An impairment need not be permanent to be serious.
The terms .serious: "impairment," and "body function" have no special Of
technical meaning in the law and should be considered by you in the ordinary sense of
their common usage.
I. In civil cases such as this one, the Plaintiffs have the burden of proving those
contentions which entitle them to relief.
When a party has the burden of proof on a particular issue, their contention on that
issue must be established by a fair preponderance of the evidence. The evidence establishes
a contention by a fair preponderance of the evidence if you are persuaded that it is more
probably accurate and true than not.
To put it another way, think, if you will, of an ordinary balance scale, with a pan on
each side. Onto one side of the scale, place all of the evidence favorable to the Plaintiff;
onto the other, place all of the evidence favorable to the Defendant. If, after considering the
comparable weight of the evidence, you feel that the scales tip, ever so slightly or to the
slightest degree, in favor of the Plaintiff, your verdict must be for the Plaintiff. If the sca1es
tip in favor of the Defendant. or are equally balanced, your verdict muSl be for the
DefPlVbnr .
In this case, the Plaintiff has the burden of proving the following propositions: that
the Defendant was neglileRl. and that the negligence of the Defendant was a subslantial
factor in bringing about the accident of Novemher 21. 1994. and the harm allqed by the
Plaintiff arising therefrom. In this case, the Defendant has admitted that he was IlCJlileRl.
and that such necJigence was the sole and proximate cause of the motor vehicle accident of
November 21, 1994. However, the Plaintiff has the burden of provillJ that the injuries
allqed by Plaintiff, Kelly Smyser. were caused by the motor vehicle accident of November
21. 1994. If, after cuasidering all of the evidence, you feel penlladed that dletc propositions
are more probably true than not true. your verdict must be for the Plaintiff. Otherwise. your
verdict sbould be for the Defendant. Pennsylvania Standard Jury Instructions (Civil) IBO
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16. Under Pennsylvania law, the Plaintiff may recover non~onomic loss damages in
this case if the Plaintiff can show by the greater weight of the evidence:
(I) Defendant was negligent in one or more ways as I described to you in my
instructions;
(2) Defendant's negligence was a substantial factor in bringing about injury to the
plaintiff; and
(3) Plaintifrs injury resulted in non-economic damages; and
(4) Plaintiff suffered serious impairment of a body function.
To decide this last and additional element of proof, you must decide, based upon the
evidence:
(I) Whether the injuries sustained by Plaintiff in the accident impaired one or
more body functions; and
(2) Whether that impairment of a body function was serious.
In determining whether the impairment of a body function was serious, you should
consider such facton as the extent of the impairment, the particular body function impaired,
the length of time the impairment lasted, the trcatmall required to correct the impaimIent,
and any other relevant factors.
An impairment need not be permanent to be serious.
The terms .serious., . impairment. , and .body function. have no special or tecllllical
meaning in the law and should be considered by you in the ordinary sense of tbeir common
usqe. Pennsylvania StaIIdard Jury Instructions (Civil) 56.0lD.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELLY SMYSER
Plaintiff
CIVIL ACTION - LAW
v.
No. 96-4990 Civil Term
CHAOWlCK N. WAGNER
Oefendant
JURY TRIAL OEMANOEO
PLAINTIFFS' PRE-TRIAL MEMORANDUM
STA TEMENT OF THE BASIC FACTS AS TO UABIUTY:
The Defendant admitted liability in this matter and, pursuant to Stipulation of
Counsel, an Order reflecting the same was entered by the Honorable Edgar B. Bayley on
November 4, 1996.
STA TEMENT OF THE BASIC FACTS AS TO DAMAGES:
The Plaintiff suffered a fractured jaw as her jaw struck the dashboard of the car.
She was treated at Holy Spirit Hospital Emergency Room on the day of the accident.
After x-rays were taken at the Hospital, Ms. Smyser was diagnosed with a fractured jaw.
She was referred to her dentist to get a referral to an oral surgeon. Or. Harry Meyers
treated the Plaintiff for her fracture by wiring her jaw together for approximately six
weeks. She has also received treatment for temporomandibular joint dysfunction (TMJ)
from Dr. Meyers which included splint care and diet restrictions. TMJ is a permanent and
progressive condition. The Plaintiff suffers from headaches on almost a daily basis and
must wur her mouth splint at night or they will be severe. At times her headaches are
so sewre that she must go to sleep to get rid of them.
The physlcal k1uries the Plaintiff received in this accident an! serious due to the
impairment of her abi1ily to fundion compared to her pre atddent condition. The P*ntiff
must battle headaches on a nearty daily basis while caring for a toddler The cIvonic
.. an A
IllIM .
Ms, Smyser was examined in my private office on November 21, 1996, She
is a pleasant appearing female in no apparent distress, She Indicated that she
wears an orthotic appliance of the mandible, however. she did not have It In
her possession.
Her intermaxillary opening was 40 mm and her R-L-P movements were 10-
11-12 mm. respectively. and all are well within the accepted standard and all
were completed without pain or dlscomfon. Palpation of the muscles of
mastication both Internally and externally were negative for any pain or spasm.
Hand pressure on the symphysis area of the mandible exerted In a posterior
direction was negative for any TMJ pain. Auscultation of the TMJ joints,
bilaterally. was negative for any clicks, pops, or crepitus sounds. Finger
pressure at the pre-auricular fold during opening and closing movements of the
mandible was negative for any pain or discomfort.
Two panorex flIms were taken.one In the closed and one In the open
position. These flInu ~led a full complement of teeth In good condition.
There is no evidence of any residual fracture. The condyles tranmte In a
nomul manner In the open position. and are In excellent position to the
2
WE DO HEREBY CERTIFY THAT THE
WITHIN ISA TlWEANO CORRECT COPY
OF THE ORIGINAL FILED IN THIS
ACTION,
BY
TO
YOU ARE HEREBY NOTIFIED TO FILE
A WRITTEN RESPONSE TO THE
ENCLOSED
WITHIN TWENTY (20) DAYS FROM
SERVICE HEREOF OR A JUDGEMENT
MAY BE ENTERED AGAINST you
BY
LAW OFfiCES
RUBINATE, JACOBS & SABA
214 SENATE AVENUE
SUITE 503
CAMP HILL, PA 17011
(717) 731-0988
FAX: (717) 731-0987
L r
ATTORNEY
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ATTORNEY .
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LAW OFFICES OF RUBINATE, JACOBS & SABA
214 Senate Avenue, Suite 503
Camp HiD, PA 17011
Telephone Number: (717) 731-0988
Attorneys for Defendant, Chadwick Wa.:ner
KELLY SMYSER, PLA1N1m'
IN THE COURT OF COl\IJ\ION PLEAs
CUMBERLAND COUNTY, PENNsYLVANIA
VS.
No. 964990 CIVIL TERIII
CHADWICK N. WAGNER, DEn:NDANT
CIVIL ArnON. LAw
JURY TRIAL DllMAMlED
ORDER
-
AND NOW, this l day of )~ ' 1997, upon the request of
the Plaintiff, and consent of the Defendant, this matter is continued from the July, 1997 trial
term.
The Prothonotary is hereby directed to re-Iist this matter for the September, 1997 trial
term.
BY 11m COURT:
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