UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN * * * * * * * * * * * * * * * * * * * * * * * * * * * * PLANNED PARENTHOOD OF WISCONSIN, INC., SUSAN PFLEGER, KATHY KING and MILWAUKEE WOMEN'S MEDICAL SERVICES, d/b/a Affiliated Medical Services, Plaintiffs, - vs - Case No. 13-CV-465-WMC J.B. VAN HOLLEN, ISMAEL OZANNE, JAMES BARR, MARY JO CAPODICE, GREG COLLINS, RODNEY ERICKSON Madison, Wisconsin JUDGE GENEREAUX, SURESH MISRA, May 28, 2014 GENE MUSSER, KENNETH SIMONS, 8:15 a.m. TIMOTHY SAWN, SRIDHAR VASUDEVAN, SHELDON WASSERMAN, TIMOTHY WESTLAKE, RUSSELL YALE and DAVE ROSS, Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * * * * STENOGRAPHIC TRANSCRIPT OF SECOND DAY OF COURT TRIAL HELD BEFORE CHIEF JUDGE WILLIAM M. CONLEY, APPEARANCES: For the Plaintiff Planned Parenthood: Planned Parenthood Federation of America BY: CARRIE FLAXMAN 1110 Vermont Avenue, NW, Ste. 300 Washington, DC 20005 Planned Parenthood Federation of America BY: DIANA SALGADO MEG HOLZER 434 West 33rd Street New York, New York 10001 Lynette Swenson RMR, CRR, CBC U.S. District Court Federal Reporter 120 North Henry Street, Rm. 520 Madison, Wisconsin 53703 2 1 2 3 4 5 6 7 8 9 10 11 12 13 For the Plaintiff Planned Parenthood: Cullens Weston Pines & Bach BY: LESTER PINES 122 West Washington Avenue, Ste. 900 Madison, Wisconsin 53703 For the Plaintiffs King, Pfleger and Milwaukee Medical Services: ACLU OF Wisconsin Foundation, Inc. BY: LAURENCE DUPUIS 207 East Buffalo Street, #325 Milwaukee, Wisconsin 53202 ACLU Foundation, Inc. BY: RENÉE PARADIS JENNIFER LEE 125 Broad Street, 18th Floor New York, New York 10004 For the Defendants: Department of Justice BY: MARIA LAZAR CLAYTON KAWSKI BRIAN KEENAN Assistant Attorneys General 17 West Main Street Madison, Wisconsin 53703 14 15 I-N-D-E-X DEFENDANTS' WITNESSES LENA WOOD 16 17 JAMES LINN 18 19 PLAINTIFFS' WITNESSES 20 DEBRA STULBERG 21 22 DEFENDANTS' WITNESSES 23 ERIC OSTERMANN 24 DAVID MERRILL 25 EXAMINATION Direct by Ms. Lazar Cross by Mr. Pines Redirect by Ms. Lazar Direct by Mr. Kawski Cross by Ms. Flaxman Redirect by Mr. Kawski PAGES 4-14 14-31 32 32-45 46-62 64-65 Direct by Ms. Lee Cross by Mr. Keenan Redirect by Ms. Lee 67-72 73-83 85-88 Direct by Ms. Lazar Cross by Ms. Paradis Direct by Ms. Lazar Cross by Ms. Flaxman Redirect by Ms. Lazar 89-100 100-102 105-117 117-134 138-140 3 1 E-X-H-I-B-I-T-S 2 PLAINTIFFS' EXHIBITS 3 6 Exhibit 27 28 64 65 66 92 93 7 Stipulated Plaintiffs' Exs: 8 DEFENDANTS' EXHIBITS 9 12 Exhibit 1032 1033 1069 1072 1074 1078 1087 13 Stipulated Defendants' Exs: 4 5 10 11 IDENTIFIED/RECEIVED Stulberg report Stulberg CV Wood statement Bylaws summaries Bylaws summaries Email Email 67 67 28 142 142 125 125 68 68 --143 143 141 141 80, 84, 85, 86, 87-89, 94 Jones/Kooistra article Freeman article Wood medical records Linn report Linn resume Certified ASC list Merrill report 75 86 11 35 33 92 105 ----14 45 45 100 117 1088-1092, 1098, 1101-1104 14 15 16 * * * * * THE CLERK: Case Number 13-CV-465-WMC. Planned 17 Parenthood of Wisconsin, et al. v. J.B. Van Hollen, 18 et al. called for a second day of court trial. 19 have the appearances, please. 20 MS. FLAXMAN: Yes, Your Honor. May we Carrie Flaxman 21 for Planned Parenthood of Wisconsin and I have Diana 22 Salgoda and Meg Holzer with me today. 23 24 25 MR. PINES: Lester Pines for Planned Parenthood of Wisconsin. MS. PARADIS: Renée Paradis for Affiliated LENA WOOD - DIRECT 4 1 Medical Services, and Jenny Lee and Larry Dupruis. 2 MS. LAZAR: Good morning, Your Honor. 3 Assistant Attorneys General Maria Lazar, Clayton Kawski 4 and Brian Keenan. 5 THE COURT: Very good. We're here for the 6 second day of trial. I do apologize. I arrived -- 7 well, I'll keep it short, but I found construction a 8 very interesting experience this morning and managed to 9 find three ways I cannot get to our lot until I found 10 the fourth way. 11 managed to get here on time and I have no excuse. 12 With that said, you may call your first witness. 13 14 MS. LAZAR: Thank you, Your Honor. The defendants call Lena Wood. 15 16 I apologize because everyone else THE COURT: Ms. Wood, you can just come around and stand before the clerk to be sworn. 17 LENA WOOD, DEFENDANTS' WITNESS, SWORN, 18 DIRECT EXAMINATION 19 BY MS. LAZAR: 20 Q 21 a bit, you have a soft voice, and be close to the 22 microphone. 23 A Yes. 24 Q Could you please state your name for the record. 25 A Lena G. Wood. Good morning, Mrs. Wood. If you could move forward LENA WOOD - DIRECT 5 1 Q And what is your occupation, Ms. Wood? 2 A I'm a homemaker. 3 Q And are you a physician? 4 A No, I am not. 5 Q Do you have a medical degree or training? 6 A No, I do not. 7 Q Ms. Wood, have you ever had an abortion? 8 A Yes, I have. 9 Q And when was that? 10 A That was June 6th of 1995. 11 Q And what clinic did you go to to have that 12 abortion? 13 A 14 Appleton, Wisconsin. 15 Q 16 did you live to the Gillette Street Clinic? 17 A Within 30 miles. 18 Q Can you please describe what happened in late May 19 or early June 1995. 20 A 21 living with a boyfriend at the time and he was wanting 22 me to have an abortion, and so even though I was living 23 in Neenah at the time, I went to the local Planned 24 Parenthood Clinic in Oshkosh where I had been previously 25 and I didn't have any really appointment or any LENA WOOD - DIRECT It was Planned Parenthood, Gillette Street in At the time that you -- in June of 1995, how close Yes. I discovered that I was pregnant. I was 6 1 counseling, they basically just gave me a phone number 2 and said let's make this appointment. 3 for the Gillette Street location of Planned Parenthood. 4 Q So you were asked to make an appointment for what? 5 A For an abortion. 6 Q So an appointment was set and your abortion was set 7 for what date? 8 A June 6th. 9 Q On June 6th, how were you feeling physically when And so that was 10 you went in for that abortion? 11 A 12 felt great. 13 Q What happened that day? 14 A I had a very traumatic experience in this abortion 15 clinic and I was treated very much like -- I wasn't 16 treated very well. 17 wasn't given very much care, concern. 18 ushered me out the back door and I just remember kind of 19 not being -- feeling very well taken care of at the 20 abortion -- 21 Q What happened when you left the clinic on June 6th? 22 A I had a family member who had driven me there and 23 drove me back to where I was living in Neenah and I just 24 was kind of -- I was not feeling well, but I didn't 25 really realize until a few days had passed how serious LENA WOOD - DIRECT I was just fine. I was just normal. I had -- I It was kind of rushed through and I They kind of 7 1 of an affect it seems that I had from the abortion. 2 Q 3 abortion? 4 A 5 lot of pain in the lower part of my body, and I was -- I 6 just wasn't feeling well. 7 fine, but I left not feeling well. 8 it except I mean I had never experienced it before, so I 9 didn't really know what was going on. So what did happen? How were you feeling after the I was feeling very weak. I was starting to feel a I went in there feeling just And I can't describe But within a very 10 short period of time I began to have a variety of 11 symptoms, namely very high fever. 12 Q When you say high fever, how high was the fever? 13 A Well, I was living at the time with a friend. 14 friend's mother actually -- I think I was just so 15 disconnected because I was -- I wasn't really thinking 16 about much how I felt -- 17 18 MR. PINES: The Your Honor, I'm going to object to this testimony in the narrative. 19 THE COURT: I'll overrule it. I think it's 20 answering the question that would -- you've answered it. 21 But why don't you ask your next question. 22 BY MS. LAZAR: 23 Q The question was how high was your fever? 24 A My fever was 107. 25 Q And did you contact anyone from Planned Parenthood LENA WOOD - DIRECT 8 1 about your condition? 2 A 3 location of Planned Parenthood in Oshkosh where they had 4 made the appointment for me for the abortion and what I 5 was told was simply take some Motrin, I believe, some 6 Motrin or some pain medication. 7 flu. 8 see me. 9 basically hung up on me; so... Yes. That's the first thing I did. I called the You probably have the You'll be fine in a few days. They didn't want to They didn't make an appointment, they just 10 Q Did they give you any other advice? 11 A No. 12 Q Did anyone ever call to follow-up to see how you 13 were doing? 14 A No. 15 Q So you had the abortion on June 6th, 1995. 16 when did you start having these symptoms and the fever? 17 A 18 started feeling -- I started feeling those symptoms, 19 yes. 20 Q And what happened next? 21 A Well, it just -- it just continued. 22 very much spiral downward. 23 was very weak. 24 feeling well. 25 took notice, and if it wasn't for her, I don't know that LENA WOOD - DIRECT About I'd say about a day-and-a-half went by and then I I continued to As far as my condition, I I wasn't eating. I really just wasn't And thankfully, my friend's mother really 9 1 I would be here today. But she was really concerned, 2 and so she wanted to take me in. 3 me, I basically went. 4 Q And so where did your friend's mother take you? 5 A She took me to -- I can't recall offhand the name 6 of it, but it was a walk-in clinic that was right across 7 the street from Theda Clark Medical Center Hospital in 8 Neenah. 9 Q So with her pressuring She took me to a clinic. It was -- how long after the abortion was that 10 approximately? 11 A It was approximately a week after the abortion. 12 Q And what happened at the clinic? 13 A There was a little bit of -- people were a little 14 flustered. 15 some red flags. 16 remember if they put me on a stretcher or in a 17 wheelchair, but they basically -- they did a few simple 18 things, took my temperature and they did a few things. 19 But they basically rushed me over to the hospital and I 20 was admitted to intensive care right away. 21 Q 22 your home? 23 A That was within 30 miles also. 24 Q And then the hospital was right across the street? 25 A Right across the street, yeah. LENA WOOD - DIRECT There was signs that, you know, they had There was some concerns. So I don't When you went to this clinic, how close was that to 10 1 Q And the hospital was? 2 A Theda Clark. 3 Q What happened when you went to Theda Clark 4 Hospital? 5 A 6 antibiotics. 7 worsen. 8 -- my family was told that I may not survive, that I may 9 not make it. What happened was I was given broad spectrum of 10 11 But despite that, my condition continued The first two full days I was there I was told MR. PINES: Objection. THE COURT: I'll sustain the objection. You should just focus on what happened to you personally. 14 THE WITNESS: 15 THE COURT: 16 Move to strike. Hearsay. 12 13 Theda Clark Hospital, Neenah. Yes. And listen closely to the question as it's answered. 17 THE WITNESS: Yes. 18 BY MS. LAZAR: 19 Q So you were at Theda Clark Medical Center. 20 A Yes. 21 Q And you were placed in the intensive care unit? 22 A Yes. 23 Q And do you remember if you -- what happened after 24 you were admitted into Theda Clark medically? 25 A That's correct. Medically I remember them doing a lot of tests and LENA WOOD - DIRECT 11 1 trying to understand what was going on. I was told that 2 my body was basically shutting down. 3 infection all throughout my body. 4 Q 5 there, at Exhibit 1069 -- 6 A Yes. 7 Q -- and if you could please identify that exhibit. 8 A Those are my medical records from Theda Clark when 9 I was there, the day I was admitted on June 14th, 1995. I had a major If you could look at the little binder that's over 10 Q And that lists your maiden name; correct? 11 A That is my maiden name, yes. 12 Q When did you get those medical records? 13 A I got those medical records in 2002. 14 Q Why did you get those? 15 A I was at a point in my life where I was trying to 16 understand what had happened to me, because like I 17 mentioned, I was just fine. 18 And then this happened and I was hospitalized. 19 Q 20 Center, how did your body physically appear at that 21 time? 22 A 23 now and my body was -- I was very small. 24 petite person. 25 looked like I was -- like I had been bruised or I had LENA WOOD - DIRECT I was perfectly healthy. So after you were admitted to Theda Clark Medical At that time I was a little more slender than I am I was a little And my body was swollen to where I 12 1 been -- I looked like 100 pounds heavier because I was 2 so swollen. 3 Q Did you undergo any surgery at Theda Clark? 4 A Yes. 5 was on the 16th of June, I had an emergency surgery in 6 the middle of the night. 7 Q What was that surgery for? 8 A They were going to try to remove some fluid from my 9 body, I believe. My whole body was swollen. Two days after I was admitted, I believe it I remember that very well. 10 Q 11 Center, Regional Medical Center? 12 A I stayed until June 26th. 13 Q And you were discharged on June 26? 14 A Yes. 15 Q Did you -- how did you pay for that 12-day hospital 16 stay? 17 A I didn't. 18 Q Were you ever sent any invoices for your treatment? 19 A No, I was not. 20 Q Have you ever spoken about your abortion 21 complication to the Legislature in Wisconsin? 22 23 24 25 And how long did you stay at Theda Clark Medical MR. PINES: Objection. Leading. And there's no foundation for -THE COURT: I'll overrule it. whether you spoke to the Legislature. LENA WOOD - DIRECT You can answer It's a yes or no 13 1 question. 2 THE WITNESS: Yes. 3 BY MS. LAZAR: 4 Q And when was that? 5 A 2008. 6 Q What did you speak about? 7 A I spoke about my abortion experience. 8 Q Are you aware of 2013 Wisconsin Act 37? 9 A Yes, I am. 10 Q And do you know what that Act requires? 11 A Yes. 12 Q And could you explain what you believe that Act 13 requires? 14 A 15 local hospital. 16 Q 17 June of 1995 your situation would have been different? 18 19 Admitting privileges for abortion doctors at a Do you believe that if Act 37 had been in place in MR. PINES: Objection. Foundation. Calls for speculation. 20 THE COURT: I have to sustain that. 21 know how this witness would know that. 22 if you want to lay a foundation of some kind. 23 BY MS. LAZAR: 24 Q 25 on abortion? I don't Is there some -- Prior to June of 1995, did you have any set views LENA WOOD - DIRECT 14 1 A No. 2 Q Following that incident in 1995, did your views 3 change? 4 A Yes. 5 Q And how did they change? 6 A Well, through the experience that I had with 7 abortion where I literally felt abandoned and not taken 8 care of and mistreated so severely, I became pro-life. 9 Q And do you do any pro-life activities now? 10 A Yes, I do. 11 12 MS. LAZAR: I'd like to move for admission of Exhibit 1069. 13 MR. PINES: What is 1069? 14 MS. LAZAR: That's the -- 15 THE COURT: Without objection it is admitted. 16 MS. LAZAR: And I have no further questions. 17 THE COURT: Very good. 18 Cross-examination. CROSS-EXAMINATION 19 BY MR. PINES: 20 Q Good morning, Mrs. Wood. 21 A Good morning. 22 Q You were formally known as Lena Humbert; correct? 23 A Yes. 24 Q And so your medical records reflect that name? 25 A Yes. LENA WOOD - CROSS 15 1 Q With regard to your hospitalization, you were 2 hospitalized on the 14th day of June 1995; right? 3 A Yes. 4 Q That was eight days after you had an abortion in 5 Appleton, Wisconsin; right? 6 A Yes. 7 Q After you had the abortion, which was on June 6th, 8 on the 6th and 7th you had some spotting; correct? 9 A I don't recall. 10 Q All right. 11 I had you look at some medical records from Theda Clark 12 which were just admitted into evidence? 13 A Yes. 14 Q All right. 15 in front of you. 16 That would be page -- 17 Do you recall that, at your deposition, Would you look at the State's exhibit I think it was just noted as 1069. THE COURT: It would be Tab 69. 18 Q 1069. Do you have it in front of you? 19 A I do have it in front of me. 20 Q Could you turn to page LW 11, please? 21 A Yes. 22 Q Now at LW 11, it says, starting in the second 23 paragraph, it says, "The patient had an elective 24 abortion on June 6 at eight weeks. 25 spotting on the 6th and 7th and then by the 9th had some LENA WOOD - CROSS She had some 16 1 clots pass." 2 A Yes. 3 Q That's what it says? 4 A That's what it says. 5 Q And that's what happened; right? 6 A I have no reason to dispute what the medical record 7 says. 8 Q 9 "On the 10th she developed some cramps and on the 11th All right. And the medical record goes on to say, 10 she developed fevers which persisted between 101 and 11 103"; right? 12 A That's what the medical record states, yes. 13 Q It goes on to say, "On the 14th, she was seen and 14 had pyorrhea"; right? 15 A That's what it states, yes. 16 Q Now you reviewed your medical records that you got 17 in 2002; right? 18 A Yes. 19 Q But you don't know at this point what pyorrhea 20 means, do you? 21 MS. LAZAR: Objection. 22 THE COURT: I'll overrule it. 23 24 25 Foundation. You can answer if you have an understanding as to what it means. THE WITNESS: No, I don't. BY MR. PINES: LENA WOOD - CROSS 17 1 Q And you've never asked anyone what you means, have 2 you? 3 A No. 4 Q A few months -- you received a few months ago an 5 email from a woman named Laura Brown who's a coordinator 6 in Wisconsin for the Silent No More Campaign; right? 7 A Yes, I did. 8 Q You weren't the only person who received that 9 email, were you? 10 A Correct. 11 Q There was about a hundred people who got that 12 email; right? 13 A I would say at least, yes. 14 Q At least a hundred people. 15 request for someone to respond who had an abortion in 16 some certain part of the State of Wisconsin; right? 17 A Yes. 18 Q And you responded to that email; right? 19 A I did respond, yes. 20 Q And after you responded to Laura Brown's email, you 21 talked with her on the phone; right? 22 A Yes, I did. 23 Q And you talked to her about an hour on the phone; 24 right? 25 A Yes. And that email was a Yes, I did. LENA WOOD - CROSS 18 1 Q And you told her what you referred to as your 2 story; right? 3 A Yes. 4 Q That's what you referred to as your story; right? 5 A Yes, my abortion experience. 6 Q Yes, your abortion experience is your story; is it 7 not? My abortion experience, yes. 8 MS. LAZAR: Objection. Asked and answered. 9 THE COURT: It's argumentative. Go on, 10 Counsel. 11 BY MR. PINES: 12 Q 13 you got a call from Vincent Rue; right? 14 A Yes. 15 Q And Vincent Rue is the consultant for the State of 16 Wisconsin in this case; right? 17 A I don't know. 18 Q Well, you were at the deposition that I took of you 19 on April 11, 2014; right? 20 A Yes, I was there. 21 Q And at that time you heard Assistant Attorney 22 General Lazar say that Mr. Rue was a consultant for the 23 State of Wisconsin on this case; right? 24 A Yes, she did say that. 25 Q And in fact, it was Mr. Rue who put you eventually LENA WOOD - CROSS After you talked with Laura Brown, later that day Yes. 19 1 in touch with Assistant Attorney General Lazar; right? 2 A That's correct. 3 Q And so you told your story to Mr. Rue; right? 4 A Yes, I did. 5 Q And then you sent Mr. Rue the medical records that 6 were just introduced by the State; right? 7 A Yes, I did. 8 Q Those are the medical records you had gotten in 9 2002? 10 A Yes. 11 Q And Mr. Rue, after getting the medical records, 12 didn't explain what was in the records to you, did he? 13 A Could you please repeat the question? 14 Q Mr. Rue, after he got the medical records, he 15 didn't call you up and say you know Mrs. Wood, these 16 records say you had acute pyelonephritis. 17 you up and say that to you? 18 A No. 19 Q What he said was you're perfect for that case; 20 right? 21 A No, that's not what he said. 22 Q He said he would refer you to the State so you 23 could talk to the State about whether or not you'd be a 24 witness in this case. 25 Did he call MS. LAZAR: Objection. Foundation and LENA WOOD - CROSS 20 1 relevance. 2 THE COURT: I'm really close on relevance, 3 Counsel, but I'll -- I'll allow you to answer that 4 question. 5 6 THE WITNESS: Would you please repeat the question? 7 MR. PINES: 8 BY MR. PINES: 9 Q Sure. I'll withdraw the question. He didn't explain to you any of the details of your 10 medical records, did he? 11 A No. 12 Q And in fact, no one has explained to you the 13 details of your medical records, have they? 14 A I can't say no one. 15 THE COURT: Say it a different way. You 16 haven't discussed the details of your medical record 17 with a medical person. 18 THE WITNESS: 19 THE COURT: Yes, that's correct. Next question, Counsel. 20 BY MR. PINES: 21 Q 22 urinary tract infection; right? 23 A No. 24 Q You came to the conclusion after looking at your 25 medical records and after your experience in the LENA WOOD - CROSS So no medical person told you that you had an acute 21 1 hospital that you were sick because you had -- there was 2 something wrong with the abortion that was performed on 3 June 6th, 1995; right? 4 THE COURT: 5 THE WITNESS: That's your personal belief. That's my -- yes, that's my 6 personal belief. 7 BY MR. PINES: 8 Q That's your personal opinion. 9 A Yes. 10 Q And that's the story that you tell -- 11 THE COURT: Counsel, you can say experience if 12 you really want to keep emphasizing it. 13 call it an experience. 14 with that. She wants to It's her experience. Let's go If that's your wind-up, then let's be done. 15 MR. PINES: It's not my wind-up, Your Honor. 16 THE COURT: Then ask your next question. 17 BY MR. PINES: 18 Q 19 right? 20 A Yes. 21 Q And Silent No More is a group of people who tell 22 their stories about their experiences with abortion; 23 right? You're active in the Silent No More campaign; 24 MS. LAZAR: Objection. Relevance. 25 THE COURT: You can answer the question. LENA WOOD - CROSS 22 1 THE WITNESS: 2 BY MR. PINES: 3 Q 4 you to do so; right? 5 A Yes. And you share your story when the Holy Spirit moves That's -- 6 MS. LAZAR: Objection. 7 THE COURT: I'll sustain the objection, 9 MR. PINES: Your Honor, I think it goes to -- 10 THE COURT: Well, I've sustained the objection 8 Relevance. Counsel. 11 and I don't care to discuss it, and you can ask your 12 next question. 13 BY MR. PINES: 14 Q 15 to abortion is to go to the Planned Parenthood Clinic in 16 Appleton with other people? Another activity that you engage in in opposition 17 MS. LAZAR: Objection. Relevance. 18 THE COURT: I'll overrule it. 19 THE WITNESS: You can answer. Yes. 20 BY MR. PINES: 21 Q 22 one of the people who talks to the people who are 23 driving to the clinic; right? 24 A If they want to talk to me. 25 Q In your medical records that you had since 2002 and LENA WOOD - CROSS And when people are driving into the clinic, you're 23 1 that you practically have -- you practically have them 2 memorized; right? 3 A No. 4 Q You've gone over those records a lot. 5 A Yes, I've looked over them repeatedly. 6 Q There are a lot of words that you don't understand 7 in those records; right? 8 A Yes. 9 Q There's a phrase -- you said you had surgery in the 10 middle of the night; right? 11 A Yes. 12 Q And the surgeon examined your uterus to determine 13 if there were any remains of a pregnancy in your uterus 14 that had gotten infected; right? 15 A Yes. 16 Q And the surgeon found that there were no such 17 remains; right? 18 A 19 didn't talk to him specifically about that. 20 Q 21 there was a phrase that said decidual tissue, did you 22 ever ask anyone what that phrase meant? 23 A 24 not able to really -- 25 Remains of my baby, yes. I don't know. I wasn't -- I didn't look -- I When you looked at the medical records and you saw I was on morphine. I was very drugged up. I was THE COURT: The answer is no, you didn't ask. LENA WOOD - CROSS 24 1 THE WITNESS: No. 2 BY MR. PINES: 3 Q No, you never asked anybody. 4 A No. 5 Q You talked -- you made a statement to the 6 Legislature in 2008 about a bill regarding abortion; 7 right? 8 A Yes, I spoke. 9 Q And when you spoke to the Legislature, you told the Not at the time, no. Yes. 10 Legislature you had been in the intensive care unit at 11 Theda Clark hospital for three weeks; right? 12 A 13 felt like I was there for nearly a month. 14 Q 15 of 12 days. 16 A Yes, that's correct. 17 Q But the document you prepared to use in your 18 statement to the Legislature, you said that you were in 19 the -- that things seemed to get better after several 20 week in the ICU? 21 A As I said, it felt that long. 22 Q It felt that long. 23 A Yeah. 24 wasn't anything I submitted. 25 Q I don't remember exactly what I said, but it sure In fact, you were only in the hospital for a total That was just my personal writings. It was just something you believed. LENA WOOD - CROSS That 25 1 A Yes. 2 Q So you believed you were in the hospital for three 3 weeks, but you were only in the hospital for 12 days? 4 A 5 days I was there, but it felt much longer. 6 Q 7 you were at day 11 -- on the 11th of April, five days 8 after you had had the abortion, you did not call the 9 clinic where the procedure was performed, did you? Yes. And it felt that long, yes. So I just made a mistake on the number of When you were feeling ill after the abortion when 10 A 11 I called the Oshkosh location because they are the ones 12 that set up the appointment for me. 13 Q 14 called the clinic in Oshkosh where you had had the 15 appointment made, but you didn't call the clinic where 16 the actual procedure was performed, did you? 17 A 18 way of contacting them. 19 I don't -- I don't recall specifically. All right. I believe So when you weren't feeling well, you I didn't have the phone number. THE COURT: I didn't have any Again, if counsel for the State 20 wants to have you expand, they can. 21 listen to the question, I think the answer was no. 22 THE WITNESS: 23 BY MR. PINES: 24 Q 25 abortion, did you? No. But if you just Yes. So you did not talk to the doctor who performed the LENA WOOD - CROSS 26 1 A No, I did not. 2 Q Nor did you talk to any of the personnel who worked 3 in the clinic where the abortion was performed, did you? 4 A That's correct, I did not. 5 Q And it was your mother who drove you to the 6 location in Oshkosh; correct? 7 A No. 8 9 THE COURT: Mother's friend? Is that what your -- 10 THE WITNESS: I'm sorry? 11 BY MR. PINES: 12 Q 13 you to the clinic to Oshkosh? 14 A 15 Appleton. 16 Q 17 who took you there, was it not? When you went to your abortion, your mother drove No. The clinic where I had the abortion was in No, when you went to Oshkosh, it was your mother 18 THE COURT: When you were ill. 19 BY MR. PINES: 20 Q Before you were ill, before you had the abortion. 21 A No. 22 Q No. 23 A No, no. 24 Q The last time you talked to anybody at Planned 25 Parenthood at the clinic where the abortion was LENA WOOD - CROSS I understand. 27 1 performed was on June 6th, 1995; right? 2 A Yes. 3 Q No one has ever told you that -- strike that. 4 never told anyone at Planned Parenthood that you had 5 been in a hospital at Theda Clark; right? 6 A Yes. 7 Q You never asked anyone to tell Planned Parenthood 8 that you had been in the hospital at Theda Clark; right? 9 A Yes. 10 Q No one from Planned Parenthood ever asked you to 11 sign a release for your medical records from Theda 12 Clark; right? 13 A Yes. 14 Q You never got a bill from Theda Clark for the 15 services that were performed there; right? 16 A Yes. 17 Q You never asked Theda Clark why you didn't get a 18 bill, did you? 19 A No. 20 Q But you believe that Planned Parenthood paid for 21 your hospitalization at Theda Clark to cover up what you 22 call their deadly mistake; right? 23 A No, I didn't say that. 24 Q You believed that Planned Parenthood paid for your 25 hospitalization at Theda Clark; right? LENA WOOD - CROSS You 28 1 A No. 2 Q Can you pull up page 100 at lines 15 to 22. 3 remember I took your deposition on April 11th of this 4 year? 5 A 6 to tell you -- Yes, and I recall my words to you if you'd like me 7 8 THE COURT: I wish you -- I understand this is an uncomfortable situation. 9 10 Do you THE WITNESS: Well, he's twisting my words; so... 11 THE COURT: If that's the case, there will be 12 an opportunity for you to respond at what's called a 13 redirect. 14 asked and answer that question, it will go much more 15 smoothly. 16 If you just listen to the question that's Your next question, Counsel. 17 BY MR. PINES: 18 Q 19 this statement that you wrote out in 2008 in which you 20 said the following -- 21 I asked you a question at that deposition about THE COURT: 22 too. 23 Q 24 for right now. 25 And you can see it on the screen This would be Exhibit 64. Let's call up Exhibit 64 THE COURT: I'm sorry, I lost you. LENA WOOD - CROSS You're 29 1 switching? 2 MR. PINES: I'm switching now to Exhibit 64. 3 Q Exhibit 64, Mrs. Wood, is the written statement 4 that you did on February 27, 2008; correct? 5 A Yes. 6 Q And at page two of Exhibit 64 -- 7 THE COURT: Counsel, this was withdrawn. I 8 don't know why it's being reflected on the screen. 9 you're doing it as -- to refresh her recollection, I 10 don't -- I'll allow you to proceed. 11 sure I understand what we're dealing with. 12 If I just want to make So it's a withdrawn exhibit so it's not an exhibit 13 in the case, but in any event you can proceed. 14 BY MR. PINES: 15 Q This is -- 16 THE COURT: 17 THE WITNESS: 18 THE COURT: Do you recognize this document? Yes, I do. All right. You may proceed, 19 Counsel. 20 BY MR. PINES: 21 Q On page two of the document -- 22 A Yes. 23 Q -- you wrote the following: 24 thing I need to point out about my experience. 25 received a hospital bill and neither did my family, my LENA WOOD - CROSS "There is one more I never 30 1 boyfriend or anyone else I knew. 2 Parenthood settled my hospital bills quietly without my 3 knowledge. 4 almost deadly mistake." 5 I believe Planned This was done perhaps to cover up their THE COURT: Correct? That's what you wrote at the time. 6 Q That's what you wrote in 2008. 7 A That's what I wrote at the time, yes. 8 Q All right. 9 belief, do you? And you have no facts to support that 10 A No. 11 Q And it's your belief now; right? 12 THE COURT: 13 THE WITNESS: Do you believe that now? I believe that it may be the 14 case. It's possible. 15 BY MR. PINES: 16 Q Because anything is possible; right? 17 A Anything is possible. 18 Q Anything is possible. 19 how you explain your experience when you tell it as part 20 of your anti-abortion activities is that Planned 21 Parenthood botched your abortion; right? 22 A Are you done with the question? 23 Q Is that correct? 24 Planned Parenthood botched your abortion. 25 A So the story that you're -- That's one part of what you say. Yes. LENA WOOD - CROSS 31 1 Q Planned Parenthood -- and you got -- you became 2 sick because of the abortion; right? 3 THE COURT: I don't -- so you're asking this 4 witness something you objected to on direct. 5 her to express her opinion. 6 MR. PINES: 7 story that you tell. 8 tells repeatedly. 9 10 THE COURT: No. You want What I'm saying is this is a This is the story that the witness I'm not following. Why don't you rephrase the question. 11 MR. PINES: Okay. 12 BY MR. PINES. 13 Q 14 so, the elements of your story are that you had an 15 abortion; that the abortion caused you to get sick; and 16 that the Planned Parenthood, because it wanted to cover 17 that up, paid your hospital bills; right? 18 story. 19 A No. 20 Q Okay. When you tell your story when you're moved to do That's your 21 MR. PINES: Nothing further. (8:50 a.m.) 22 THE COURT: Very good. 23 MS. LAZAR: Very short, Your Honor. Redirect. 24 25 LENA WOOD - CROSS Thank you. 32 1 REDIRECT EXAMINATION 2 BY MS. LAZAR: 3 Q Ms. Wood, in 1995 did you have any insurance? 4 A No, I did not. 5 Q Ms. Wood, you were asked about the number that you 6 called after your abortion in June of 1995. 7 left the abortion facility on Gillette Street, did they 8 give you a phone number to call? 9 A No. 10 Q Why is it that you called the number of the Oshkosh 11 Clinic and not Gillette Street? 12 A That's all I had. 13 14 MS. LAZAR: THE COURT: 16 Thank you. I have no other Very good. You may step down then. (Witness excused at 8:50 a.m.) 17 THE COURT: Defense may call their next witness. 19 20 That's the only number I had. questions. 15 18 When you MR. KAWSKI: Your Honor, the defendants call Dr. James Linn. 21 THE COURT: Very good. 22 JAMES LINN, DEFENDANTS' WITNESS, SWORN, 23 DIRECT EXAMINATION 24 BY MR. KAWSKI: 25 Q Morning, Dr. Linn. LENA WOOD/REDIRECT JAMES LINN/DIRECT 33 1 A Good morning. 2 Q Would you please state your name for the record and 3 spell your last name. 4 A James G. Linn. 5 Q Thank you. 6 instructed the parties to give a very short direct 7 examination and your expert report is being accepted 8 into the record; correct? 9 A Correct. 10 Q So what I'd like to do is just briefly go over some 11 of your background and what you do and then cover a 12 couple specifics of your expert report. 13 A Okay. 14 Q Could you please tell me your occupation. 15 A I'm a physician in obstetrics and specializing in 16 obstetrics and gynecology. 17 Q And are you board certified? 18 A Yes. 19 Q In what specialty? 20 A OB/GYN. 21 Q Where do you practice medicine? 22 A In Milwaukee at a clinic affiliated with Columbia 23 St. Mary's Hospital. 24 Q 25 multiple places, please explain. JAMES LINN - DIRECT L-i-n-n. You understand that Your Honor has Obstetrics and gynecology. I should say where are you employed. If there are 34 1 A I'm employed by Columbia St. Mary's Community 2 Physicians. 3 Q Anywhere else? 4 A And I have -- I work at a main campus or main 5 clinic, which is on the campus of Columbia St. Mary's in 6 Milwaukee, and I also work at a satellite clinic near 7 the airport in Milwaukee. 8 Q 9 St. Mary's? And how long have you been employed with Columbia 10 A I've been employed by Columbia St. Mary's for 11 approximately 20 years. 12 Q Have you held any leadership roles there? 13 A For 19 years I was the Chairman of the Department 14 of OB/GYN. 15 Q What years were those? 16 A I believe from '92 to 2001 -- no. 17 2011. 18 Q 19 If you look at Exhibit Tab No. 74, I believe that's your 20 resume, if you could open that up. 21 that document? 22 A Yes. 23 Q What is that document? 24 A That's my professional experience. 25 Q Otherwise known as your resume? JAMES LINN - DIRECT Yeah, '92 to It may be helpful, to your left is a binder there. Do you recognize 35 1 A Yes. 2 Q Is that relatively current? 3 A That is. 4 Q Okay. 5 organizations? 6 A 7 Pro-Life OB/GYNs and of the Catholic Medical 8 Association. 9 Q Are you a member of any professional I'm a member of the American Association of You're familiar with the hospital admitting 10 privileges requirement that's at issue in this case, Act 11 37? 12 A Yes, I am. 13 Q And you're prepared to give some opinions today on 14 that -- 15 A Yes. 16 Q -- and how it applies? 17 Actually flip back, 72. 18 document is? 19 A Yes, that's my testimony. 20 Q Your expert report? 21 A Expert report. 22 Q And if you flip to page six of that document, is 23 that your signature? 24 A Yes, it is. 25 Q So this report reflects the opinions that you are JAMES LINN - DIRECT Please flip to Tab 1072. Do you recognize what that 36 1 giving in this case; correct? 2 A It does, yes. 3 Q I'd like to briefly just talk about two areas, to 4 have you elaborate a little bit on them. 5 area is -- on page three of your report at paragraph six 6 you talk about Case Number 1. 7 A Yes. 8 Q Could you please explain for the Court when this 9 occurred, if you recall? On the first Do you see that? 10 A Well, I'm not sure of the exact date, but it was 11 several years ago and -- that it occurred at the 12 hospital where I currently work, at Columbia St. Mary's. 13 Q Were you on call at the time? 14 A I was not, but I was asked to help on the case. 15 Q And was it a colleague that asked you to help or 16 who asked you to help? 17 A 18 in my department who, because of the seriousness of the 19 case, felt she needed help and asked for me to help her. 20 Q 21 case. 22 A 23 hysterectomy for a complication she had during an 24 abortion. 25 the emergency -- brought to the emergency room by JAMES LINN - DIRECT Yeah, it was one of my colleagues, an OB/GYN doctor Would you please describe the seriousness of that Well, yes. The patient ultimately required a She arrived at the hospital by ambulance into 37 1 ambulance and after being evaluated by the emergency 2 physicians and given some emergency -- immediate 3 emergency care, my colleague was called because she was 4 the OB/GYN doctor on call and she was called, along with 5 the OB/GYN residents, to come and evaluate and take care 6 of the patient. 7 The patient -- 8 Q Let me stop you. What was the patient's condition 9 when the patient arrived at the hospital? 10 A She was in serious condition. She was bleeding 11 externally and internally and going into shock. 12 been brought by ambulance from the abortion clinic. 13 Q And do you know which abortion clinic it was? 14 A It was Affiliated Clinic. 15 Q And that would be Affiliated Medical Services of 16 Milwaukee? 17 A Yes. 18 Q What happened next when the patient arrived at the 19 emergency room? 20 A 21 details, but I know that after the emergency physician 22 saw her and started taking care of her, they called the 23 OB/GYN residents and called my colleague, who was on 24 call, and after their evaluation, my colleague 25 determined that she needed to go to the operating room JAMES LINN - DIRECT She had Well, I wasn't there and I don't know all of the 38 1 for surgery. She felt it might be difficult, a 2 difficult case, and so she asked me to help her. 3 Q 4 the abortion clinic? Did the emergency department receive a call from 5 MS. FLAXMAN: Your Honor, I'm going to object. 6 He said he was not involved with the care when she 7 arrived at the hospital. 8 9 10 THE COURT: but I'll overrule it and you can answer. You can ask the question. 11 12 I'm not sure what the objection is, THE WITNESS: Could you repeat the question, please? 13 MR. KAWSKI: Sure. 14 BY MR. KAWSKI: 15 Q 16 the abortion clinic when the patient was transferred? 17 A 18 Did the emergency department receive a call from Well, again, I don't know for sure. THE COURT: But -- And that is your answer. Thank 19 you. Next question. 20 BY MR. KAWSKI: 21 Q 22 with this patient's care? 23 A 24 after she was taken to the operating room, and my 25 colleague called me to help her. She called me before JAMES LINN - DIRECT At what point did you become involved in assisting It was after my -- it was in the operating room, 39 1 the patient went to the operating room, but I met her in 2 the operating room. 3 Q 4 this patient? 5 A 6 being a hysterectomy due to a lacerated uterus. 7 Q 8 receive a call from the abortion clinic? 9 A 10 And what was your role from then on in treating It was assisting in the surgery, which ended up At any point in treating this patient did you I did not. both at the time and subsequently -- 11 12 And I spoke to my colleague about this, MS. FLAXMAN: Objection, Your Honor. It's hearsay. 13 THE COURT: Well, he's designated an expert 14 witness. I'll treat this as background. It's not being 15 admitted for the truth of the matter asserted, and you 16 can answer the question. 17 BY MR. KAWSKI: 18 Q You can continue on, Dr. Linn. 19 A Well, I recall very specifically discussing this 20 with my colleague; that she attempted to get ahold of 21 the doctor that did it to find out about the case at the 22 time the patient was in the emergency room, and wasn't 23 able -- was unable to reach that doctor and then asked 24 to be called back and she never received a call back, 25 not even the next day. So the doctor never really even JAMES LINN - DIRECT 40 1 checked on the patient afterwards, which I found pretty 2 appalling. 3 Q 4 characterize that type of treatment? 5 A 6 who had a complication. 7 surgery sometimes in my office, minor surgeries, and if 8 I had a complication, whenever I do surgery I tell 9 patients to call me and if they can't reach me, to go to Now in your medical opinion, how would you Well, essentially to me it was abandoning a patient You know, I do surgery. I do 10 the hospital where I'm on staff and go to the emergency 11 room. 12 can't, the default is to go to the hospital where I'm on 13 staff so that the emergency room can call me so that I 14 can take care of them. 15 point of or a big point in this whole dispute. 16 They almost always can reach me, but if they And I think that's -- that's the I think any physician is trained and it almost -- 17 it's so basic, that you wouldn't even have to discuss 18 it; that if you do an operation on somebody, you take 19 ownership and you take care of that patient and you take 20 care of the complication and you want to take care of 21 the complication and you want to make them whole again. 22 Q 23 that you did know which specific physician it was that 24 performed the abortion? 25 A Is it true that I understand from your testimony That I did know? JAMES LINN - DIRECT 41 1 Q Yes. 2 A Yes. 3 Q After you found out, what was your view on whether 4 there should be any repercussions professionally for 5 that physician? 6 A 7 of the complications. 8 unusual cases or cases that require blood transfusions 9 all get reviewed, and because of the, at least the Well, I found out afterwards, yes. Well, this came before our review committee because We review cases that involve 10 apparent abandonment of this patient, I recommended that 11 this be referred to the Medical Examining Board. 12 Q 13 Examining Board? 14 A 15 it got referred there. 16 the chairman of our QA Committee and sad to say I didn't 17 follow-through on it. 18 Q When you say QA Committee, what is that? 19 A It's a hospital committee that -- or it's -- in our 20 department we have the committee -- most departments 21 have committees that they're sometimes called QAs, 22 sometimes called quality improvement, performance 23 improvement. 24 committee to try to maintain high standards. 25 Q And do you know if it was referred to the Medical To be honest, I don't really know for sure whether I made that recommendation to But they're basically a peer review That leads me to the second topic I'd like to talk JAMES LINN - DIRECT 42 1 to you about briefly which is your experience with 2 granting or denying admitting privileges. 3 you were the chairman of your OB/GYN Department. 4 chair, what role did you have in the credentialing 5 process? 6 A 7 applicants, I would review their file or their 8 application and then make a recommendation on whether 9 they should be admitted as -- to the staff. You said that Well, I had a couple different roles. As For new For members 10 of the Department, we have ongoing review and 11 reapplication -- everybody's privileges are renewed or 12 reviewed every two years for reappointment to the staff. 13 Q 14 Department, were there some physicians on staff at 15 Columbia St. Mary's that practiced abortion? 16 A Yes, there were. 17 Q How many, if you can recall? 18 A Well, I don't know for sure. 19 some. 20 immediately that did abortions. 21 Q 22 hospital; correct? 23 A During the time you were chair of the OB/GYN I know there were There were at least four that come to mind And Columbia St. Mary's is a Catholic-affiliated It is. 24 THE COURT: Are there any currently? 25 THE WITNESS: There are some that have done JAMES LINN - DIRECT 43 1 abortions in the past and worked at abortion clinics in 2 the past. 3 abortions. 4 Dr. Broekhuizen, who recently was on staff, he's no 5 longer on staff but he had been on staff for several 6 years, was working at Planned Parenthood. 7 I do not know for sure if they're still doing They're not employed by abortion clinics and THE COURT: I just want to make sure I 8 understand. As you sit here today, you're not aware of 9 any admitted -- any physician with admitting privileges 10 who is currently performing abortions as you sit here 11 today. 12 THE WITNESS: 13 THE COURT: I don't know the answer. Thank you. Next question, Counsel. 14 BY MR. KAWSKI: 15 Q 16 working at Planned Parenthood, is it your understanding 17 he was performing abortions at Planned Parenthood? 18 A Yes. 19 Q Would St. Mary's deny admitting privileges to a 20 physician solely because they performed abortions? 21 A No. 22 Q Are you aware of other Milwaukee 23 religious-affiliated hospitals that have physicians on 24 their staff that perform abortions? 25 A Just to clarify when you say Dr. Broekhuizen was Yes. JAMES LINN - DIRECT 44 1 Q Could you give examples that you know of? 2 A Well, I think Froedtert Memorial Lutheran Hospital 3 is affiliated with the Lutheran faith. 4 Sinai is associated with the Jewish faith, and I know 5 that both of those hospitals have doctors that perform 6 abortions on their staffs. 7 Q 8 in the past that other religious-affiliated hospitals 9 had abortion physicians on their staff or physicians And that question was currently. I think Aurora Are you aware of 10 that performed abortions on their staff? 11 A 12 Milwaukee, St. Francis and St. Joseph, both now part of 13 the Wheaton system, they have had abortionists on their 14 staff as well. 15 Q 16 what impact would a peer review process have on the care 17 of patients that receive abortions? 18 A 19 safety of patients if they have complications after 20 abortions. 21 there was good follow-through on the care. 22 wouldn't be -- I don't think it would be as likely that 23 patients would be abandoned, as the case I cite -- as 24 the patient was in the case I cited. 25 think there would be a way to track if someone is having JAMES LINN - DIRECT Yes. There's two other Catholic hospitals in My last question for you is in your expert opinion, I think -- I think peer review would ensure the I think -- because it would ensure that There I think that -- I 45 1 an inordinate number of complications that needed to be 2 admitted. 3 hand offs to be coordinated by the doctor that did the 4 abortion, if there's a complication. 5 I think it would at minimum allow or require MR. KAWSKI: I have no further questions. I'd 6 just like to move to admit Exhibits 1072 and 1074 into 7 the record. 8 9 (9:07 a.m.) THE COURT: They are admitted without objection. 10 MR. KAWSKI: Thank you. 11 THE WITNESS: 12 THE COURT: You're welcome. I will turn over for 13 cross-examination. Doctor, I did have one question: 14 it your view that if a hospital were to determine that a 15 physician were qualified; in other words, meets the 16 hospital's standards for qualification, that they should 17 be granted the privilege of admission? 18 THE WITNESS: 19 THE COURT: Yes. All right. And are you aware of 20 the fact that there are hospitals who consider other 21 factors than the physician's qualifications in 22 determining whether to admit them or give them the 23 admitting privileges? 24 THE WITNESS: 25 Well, I think if you -- if you brought qualification to mean integrity and honesty -JAMES LINN - DIRECT Is 46 1 THE COURT: I mean to include anything that you 2 view as involving the quality of the physician, are you 3 aware that physicians are denied admitting privileges 4 for reasons other than the quality of the care that they 5 provide their patients? 6 THE WITNESS: 7 THE COURT: I'm not aware of that. Never came up in any review process 8 you were involved in that the physician didn't meet 9 other objectives other than the quality of care? 10 THE WITNESS: 11 THE COURT: Not that I can think of. So anyone who applies to the 12 hospitals you've been affiliated would be given 13 admitting privileges as long as they were qualified. 14 That's been your experience. 15 16 THE WITNESS: department. 17 That's been my experience in my I can't speak to other departments. THE COURT: 18 Very good. CROSS-EXAMINATION 19 BY MS. FLAXMAN: 20 Q 21 there. 22 certify that the physician would comply with the 23 religious directives for Catholic hospitals, that doctor 24 would not be granted admitting privileges; correct? 25 A Good morning, Doctor. I'm going to start right At your hospital, Doctor, if a physician did not They need to comply with those while they're JAMES LINN - CROSS 47 1 practicing in the hospital. 2 Q 3 willing to comply with that requirement, they would not 4 be given admitting privileges; correct? 5 A That's correct. 6 Q I'm going to -- like to talk to you for a few 7 minutes about your scope of practice as a general 8 OB/GYN. 9 office; right? Correct. But if they didn't certify they were You perform gynecological procedures in your 10 A Yes. 11 Q And that includes cervical biopsies? 12 A Yes. 13 Q Endometrial biopsies? 14 A Yes. 15 Q IUD insertions? 16 A Yes. 17 Q And LEEP procedures? 18 A Yes. 19 Q Could you describe what a LEEP procedure is? 20 A Yes. 21 to treat precancerous conditions of the cervix and it's 22 done under local anesthesia. 23 the cervix where the precancerous condition is located, 24 that area is removed. 25 Q A LEEP procedure is an operation that's done And basically the tip of The types of complications that could occur from JAMES LINN - CROSS 48 1 these procedures you perform in your office, that 2 includes bleeding; right? 3 A Yes. 4 Q And uterine perforation; right? 5 A Yes. 6 Q And infection? 7 A Yes. 8 Q And fainting spells? 9 A Yes. 10 Q You're not required to report to the State when 11 those complications occur; right? 12 A No. 13 Q And you are not aware of any federal registry or 14 national reporting law when complications occur after 15 those outpatient procedures; right? 16 A Right. 17 Q So you don't report them to any federal registry; 18 correct? 19 A That's correct. 20 Q You advise your patients about the risks of 21 experiencing one of those complications; right? 22 A Yes. 23 Q And when you were discharging a patient after one 24 of those procedures, you tell her what to look for in 25 terms of what to be concerned about; right? JAMES LINN - CROSS 49 1 A Right. 2 Q And you want her to call your office if one of your 3 patients is experiencing a concern; correct? 4 A That's correct. 5 Q And your patients sometimes call your office with 6 those concerns; right? 7 A Yes, they do. 8 Q And sometimes you or your staff can address those 9 concerns over the phone; correct? 10 A Correct. 11 Q And sometimes you or members of your staff have 12 them come back into the office for additional treatment; 13 correct? 14 A Correct. 15 Q And sometimes you'll send those patients to the 16 emergency room; correct? 17 A Correct. 18 Q And that's particularly if it's after hours or it 19 sounds like care is needed right away; correct? 20 A Correct. 21 Q I want to talk to you about LEEP procedures more 22 specifically. 23 procedure is between 1 and 3 percent; correct? 24 A I think that's correct, yes. 25 Q And if a patient experienced heavy bleeding after a JAMES LINN - CROSS The rate of heavy bleeding after a LEEP 50 1 LEEP procedure in your office, the patient might need 2 additional treatment; correct? 3 A Correct. 4 Q And that follow-up could occur either in the office 5 or in the hospital; correct? 6 A That's correct. 7 Q As part of your practice of medicine, you refer 8 patients to other physicians for medical problems that 9 are beyond the scope of your expertise; correct? 10 A That's correct. 11 Q And those referrals happen frequently? 12 A Yes. 13 Q In fact, that happens several times a week; 14 correct? 15 A Correct. 16 Q And you also receive referrals from other 17 physicians; right? 18 A Yes. 19 Q And you do not personally care for all of your 20 patients who might need care after hours or weekends; 21 right? 22 A Right. 23 Q You don't personally deliver all of your patients 24 when they are in labor; right? 25 A Right. JAMES LINN - CROSS 51 1 Q And that's because you have a call schedule in your 2 group; right? 3 A That's correct. 4 Q And if you are not available, you sign out and 5 whoever is on call for your group will handle it; 6 correct? 7 A Correct. 8 Q And sometimes your patients go to the emergency 9 room; correct? 10 A Correct. 11 Q And that could be either because you send them or 12 because they go on their own; correct? 13 A Correct. 14 Q If a patient were in labor -- patient of yours were 15 in labor and she was out of town and the baby was coming 16 very fast, you would send her to a hospital where you 17 were not on staff; correct? 18 A Correct. 19 Q And in fact, you have done so in the past; right? 20 A Yes. 21 Q And you have done so in the past without calling 22 the hospital; correct? 23 A 24 hospital when they're out of town. 25 Q Yes. Because usually I don't know the name of the And you were confident that the hospital could JAMES LINN - CROSS 52 1 provide the care that patient needed; right? 2 A Yes. 3 Q And you followed up with the patient afterwards; is 4 that right? 5 A Yes. 6 Q Now if a patient were out of town and you were 7 concerned, for example, that she was experiencing a 8 serious complication, like a ruptured ectopic pregnancy, 9 you would tell her to go to the closest emergency room; 10 correct? 11 A That's correct. 12 Q And you wouldn't necessarily call that hospital; 13 right? 14 A Right. 15 Q Because that's you don't know which hospital and 16 because that hospital could care for your patient; 17 right? 18 A I would hope so, yes. 19 Q Now your privileges, Doctor, are at Columbia St. 20 Mary's; right? 21 A That's right. 22 Q The majority of the OB/GYNs with privileges at 23 Columbia St. Mary's are employed at Columbia St. Mary's; 24 correct? 25 A Correct. JAMES LINN - CROSS 53 1 Q 2 OB/GYNs with privileges at Columbia St. Mary's are not 3 employed by Columbia St. Mary's; correct? 4 A Approximately. 5 Q And of the approximately 30 OB/GYNs at Columbia 6 St. Mary's, none of them practice almost exclusively in 7 the outpatient setting; correct? 8 A Correct. 9 Q Applicants with privileges -- 10 A I think -- can you say that -- ask that again? 11 Q I think we had your answer. 12 with you. 13 A 14 examples of doctors that practice exclusively in the 15 outpatient and I'm wondering if I'm contradicting myself 16 in there. 17 Q 18 month ago, sir? 19 A Oh, yeah. 20 Q So you can look on the screen. 21 And in fact, only 6 out of the approximately 30 They can follow up Well, I think in the deposition I gave you a couple So you remember when I took your deposition about a Yes. THE COURT: This is page 165. To your left. 22 Q Sorry, Doctor, to your left. Page 165, line 5. 23 asked you: 24 those 30-some odd physicians whose practice is almost 25 entirely in an outpatient setting?" JAMES LINN - CROSS "So do you have any -- do you have any of I 54 1 And you said, "No." 2 THE COURT: The answer. That's what you said. 3 A I did say that. I think I contradicted myself in 4 the deposition though. 5 Q 6 have to demonstrate training and experience to get 7 privileges for a specific procedure; correct? 8 A Correct. 9 Q And for example, if a family practice doctor wanted Applicants for privileges at Columbia St. Mary's 10 privileges in forceps delivery, you would not give them 11 that until they could demonstrate competence; correct? 12 A Correct. 13 Q And that, in fact, has happened; right? 14 A Yes. 15 Q I want to ask you for a minute about how you got 16 involved in this case. 17 Mr. Vince Rue; correct? 18 A Correct. 19 Q And most of your contacts in this case have been 20 through Mr. Rue; is that correct? 21 A Up until recently, yes. 22 Q Are you aware that Mr. Rue was the initial 23 proponent of the condition he called post-abortion 24 syndrome? 25 A You were contacted by a No. JAMES LINN - CROSS 55 1 Q And are you aware that post-abortion syndrome is 2 not recognized by the American Psychological Association 3 or the American Psychiatric Association? 4 5 MR. KAWSKI: THE COURT: aware. Question is whether this person is You may answer if you're aware. 8 9 Foundation and relevance. 6 7 Objection. THE WITNESS: I don't think I was aware of that. 10 BY MS. FLAXMAN: 11 Q 12 by courts that have considered his testimony in abortion 13 cases? And did you know that Mr. Rue has been discredited 14 MR. KAWSKI: 15 THE COURT: 16 Objection. Relevance. Unless you can show me some relevance, I'll sustain that objection. 17 MS. FLAXMAN: 18 THE COURT: Testifies, Your Honor. I'll overrule it. 19 BY MS. FLAXMAN: 20 Q You met Mr. Rue through AAPLOG; right? 21 A Yes. 22 Q What does the acronym AAPLOG stand for? 23 A American Association of Pro-Life OB/GYNs. 24 Q And you're a member of AAPLOG? 25 A Yes. JAMES LINN - CROSS 56 1 Q And you're a supporter of Wisconsin Right to Life? 2 A Yes. 3 Q As well as a donor? 4 A Yes. 5 Q And you have given them advice on medical 6 questions? 7 A Yes. 8 Q For example, you attended a meeting about the Act 9 at issue here with Dr. Merrill of Wisconsin Right to 10 Life; correct? 11 A 12 Act. 13 Q 14 with Dr. Merrill; correct? 15 A Yes. 16 Q You never performed an abortion, right, Doctor? 17 A Right. 18 Q You won't prescribe hormonal contraception for 19 purposes of birth control; correct? 20 A Correct. 21 Q And you also won't prescribe barrier methods like a 22 diaphragm? 23 A Correct. 24 Q And that's because you think natural family 25 planning is a better alternative; correct? JAMES LINN - CROSS It was related to this. I think it was before the But you discussed the issue of admitting privileges 57 1 A Yes. 2 Q And you're opposed to abortion in cases of rape or 3 incest? 4 A Yes. 5 Q You think abortion should be illegal; correct? 6 A In most cases, yes. 7 Q And you would like it if Affiliated Medical 8 Services closed; correct? 9 A Yes. 10 Q And that's in part because there would be fewer 11 abortions available in Wisconsin; correct? 12 A Yes. 13 Q Abortions are not permitted at Columbia St. Mary's; 14 correct? 15 A Correct. 16 Q My colleagues just informed me that you never 17 answered the question that the judge had overruled the 18 objection on whether you're aware of Mr. Rue being 19 discredited in abortion cases. 20 A I was not aware of that. 21 Q I want to turn back to your expert report, which is 22 Exhibit 72. 23 A Yes. 24 Q Go back to paragraph six, on page three, which is 25 Case 1. Were you aware of that? You may still be there. In the red binder. Mr. Kawski just asked you about it. JAMES LINN - CROSS 58 1 A Okay. 2 Q This case was approximately ten years ago; correct? 3 A I think so, yes. 4 Q And you don't know in this case that the patient's 5 hysterectomy could have been prevented; correct? 6 A Correct. 7 Q Now you assisted in the surgery, but you did not 8 otherwise participate in her care; correct? 9 A Correct. 10 Q And you do not personally know whether there were 11 communications with the clinic; correct? 12 A I was told by my colleague that -- 13 Q You don't have any personal knowledge from the -- 14 A I didn't talk on the phone to any of them. 15 Q The physician who performed the abortion was 16 Dr. Richter; is that correct? 17 A Correct. 18 Q And he had privileges at another hospital at the 19 time; correct? 20 A 21 know he was in practice in Milwaukee prior to that at a 22 hospital that I was also on staff at, so we had been on 23 staff at St. Francis at the same time. 24 don't know for sure if he was on staff at that time, at 25 the time of the abortion. JAMES LINN - CROSS I believe he did. I'm not certain that he did. I I didn't -- I 59 1 Q If you could pull up -- 2 A I think my deposition I had said he was, but 3 thinking back on it I was assuming he was. 4 that for a fact. 5 Q You had been on staff with him at the hospital. 6 A I had been, yes. 7 Q Turning then to the next paragraph of your expert 8 report, paragraph seven on page three. 9 Do you see that, Doctor? I don't know This is Case 2. 10 A Yes, I see it. 11 Q This case too happened during your residency; 12 correct? 13 A It did, yes. 14 Q And it was approximately 30 years ago; is that 15 correct? 16 A Correct. 17 Q And you were not involved in the care of this 18 patient; right? 19 A No, I was not. 20 Q Now keeping with your report in paragraph four on 21 page two, you state there, "I personally know some 22 abortion providers who are highly skilled, devoted, 23 conscientious professionals who always strive to 24 maintain high quality standards." 25 Do you see that? JAMES LINN - CROSS 60 1 A Yes. 2 Q Kathy King is one of those providers; correct? 3 A Yes. 4 Q And further in that paragraph four, you refer to 5 two cases, one from Maryland and one from Pennsylvania; 6 correct? 7 A Yes. 8 Q Now the basis for your testimony is news reports; 9 correct? 10 A On those cases, yes. 11 Q And you're not aware of a similar case in 12 Wisconsin; isn't that right? 13 A 14 Wisconsin; correct. 15 Q 16 report on page five. 17 sentence, "Quality control and peer review are 18 synonymous and are an inherent and critical part of 19 science and medicine and self-corrective in nature." 20 I'm not aware of anything that egregious in Turning your attention to paragraph twelve of your You state there on the second Do you see that? 21 A I do. 22 Q And Mr. Rue wrote that sentence; correct? 23 A I think so. 24 Q And you do not know what he meant by quality 25 control and peer review being synonymous? JAMES LINN - CROSS 61 1 A I don't know to sure. 2 Q And you also don't know what he meant by quality 3 control and peer review being self-corrective in nature; 4 right? 5 A That's correct. 6 Q Now staying with paragraph twelve, I want to direct 7 you to the second to last sentence in that paragraph 8 which states, "Because abortion clinics in Wisconsin are 9 unlicensed and uninspected, it follows that there is no 10 peer review of abortion-providing physicians." 11 Do you see that sentence? 12 A Yes. 13 Q And Mr. Rue wrote that sentence too; correct? 14 A I am not certain, but I think probably that's 15 correct. 16 Q 17 sentence; correct? 18 A 19 abortion clinics in Wisconsin are unlicensed and 20 uninspected. 21 Q 22 possible the first place that you learned that about, 23 what's in that sentence, is when you read the draft of 24 this report; correct? 25 A You have no personal knowledge of what's in that Well, my personal knowledge, I think it's true that But that -- let me ask another question. It's possible. JAMES LINN - CROSS It's 62 1 Q 2 3 Thank you. MS. FLAXMAN: No further questions. (9:25 p.m.) 4 MR. KAWSKI: 5 THE COURT: Some short redirect, Your Honor. Before you do, just for my 6 information, St. Francis, is that in the Milwaukee area? 7 I don't know. 8 9 10 THE WITNESS: Yes. the City of Milwaukee. THE COURT: It's on the south side of Part of the Wheaton system now. Would that have been within 30 11 miles of the place where the abortion Dr. Richter 12 performed took place? 13 THE WITNESS: 14 THE COURT: Yes. All right. So I'm a little unclear 15 as to why you think that's a good example of where 16 admitting privileges would have made a difference. 17 THE WITNESS: Well, I think if that had been 18 the law, I think it would have been very strange for him 19 to send a patient to a different hospital than the one 20 he was on staff at and he would have been questioned. 21 THE COURT: I'm confused by that. Do you know 22 whether Dr. Richter was aware of the problem that the 23 patient had or whether she just went to an emergency 24 room or contacted -- 25 THE WITNESS: She went directly from the clinic JAMES LINN - CROSS 63 1 where she was in trouble -- 2 THE COURT: Okay. 3 THE WITNESS: -- to an ambulance that took her 4 to the hospital. 5 place that abortion doctors had to be on staff at a 6 hospital, that would be widely known and it would be 7 assumed that they would admit the patient to the 8 hospital that they were on staff at. 9 And if there was a law that had in THE COURT: I'm sorry. So they didn't -- But in this case, 10 Dr. Richter didn't admit the patent to St. Francis, it 11 would have been in compliance with the law; right? 12 THE WITNESS: 13 had a lot of explaining to do. 14 THE COURT: Yeah, but I think he would have And as far as you know, he did or 15 did not, because you assume that he was admitted to 16 St. Francis; right? 17 THE WITNESS: Yeah, I think he might have been 18 on staff at St. Francis, but there wasn't a law that 19 said you had to be on staff; so... 20 THE COURT: But he would have been in 21 compliance. I'm just trying to understand your 22 reasoning. 23 law. 24 yet this happened. 25 why you think this is an example of where the law would JAMES LINN - CROSS He would have been in compliance with the You believe he was in compliance with the law, and So I'm having trouble understanding 64 1 have made a difference. 2 THE WITNESS: Well, I think it would have been 3 assumed by the public and by everybody that when an 4 abortion provider had a complication, they would admit 5 the patient to the emergency room at the hospital that 6 they were on staff and not shift them to a different 7 hospital. 8 or the other abortion doctors to take their 9 complications to the hospital where they can take care 10 of them. 11 12 So I think it would have trained Dr. Richter THE COURT: Cross-examination or redirect. Excuse me. 13 REDIRECT EXAMINATION 14 BY MR. KAWSKI: 15 Q 16 procedure. 17 A Yes. 18 Q Are you aware of or any physicians you practice 19 with that perform a LEAP procedure that do not have 20 admitting privileges at a local hospital? 21 A I am not aware of any. 22 Q In other words, the physicians that you work with 23 that would perform that procedure all have admitting 24 privileges at a local hospital. 25 A Dr. Linn, Attorney Flaxman asked you about the LEAP You recall that conversation? Yes. JAMES LINN - REDIRECT 65 1 Q And just to clarify this point about whether there 2 are some OB/GYNs in your department that practice 3 entirely in an outpatient setting, is your answer that 4 there are some that practice entirely in an outpatient 5 setting or not? 6 A 7 outpatient setting. 8 hospital practice in an outpatient setting for the most 9 part, but they maintain admitting privileges. Well, I know there are some that practice in an The two that I think of at my They 10 don't do major surgery at the hospital anymore, but they 11 can admit patients, for example, if they had a 12 complication of an outpatient procedure or if they had 13 an infection, something like that. 14 admitting privileges even though they work mainly in an 15 outpatient setting. 16 MR. KAWSKI: 17 THE COURT: 18 19 very much. Thank you. All right. They do maintain Nothing further. Dr. Linn, thank you You may step down. (Witness excused at 9:28 a.m.) 20 THE COURT: You may call your next witness. 21 MS. LAZAR: Your Honor, we have a witness who 22 is driving down. He was supposed to be here at 9:30. 23 I'm advised he's coming from Oshkosh and he won't be 24 here until 10. 25 from the plaintiffs who was going to testify today. JAMES LINN - REDIRECT I don't know, we had one other witness I 66 1 don't know if that individual is here or not. 2 apologize. 3 THE COURT: And I Well, having managed to be 15 4 minutes late myself, I won't berate you very much. 5 Hopefully we will have the witness soon. 6 we have another witness? 7 MR. DUPUIS: 8 THE COURT: 9 Do we know if She is here, Dr. Stulberg. She would have no reason to know that she's about to be called. Why don't we take just a 10 moment's break and I'll hear from the plaintiffs if 11 there's anything that needs to be addressed in the 12 course of the ordinary process. 13 MS. FLAXMAN: No, Your Honor. 14 THE COURT: Anything for the defendants? 15 MS. LAZAR: No, Your Honor. 16 THE COURT: Why don't we just take five 17 minutes. 18 here and you can notify me if we have a witness. 19 you. 20 MS. LAZAR: 21 (Recess 22 23 24 25 We'll be in recess, but you can -- I'll be THE COURT: good. Thank you, Your Honor. 9:30-9:40 a.m.) Are we ready to proceed? Very We'll go back on the record then. MS. LEE: Thank Your Honor, the plaintiffs call Dr. Debra Stulberg. JAMES LINN - REDIRECT 67 1 THE COURT: Dr. Stulberg, if you would work 2 your way around those many chairs and just stand before 3 the court reporter to be sworn. 4 DEBRA STULBERG, PLAINTIFFS' WITNESS, SWORN, 5 DIRECT EXAMINATION 6 BY MS. LEE: 7 Q 8 for the reporter. 9 A Debra Stulberg. 10 Q I'm showing you what has been marked at Plaintiffs' 11 27 or you can look in the white binder at Tab 27. 12 you recognize this document? 13 A Yeah. 14 Q What is it? 15 A It's the report that I submitted. 16 Q And can you please turn to 28. 17 A Yeah. 18 Q And do you recognize this document? 19 A Yeah. 20 Q And is it up to date? 21 A It is. 22 has since been accepted for publication that's not here. 23 Q 24 25 Dr. Stulberg, please state your name and spell it D-e-b-r-a S-t-u-l-b-e-r-g. Do Yes. Yes. That's my CV. I think there's maybe one publication that Okay. MS. LEE: Your Honor, plaintiffs move to enter Exhibits 27 and 28 into evidence. DEBRA STULBERG - DIRECT 68 1 THE COURT: And they are admitted without 2 objection. 3 BY MS. LEE: 4 Q 5 case as to how difficult it will be for Wisconsin 6 clinics to find doctors with local admitting privileges. 7 But before we discuss your opinion, can you please 8 explain how you became interested in this subject? 9 A Dr. Stulberg, you've offered an opinion in this It was through a combination of my personal 10 experience and talking with colleagues, mostly in the 11 Chicago area. 12 hospital in the Chicago area and wanted to be able to 13 provide the full scope of reproductive care for women, 14 including abortion, and I sought training and found it 15 really difficult to find training opportunities in 16 abortion care. So I did my residency at a community 17 At the same time, colleagues who had mostly done 18 their residencies on the east coast or the west coast 19 and been able to get abortion training were looking for 20 practice opportunities and finding it hard in the 21 Chicago area to be able to provide the kind of full 22 scope of care, including abortion, and so we came 23 together and decided that something sort of based in the 24 midwest that would address -- I guess I should add that 25 we were also seeing patients who needed abortion care DEBRA STULBERG - DIRECT 69 1 and were having a hard time accessing services, so our 2 sense was it's not that there isn't a need for our 3 services, but that here we are motivated and wanting to 4 provide the services and finding -- having a hard time 5 finding both the training and job opportunities where we 6 could include abortion care. 7 organization called Midwest Access Project. 8 Q Is it also called MAP? 9 A Right. 10 Q And what is MAP? 11 A It's a nonprofit organization that provides 12 training opportunities for physicians and other 13 clinicians who want to provide reproductive health care. 14 Q How many doctors have trained through MAP? 15 A It's a little over 100 at this point. 16 Q Of those 100, how many are providing abortions 17 today? 18 A To the best of my knowledge it's 5. 19 Q Of those 100, how many have you personally trained? 20 A Again, my best estimate is about a third to a half 21 of them I've been directly involved in their training. 22 Q 23 be accepted as your direct testimony, but I'd like to 24 highlight certain parts of it. 25 So we started an MAP, yes. The expert report you submitted in this case will In paragraph six of your report, which is Exhibit DEBRA STULBERG - DIRECT 70 1 27, you offer an opinion as to whether it will be 2 difficult in abortion clinics in Wisconsin to find 3 doctors with local privileges. 4 opinion? 5 A 6 find and maintain an adequate staff of physicians. 7 Q 8 reasons why you think that is. 9 A And what is that It will be extremely difficult for the clinics to Can you please highlight for the Court the main There are three reasons. The first is the 10 harassment and violence and threats that abortion 11 physicians experience. 12 them as individuals, against their families, their 13 children, their children's schools, and it can be a 14 deterrent to even the most motivated physicians. 15 then physicians who choose to provide abortion services 16 sometimes, you know, the threats, the harassment become 17 too much. 18 for their family's safety and leave the practice. 19 Q What is the second reason? 20 A The lack of training opportunities. 21 been surveys. 22 reported that only -- or I'm sorry -- that I think it 23 was 33 percent of medical schools provide no education 24 in abortion, including not even how to counsel a woman 25 about her options. Even in OB/GYN residencies where we DEBRA STULBERG - DIRECT These can be targeted against It becomes extremely stressful. And They fear So there have There was a medical student survey that 71 1 would expect people are trained, about half don't 2 provide routine incorporated abortion training and about 3 20 percent, the research shows, don't provide any 4 abortion training. 5 Q And the third reason you identified? 6 A So the third reason is really sort of a combination 7 of reasons. 8 doctors from including abortion in their practice as 9 well as professional pressures. They are practice restrictions that prevent In sort of the stigma 10 of abortion that arises, physicians, for example, may 11 apply for a job and be told by colleagues in that area 12 sort of these horror stories. 13 wanted to offer an abortion and they ran them out of 14 town, and word sort of percolates through the grapevine 15 and physicians are scared away. 16 less explicit aspect. Oh, so-and-so came in and So there's that sort of 17 And then there are the more formal practice 18 restrictions that can be placed, either by HMOs or by 19 group practice or by hospitals, that specifically 20 prevent the physicians from including abortions. 21 Q And did you arrive at this opinion? 22 A So this is research of mine, and in my academic 23 career, I've conducted studies on abortion access and 24 abortion provision. 25 experience trying to get training and trying to be able DEBRA STULBERG - DIRECT I've also described in my personal 72 1 to provide the service and my work with Midwest Access 2 Project, as well as with the University of Chicago as a 3 medical educator. 4 Q 5 6 7 Thank you. MS. LEE: I have no further questions. (9:44 a.m.) THE COURT: Before you pass and proceed with 8 cross-examination, I just wondered this is obvious -- 9 maybe it's not obvious -- but it seems to be a trend 10 that one could take back to the mid 70s and I'm 11 wondering if there is any data showing on a quantitative 12 basis across the country or within the region of the 13 country a decrease in the number of OB/GYNs or of 14 doctors generally willing to provide abortions? 15 anecdotally from what I've heard and from what I've 16 seen, it seems like the number of locations where one 17 can get an abortion have reduced, although I haven't 18 seen that quantified, certainly not statistically. 19 that seems to be the case. 20 as a matter of location or a matter of number of 21 physicians there has been any attempt to quantify that 22 on a statistical basis? 23 THE WITNESS: Because But Do you know whether either Yeah, you're right. So the best 24 research on the topic is done by the Guttmacher 25 Institute and they identify abortion providers as a DEBRA STULBERG - DIRECT 73 1 place a woman can go to get an abortion, which I think 2 makes sense from the standpoint of the public. 3 looking for a place to go. 4 through very good research the decline in providers as 5 defined that way. 6 You are And that has documented And then the participation by physicians has also 7 been studied and has shown trends -- I would say it's 8 not quite as systematic as the way the Guttmacher 9 Institute has basically done a census of providers 10 tracking it over time, but there's some evidence from 11 physician surveys that in the past couple of decades 12 that the physician numbers have also gone down. 13 14 THE COURT: Thank you. And you may proceed with cross. 15 CROSS-EXAMINATION 16 BY MR. KEENAN: 17 Q 18 you some questions on your report. 19 front of you? 20 A Yes. 21 Q I also may reference some exhibits that we've 22 marked which are in the red binder, so that is there for 23 you to look at those documents. 24 rearrange those binders there. 25 Good morning, Dr. Stulberg. I'm going to be asking So you have that in You may need to So on direct you mentioned your work with MAP. DEBRA STULBERG - CROSS And 74 1 MAP mainly works with family practice doctors, not 2 OB/GYNs; is that correct? 3 A 4 differentiated yet, whether they are going to become 5 family medicine, OB/GYN or something else. 6 residents. 7 family medicine, and we have worked with residents from 8 other specialties as well, and also post-residency 9 practicing physicians from a range of specialties. We work with medical students who are not Lots of Most of the residents we work with are in 10 Q And less than a quarter of the residents come from 11 something -- from another specialty that's not family 12 practice? 13 A Yeah. 14 Q In your report you offered an opinion on the lack 15 the training for providing abortions to residents, but 16 you didn't actually do a study of whether that training 17 exists in Wisconsin's medical schools; is that correct? 18 A I haven't done that kind of a -- 19 Q So you're not offering an opinion on the provision 20 of abortion training like Dr. King offers at the Medical 21 College of Wisconsin? 22 A Right. 23 Q Or that Dr. Christensen has offered at the 24 University of Wisconsin Medical School residency 25 program? Approximately. DEBRA STULBERG - CROSS 75 1 A Sorry. 2 3 I don't know what the question is. THE COURT: You're not offering an opinion as to those programs. 4 THE WITNESS: Right. I'm not. 5 BY MR. KEENAN: 6 Q 7 think you have the title of rassman (ph), so to speak, 8 that -- which is paragraphs nine through -- nine and ten 9 of your report. So now I'd like to turn to your conclusions on -- I And if you look at paragraph nine, it 10 mentions that 88 percent of the abortion clinics have 11 experienced harassment in 2008, and I would just like to 12 go into the backup for your numbers there. 13 You cite in footnote 4 an article by Rachel K. 14 Jones and Kathryn Kooistra that's from the -- that's 15 entitled "Abortion Incidents and Access to Services in 16 the United States." 17 THE COURT: If we could call up Exhibit 1032. You just need to switch it on that 18 screen. Usually by this time in trial some of the 19 lawyers have picked this up, but not all. 20 fairness to you, sir, it's not just your side who is 21 having trouble. 22 BY MR. KEENAN: 23 Q 24 in the red binder. 25 that this is the article that you were referencing in DEBRA STULBERG - CROSS Okay. And in But it is now on the screen. And if you could just -- it's also at Tab 32 So could I just get you to confirm 76 1 your report by Ms. Jones and Ms. Kooistra? 2 A Yes. 3 Q Okay. 4 to Table 7, which is at page 48. 5 correct, your data in paragraph nine comes from this 6 Table 7 in Exhibit 1032? 7 A Yes. 8 Q Okay. 9 clinics, that comes from the line where it says, under 10 provider type, it says abortion clinics, it's a column 11 that says any and it says 88; that's correct? 12 A Yes. 13 Q Now this study was done -- this study was done by 14 researchers at the Guttmacher Institute? 15 A Yes. 16 Q And they got their data by asking abortion clinics 17 whether they suffered any sort of this harassment? 18 A Yes. 19 Q And so this data is self-reported by abortion 20 providers? 21 A Yes. 22 Q Okay. 23 88 percent, we see that 87 percent of clinics suffered 24 picketing? 25 A So your stat of 88 percent, if we could go Blow it up. And I'm And so your number of 88 percent of abortion And so if we look at the breakdown of that Yes. DEBRA STULBERG - CROSS 77 1 Q And then 42 percent had picketing with blocking or 2 contact; that's correct? 3 A Yes. 4 Q And so the majority of these harassments are either 5 picketing or picketing with blocking or contact; that's 6 correct? 7 A Yes. 8 Q And then you also go on later to state that 9 providers in the midwest were more likely to face 10 picketing of staff's homes and bomb threats. 11 want to get in that statement is based on the data 12 contained in the bottom section of this chart where it 13 says region; is that correct? 14 A Yes. 15 Q And so if we look at midwest, the midwest line 16 there, we look at picketing of staff homes, that has 9 17 percent; is that correct? 18 A 19 regions reported. 20 Q And the bomb threat is 8 percent; correct? 21 A Yes. 22 Q And you're saying it's -- they face the most threat 23 of that because it's larger than, for example, the south 24 which has 8 and 7 percent? 25 A Yes. So I just And that's greater than any of the other Right. DEBRA STULBERG - CROSS 78 1 Q Now in your -- you also talked about -- in your 2 report entitled Stigmatization, a group of factors you 3 talked about. 4 Lori Freedman called "Obstacles to the Integration of 5 Abortion into Obstetrics and Gynecology Practice"; 6 that's correct? 7 A Yes. 8 Q If you could call up Exhibit 1033. 9 just get you to confirm that 1033 is the article that In that section, you cited an article by And if I could 10 you relied on in your report? 11 A Yes, it is. 12 Q Okay. 13 in your section on harassment; correct? 14 A Right. 15 Q Okay. 16 a survey of 30 OB/GYNs and reasons why they didn't -- 17 and their experiences about performing abortions; that's 18 correct? 19 A 20 survey study. 21 Q 22 30 people. 23 A Right, yes. 24 Q And out of that sample of 30, only 3 of those 30 25 mentioned harassment as their primary factor in deciding DEBRA STULBERG - CROSS No. Okay. And you did not cite this Freedman article Yes. And the Freedman article, that was based on Only in that I wouldn't describe this as a But the article was based on interviews with 79 1 not to do abortions? 2 A Right. 3 Q Okay. 4 conclusions of this article is that the threat of 5 violence was not a major deterrent to provision among 6 all their study participants? 7 A 8 to the practice restrictions and the stigma in this 9 study. Yes. And if we go to page 150, one of the Right. The themes that came up were more related 10 Q All right. So now going -- paragraphs 11 through 11 18 of your report deal with the stigmatization factors. 12 I note that there's only two scholarly articles cited in 13 this section: 14 they receive at residencies, and I don't really want to 15 discuss that here. 16 this section is the Freedman article we've been talking 17 about. 18 A 19 Lori Freedman article, there's Jody Steinauer; 20 "Predictors of Abortion. 21 Obstetricians/Gynecologists." 22 Herbitter "Family Planning Training in U.S. Family 23 Medicine Residencies." 24 Q 25 for the actual stigmatization factors such as private DEBRA STULBERG - CROSS One of them relates to the training that But the only other article cited in So looking at -- I'm seeing three. There's the Provision Among Practicing And there's the Cara And the Freedman article is the one you relied on 80 1 practice groups, HMOs, and the informal kind of 2 prohibitions on performing abortions? 3 A 4 also by Lori Freedman, the full length book "Willing and 5 Unable Doctors: 6 Q But that book is based on the same research? 7 A Yes. 8 Q And you said that the study of the 30 OB/GYNs, you 9 wouldn't even call it a study because it wasn't Yeah, that section is true. And I would also add, Constraints in Abortion Care." 10 statistically large enough to draw conclusions from 11 that? 12 A I'm sorry, I wouldn't call it a survey. 13 Q Survey. 14 A Yeah, I would call it an interview study or a 15 qualitative study. 16 Q 17 conclusions as to a statistical basis about the 18 prevalence of these stigmatization factors? 19 A 20 isn't large enough. 21 survey, you can make a certain kind of conclusion, and 22 if you do in-depth interviews of a smaller number, you 23 can make a different kind of conclusion. 24 Q 25 same conclusion section. Sorry. Left column. DEBRA STULBERG - CROSS Okay. And the sample size was not large enough to draw I wouldn't say exactly because the sample size If you do a large sample size And if you look at the report -- we'll blow up that Bottom 81 1 of the left column. And one of the limitations of that 2 study is those authors say "Our findings are based on an 3 in-depth study of some 30 obstetrician/gynecologists 4 from diverse backgrounds. 5 broad conclusions about a larger population and they may 6 have been influenced by a number of factors"; is that 7 true? 8 A Yes. 9 Q That's a limitation to that report that you're They cannot be used to draw 10 relying on in your expert report. 11 A Yes. 12 Q With respect to the private practice restrictions, 13 you're not aware of a statistical study that shows what 14 percentage of practices have a restriction on performing 15 abortions? 16 A I'm not aware of that kind of study. 17 Q That's either nationwide or in Wisconsin 18 specifically? 19 A Right. 20 Q You're also not aware of any sort of statistical 21 study that shows what percentage of doctors want to 22 perform abortions but decide not to do so based on more 23 informal pressures not to do so? 24 A Yes. 25 Q And you aren't aware of any restrictions by HMOs in DEBRA STULBERG - CROSS 82 1 Wisconsin that limit doctors' ability to perform 2 abortions? 3 A Yes. 4 Q And the limitations placement of HMOs, don't those 5 just require -- the HMO will not allow the abortion to 6 be performed in a hospital and they want the abortion to 7 be performed in a freestanding clinic? 8 A I think it varies by specific experience. 9 Q Okay. Look at -- if you can go to page 149, and if 10 you blow up the right column. 11 paragraph. 12 there, it says that "Nonsectarian HMOs can effectively 13 block abortion provisions as well, but they do so 14 usually for economic reasons rather than ideological 15 ones." 16 says, "Because of the low cost of abortion care in 17 specialized clinics, such contracting out is common." 18 The second full So the Freedman study said that, if we look And then if we go to the third sentence, it So their reasonings was that the HMOs want 19 abortions performed in freestanding clinics because it 20 costs less; is that correct? 21 A 22 went on to also say that justified by concerns about 23 conflict avoidance such as those discussed above and not 24 wanting to have to deal with the issue. 25 Q That was one of the reasons that was found and it And that the HMOs would actually push more business DEBRA STULBERG - CROSS 83 1 of Planned Parenthood and AMS by requesting that 2 abortions be done in freestanding clinics like Planned 3 Parenthood and AMS? 4 A 5 said is that in their HMOs, they would refer patients 6 out to other providers. 7 Q 8 gears. 9 country and statistics about which ones performed 10 abortions and which ones didn't; is that correct? 11 A Yes. 12 Q And that study actually found some doctors who are 13 employed by Catholic health systems do report that they 14 perform abortions; that's correct? 15 A 16 they were employed by the Catholic hospital, but if it 17 was their primary place of practice. 18 Q 19 still reported performing abortions. 20 A Yes. 21 Q You gave some testimony about the numbers of MAP 22 trainees that end up not providing abortions and the 23 ones that don't provide abortions. 24 A Yes. 25 Q You can't tell us the reasons why those individuals DEBRA STULBERG - CROSS It sounds like what the doctors that she spoke to And you also performed a study -- sorry, switching You performed a study on OB/GYNs around the Yeah. To be really nitpicky, we didn't ask them if The point is their primary place of practice, they A small number, but yes. 84 1 did not perform abortions because MAP doesn't formally 2 track the reasons why those trainees decide not to 3 perform abortions? 4 A 5 about many, many MAP trainees other than the ones that 6 I've personally stayed in touch with either through 7 mentoring or through professional network. 8 Q 9 and 20 of your report you deal with the experience in Right. I guess I would just say I can't say so There wasn't a question. You said in paragraphs 19 10 Wisconsin with respect to some MAP trainees who took 11 jobs in Wisconsin? 12 A Yes. 13 Q And you can't -- you don't know the specific number 14 of those trainees other than it's greater than 5 and 15 less than 30? 16 A Can I ask you to bring me to a specific paragraph? 17 Q I asked you about it in your deposition and that's 18 what you said; so... 19 A Oh. 20 Q But you have trained two doctors that did go on to 21 perform abortions in Wisconsin? 22 A Yeah. Yes. 23 Q Okay. And so when you say most of them didn't, you 24 just know that there's two or more that went to 25 Wisconsin and did not perform abortions? DEBRA STULBERG - CROSS Um-hmm. Yeah. Um-hmm. 85 1 A Right, yes. 2 MR. KEENAN: 3 THE COURT: 4 MS. LEE: 5 That's all the questions I have. Very good. Redirect. Just a few questions. (10:04 a.m.) REDIRECT EXAMINATION 6 BY MS. LEE: 7 Q 8 the kinds of harassment that abortion providers face and 9 Mr. Keenan pointed out that 87 percent of doctors Dr. Stulberg, you were asked some questions about 10 reported some kind of picketing outside of their 11 clinics. 12 A Right. 13 Q Can you describe the kind of picketing that these 14 doctors experience? 15 A 16 holding. 17 to go through with their abortion. 18 colleagues who have had their pictures displayed on big 19 signs and said -- you know, targeted them by name and 20 with their photo as they were walking into the clinic. 21 Q 22 patients? 23 A Yes. 24 Q And the patient's families? 25 A Yes. Yes. It can be gruesome photos that protestors are It can be an attempt to persuade patients not Or I've talked to And can this picketing also be targeted at DEBRA STULBERG - REDIRECT 86 1 Q And do they sometimes follow patients down the 2 street? 3 A Yes. 4 Q Thank you. 5 believe, Defendants' Exhibit 32. 6 you were asked to read a portion of the limitation 7 section or you were read? 8 A Which article? 9 Q This is Lori Freedman's -- sorry. You were also directed to Exhibit 32, I Page 150. I believe This is Exhibit 10 33. 11 A Thank you, yes. 12 Q And do you see where it says limitations? 13 A Yes. 14 Q And I believe the first sentence was read out? 15 A Yes. 16 Q Can you read the second sentence out loud? 17 A "Although the threat of violence was not a major 18 deterrent to provision among our study participants, the 19 May 2009 murder of an abortion provider may affect the 20 experiences and decisions of physicians in practice in 21 ways that are not reflected here." 22 Q 23 suggested that or reported that they did not express 24 significant concerns about violence, that that may have 25 changed since the 2009 murder of George Tiller? DEBRA STULBERG - REDIRECT So is it fair to say that even though this study 87 1 A Yes. 2 Q You were also asked some questions about the 3 methodology of Dr. Freedman's study and the conclusions 4 we can draw from them. 5 A Yes. 6 Q Can you please explain what qualitative work is? 7 A Yeah. 8 or a group of people's experiences in a more in-depth 9 way. Qualitative research aims to get at a issue It asks people usually using more open-ended 10 questions as opposed to surveys, which are often sort of 11 closed questions like a multiple choice type of a thing. 12 With qualitative research, the questions tend to be 13 open-ended and you can get at nuance and experience that 14 can be difficult to capture in more close-ended 15 questions. 16 Q And how does it do that? 17 A It's designed to allow the study subjects in the 18 cases that we're talking about, the physicians, to 19 describe their own experiences and what their responses 20 were. 21 open-ended. 22 amount of data about larger numbers of people, you get 23 very rich, nuanced, personal experience-type of 24 information, usually about a smaller number of people. 25 Q So the style of question asking tends to be more And so rather than getting sort of less And how can we extrapolate that the themes that are DEBRA STULBERG - REDIRECT 88 1 reported in Dr. Freedman's study could be applied to the 2 rest of the population? 3 A So -- 4 THE COURT: I'm just going to take judicial 5 notice epidemiological studies use all kinds of methods 6 and this is one such method. 7 8 MS. LEE: Okay. Then I have no further questions. 9 THE COURT: Thank you. And thank you very much 10 for taking the time to come today. 11 trip up. 12 I realize it's a Thank you. (Witness excused at 10:09 a.m.) 13 THE COURT: Is your next witness ready? 14 MS. LAZAR: Yes. 15 THE COURT: That's fine. Thank you so much for the -We're gonna be -- why 16 don't we do this, since he has just arrived, we'll take 17 our break and reconvene at 10:30 for his testimony. 18 Thank you. 19 20 MS. LAZAR: (Recess 21 22 THE CLERK: session. 23 24 25 Thank you, Your Honor. 10:09-10:32 a.m.) This Honorable Court is again in Please be seated and come to order. THE COURT: The defendant may call their next witness. MS. LAZAR: Yes, Your Honor, and I did want to DEBRA STULBERG - REDIRECT 89 1 do just a housekeeping note that Mr. Ostermann will be 2 the last witness we'll have this morning and today, and 3 the next witness will then be Dr. Merrill this evening 4 at 7:30. 5 THE COURT: All right. Understood. 6 MS. LAZAR: Thank you. The defendants call 7 Eric Ostermann. 8 ERIC OSTERMANN, DEFENDANTS' WITNESS, SWORN, 9 DIRECT EXAMINATION 10 BY MS. LAZAR: 11 Q 12 just going to go a little bit into your personal 13 background. 14 graduate degrees you have? 15 A 16 School of Public Affairs in Public Administration and 17 Public Policy. 18 Q And do you have a bachelor's degree? 19 A Bachelor of science degree in political science and 20 history. 21 Q 22 Let's start out with were you employed by the Wisconsin 23 Medical Society? 24 A 25 1996 to 2003 working first as a field representative and ERIC OSTERMANN - DIRECT Good morning, Mr. Ostermann. Could you -- we're Could you please tell the Court what Master's degree from U.W. Madison, LaFollette And if you could just itemize your work history. I worked for the Wisconsin Medical Society from 90 1 then as the Director of the Lakeside Association 2 Services. 3 Society was Vice President of Membership Services. 4 Q 5 Management Company? 6 A 7 Society that managed nonprofit organizations. 8 Q And you said you were there until 2003? 9 A Correct. 10 Q In your position with the Wisconsin Medical 11 Society, did you have any contact with ambulatory 12 surgical centers, which I shall shorten as ASCs? 13 A 14 client of the Association Management Company and I 15 worked with them from 1997 to 2003. 16 Q 17 Medical Society? 18 A 19 Health Department as an Emergency Planning Coordinator 20 for a six-county area in the Fox Valley. 21 Q And then did you ultimately form a new company? 22 A I started Badger Bay Management in 2006, which is 23 an association management company. 24 Q And what does Badger Bay Management Company do? 25 A Badger Bay is a full-service association management ERIC OSTERMANN - DIRECT And then my last position at the Medical And what did you do as manager of the Association I was responsible for the division at the Medical Yes. Their professional association WISCA was a And what did you do after you left the Wisconsin From 2003 to 2006 I worked for the City of Appleton 91 1 company. We manage nonprofit associations. 2 Q 3 Wisconsin Surgery Centers, Inc. which is abbreviated as 4 WISCA? 5 A Yes. 6 Q And what is WISCA? 7 A Wisconsin is the professional association of 8 surgery centers in the State of Wisconsin. 9 Q And what is the mission of WISCA? 10 A To promote and advance quality patient care through 11 networking, information sharing, education and training. 12 Q How are you associated with the WISCA? 13 A They contract with our company for services and we 14 provide the staffing and office support to manage their 15 activities. 16 Q And are you on any of their boards? 17 A I am. 18 participate in the Board meetings. 19 Q 20 Director? 21 A Since 2009. 22 Q How many board members are there on WISCA? 23 A There are six Board members. 24 Q Do those Board members manage or own ASCs? 25 A Yes. Are you associated with the Association of WISCA is one of our clients. As their named Executive Director, I And how long have you been their Executive ERIC OSTERMANN - DIRECT 92 1 Q And all together for those six Board members how 2 many ASCs do they own or manage? 3 A Approximately 22. 4 Q How many members -- how many ASCs are members of 5 WISCA? 6 A We have 42 members. 7 Q And about how many ASCs are in the State of 8 Wisconsin? 9 A I believe the last count from the Bureau of Quality 10 Assurance was 76 -- 11 Q Okay. 12 A -- certified centers in the state. 13 Q All right. 14 should have opened it up, if you can look at the 15 burgundy binder there to Tab No. 78. 16 doesn't go to 78, then it's the binder behind you by the 17 little screen. 18 A Got it. 19 Q You mentioned that there were 76 certified ASCs. 20 Are all of the Wisconsin ASCs certified? 21 A 22 certified. 23 Q 24 list? 25 A If you can look at, and I apologize, I If that one No, not all ASCs operating in Wisconsin are You can look now at Exhibit 1078. What is that This is the list of the certified centers operating ERIC OSTERMANN - DIRECT 93 1 in Wisconsin. 2 Q And have you seen this list before? 3 A Yes. 4 Q And how have you seen this list before? 5 A It's a list that we refer to often in order to keep 6 track of the certified centers in the State of 7 Wisconsin. 8 Q And where do you find this list? 9 A At the Department of Health Services website. 10 Q What are your responsibilities as director -- 11 Executive Director of WISCA? 12 A To manage the daily operations of the association. 13 Q On an average, how much time a week do you 14 personally spend on WISCA's behalf? 15 A I would estimate six to eight hours a week. 16 Q How does WISCA promote its mission? 17 do? 18 A 19 and training to members through webinars and an annual 20 conference, as well as promote information through a 21 website, e-news and a listserv. 22 Q 23 the process by which an ASC obtains accreditation in 24 Wisconsin? 25 A What does it WISCA's primary activities are to provide education What is your experience or expertise with regard to Accreditation is a topic that we consider when we ERIC OSTERMANN - DIRECT 94 1 put together the education and training calendar for the 2 year, so there are occasionally presenters that talk 3 about issues related to accreditation, and we also have 4 centers that will call us if they have questions with 5 their accreditation. 6 Q 7 subject of this case, which would be 2013 Act 37? 8 A Yes. 9 Q And when did that happen? 10 A In January of this year. 11 Q January 2014? 12 A Yes. 13 Q And how was the Board contacted? 14 A There was a call from a consultant asking for 15 information or comment from the Association. 16 Q And what information or comment was requested? 17 A Whether or not centers in the state had -- were 18 required to have admitting privileges or transfer 19 agreement. 20 Q 21 participation as a witness in this case? 22 A They authorized me to comment on that question. 23 Q And what was the vote on whether or not you should 24 comment on that question in this case? 25 A Was WISCA contacted about the law that is the Okay. Did the Board of WISCA authorize your It was unanimous. ERIC OSTERMANN - DIRECT 95 1 Q 2 regarding Act 37? 3 A No. 4 Q Do you know if the State -- if state laws in 5 Wisconsin require ASCs to -- let me strike that. 6 Has WISCA itself taken a position on either side They've taken no position on the law. Do you know if state law requires Wisconsin ASCs to 7 have -- require their physicians to have admitting 8 privileges? 9 THE COURT: The direct -- 10 MS. LAZAR: That is still a really bad THE COURT: That's all right because it's in 11 question. 12 13 the report and I have it. 14 than the report at this point; so... 15 16 MS. LAZAR: THE COURT: Okay. I apologize then. I didn't realize that. 19 20 Well actually, we're not admitting the report. 17 18 Oh. The direct is almost longer MS. LAZAR: That's why it is longer than that and I apologize. 21 THE COURT: That's fine. And you may proceed. 22 BY MS. LAZAR: 23 Q 24 ASCs' physicians have admitting privileges or transfer 25 agreements? And the question is -- let's do it this way: ERIC OSTERMANN - DIRECT Must 96 1 2 THE COURT: Your understanding of Wisconsin law is it currently required? 3 THE WITNESS: Wisconsin law does not currently 4 require that of ASCs. 5 BY MS. LAZAR: 6 Q But must they have one or the other? 7 A Their Medicare certification requires that they 8 have one or the other. 9 Q Do you know of our own personal knowledge whether 10 the 22 or so ASC's that are owned or operated by the 11 WISCA Board members, whether they have -- whether their 12 physicians either have admitting privileges or admitting 13 privileges and transfer agreements? 14 15 MS. PARADIS: Objection. Hearsay. Calls for hearsay. 16 THE COURT: I'll sustain the objection. You 17 can lay a foundation. 18 BY MS. LAZAR: 19 Q 20 personally aware whether or not the Board members own or 21 operate ASC's? 22 A Yes. 23 Q And was -- when the WISCA was contacted regarding 24 this issue, were you present when there was discussions 25 about whether or not they -- their physicians owned or ERIC OSTERMANN - DIRECT In your experience with the Board of WISCA, are you 97 1 had admitting privileges or transfer agreements? 2 A Yes. 3 Q And were you authorized on behalf of the Board to 4 express a lay opinion as to whether or not the Board 5 members themselves, their ASCs owned or operated, had 6 admitting privileges? 7 MS. PARADIS: 8 THE COURT: 9 Objection, Your Honor. He can answer that question, but I agree he can't go beyond saying yes or no because the 10 response would be hearsay. 11 virtue of the fact that they authorized to tell him -- 12 they authorized him to express hearsay. 13 at it a different way, Counsel. 14 BY MS. LAZAR: 15 Q 16 with ASCs who have attempted to enter into transfer 17 agreements with hospitals? 18 A Yes. 19 Q And was there a recent situation in which you were 20 involved? 21 A Yes. 22 Q Can you describe that situation. 23 A There was a center that had a recent survey 24 conducted and they were informed that -- 25 It doesn't say that by You have to get As part of your position with WISCA, have you dealt MS. PARADIS: Objection. Hearsay. ERIC OSTERMANN - DIRECT 98 1 THE COURT: I'll sustain the objection. 2 BY MS. LAZAR: 3 Q 4 transfer agreements -- what problem was the ASC 5 encountering that was trying to get transfer agreements? 6 7 MS. PARADIS: 10 Objection. Calls for hearsay. No foundation. 8 9 Do you know if the ASC that was attempting to get THE COURT: Just so we can complete this, your role at the ASC includes consideration of certification requirements for the Association or for the Society? 11 THE WITNESS: 12 THE COURT: Yes. And does it -- does the 13 organization have an official position as to the value 14 of admitting privileges and transfer agreements? 15 THE WITNESS: 16 THE COURT: 17 THE WITNESS: And do they require Members, voting members, are required to be Medicare certified. 20 21 All right. anything of their own members in order to be a member? 18 19 They do not have a position. THE COURT: All right. Which means that they either have to have one or the other. 22 THE WITNESS: 23 THE COURT: Correct. And to your knowledge, is that the 24 only reason it's required is because Medicare requires 25 it? ERIC OSTERMANN - DIRECT 99 1 THE WITNESS: 2 THE COURT: I don't understand the question. Maybe that's because it doesn't go 3 beyond what the Medicaid certification is for. So I'll 4 let you proceed, Counsel. 5 BY MS. LAZAR: 6 Q 7 ASCs that are members of WISCA have either admitting 8 privileges or both admitting privileges and transfer 9 agreements? Do you know whether it's common practice that the 10 MS. PARADIS: 11 THE COURT: Objection. Foundation. It's already asked and asked. They 12 all have it because they're all Medicare certified. 13 That's what I understood you to testify, to be a voting 14 member. 15 THE WITNESS: To be a voting member you must be 16 Medicare certified and the Medicare certification 17 requires either admitting privileges or the transfer 18 agreement. 19 MS. LAZAR: The question that I was asking 20 though was whether it was common that they had admitting 21 privileges or they had admitting privileges and the 22 transfer agreements. 23 24 25 MS. PARADIS: And I'm again going to object based on foundation and hearsay. THE COURT: Do you know the answer to that? ERIC OSTERMANN - DIRECT 100 1 THE WITNESS: I can only share what was 2 commented at the Board meeting when we had the 3 discussion. 4 THE COURT: And that is hearsay, Counsel. 5 MS. LAZAR: Then we would move to have Exhibit 6 1078 admitted. 7 8 MS. PARADIS: on hearsay, foundation, and his lack of expertise. 9 10 And we would object again based THE COURT: I'll overrule that. to be an official record of the Department. 11 MS. PARADIS: Oh, I'm sorry, I apologize. 12 misunderstood which exhibit. 13 THE COURT: 14 1078 appears Anything further? All right. 1078 is admitted. (10:47 a.m.) 15 MS. LAZAR: I have no further questions. 16 THE COURT: Very good. 17 I Cross-examination. CROSS-EXAMINATION 18 BY MS. PARADIS: 19 Q 20 involved in this case because of, that was Vince Rue, 21 wasn't it? 22 A Yes. 23 Q And Vince Rue drafted your statement; correct? 24 A He prepared an initial draft, yes. 25 Q And you and the Board made tactical edits to the ERIC OSTERMANN - CROSS Mr. Ostermann, the consultant who you became 101 1 name of accreditation bodies and changed -- 2 3 MS. LAZAR: MS. PARADIS: We withdrew Withdrawn. I apologize, Your Honor -- 6 THE COURT: 7 MS. PARADIS: 8 THE COURT: 9 Relevance. the statement and it's not being presented today. 4 5 Objection. That's fine. -- my cross was prepared for -Sometimes that's because no cross is the best cross. 10 MS. PARADIS: 11 THE COURT: Absolutely. So I'll let you continue. There's 12 an old saying there's the cross you prepare and the 13 cross you do. 14 BY MS. PARADIS: 15 Q 16 correct? 17 A Yes. 18 Q And you don't know how many unaccredited or 19 uncertified ASCs there are in Wisconsin, do you? 20 A I do not. 21 Q And many organizations that you work with and rely 22 upon as medical experts in the state representing 23 professionals that are interested in the health and 24 wellness of the people of Wisconsin, they oppose the Act 25 at issue in this case; correct? ERIC OSTERMANN - CROSS There are only 76 certified ASCs in Wisconsin; 102 1 MS. LAZAR: Objection. 2 THE COURT: I'll sustain the objection. 3 MS. PARADIS: 4 All right. Foundation. That's it. Thank you. 5 THE COURT: 6 THE WITNESS: 7 You may step down, Mr. Ostermann. Thank you. (Witness excused at 10:50 a.m.) 8 9 Relevance. THE COURT: I understand that completes the testimony until 7:30 tonight. And just to state for the 10 record before we move on to other matters, the 11 courthouse closes at 5 o'clock. 12 If counsel need to make special arrangements to be here 13 sooner, we can do that, but for the general public it 14 would reopen at 7:15 and it will -- the doors will close 15 at 7:30. 16 security reasons we have to have some control over 17 evening population. 18 we're doing it as an accommodation to a witness in this 19 case. 20 It will reopen at 7:15. Anyone who is here is welcome to stay, but for We don't typically do that, but With that said, I'll hear from the plaintiffs if 21 there's anything more that we might address this 22 morning. 23 MS. FLAXMAN: 24 THE COURT: 25 MR. KAWSKI: No, Your Honor. All right. For the defendants. I'm just going to say we have some 103 1 witnesses that are appearing by video tomorrow and 2 perhaps we can do this off the record or we could 3 organize it to get those set up for certain times 4 tomorrow to make sure it runs smoothly. 5 THE COURT: I would appreciate it if you would 6 coordinate it with opposing counsel, and particularly 7 given the other obligations that we have, but I 8 understand Dr. Thorp in particular is going to have to 9 be available at 8 a.m. and I would appreciate you 10 coordinating with our IT Department to ensure that that 11 is ready to go at that time. 12 As to the 3 p.m. video, we'll just have to play 13 that one by ear, but I would assume that that will also 14 be coordinated. 15 We'll continue to noon, hopefully to complete most of 16 the testimony. 17 much time do you think you're going to need on Friday 18 afternoon? 19 As to Friday, we'll begin at 8 a.m. Friday afternoon I can be -- well, how MR. KAWSKI: It's possible that we may not need 20 Friday afternoon, depending on how long Dr. Christensen 21 takes. 22 because he has no report; so... 23 He is a witness who would do a full direct THE COURT: Okay. Well, realistically do you 24 think if we go from 1:30 to 3:30 that would be adequate 25 time to complete whatever additional testimony we may 104 1 need? 2 MR. KAWSKI: 3 THE COURT: 4 Yes, I think so. Let's just plan on 1:30 to 3:30 then as available time. 5 MS. LAZAR: Did the Court want to set the time 6 for that video at 1:30? 7 your guy. 8 9 10 Or it's Sorry. MR. KAWSKI: for 1:30. Can he be earlier? The answer is yes, we can set it And it could be earlier also. THE COURT: If you're able to do it earlier, 11 that's fine. 12 and obviously coordinate with the IT Department. 13 14 I would just ask that counsel coordinate Anything more then for either side before we adjourn? I guess recess until 7:30. 15 MS. FLAXMAN: 16 THE COURT: No, Your Honor. Very good. 17 you may move about as you wish. 18 materials here, I believe. 19 occur in another courtroom. We are in recess and You may leave your Any other proceedings will 20 (Recess 21 (Same appearances minus Attorney Clayton Kawski) 22 23 24 25 10:52 a.m. - 7:30 p.m.) THE CLERK: session. This Honorable Court is again in Please be seated and come to order. THE COURT: I understand we have our witness on line and we're ready to proceed. ERIC OSTERMANN - CROSS 105 1 2 MS. LAZAR: Yes, we are, Your Honor. The State calls Dr. David Merrill by video. 3 THE COURT: Very good. Dr. Merrill, if you 4 would please stand, raise your right hand. 5 to actually stand and raise your right hand, if you 6 would. 7 you need to stand. I know you're going to go out of the shot, but 8 THE WITNESS: 9 THE COURT: 10 Okay. And then answer in response to this question. 11 DAVID MERRILL, DEFENDANTS' WITNESS, SWORN, 12 13 I need you THE COURT: Thank you. MS. LAZAR: Thank you. And you may proceed, Counsel. 14 15 DIRECT EXAMINATION 16 BY MS. LAZAR: 17 Q 18 so if you wait to make sure that I finish my question 19 and Ms. Flaxman does as well, this will make this a 20 little easier. 21 A Yes. 22 Q Okay. 23 occupation. 24 A 25 Aurora Health Care here in Milwaukee. DAVID MERRILL - DIRECT Dr. Merrill, there may be a little bit of time gap, You understand? Great. Could you please give your current What is your current occupation? I'm a maternal fetal medicine specialist with 106 1 Q If you can look at -- you should have next to you a 2 document marked Defendants' Exhibit 1087. 3 A Yes. 4 Q And if you can identify that document? 5 A That's the expert report that I filed in this case. 6 Q And is it correct that your CV is on page 13 of 7 that report? 8 A 9 but it did have my CV attached. On the copy I have it doesn't have a CV attached, 10 Q 11 attached. 12 Okay. We will make sure that we get your CV That was filed with the expert report. Where did you go to medical school, Dr. Merrill? 13 A 14 Milwaukee. 15 Q 16 copy of your expert report, and if you can look at that 17 and make sure that your CV is attached to that copy. 18 A Okay. 19 Q What exhibit is that marked as? 20 I went to the Medical College of Wisconsin here in If you want to open the binder, there's another Yeah, it is. THE COURT: Exhibit A, as in Adam. 21 Q 22 a plaintiffs' exhibit. 23 No, the entire report that's going to be marked as THE COURT: It's not? Oh, I see. 24 Q Oh, never mind. Where did you complete 25 your residency and what was your discipline? DAVID MERRILL - DIRECT 107 1 A So after medical school here at the Medical College 2 of Wisconsin, I went to the University of California 3 San Francisco, or what's called UCSF, for residency in 4 OB/GYN. 5 fellowship in maternal fetal medicine or high risk OB at 6 the University of Iowa. 7 Q Are you board certified? 8 A I am in both general OB/GYN and also in maternal 9 fetal medicine. And after that I did a fellowship, a two-year 10 Q And what positions do you currently hold at Aurora? 11 A I have two different positions: 12 Medical Director for our Maternal Fetal Medicine section 13 and I'm also the physician lead for women's health 14 service line. 15 Aurora and I'm the physician leader for women's health 16 care throughout the entire Aurora system. 17 Q 18 your CV? 19 A 20 I'm also a clinical professor at the Medical College of 21 Wisconsin. 22 Q 23 it correct that your report would indicate your 24 professional organizations and awards in Appendix A, 25 your CV? One, I'm the We have different service lines within Are there any positions that were not listed on I think the one thing that wasn't on my CV was that Now because your report is going to be admitted, is DAVID MERRILL - DIRECT 108 1 A Yes. 2 MS. LAZAR: And due to the agreement, we would 3 ask Dr. Merrill be qualified as an expert witness in 4 this case. 5 THE COURT: And he is so qualified, and you may 6 proceed. 7 BY MS. LAZAR: 8 Q 9 going to give expert testimony on in this case? All right. Dr. Merrill, what was -- what were you 10 A Specifically on the necessity for admitting 11 privileges for abortion providers andrequiring them to 12 have admitting privileges within 30 minutes of the 13 abortion clinic that they were working at. 14 Q You mean 30 miles, not 30 minutes? 15 A Right. I'm sorry, yeah. 16 Q Sorry. Are the opinions, including those expressed 17 in your expert report, expressed to a reasonable degree 18 of medical certainty? 19 A They are. 20 Q Okay. 21 your expert opinions in this case. 22 formed an opinion regarding whether Act 37's local 23 hospital admitting privilege requirement is medically 24 warranted? 25 A Yes. Right. And let's go very briefly through some of First, have you I feel as though it is and it would improve DAVID MERRILL - DIRECT 109 1 the care and provide a safety net for women who 2 experience complications of abortion. 3 Q 4 page eight, paragraph 30? 5 A Yes. 6 Q Dr. Laube has opined that requiring hospital 7 privileges is irrelevant. 8 opinion on that position? 9 A And is part of your opinion contained in page, at Yes. What is your expert medical I think Dr. Laube and I agree on one point is 10 that he talks about the importance for communication and 11 that he goes so far as to say that it's so vitally 12 important that there's communication so that if an 13 abortion provider referred a patient to the emergency 14 room and didn't communicate to the physicians in the 15 emergency room, that that would be a violation of the 16 standard of care and the provider probably should be 17 reported to the Medical Board for abandonment of the 18 patient by not communicating to the emergency room. 19 that point, I completely agree with him. 20 -- it's obviously important and important medically to 21 communicate and not just send the patient to the 22 emergency room in hopes that somebody will take care of 23 the complication that occurred. 24 25 In I think that's I think where we disagree is even to me it's a logical extension that if, in fact, the provider has DAVID MERRILL - DIRECT 110 1 admitting privileges and can be there and help 2 coordinate the care of this patient that has a 3 complication, it expounds upon the communication and 4 makes that even better. 5 things can -- can be not communicated or miscommunicated 6 and having the provider there and coordinating the care. 7 We know a telephone call, Now, I do agree with Dr. Laube that there are 8 certain complications that the abortion provider 9 probably cannot handle. If you're talking about a bowel 10 injury or bladder injury, some OB/GYNs or abortion 11 providers would not be trained to correct those or take 12 care of the patient. 13 importance of them being there to help coordinate the 14 care. 15 complete history, the patient's past medical history, 16 their desires as far as future fertility, because 17 sometimes we're looking at the potential to do a 18 hysterectomy in the face of hemorrhage after an 19 abortion. 20 transported by ambulance to the hospital, to then try to 21 elicit that history on the spot could be very cumbersome 22 and there could be delays in the patient's care. 23 Q Now -- 24 A You could -- go ahead. 25 Q That's okay. For example, what would be do if a DAVID MERRILL - DIRECT But it doesn't negate the And the coordination of the care involves a And some of these women, if they've been I'm sorry. 111 1 laceration occurred during a C-section and a urologist 2 was called in to assist? 3 A 4 to make the analogy to a normal pregnancy. 5 have different standards in an abortion case. 6 pregnant woman comes in and she terminates her 7 pregnancy, but a similar process occurs with a normal 8 delivery and we would continue to follow those patients. 9 Yes, I think that's kind of -- in my report I try Why do we The So for example, if I was doing a C-section and I 10 had injured the bladder, I would call a urologist in to 11 help repair the bladder, but I certainly wouldn't leave 12 the OR and say that the urologist can take care of the 13 rest of the case, and if I've sewn the uterus up my job 14 is done. 15 would want to be involved in helping my consultant and 16 communicate with the consultant that I called in. 17 think in our hospital system if somebody did that, if 18 they called in a consultant and left the OR or left the 19 hospital, they certainly would be subjected to a peer 20 review process based upon sort of unprofessional 21 behavior. 22 Q 23 going to go through a little briefly some of the points. 24 Do you have an expert medical opinion on how Act 37 25 would impact medical care? DAVID MERRILL - DIRECT Okay. If I created that laceration, I certainly And I Now going to page two of your report, we're 112 1 A I'm sorry, what paragraph? 2 Q I'm looking at paragraphs two and four. 3 have an expert medical opinion on how Act 37 would 4 impact medical care? 5 A 6 patients that have these complications. 7 that the complication rate is relatively rare, but it's 8 not unheard of. 9 or three women per month may be admitted to hospitals in Yeah. Do you I think it would improve the medical care of We have data And there's different figures that two 10 Wisconsin after complications of abortion. 11 many would go by ambulance from the abortion clinics, 12 but I think it certainly would aid in the care of those 13 patients for the practitioner who had this relationship 14 with the patient and performed the procedure would 15 continue to be involved with that patient should a major 16 complication arise. 17 Q 18 complications occur? 19 20 Not that What -- where do the majority of abortion MS. FLAXMAN: Your Honor, I'm going to object. This is in his report -- 21 THE COURT: Are you relying on the report? 22 MS. LAZAR: Yes. 23 THE COURT: So I imagine you're wrapping up 24 25 your initial highlighting of testimony; is that correct? MS. LAZAR: What? DAVID MERRILL - DIRECT 113 1 2 THE COURT: highlighting of testimony? 3 4 Are you wrapping up this initial MS. LAZAR: Yes. I just have a few other questions. 5 THE WITNESS: 6 MS. LAZAR: No, I didn't have a question for THE COURT: We'll pose another one in a moment. 7 you. 8 9 Should I answer that question? Thank you. 10 BY MS. LAZAR: 11 Q 12 acquire medical records from another physician after 13 hours? 14 A Yes. 15 Q And in those cases -- actually what I'm going to 16 ask you is if you can listen to my question and just 17 closely answer what I'm asking you. 18 typically happens? 19 A 20 after hours because if a patient is transferred to us or 21 comes in the hospital, we would be able to page the -- 22 her physician and request those medical records. 23 Q 24 those records, does it make a difference whether or not 25 they had admitting privileges or didn't? DAVID MERRILL - DIRECT Dr. Merrill, have you ever had an occasion to In that case what We usually are able to get the medical records And if a physician does not respond and provide 114 1 A 2 to whether the physician had admitting privileges? 3 Q 4 that case? 5 A 6 obtain records or if -- going back to the communication 7 -- if there is not communication, physician-to-physician 8 communication, then that physician who, if they have 9 hospital admitting privileges, they would come under 10 You mean as far as providing the medical records as Right. Yeah. Would there be -- does peer review help in I mean I think if we -- if we are unable to peer review. 11 If we're a recipient of a patient from a clinic 12 where there aren't admitting privileges, if there isn't 13 communication or there are no medical records that come 14 with the patient, there's no peer review process that 15 the hospital can do to the provider who sent that 16 patient in. 17 Q 18 patients had a serious complication while under your 19 care? 20 A 21 that I wouldn't be specifically trained to take care of, 22 I would still see that patient through the complication, 23 want to help coordinate her care and continue to follow 24 her after that complication, as I think most physicians 25 who do operative procedures do want to have that DAVID MERRILL - DIRECT Dr. Merrill, what would you do if one of your I think even if it was a complication, as I said, 115 1 continuity of care and follow-up of any complications 2 that could occur from their surgery. 3 Q 4 paragraph 25. 5 A Yes. 6 Q I'll just -- that's in the record, so I'll just 7 move on. 8 the safety of women in a hand-off situation? 9 A Just a few more questions. Two more questions. If you could turn to How does Act 37 impact I think it's crucially important as far as the hand 10 off is concerned. 11 of time and training about the importance of hand offs 12 and the mistakes that can occur if you don't have good 13 hand offs of patients and good sign-out information. 14 think Act 37 would require the abortion providers to 15 have these privileges really does firm up that in these 16 major complication situations that occur. 17 that some patients may go back home and not be within 18 that distance of the abortion clinic, but major 19 complications where women are transported to the 20 hospital or actually readmitted to the hospital, I think 21 that truly designs a firmness of that communication and 22 ensures that there's good hand-offs among physician 23 providers. 24 25 We -- in medicine now, we spend a lot I You can say A lot of hospitals now mandate that if you're asking for a consultation within the hospital, there has DAVID MERRILL - DIRECT 116 1 to be physician-to-physician communication requesting 2 those consultative services -- 3 Q Okay. 4 A -- to ensure good hand off. 5 Q Okay. 6 Dr. Merrill, can you tell me any reasons why a physician 7 would not want to obtain admitting privileges? 8 A 9 think of is that, you know, putting the convenience of a I promise one last question, so this is it. I think the only -- I mean the only thing I can 10 physician ahead of the needs of the patient. 11 searched through this. 12 have those admitting privileges is beyond me because I 13 think most physicians would want to follow their 14 patients that are admitted to the hospital. 15 MS. LAZAR: To me, I Why anybody would not want to That's my last question. I would 16 like to move into evidence Exhibit 1087, but I would 17 like to make sure that I add Appendix A, the CV to the 18 packet the Court has. 19 20 THE COURT: It is added to the exhibit that the Court has. 21 MS. LAZAR: Oh, okay. 22 THE COURT: I don't know what -- perhaps not in 23 24 25 Thank you. your formal exhibit. MS. LAZAR: Excellent. Thank you. further -DAVID MERRILL - DIRECT No 117 1 2 THE COURT: For the record they are which MS. LAZAR: I'm just adding Exhibit 1087, and exhibits? 3 4 there's an attachment to that, and I wanted to make sure 5 that Attachment A was attached. 6 THE COURT: That is admitted without objection. 7 MS. LAZAR: Thank you. 8 THE WITNESS: 9 THE COURT: 10 Thank you, Dr. Merrill. Thank you. All right. (7:47 p.m.) You may proceed, Counsel. 11 CROSS-EXAMINATION 12 BY MS. FLAXMAN: 13 Q Good evening, Dr. Merrill. 14 A Hello. 15 Q I represent Planned Parenthood. 16 at your deposition. 17 A Yes. 18 Q Dr. Merrill, you have never treated a woman 19 experiencing an abortion complication in Wisconsin; 20 correct? 21 A That's correct. 22 Q Your experience treating abortion complications was 23 approximately four or five patients when you worked in 24 North Carolina; correct? 25 A This is Carrie Flaxman. Yes. DAVID MERRILL - CROSS We met last month 118 1 Q And none of those patients were transferred 2 directly from an abortion clinic; right? 3 A Right. 4 Q They came in after -- 5 A I don't remember if some of them -- 6 Q Hold on one second. 7 A -- were sent -- 8 Q Hold on. 9 A -- from the clinic -- 10 Q Sir, hold on one second. 11 Not by ambulance they weren't. THE COURT: Wait, wait. Both of you stop. 12 We're going to pause after a question is asked and we're 13 going to pause after an answer is given. 14 witness needs to stop and answer, I will stop the 15 witness. 16 MS. FLAXMAN: 17 THE COURT: 18 If I think the Okay. It won't be your role. Why don't you ask your next question. 19 MS. FLAXMAN: Thank you, Your Honor. 20 BY MS. FLAXMAN: 21 Q 22 clinic; right? 23 A I believe so. 24 Q And all of those patients told you that they had 25 had abortions; correct? DAVID MERRILL - CROSS Those patients came in after discharge from the 119 1 A Yes. 2 Q And they all received treatment in the hospital? 3 A Yes. 4 Q And Doctor, you don't know whether or not the 5 physicians who provided the abortions in those cases had 6 hospital admitting privileges; correct? 7 A Correct. 8 Q Doctor, if you could turn your attention back to 9 your report. I don't know if they did or not. Why don't you look in that blue binder. 10 It's Exhibit 1, and it was 1087 in the courtroom. 11 wanted to ask you about your testimony on page seven, in 12 paragraphs 24 and 25. 13 A Okay. 14 Q Give me one second to get to it in the courtroom. 15 A I think you guys are breaking up a little bit. 16 can't hear the whole questions. 17 Q 18 questions? 19 A 20 21 Okay. I Were you okay when Ms. Lazar was asking you It was better then. THE COURT: You may just need to speak up a little more. 22 MS. FLAXMAN: 23 me. 24 Q 25 Okay. I All right. I'll try to get this closer to Let me know if you can't hear me. I wanted to ask you in paragraph -- again in DAVID MERRILL - CROSS 120 1 paragraph 24 on page seven? 2 A Yes. 3 Q The quoted material there says, "Physicians 4 performing office-based surgery must have admitting 5 privileges at a nearby hospital, a transfer agreement 6 with another physician who has admitting privileges at a 7 nearby hospital, or maintain an emergency transfer 8 agreement with a nearby hospital." 9 Do you see that? 10 A Yes. 11 Q Okay. 12 characterize that statement as saying that "the norm is 13 that admitting privileges are required." 14 In paragraph 25, in the first sentence, you Do you see that? 15 A Yes. 16 Q But that guideline does not actually say that 17 admitting privileges are the norm; right? 18 A 19 upon the unanimous agreement of those 32 medical 20 organizations that said people performing 21 outpatient-based surgery must have admitting privileges 22 and transfer agreements. 23 options that they listed as an important component to 24 safe care if you're doing office-based surgery. 25 Q Correct. Right. I extrapolated it to be the norm based So I mean that's one of the So that does not, in fact, say that DAVID MERRILL - CROSS 121 1 admitting privileges are better than a transfer 2 agreement with a physician or a hospital; right? 3 A 4 the point I was trying to make was that this idea of 5 having admitting privileges for physicians performing 6 office-based surgery is not a crazy idea or is not an 7 idea that's just being targeted towards abortion 8 providers. 9 Q 10 Correct. It doesn't say it is better, but I think Turning to page 26 -THE COURT: Just so I understand, is it fair to 11 say you think the law should be all physicians 12 performing outpatient procedures with any risk of 13 hospitalization should be required to have admitting 14 privileges, regardless of the procedure? 15 THE WITNESS: Yes. And I said that in my 16 deposition that I don't feel as though it's specific to 17 abortion providers if other physicians performing other 18 sorts or similar surgeries that could result in a 19 complication needing hospitalization, I would be in 20 favor of those physicians also having admitting 21 privileges. 22 THE COURT: Being required to by law. 23 THE WITNESS: 24 THE COURT: 25 THE WITNESS: My experience is that most of DAVID MERRILL - CROSS Yes. You may proceed. 122 1 those physicians do have admitting privileges. 2 would be -- my opinion would be I would be in favor of 3 that being mandated by law. 4 THE COURT: Understood. But I You may proceed, 5 Counsel. 6 BY MS. FLAXMAN: 7 Q Doctor, in paragraph 26, the next paragraph -- 8 A I can't hear you again. 9 Q Sorry. 10 A Okay. 11 Q Yes. 12 there, "The federal program requirements also mandate 13 hospital-admitting privileges for center providers." 14 But those federal program requirements also allow a 15 written transfer agreement; correct? 16 A Yes. 17 Q So those federal program standards also do not 18 mandate admitting privileges; right? 19 A Yeah, they have one or the other. 20 Q Dr. Merrill, you're a member of the American 21 Association of Pro-Life Obstetricians and Gynecologists; 22 right? 23 A Yes. 24 Q And where is that membership on your CV? 25 need to look at it, it's attached at Tab 1. DAVID MERRILL - CROSS I'll get closer. Can you hear me now? In paragraph 26 of your report you state If you 123 1 A Yeah, I don't think it's on my CV. 2 specific omission any more than my clinical 3 professorship at the Medical College of Wisconsin being 4 specifically omitted from my CV. 5 that's one of the things I've never been that 6 compulsive, to make sure every single thing is on my CV. 7 But it's not -- I'm certainly proud of the membership 8 and I'm an active member and there is nothing that was 9 specific -- there's no reason why I left that off. 10 THE COURT: It's not a So I have to admit And I just ask in the future if you 11 could stick to the question with a yes or no answer when 12 it's appropriate. 13 answers. You don't need to defend your If it needs to be -- 14 THE WITNESS: 15 THE COURT: Sure. Okay. If it needs to be expanded upon, 16 the defendants' lawyer will do that. 17 proceed, Counsel. And you may 18 MS. FLAXMAN: Thank you, Your Honor. 19 THE WITNESS: Okay. 20 BY MS. FLAXMAN: 21 Q 22 the past to representatives of Wisconsin Right to Life; 23 correct? 24 A Yes. 25 Q And in fact, you advised Wisconsin Right to Life on DAVID MERRILL - CROSS Doctor, you have provided medical information in 124 1 the admitting privileges requirement that's at issue in 2 this case; correct? 3 A Yes. 4 Q In fact, you consider yourself to be an initiator 5 of the admitting privileges requirement; correct? 6 A 7 suggesting that I thought that was a good idea. 8 know about initiator, but I was -- you know, I voiced 9 the opinion I thought that was a good idea. I don't -- you know, certainly I was involved with I don't 10 Q And that was based on what you knew that other 11 states were doing with this requirement; correct? 12 A 13 experience and feeling that women were at risk without 14 having this privilege. 15 that other states were doing it. 16 Q And you learned about that through AAPLOG; correct? 17 A Yes. 18 Q Go ahead, sir. 19 A And also I think you asked me this during the 20 deposition, also through ACOG. 21 I learned it through American College of OB/GYN. 22 Q 23 opposed to this law; correct? 24 A Yes. 25 Q And you proposed this requirement at a meeting with DAVID MERRILL - CROSS Well, in part, but also in part based upon my But it was with the knowledge And I think through -- We get ACOG updates and You learned the American College of OB/GYN was 125 1 Wisconsin Right to Life representatives; correct? 2 A Correct. 3 Q And you followed up on that with an email to 4 Barbara Lyons of Wisconsin Right to Life; is that 5 correct? 6 A Yes. 7 Q So if you could look to Tab 4 in your binder. 8 That's Plaintiffs' Exhibit 93. 9 A Yeah, I got that. 10 Q So the email -- do you see the email here was an 11 email you sent February 27th to Barbara Lyons, Jim Linn 12 and Sue Armacost? 13 A Yes. 14 Q And Barbara Lyons and Sue Armacost are with 15 Wisconsin Right to Life? 16 A Yes. 17 Q And then -- 18 A I'm having real trouble hearing you. 19 back away from the microphone. 20 Q 21 Barbara Lyons then forwarded your email to Senator 22 Lazich. 23 A Yes. 24 Q And later on you provided additional information 25 about the bill that was also sent to Senator Lazich; DAVID MERRILL - CROSS Sorry. I think you I can't hear you. I'll just stay right on top of it. And Do you see that? 126 1 correct? 2 A Yes. 3 Q And I'm going to point you to Tab 3 and that's 4 Plaintiffs' Exhibit 92. 5 A Yes. 6 Q And in this email you gave some answers to 7 questions to Ms. Lyons that was again forwarded to 8 Senator Lazich; correct? 9 A Correct. 10 Q You contribute money to Wisconsin Right to Life, 11 correct, Doctor? 12 A I do. 13 Q And you were contacted to be an expert in this case 14 by Vincent Rue; correct? 15 A Yes. 16 Q Doctor, you think abortions should be illegal; 17 correct? 18 A Yes. 19 Q And you refuse to prescribe emergency contraception 20 or to insert an IUD for a patient; correct? 21 A 22 deposition is that if people want those, then I'll 23 arrange to have my partners give those if people wanted 24 it. 25 personally don't do those. DAVID MERRILL - CROSS Yeah. What I said -- I guess what I said in my So I don't block people from getting those, I 127 1 Q Do you recall the testimony you gave in your report 2 about Lena Wood? 3 A Yes. 4 Q You've never met Ms. Wood, have you? 5 A I have not. 6 Q And you never have spoken to any of her physicians? 7 A No. 8 Q You just reviewed the medical records you received 9 from Mr. Rue and testimony that Ms. Wood had given in This is at paragraph 13. 10 the Legislature; correct? 11 A Correct. 12 Q And the only basis for your opinion are those 13 records; correct? 14 A Correct. 15 Q And to be clear, you're not offering an opinion in 16 this case that her sepsis was caused by her abortion; 17 correct? 18 A Correct. 19 Q In fact, it's possible that her sepsis was caused 20 by a urinary tract infection; correct? 21 A 22 secondary to the abortion, but that was not really the 23 basis of my opinion about her care. 24 Q 25 You are employed by Aurora; correct? DAVID MERRILL - CROSS That is possible. I think it's likely to be I want to ask you then about your own practice. 128 1 A Correct. 2 Q And there are over 100 employed OB/GYNs in the OR 3 system; right? 4 A There are. 5 Q And independent physicians are in the minority in 6 the Aurora system; correct? 7 A 8 in Milwaukee, the independent physicians make up about 9 25 percent of the physicians in that hospital, and in Correct. I think one of our bigger hospitals here 10 other hospitals there's different percentages. 11 Q And that's because fewer -- 12 A It's not a closed system though. 13 Q But there are fewer and fewer independent 14 physicians practicing; correct? 15 A 16 nonemployed physicians. 17 Q 18 health care system; correct? 19 A Correct. 20 Q In and your specialty as a maternal fetal medicine 21 specialist, you essentially focus on women experiencing 22 high risk pregnancies; correct? 23 A 24 little bit. 25 of a lot of low-risk patients to now probably I'm more DAVID MERRILL - CROSS Correct. Across the country there's fewer More and more physicians are being employed by some Well, you know, I think that my job has changed a In my specialty, I've gone from taking care 129 1 focused on high risk patients. But my practice is not 2 exclusively just high-risk patients. 3 the ultrasounds and things I do are on low-risk 4 patients. 5 Q 6 diagnosis of a fetal anomaly; correct? 7 A Correct. 8 Q And these diagnoses are often not made until after 9 18 weeks of pregnancy; correct? I still do lots of Sometimes you care for patients who receive a 10 A I don't know if I would use often or not. I mean I 11 think they can be made after 18 weeks. 12 sooner than that too. 13 on when to say often, but they can be before and after 14 18 weeks. 15 Q 16 often diagnosed after 18 weeks; correct? 17 A You can diagnose it before 18 weeks also. 18 Q You have been with your -- 19 A Severe structural -- 20 Q Go ahead. 21 A Severe structural abnormalities can be diagnosed 22 before 18 weeks. 23 Q You've been with your current group for how long? 24 A For a little over three years. 25 Q And your group is the only maternal fetal medicine DAVID MERRILL - CROSS They can be made I don't have a percentage for you We're dealing with a structural abnormality that's 130 1 specialist in the Sinai system; correct? 2 A 3 it's the Aurora system. 4 Q 5 deposition, too. 6 A 7 that, but it's the Aurora system. 8 Q 9 only group of MFMs in the Aurora system; correct? Let me correct you. Aurora system. You did. It's not the Sinai system, I made that mistake a lot in your I'm sorry. The Aurora system. People at Sinai would like you to say Let me ask that question again. Correct. Your group is the 10 A 11 time, I guess I need to put in, you know, I'm not a 12 spokesperson for Aurora Health Care here. 13 am using my experiences as an employed physician, but I 14 don't want to be misconstrued that I'm speaking on 15 behalf of Aurora Health Care. 16 And I guess maybe this would be a good THE COURT: That's noted, Doctor. I certainly Next 17 question. 18 Q 19 patients with fetal anomaly diagnoses; right? 20 A Yes. 21 Q But after you joined the group, your group decided 22 not to do them anymore; correct? 23 A Correct. 24 Q If a patient of yours had a fetal anomaly diagnosis 25 and wanted to terminate the pregnancy, your practice DAVID MERRILL - CROSS Your MFM group used to provide terminations for 131 1 would refer those patients to another provider; correct? 2 A Correct. 3 Q And the only hospitals in Milwaukee that you are 4 aware of where abortions are allowed are Sinai and 5 Froedtert; right? 6 A 7 hospital that I know of outside the Catholic hospitals 8 that -- West Allis, which is an Aurora hospital, has a 9 city ordinance that won't allow abortions. As I said in my deposition, I think the only But I think 10 all the other Aurora hospitals and I think some other 11 hospitals may allow abortions, but there are now 12 abortions going on in those hospitals because they don't 13 have providers. 14 The only hospital I know of in the Aurora system is 15 West Allis that they can't do abortions because of a 16 city ordinance. 17 Q 18 used to be at Sinai; correct? 19 A Yes. 20 Q And that's in part because Dr. Pfleger no longer 21 works there; correct? 22 A 23 abortions being performed there. 24 deposition, our practice deciding not to do them was we 25 didn't have consistency within our practice. DAVID MERRILL - CROSS And there are fewer abortions performed than there I think that's a big part of why there's fewer And as I said in my The same 132 1 applies at Sinai, there are not the providers who will 2 perform the abortions, and so since there's not a 3 continuity of care for those patients throughout the 4 abortion process, many of those patients are referred 5 outside to get their termination. 6 Q 7 terminations to Affiliated Medical Services; correct? 8 A 9 because our practice doesn't refer them. And your practice, in fact, refers patients seeking Yeah. Well, I guess I would say not correct Our practice 10 refers the patients to the genetic counselors, who then 11 talk about the options. 12 refer them. 13 primary physician working in conjunction with our 14 genetic counselors. 15 Q 16 is Tab 2. 17 sorry. 18 A So we are -- we don't directly Many times it's done by the patient's I'm going to direct you to your deposition, which And I'd direct you to page 74. 74. I stepped away. Yes. 19 MS. FLAXMAN: 20 THE COURT: Jenny, it's the deposition at 74. That's fine. You may proceed, 21 Counsel. 22 Q 23 mentioned to me your practice refers patients to 24 Affiliated for terminations; is that right?" 25 I'm Line five. Do you recall I asked you: "You just And you answered "Yes." Was that your testimony? DAVID MERRILL - CROSS 133 1 A Yeah. 2 Q And that is, in fact, because Affiliated is one of 3 the only places where a patient experiencing a nonlethal 4 anomaly could go; correct? 5 A 6 refer anybody to Affiliated that -- you say nonlethal 7 anomaly? 8 Q Correct. 9 A Right. No. I mean I don't think so, because we don't Other than in the city, I think, because 10 the Medical College of Wisconsin will only do lethal 11 anomalies; right. 12 Q 13 are aware of no other options for women seeking these 14 abortions; correct? 15 A 16 they coordinate all of that process. 17 of a list of providers that patients can be sent to. 18 think there may be somebody in Madison that does 19 nonlethal anomaly terminations. 20 Q And that may be at Planned Parenthood; correct? 21 A I don't know. And aside from Planned Parenthood in Chicago, you I'm not. Our genetic counselors might. 22 MS. FLAXMAN: 23 THE COURT: Thank you. But again, So they have sort I No further questions. Doctor, I just have a few 24 follow-ups and then I'll see if there's any redirect 25 that's requested. Do you perform -- have you performed DAVID MERRILL - CROSS 134 1 procedures outside of the Milwaukee area in your current 2 practice? 3 or otherwise. 4 5 6 In other words, maybe volunteering overseas THE WITNESS: Have I performed abortion procedures or any procedures? THE COURT: Any procedure outside of the area 7 in which you're admitted at a hospital with admitting 8 privileges. 9 10 11 THE WITNESS: THE COURT: No. All right. So you've never volunteered your services overseas, for example. 12 THE WITNESS: 13 THE COURT: No. All right. Assume that a doctor 14 did that; in other words, provided outpatient procedures 15 in an area in which they were not admitted -- did not 16 have admitting privileges locally. 17 that less than optimal care; is that correct? 18 THE WITNESS: You would consider If I understand your question 19 right, so somebody who is doing volunteer work overseas 20 where they are doing outpatient procedures and they 21 don't have admitting privileges. 22 23 24 25 THE COURT: Even though they have it locally where they normally practice. THE WITNESS: Yeah. I mean I think it's always optimal patient care to be able to -- if a patient, if DAVID MERRILL - CROSS 135 1 you're doing procedures that could result in the patient 2 needing to be admitted to the hospital, I think it would 3 be better patient care to have admitting privileges to 4 the hospital. 5 THE COURT: 6 THE WITNESS: 7 THE COURT: What if the doctor -Even if you're -I'm sorry. What if the doctor has 8 admitting privileges and is doing work outside of that 9 area but is operating under a transfer agreement? Would 10 that be adequate for optimal care? In other words, they 11 meet all the qualifications for admitting privileges; 12 they're performing a procedure consistent with those 13 privileges; they have the ability to quickly transfer a 14 patient and to provide the continuity of care; other 15 than formally admitting the patient themselves, would 16 that be optimal care? 17 THE WITNESS: I don't think it would be optimal 18 care. It would be better care than not having that 19 agreement in place. 20 is to be able to admit the patient and coordinate the 21 care of different consultants to take care of the 22 patient. 23 communication and just putting somebody in an ambulance 24 and sending them off to a hospital, but I think having 25 admitting privileges would be the optimal, if you really DAVID MERRILL - CROSS But I think to me, the optimal care Again, it would be better than not having any 136 1 2 wanted to have optimal care and safety for women. THE COURT: All right. So I understand if you 3 have admitting privileges somewhere other than the 4 immediate area where performing the procedure and you 5 have a transfer agreement, the disadvantages over 6 actually having local admitting privileges are that you 7 could do the admission. 8 that's not likely to be denied; right? 9 presents at a hospital with a matter requiring service, 10 they are not going to deny the person admission; right? 11 THE WITNESS: 12 THE COURT: 13 THE WITNESS: 14 15 But that's -- isn't that -If someone Right. So that's -The patient will still be admitted -- I'm sorry. THE COURT: And they're not going to deny a 16 physician who's been treating the person having 17 interactions with the emergency room physician; correct? 18 THE WITNESS: Well, I think there's some 19 limitations -- you certainly can come and interact and 20 be there if you don't have admitting privileges because 21 you've developed that patient care relationship in the 22 hospital -- I mean in the outpatient setting. 23 think there would be limitations on to what extent you 24 could be involved with the patient care if you don't 25 have privileges. DAVID MERRILL - CROSS But I 137 1 THE COURT: And that's the primary disadvantage 2 is that you wouldn't have the kind of robust interaction 3 that you would have if you could operate yourself or be 4 present and control care as a physician with admitting 5 privileges. 6 THE WITNESS: 7 THE COURT: 8 Yes. Do admitting privileges always give you the right to control the patient's treatment? 9 THE WITNESS: Well, I think it gives you -- you 10 can have scenarios where, you know, if somebody is doing 11 substandard care, somebody will step in the way of the 12 treatment. 13 physician, you are the responsible physician to 14 coordinate the care and direct the care. 15 But I think if you're the admitting THE COURT: The only other question I have for 16 you is you said it was incomprehensible to you why there 17 should be reluctance to get admitting privileges. 18 you understand that there are circumstances where 19 physicians may have all of the qualifications for 20 admission but are, in fact, not admitted for nonquality 21 reasons? 22 THE WITNESS: I'm not aware of that. Do I haven't 23 experienced somebody being denied admitting privileges 24 for something other than for quality reasons if you're 25 talking about open systems. You know, if you're talking DAVID MERRILL - CROSS 138 1 a close system where you can't -- you can't apply, they 2 won't allow admitting privileges to physicians outside 3 of the system, that occurs. 4 system, I've never heard of anybody not being able to 5 get admitting privileges outside of quality issues. But I haven't -- in an open 6 When I say incomprehensible, I guess I look and I 7 think if people want to talk about comprehensive care, 8 and we advertise comprehensive care for abortion 9 services, how you can exclude complications from that. 10 I mean comprehensive means completely covered, and if 11 you're not going to have admitting privileges to take 12 care of major complications, how can you say you're 13 providing comprehensive care? 14 THE COURT: All right. 15 MS. LAZAR: Two very short. 16 Any redirect, Counsel? REDIRECT EXAMINATION 17 BY MS. LAZAR: 18 Q 19 were asked about the description of Lena Wood and you 20 were going to give a comment on what the basis of your 21 opinion was with respect to her care and I wanted to 22 allow you to have that opportunity. 23 of your opinion regarding Lena Wood's example? 24 A 25 upon the medical records and her statements, that the DAVID MERRILL - REDIRECT Dr. Merrill, two very short questions for you. Yeah. You What is that basis I think her example points to, again, based 139 1 lack of continuity and follow-up of somebody who was 2 complaining of problems and had complications after a 3 procedure. 4 related to the abortion, if it's related to something 5 else, but eight days after an abortion procedure for her 6 not to have that continuity of care and to have Planned 7 Parenthood not be involved with her care I think I find 8 very disturbing. And I said pretty firmly even if it's not 9 So it's not a matter of trying to say the abortion 10 caused sepsis and was performed inappropriately, it was 11 how her fever and her complaints were handled by the 12 providers who had performed the procedure on her just a 13 few days before. 14 Q 15 about the fact that some of your genetic counselors may 16 advise women of the opportunity at AMS. 17 concerns regarding that type of advice? 18 A 19 copies of that, you know, when I sort of had the 20 realization that they probably did not have admitting 21 privileges, you know, I was used to hospital-based 22 abortion situations, which we had in San Francisco when 23 I was a resident and I had a concern. 24 again, our counselors present patients with all those 25 options and then they choose where they're going to go. DAVID MERRILL - REDIRECT Okay. And the last question is you were asked Do you have any Well, you know, I think the email that you have But I think that 140 1 So I wasn't going to block them from going there, 2 but I had concerns, and I still do, about the safety 3 when you're having people transported by ambulance and 4 having little communication and no continuity of care in 5 the hospital after those complications occur. 6 7 MS. LAZAR: That was my last question, Your Honor. 8 9 Thank you. THE COURT: Good. Thank you, Doctor, for taking the time this evening to speak to us. And we are 10 -- well, you're finished with your testimony and I'll 11 see if there's anything more for the parties here. 12 You're free to hang up or step away, whatever you 13 prefer. 14 15 THE WITNESS: THE COURT: And I want to thank you Understood. (Witness excused at 8:20 p.m.) 18 19 Okay. for allowing me to do it at night like this. 16 17 Thank you very much. THE COURT: Let me ask plaintiffs if there's anything more you wish to cover this evening. 20 MS. FLAXMAN: No. We have agreements on some 21 exhibits to be admitted, but in the interests perhaps of 22 getting everyone out of here tonight, we could do that 23 tomorrow. 24 25 THE COURT: It probably is a good time to do it now given there are other obligations tomorrow. DAVID MERRILL - REDIRECT 141 1 MS. FLAXMAN: 2 MS. LAZAR: 3 list? Okay. Did you want me to go through the I have it here -- 4 MS. FLAXMAN: 5 MS. LAZAR: Sure. Or do you want to do that? Your 6 Honor, these were the -- these were the exhibits that 7 are specifically referenced in the stipulation so the 8 parties had agreed that they could be admitted. 9 start with the plaintiffs' exhibits. 10 I'll That would be Exhibit 80. 11 THE COURT: Give me one moment. 12 MS. LAZAR: 84, which is the same as 1092. 13 14 15 All right. So both of those could be admitted. THE COURT: You'll going to have to remind me of 1092 when you get to it. But why don't you continue. 16 MS. LAZAR: Okay. 85. 17 THE COURT: All right. 18 MS. LAZAR: 86. 19 THE COURT: Yes. 20 MS. LAZAR: 87. 21 THE COURT: If it's seriatim you could -- 22 MS. LAZAR: Up to 89. 23 THE COURT: Very good. 24 MS. LAZAR: Then 92 through 94. 25 THE COURT: All right. Those are admitted. 142 1 And then defendants' exhibits. 2 3 MS. LAZAR: And then the defendants' exhibits are 1088 through 1092. 4 THE COURT: Hang on a moment. 5 MS. LAZAR: And 1092 is the one that was the 6 same as 84. 7 THE COURT: Thank you. 8 MS. LAZAR: 1098. 9 exhibits, not the affidavit. All right. And this one, it's just the 10 THE COURT: All right. 11 MS. LAZAR: And then 1101 through 1104. 12 THE COURT: Thank you. 13 Anything more for the plaintiffs then this evening? 14 MS. FLAXMAN: Yes. Just one more thing, Your 15 Honor. 16 hospital bylaws, and I also then wanted to move the 17 admission of two demonstrative exhibits the plaintiffs 18 provided of those bylaws. 19 We just admitted the various excerpts of THE COURT: It's Exhibit 65 and 66. Without regard to their designation 20 as demonstrative, I'll simply admit them as exhibits. 21 And those are by stipulation, is that what understand? 22 MS. LAZAR: No, those weren't by stipulation. 23 THE COURT: They were used when and presented 24 25 by which witness? MS. FLAXMAN: Well, Your Honor, we had agreed 143 1 that the bylaws would come in. 2 we had to have a paralegal to explain the process that 3 went into creating this exhibit. 4 5 THE COURT: demonstrative. MS. FLAXMAN: 7 THE COURT: 9 10 I don't know what that means to be Are they summaries? 6 8 I had asked Ms. Lazar if Yes, they're summaries. So 1006 summaries. objection of the State? MS. LAZAR: We didn't have one. THE COURT: Aah. 12 MS. LAZAR: Sorry. 13 THE COURT: That's fine. 15 I was just saying that was not part of the stipulation. 11 14 And what's the All right. They're admitted without objection. MS. LAZAR: And actually I do have to look back 16 and just make sure we did not put an objection on it. 17 don't think we did. 18 MS. FLAXMAN: No. 19 MS. LAZAR: But just let me -- 20 THE COURT: There were no objections to it. 21 They're 1006 summaries. 22 opportunity to compare them against the actual 23 provisions and so I will admit them pursuant to 1006. 24 25 I take it you've had an Anything more then for the plaintiff? MS. FLAXMAN: No, Your Honor. I 144 1 2 THE COURT: Anything more for the defendants this evening? 3 MS. LAZAR: No, Your Honor. Although just in 4 terms of scheduling, I was advised by the plaintiffs 5 that they will not be calling Clare Hohensee, and in 6 that case, we would like the opportunity, we're not 7 certain that we will, but we would like the opportunity 8 to designate portions of her deposition. 9 THE COURT: Or you could call her adversely, I 10 guess. I'm open to either one since we would be doing 11 this out of turn. 12 you have any objection to working with the defendants to 13 arrive at designations? You're planning not to call her. 14 MS. FLAXMAN: 15 THE COURT: Do I do not. All right. Why don't you then 16 propose your designations, see if there are any 17 counters, and I'll consider that in lieu of testimony on 18 Friday. 19 Thank you. Anything more for the defendant then? 20 MS. LAZAR: No, Your Honor. 21 THE COURT: Let me just be certain that each 22 side's expert for tomorrow morning, Drs. Laube and 23 Thorp, will have with them the neutral expert's 24 preliminary responses so that we don't have to go back 25 and forth on that. I assume it would have been provided 145 1 to each of the experts at some point, but I need to have 2 that in front of them tomorrow. 3 problem with getting ahold of that and getting it to 4 your expert? 5 MS. FLAXMAN: 6 MS. LAZAR: 7 No, Your Honor. No. We've provided it. We'll just send emails to make sure he has it or call. 8 9 Does either side have a THE COURT: If they would both have it in front of them, that would ease the discussion. I'm trying to 10 figure out a way that the witness Dr. Thorp would have 11 the ability to see both Dr. Bulun and Dr. Laube -- is it 12 Laube? 13 MS. FLAXMAN: 14 THE COURT: Laube. Laube. I apologize. It's probably 15 not going to be ideal if we had one at the witness stand 16 and one sitting here; on the other hand, if we got a 17 table, maybe we can move them both a little closer, but 18 then they might have trouble taking direction from me. 19 On the other hand, I don't know that I necessarily have 20 to face them. 21 up with a better arrangement. 22 we have the mikes, we'll proceed as I had originally 23 described. 24 25 So I may work this evening to try to come But barring that, since With that, we are adjourned for the evening and I will see you tomorrow morning at 8 a.m. I will arrive 146 1 early. 2 MS. LAZAR: Thank you, Your Honor. 3 THE COURT: We are off the record. 4 (Proceedings concluded at 8:25 p.m.) 5 6 7 8 9 10 11 12 * * * * * I, LYNETTE SWENSON, Certified Realtime and Merit Reporter in and for the State of Wisconsin, certify that the foregoing is a true and accurate record of the proceedings held on the 28th day of May 2014 before the Honorable William M. Conley, Chief Judge for the Western District of Wisconsin, in my presence and reduced to writing in accordance with my stenographic notes made at said time and place. Dated this 31st day of May 2014. 13 14 15 16 /s/________________________ 17 Lynette Swenson, RMR, CRR Federal Court Reporter 18 19 20 21 22 23 24 25 The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or direction of the certifying court reporter.