Free Declaration in Support - District Court of California - California

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00001 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 ---oOo--4 5 FERNANDO DAROSA, 6 Plaintiff, 7 vs. No. 3:07-CV-03114-SI 8 KAISER FOUNDATION HEALTH PLAN, INC., 9 Defendant. 10 _______________________________/ 11 12 DEPOSITION OF FRANK DUSTIN, M.D. 13 Volume I, Pages 1 - 132 14 Monday, May 12, 2008 15 16 17 18 19 20 21 REPORTED BY: CYNTHIA LEW, RPR, CSR No. 11999 22 23 TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES 24 350 SANSOME STREET, SUITE 700 SAN FRANCISCO, CALIFORNIA 94104 25 (415) 392-0650

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00002 1 INDEX 2 3 DEPOSITION OF FRANK DUSTIN, M.D. 4 5 EXAMINATION BY: PAGE 6 MR. MARTIN 6 7 ---oOo--8 9 EXHIBITS 10 (For Defendant) 11 IDENTIFICATION DESCRIPTION PAGE 12 1 Six-page group exhibit of notice of 8 deposition, subpoena and proof of service 13 2 Progress record, Bates No. 8 36 14 3 Telephone message, dated March 21, 2007, 55 15 Bates No. 13 16 4 Progress record, Bates No. 12 60 17 5 Visit verification, dated July 29, 2005 72 18 6 Visit verification, dated August 29, 2005 75 19 7 Visit verification, dated January 24, 76 2006 20 8 E-chart note, dated January 24, 2006 77 21 9 Visit verification, dated March 24, 2006 91 22 10 Two-page telephone message, dated March 91 23 13, 2006 24 11 Five-page DMV "Driver Medical 97 Evaluation," Bates No. 18 through 22, 25 dated July 23, 2007

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00003 1 EXHIBITS 2 (For Defendant) 3 IDENTIFICATION DESCRIPTION PAGE 4 12 Progress record, Bates No. 16 105 5 13 E-chart note, dated June 25, 2007 106 6 14 E-chart note, dated April 23, 2007 120 7 15 Telephone message, dated November 8, 127 2007, Bates No. 45 8 9 ---oOo-10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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00004 1 BE IT REMEMBERED that, pursuant to Notice of 2 Taking Deposition, on Monday, May 12, 2008, commencing at 3 the hour of 8:37 o'clock a.m. thereof, at the Offices of 4 Kaiser Foundation Health Plan, Inc., 235 West MacArthur 5 Boulevard, Suite 669, Oakland, California before me, 6 CYNTHIA LEW, duly authorized to administer oaths pursuant 7 to Section 2093(b) of the California Code of Civil 8 Procedure, personally appeared 9 FRANK DUSTIN, M.D., 10 called as a witness on behalf of the Defendant, and the 11 said witness, having first been placed under oath, was 12 thereupon examined and testified as hereinafter set 13 forth. 14 15 APPEARANCES 16 17 The Offices of Cornerstone Law Group, 595 18 Market Street, Suite 2360, San Francisco, California 19 94105, represented by CHRISTOPHER J. KELLER, Attorney at 20 Law, appeared as counsel on behalf of the Plaintiff. 21 The Law Offices of Seyfarth Shaw, 560 Mission 22 Street, Suite 3100, San Francisco, California 94105, 23 represented by JONATHAN D. MARTIN, Attorney at Law, 24 appeared as counsel on behalf of the Defendant. 25 Kaiser Foundation Health Plan, Inc., One Kaiser

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00005 1 Plaza, 19th Floor, Oakland, California 94612, represented 2 by ANNE E. LIBBIN, Attorney at Law, appeared as counsel 3 on behalf of the Defendant. 4 ---oOo--5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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00012 1 lawsuit? 2 A. No. 3 Q. Let me ask you some questions about your 4 background. What kind of physician are you? 5 A. A neurologist. 6 Q. And are you licensed as a physician in 7 California? 8 A. Yes. 9 Q. Are you certified by the National Board of 10 Medical Examiners? 11 A. Yes. 12 Q. In neurology? 13 A. Yes. 14 Q. Any other areas? 15 A. No. 16 Q. Do you have any other certifications? 17 A. No. 18 Q. Can you tell us what it means to be board 19 certified. 20 A. Well, it means you've passed qualifications of 21 the American Board of Psychiatry and Neurology. It 22 usually involves a written exam, an oral examination. 23 It's difficult. 24 MR. KELLER: Excuse me, Counsel. Do you mind 25 if we close the door a little bit?

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00013 1 MR. MARTIN: No. That's okay. 2 Q. Are you currently a member of any professional 3 organizations? 4 A. The American Academy of Neurology. 5 Q. Any others? 6 A. No. 7 Q. Have you ever held any offices within that 8 organization? 9 A. I'm sorry. I might be a member of the 10 California Medical Association, but I don't remember for 11 sure. 12 Q. Okay. Have you ever held any offices in any 13 association in which you've been a member? 14 A. No. 15 Q. Where are you currently employed? 16 A. At the Permanente Medical Group, Oakland, 17 California. 18 Q. How long have you been with the Permanente 19 Medical Group? 20 A. I believe since 2000 or 2001. 21 Q. Where were you employed previous to that? 22 A. I was self-employed for approximately ten years 23 prior to that. 24 Q. Where did you go to college? 25 A. Stanford University.

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00014 1 Q. And medical school? 2 A. Baylor College of Medicine. 3 Q. Is that in Texas? 4 A. Yes, Houston. 5 Q. Okay. Where did you do your residency? 6 A. UC Davis. 7 Q. And did you have a specialty at that time? 8 A. Well, the residency was in neurology. 9 Actually, prior to the residency, I did one year of 10 general and medical internship here at Kaiser Oakland. 11 Q. Now, have you ever specialized in the study, 12 evaluation or treatment of individuals who claim to 13 suffer from narcolepsy? 14 A. I'm sorry. Repeat that. 15 Q. Sure. Have you ever specialized in the study 16 or evaluation or treatment of individuals who were 17 claiming to suffer from narcolepsy? 18 A. Only as much as any general adult neurologist. 19 I don't have a subspecialty in sleep disorders. 20 Q. So you haven't authored any articles on 21 narcolepsy or other sleep disorders? 22 A. No. 23 Q. You haven't given any speeches on narcolepsy or 24 any other sleep disorders? 25 A. No.

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00015 1 Q. And you've never been retained as an expert to 2 give your opinion on narcolepsy or any other sleep 3 disorders? 4 A. No. 5 Q. So your knowledge on what narcolepsy is is what 6 a general medical practitioner might have? Is that what 7 you're saying? 8 A. Yes, probably more than a general internist -9 Q. Okay. 10 A. -- but no more than a general neurologist. 11 Q. Where did you learn what you currently know 12 about narcolepsy and any other sleep disorders? 13 A. In training from professors, in textbooks, 14 journals and professional meetings where they have 15 presentations. 16 Q. Is there anything you feel that you don't know 17 about narcolepsy and other sleep disorders, if you can 18 generally state if there are areas of knowledge about 19 these kinds of disorders that you don't feel you'd be 20 knowledgeable to discuss with a patient? 21 MR. KELLER: I'm just going to object to the 22 extent it calls for speculation. 23 MR. MARTIN: Q. If you know, you can answer. 24 A. Well, I think there's aspects of the disorder 25 that aren't well understood by anyone, frankly. The

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00016 1 anatomical basis of it and some of the genetics of it, 2 you know, the specifics I would be uncomfortable with. 3 But the general diagnosis and treatment I feel 4 comfortable. 5 Q. And would you say the same as to other sleep 6 disorders? 7 A. Yes. 8 Q. Such as sleep apnea? 9 A. Yes. 10 Q. What is narcolepsy? 11 A. It's a disorder characterized by excessive 12 daytime sleepiness in the form of sleep attacks. 13 Q. And what do you mean by the term "sleep 14 attack"? 15 A. Well, they are overwhelming urges to sleep that 16 occur at times when most people wouldn't be necessarily 17 prone to falling asleep. 18 Q. What is "sleep apnea"? 19 A. Sleep apnea is a disorder that's also 20 characterized by excessive daytime sleepiness, but it's 21 due to improper breathing during the night. Apneas are 22 essentially breath-holding spells. Most commonly, it's 23 due to obstruction in the upper airway region. 24 Q. What is the interrelationship, if any, between 25 narcolepsy and sleep apnea?

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00017 1 A. Well, they're separate disorders, but they can 2 co-exist. Sleep apnea is very common, so it's not that 3 unusual to see both disorders in some cases. 4 Q. Is it possible for someone to have sleep apnea 5 without having narcolepsy? 6 A. Yes. 7 Q. If someone is unable to sleep normally because 8 of sleep apnea, how would you determine whether 9 narcolepsy may also be playing a role in the individual's 10 sleep problems? 11 MR. KELLER: Objection to the extent it's a 12 hypothetical. 13 THE WITNESS: How would I tell if someone has 14 narcolepsy on top of sleep apnea? 15 MR. MARTIN: Q. Right. 16 A. Usually that would require laboratory 17 confirmation in the form of a multiple sleep latency 18 test. 19 Q. And can you tell me a little bit more about 20 what this test would entail. 21 A. Well, one of the features of narcolepsy is 22 going into REM sleep very rapidly after falling asleep, 23 which is not normally what happens. And multiple sleep 24 latency test means you take multiple naps, usually five 25 naps. And they measure the latency or the time it takes

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00018 1 for you to reach REM sleep. And if you reach that 2 rapidly in three out of the five naps, then that helps 3 confirm the diagnosis of narcolepsy. The other way you 4 could do it is clinically. If someone has cataplexy or 5 sleep paralysis or some of these other hallmarks of 6 narcolepsy that you wouldn't expect to find in sleep 7 apnea, that would also lead to probability of narcolepsy 8 on top of sleep apnea. 9 Q. You just used the term "cataplexy." What is 10 that? 11 A. That's a condition where with an emotional -- I 12 think any sort of intense emotional state -- like 13 laughing, crying, anger, fear -- a person will lose 14 muscle tone and sometimes collapse or just slump 15 (indicating) but not necessarily lose consciousness. 16 It's not a sleep attack. 17 Q. But it's something that can be associated with 18 narcolepsy or sleep apnea? 19 A. Not with sleep apnea. It also can occur 20 completely on its own, but it is something that does have 21 a tendency to occur with narcolepsy, so it would raise 22 the suspicion of that disorder. 23 Q. What are the causes of narcolepsy? 24 A. Well, it's -25 MR. KELLER: I'm just going to object on the

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00019 1 basis of an improper hypothetical. 2 THE WITNESS: It's -- how do I put this -3 sleep intruding into wakefulness. The exact mechanism I 4 can't explain well. It's not a disorder that's caused by 5 multiple other things, though. It's sort of a genetic 6 component, and you either have it or you don't. 7 MR. MARTIN: Q. Is there a physiological 8 component to it? 9 A. Yes. 10 Q. Can you describe what that would be, if you 11 know? 12 A. It's not a disorder of the mind or a mental 13 disorder, if that's what you're getting at. It's a 14 physiologic disorder thought to be in the brain stem with 15 the parts of the brain stem there that are important for 16 causing sleep and dreaming sleep. 17 Q. And you said it could have a genetic 18 foundation? 19 A. Yes. 20 Q. Now, what's the difference between having 21 narcolepsy and just being sleepy at inconvenient times, 22 which happens to all of us sometimes? 23 A. Well, sleep attacks in narcolepsy would tend to 24 occur more when you're in a boring situation. But they 25 also occur when most of us wouldn't necessarily be

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00020 1 falling asleep. And so it can become very problematic 2 for our normal life. We're working or driving, it can 3 become nonproductive and dangerous. 4 Q. And just to clarify, what are the symptoms of 5 narcolepsy? 6 A. Excessive daytime sleepiness usually in the 7 form of sleep attacks. Usually if you take a nap, you're 8 temporarily refreshed. You also tend to wake up 9 refreshed as opposed to sleep apnea, where you would not 10 wake up refreshed. And often but not all the time, there 11 are these associated symptoms of cataplexy, sleep 12 paralysis, hypnogogic and hypnopompic hallucinations. 13 And there's laboratory findings you can find, sleep 14 studies. 15 Q. What are the symptoms of sleep apnea? 16 A. Excessive daytime sleepiness, although usually 17 a patient will wake up unrefreshed because they're not 18 getting oxygen properly through the night. They usually 19 don't have those other associated symptoms that I 20 mentioned with narcolepsy. And at night, they'll tend to 21 snore loudly and have pauses in their breathing. 22 Q. So sleep apnea specifically relates to a 23 breathing issue. Is that right? 24 A. Yes. 25 Q. Some kind of obstruction in the breathing

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00131 1 resume on another date that will be mutually agreed to by 2 the parties and Dr. Dustin. 3 MR. KELLER: Yes. And I would like to reserve 4 my right to ask questions as well because I have 5 follow-up questions -6 MR. MARTIN: That's fine. 7 MR. KELLER: -- to ask of the doctor. 8 MR. MARTIN: That's fine. Okay. We're done 9 for today. 10 THE WITNESS: All right. Thanks. 11 (The deposition recessed at 12:28 12 o'clock p.m.) 13 14 I certify under penalty of perjury that the 15 foregoing is true and correct. 16 17 Executed at on . (Place) (Date) 18 19 . (FRANK DUSTIN, M.D.) 20 21 22 23 24 25

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00132 1 CERTIFICATE OF DEPOSITION OFFICER 2 I, CYNTHIA LEW, CSR 11999, duly authorized to 3 administer oaths, hereby certify that at the commencement 4 of the foregoing deposition, the witness stated, under 5 penalty of perjury, that he or she would testify the 6 truth, the whole truth, and nothing but the truth in the 7 within-entitled cause; that said deposition was taken at 8 the time and place therein stated; that the testimony of 9 said witness was reported by me by me and was thereafter 10 transcribed by me or under my direction into typewriting 11 by computer; that the foregoing is a full, complete, and 12 true record of such testimony; and that the deponent or a 13 party requested review of the deposition prior to the 14 completion of the deposition; and that the deponent was 15 given an opportunity to review the deposition. 16 I further certify that I am not of counsel nor 17 attorney for either or any of the parties in the 18 foregoing deposition and caption named, nor in any way 19 interested in the outcome of the cause named in 20 said caption. 21 DEPOSITION OFFICER 22 I hereby certify this copy is a 23 true and exact copy of the original. 24 DATED: DEPOSITION OFFICER 25

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00133 1 2 3 4 5 6 7 Frank Dustin, M.D. Alameda Medical Offices 8 2417 Central Avenue Alameda, California 94501 9 Re: Fernando Darosa v. Kaiser Foundation Health 10 Plan, Inc. Date of Deposition: May 12, 2008 11 Dear Dr. Dustin, 12 Your deposition taken in the above-entitled matter 13 has been transcribed. This deposition will be available at our offices for reading and signing by 14 you for a period of thirty (30) days from the date of this letter, after which time the original will 15 be sealed and sent to the office which noticed the deposition, in accordance with section 30(e) of the 16 Federal Rules of Civil Procedure. 17 Sincerely, 18 19 Tooker & Antz 20 cc: All Counsel 21 22 23 24 25