IN THE COURT OF COMMON PLEAS

2 CUYAHOGA COUNTY, OHIO

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4 TODD WESTFALL *130536

5 V.

6 THE CLEVELAND
CLINIC FOUNDATION
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10 December 28, 1988

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12 Oral deposition of BRIAN G. McAIAR M.D.,

13 held at the United Airlines Terminal, Ph d'
41a elphia

14 International. Airport, The Red Carpet Room,

15 Philadelpnia, Pennsvivania, commencing at 6:39
p.m.,

16 on the above date, transcribed by Teresa M. saver,

17 a Registered Professional Reporter - Commissioner In

is the Countv of ?hiladelmhia.

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22 XRAUSS.  KATZ & ACKERMAN, INC.
Legal Support Services
23 4th Floor, Robinson Building
42 South 15th Street
24 PhiladelDnia, Pennsylvania 19102-2442
(215) 986-9191


KRAUSS, KATZ & ACKERMAN, INC.

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A P ? E A R A X C Z S

2 HOWARD D. MISHKIND, ESQUIRE
540 Leader Building
3 Cleveland, Ohio 44114
Counsel for the Plaintiff
4
ARTER & HADDEN
5 BY: GEORGE GORE, ESQUIRE
1100 Huntington Building
6 Cleveland, Ohio 44115
Counsel for the Defendant
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KRAUSS, KATZ ACKERMAN, INC.

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2 N D E x
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4 WITNESS PAGE NO.
5 Brian G. McAlary, M.D.
6 By Mr. Gore 5
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KRAUSS, KATZ ACKERMAN, INC.@
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1 MR. GORE: Let the record sh  Iw that
2 this will be a discovery deposition taken of Dr.
3 McAlary.  He has been listed as an expert witness
4 for the plaintiff.  Present today from the firm of
5 Krauss, Katz & AcKerman is Mr. Geoffrey LOCk in, who
6 is recording this deposition on-some audio r cording
7 equipment.  I hac, specifically requested and by
a ;etter of November 29th had arranged for a
9 stenographer reporter but no reporter is her no
;O stenographer reporter Is here.
11 am specifically request@ing
12 complete transcript of this deposition to be
13 delivered to me by january 10th and I will d scuss
14 with Mr. Ackerman the failure of the appPira ce of a
15 stenographer reporter.
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17 (It is nerebv stipulated and agreed by
is and between counsel that signing, ealin@
19 filing and certification are waive:; and
20 that all objections, except as to tho for
21 of auestions, be reserved until the time f
22 trial.)
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24 EXAMINATION

KRAUSS, KATZ & ACKERMAN, INC.[
5
McAlary



2 BY MR. GORE:

3 Q. Dr. McAlary, have you given depooltions

4 before?

5 A. Yes, : nave.

6 Q. You know the procedures, basical4y.  Let me

7 ask if -- weil, we have received from M  Mi hk1nd a

8 report dated May 23rd, 1988, which you've pr pared,

9 a four-page report.  Do you have a copy Of t at with

10 you?

il A. I certainly do.

12 MR. MISHKIND: Even thou h we don't

13 have a court reporter, I'd like the doctor t be

14 sworn before his testimony Is recorded.

15 MR. GORE: I don't see why th t's

16 necessary. It's just for discovery.

17 MR. MISHKIND: It's sworn tes imony,

18 nonetheless. 1

:9 MR. GORE: m not here to ta e sworn

20 testimony. 11m here to ask the gentleman

21 questions.

22 MR. MISHKIND: It's a discovery

23 deposition with sworn testimony and the 09ctor is

24 not going to give anything other than sw6rn



KRAUSS, KATZ & ACKERMAN, INC.

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McAlary

I testimony.

2 MR. GORE: You're refusiX4 to permit

3 him to answer cuestions unless he is sw4p n?

4 MR. MISHKIND: Pursuant @: th rules

5 of discovery in Ohio, a deposition is consid red to

6 be sworn testimonv and I'd ask that he Oe sw rn to

7 give his testimonv at this point.

8 MR. GORE: I really don't thi ;k

9 that's necessary.

10 MR. MISHKIND: Is there a pro@.Iem

11 with having the doctor sworn in?

12 MR. GORE: Sure.  You're goin to try

13 to use it.

14 MR. MISHKIND: It's a dis@cove@y

15 denosition.

16 MR. GORE: I'm going to lot him be

17 sworn but this is tne argument we get into all the

is time. 1 think It's wnolly improper and I will

19 object to any use of this at any time other than for

20 ImDeachmenx DurDoses.

'21 By requiring that, you're defe ting

22 the purpose oi rule 2SB4B which I think Is wh Ily

23 improper but we'll let the judge decide that

24 MR. MISHKIND: Obviously, You tnow



KRAUSS, KATZ & ACKERMAN, INC.1

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McAlary

for purposes of arbitration, the rules Of e idence

2 are relaxed and to the extent that I would decide to

3 use it as opposed to bringing the doctor liv or

4 videotaping his testimony, I don't see @tny r ason

5 why It can't be used.

6 : understand your objection b@t

7 nonetheless I still want the doctor sworn.

8 MR. GORE: The reason is that that

9 completely thwarts any opportunity for

10 cross-examination based upon discovery  ecau e

11 you're telling me right now you're goinq to @se

12 this.

13 MR. MISHKIND: No, I'm not

14 MR. GORE: Or that you mig@t ant to

15 use this and that completely defeats the pur ose of

16 a discovery questioning. I object to it. I'm