Goldberg v. Boone

MURPHY, C.J. In the Circuit Court for Montgomery County, Billy Karl Boone, appellee, filed a medical malpractice action against appellant Seth M. Goldberg, M.D. 1 Appellee’s complaint included the following assertions: 5. On January 6, 2000, [appellant] performed an outpatient procedure on [appellee] to remove a cholesteatoma [2] from his left middle ear. 6. In the course of the procedure, [appellant] penetrated the dura overlying [appellee’s] brain. This caused an injury to the left temporal lobe immediately below the operative site. 7.

Penetrating the dura and injuring the brain violated the standard of care for a surgeon performing this procedure. 8. [Appellant] also failed to obtain a full [informed] consent for this procedure. ⁴¹⁵ 9. [Appellant’s] negligence caused a serious and permanent brain injury to Mr. Boone. The jury that tried this case was presented with a special verdict sheet that included the following questions: 1. Do you find that the defendant, Seth M. Goldberg, M.D. breached the standard of care in his performance of a radical mastoidectomy performed upon Billy K. Boone? _YES_NO 2. If your answer to Question No. 1 is “No”, then go to Question No. 8.

If your answer to Question No. 1 is “Yes”, do you find that the breach in the standard of care was a proximate cause of the Plaintiffs injuries? _YES_NO 3. Do you find that the Defendant, Seth M. Goldberg, M.D., failed to adequately advise the Plaintiff of the risks of his radical mastoidectomy procedure? If your Answer to Question 3 is “Yes”, then go to Question 4. _YES_NO 4. If your answer to Question No. 3 is “Yes”, do you find that the failure to adequately advise the Plaintiff of the risks of the radical mastoidectomy was a proximate cause of the Plaintiffs injuries? _YES_NO 5.

If your answer to Question No. 2 or No. 4 is “Yes”, what amounts of damage do you award? Past and Future Earning Capacity $- Past and Future Medical and Related Expenses $- Non-Economic Damages $- The jury answered “Yes” to the first four questions, and awarded appellee a total of $943,000.00. 3 ⁴¹⁶ Appellant filed two post-trial motions: (1) a Motion for Judgment Notwithstanding the Verdict, or, in the alternative, for New Trial, and (2) a Motion for New Trial Concerning [Appellee’s] Future Medical Damages and for Appointment of Conservator. Both motions were denied and this appeal followed, in which appellant presents seven questions for our review: I. Whether the trial court erred in submitting to the jury the issue of informed consent in the absence of evidence of proximate cause?

II

Whether the trial court erred in submitting to the jury the issue of whether the failure to advise [appellee] of the availability of a specialist violated the standard of care, in the absence of evidence of proximate cause?

III

Whether the trial court erred in allowing Beverley Whitlock to testify at trial when she was not disclosed as a potential expert witness as required by the trial court’s scheduling order?

IV

Whether the trial court erred in denying [appellant’s] motion for mistrial on the grounds that [appellee’s] counsel intentionally introduced improper and inflammatory evidence concerning the recent sniper shooting, coupled with a claim that the Defense experts were hired as “paid minimiz-ers”? V. Whether the trial court erred in precluding evidence and argument that a verdict for Mr. Boone would have an impact on Dr. Goldberg’s reputation and career?

VI

Whether the trial court erred in precluding evidence and argument concerning the common good?

VII

Whether the trial court abused its discretion in failing to grant Dr. Goldberg’s post-trial motions or at least to give them adequate consideration? ⁴¹⁷ For the reasons that follow, we are persuaded that (1) although appellee’s “informed consent” claim should not have been presented to the jury, the verdict in favor of appellee on his “negligence” claim should not be disturbed, and (2) although appellant is not entitled to a new trial on the issue of negligence, he is entitled to a new trial on the limited issue of damages. We shall therefore (1) reverse the judgment entered on the informed consent claim, (2) vacate the judgment entered on the negligence claim, and (3) remand for a new trial on the issue of damages caused by appellant’s negligence. I. & II. Appellant’s first post-trial motion was accompanied by a memorandum that included the following arguments: Prior to instructing and submitting the special verdict form to the jury, the Court heard the Defendants’ motion for judgment on the Plaintiffs informed consent claim.

The Defendants’ motion was based on the fact that the Plaintiff failed to present any evidence to show that Dr. Goldberg’s failure to provide an informed consent proximately caused the Plaintiffs injuries. Sard v. Hardy, 34 Md.App. 217 , 367 A.2d 525 (1976). The Court denied the Defendants’ motion for judgment but recognized that it may involve an appeal-able issue of law for the Court of Special Appeals. Appellee’s responsive memorandum included the following arguments: The Test of what should be disclosed to the patient contemplating surgery is whether a risk or alternative is “material” to the decision of a reasonable patient.

Sard, 281 Md. at 443-44, 379 A.2d at 1022. In this case, there were two types of information about which the plaintiff presented evidence: first, that the plaintiff was at risk for brain injury due to this pre-existing hole in the skull from the prior surgery, and second, that other more experienced specialists were available in the area who could perform the surgery at less risk of a brain injury. Dr. Samuel Selesnick, plaintiffs expert in mastoid surgery, testified that the risk of injury ⁴¹⁸ would be significantly lowered in more experienced hands. Dr. Selesnick also commented that Dr. Goldberg’s record of having done only one mastoidectomy revision procedure in the three years before the injury was not substantial experience going into a potentially difficult revision surgery like Mr. Boone’s.

Dr. Selesnick said that Dr. Goldberg should have considered referring the patient to a specialist in ear and mastoid procedures. To the plaintiffs knowledge, Maryland appellate courts have not considered the precise causation issue posed by Dr. Goldberg. However, the supreme courts of Wisconsin and New Jersey have done so, and both have rejected similar defense arguments. In Johnson v. Kokemoor, 199 Wis.2d 615 , 545 N.W.2d 495 (1996), the Wisconsin Supreme Court considered an informed consent claim by a patient who had been rendered partly quadriplegic by an aneurysm-clipping procedure in her brain conducted by the defendant neurosurgeon.

The plaintiffs evidence was that the defendant had overstated his own experience in the procedure, had downplayed the risks, and had failed to advise the plaintiff of the availability of more experienced surgeons to do the procedure at less risk.... Kokemoor was cited with approval by the Maryland Court of Appeals in Dingle v. Belin, 358 Md. 354, 370 , 749 A.2d 157, 165 (2000), on the issue of a surgeon’s duty to disclose more than just routine information about the proposed surgery. However, the court in Dingle never reached the causation issue. In Howard v. University of Medicine and Dentistry of New Jersey, 172 N.J. 537 , 800 A.2d 73 (2002), the neurosurgeon was alleged to have overstated the number of procedures he had done like that proposed for the plaintiff and also to have misstated that he was board-certified.

The plaintiff was rendered paralyzed by the surgery... .The court went on to establish a two-pronged causation inquiry that required the plaintiff to prove, first, “that the additional undisclosed risk posed by defendant’s true level of qualifica ⁴¹⁹ tions and experience increased plaintiffs risk of paralysis from the corpectomy procedure,” and second, “whether that substantially increased risk would cause a reasonably prudent person not to consent to undergo the procedure.” 800 A.2d at 84-85 . In other words, the plaintiff was required to prove a causal nexus between the lack of experience/credentials and the risk of the bad outcome that the plaintiff actually suffered. Mr. Boone had such testimony through Dr. Selesnick. The plaintiff in the New Jersey case was not required to prove that a hypothetical alternative surgeon would have done the surgery successfully.

Nor was the Wisconsin plaintiff in Kokemoor required to make such a showing. At most, the plaintiff need only prove that a reasonable patient would not have undergone the surgery with Dr. Goldberg because of the material risks of a worse outcome at his hands. Ample evidence existed to put that claim to the jury. In the final analysis, however, the defendants have their own “causation” problem with the informed consent claim.

Even if this court, or the Maryland Court of Appeals for that matter, was to side with Dr. Goldberg on this issue, it would not and could not change the final outcome of this case, because of the independent basis for judgment against Dr. Goldberg due to his direct negligence in performing the surgery. The only real issue of causative import is whether the trial was so infected with injustice as to warrant a new trial.... The record shows that the opening statement of appellee’s counsel included the following comments: Dr. Goldberg’s people want to say that [appellee’s] brain was very vulnerable beforehand, ... but even if you assume for a second that ... the injury ... was due to a thinning of the bone, and Mr. Boone being really vulnerable, ... the question is, how come Dr. Goldberg didn’t tell him about that beforehand, and didn’t tell him that he had a particular vulnerability, and didn’t tell him that there are surgeons out there who are more specialized in this kind of surgery than ⁴²⁰ I am. Dr. Goldberg [should have said to Mr.] Boone, “I’m just a regular ear/nose/throat guy, and I think I’m competent to do mastoid surgery, but there are surgeons out there who do nothing but ear surgery and mastoid surgery, and your case is a little more complicated, your case might have a risk of brain injury, so you might want to consider going to one of those people.” Appellee’s case included the testimony of Dr. Samuel Hayden Selesnick.

The following transpired during Dr. Seles-nick’s direct examination: Q Did you form an opinion within a reasonable degree of medical probability about whether Dr. Goldberg violated the ... standard of care for a similarly situated surgeon doing this kind of surgery on Billy Boone? A Yes, I did. Q What is your opinion, sir? A That he fell below the standard of care.

Q Why, in what ways? A The surgery resulted in a brain injury that occurred from a penetrating injury to the brain during surgery, that’s below the standard of care. Secondly, regarding the informed consent, the informed consent should include complications that occur within regional anatomical boundaries, including the brain, which is right near the mastoid. A And lastly, it would’ve been prudent for the physician to consider referring this patient to someone more expert in the care of this type of problem once it was understood that this was a complicated surgery.

It was a revision surgery and there was exposed dura, the covering [of] the brain was already exposed prior to the surgery. BY [APPELLEE’S COUNSEL]: Q Tell me, Dr. Selesnick, you had talked about giving the consent information about the possibility of brain injury to ⁴²¹ the patient in this circumstance. Why is it your opinion that he should have done that? A Well, even in primary mastoid surgery, not revision surgery, you should discuss potential risks, and complications, and alternatives with a patient.

And the risks that you would discuss would be those that would make sense in the region that you’re working. So, the facial nerve, for example, is a very good example. The facial nerve goes right through that area. You would talk about the risks of facial paralysis or of inner ear injury resulting in vertigo or deafness.

But in that same way, the tegmen is the only bone that’s really separating the inner part of the mastoid cavity from the brain so that you’d talk about intracranial complications as well. Q Cranial complications meaning brain— A Yes. Q —possibly? A Yes.

Q Okay. Now, another related issue I want to ask you about is, you talked about considering referral to a more experienced surgeon, or discussing that issue with the patient. Let me show you Plaintiffs Exhibit 42, which is something we subpoenaed from Shady Grove Hospital about the number of mastoid surgeries. In fact, I’ll just put it on the board real quick, number of mastoid surgeries that Dr. Goldberg had done in the past few years.

Over the course of 1997, and 1998, and 1999, according to Shady Grove Hospital, Dr. Goldberg had done a total of 16 mastoidectomies, do you see that? AI do. Q And the kind of mastoidectomy that was done with Dr. Boone, would that be considered a revision mastoidectomy? A Yes.

Q Okay. How many revision mastoidectomies do you see listed there? A One. ⁴²² Q Okay, in 1999, down there at the bottom? A Yes.

Q Okay. You’d mentioned that you do these kinds of surgeries about how often per year? A I do major ear surgery, which would include mastoidecto-my, revision mastoidectomy, (inaudible) all the different types of, of ear surgery but not skull-base surgery, about 100 times, yeah. Q Would there be surgeons in the Mid-Atlantic area down here, Washington, DC, Rockville, that kind of area, who would have similar experience as you in terms of being more specialized in doing this kind of surgery for a revision mastoidectomy?

A Certainly. Q Okay. And so why is it your opinion that Dr. Goldberg should have discussed the possibility of the patient going to a more specialized kind of surgeon? A He, he should’ve at least discussed the possibility of going to a more specialized surgeon so that the, the patient could be involved in the decision of, of the type of risks that the patient would want to entail, and clearly the risks would be different in those two situations.

Q I’m sorry, what, the risks would be different? What do you mean? A That the risks would be different in someone that rarely did a revision mastoidectomy compared to the risks associated with someone who did routine (inaudible) mastoidecto-mies. Q Why would the risks be different?

A Well, I, I think that the more you do something and the more comfortable you are, the less risk is, is entailed. Maryland’s “informed consent” cases were recently summarized by this Court in Arrabal v. Crew-Taylor, 159 Md.App. 668 , 862 A.2d 431 (2004), and by the Court of Appeals ⁴²³ in Landon v. Zorn, et al., 389 Md. 206 , 884 A.2d 142 (2005) 4 To generate a jury issue in an informed consent action, the patient must present evidence that the physician failed “to explain the pros and cons of some affirmative violation of the patient’s physical integrity, such as performing surgery or injecting the patient.” Arrabal, supra, 159 Md.App. at 683 , 862 A.2d 431 . In Arrabal , while affirming a judgment based upon a physician’s negligent failure to advise a pregnant patient about the risk of prolonging her pregnancy, this Court held “that the trial court erred in denying appellant’s motion for judgment as to the lack-of-informed-consent portion of plaintiffs’ case,” explaining: Dr. ArrabaTs decision to take no affirmative action may have amounted to a violation of the professional standard of care, but he was not obliged to obtain his patient’s consent to his non-action. Id. at 685 , 862 A.2d 431 .

In the case at bar, appellee would have been entitled to assert an informed consent claim on the ground that he consented to the surgery without being told about the danger that he might suffer a brain injury. We are persuaded, however, that (1) a surgeon who is qualified to perform a particular operation does not have a duty to advise the patient that there are more experienced physicians in the locality, and (2) a claim that the defendant-physician negligently failed to recommend that the patient consult with a specialist or with a more experienced physician “is analyzed in relation to the professional standard of care.” Reed v. Campagnolo, 332 Md. 226, 241 , 630 A.2d 1145 (1993). ⁴²⁴ In Mitchell v. Kayem, 54 S.W.3d 775 (Tenn.App.2001), the Court of Appeals of Tennessee reversed a judgment against an ear, nose and throat specialist based upon a jury verdict in favor of a patient who “conceded that she would have undergone [cancer] surgery whether or not the inherent risks of the procedure were disclosed, ... but ... would have sought a second opinion and would have chosen treatment at a Nashville facility.” Id. at 778 . Rejecting the argument that “different course of treatment” includes both (1) “a different medical procedure,” and (2) “choosing a different surgeon to perform the same medical procedure,” the Mitchell Court stated: Treatment is defined as “the action or manner of treating a patient medically or surgically” while procedure is defined as “a particular way of accomplishing something or of acting.” Merriam-Webster’s Medical Desk Dictionary, 728, 576 (1993). As we interpret the language in Ashe [v. Radiation Oncology Assocs., 9 S.W.3d 119 (Tenn.1999)], treatment or procedure refers to the type of procedure and the manner of performing it rather than to the person performing the procedure.

In summary, it is not disputed that the surgery was necessary to avoid progression of the disease and ultimately death.... Recognizing her condition, she ultimately conceded she would have had the surgery, regardless of whether the risks had been made known to her. She argues that she would have sought a more experienced surgeon. However, Dr. Kayem states in his affidavit that the risk of the complications suffered by Ms. Mitchell were greater because of her previous surgeries; ... the only alternative to Ms. Mitchell was the same surgical procedure performed by another surgeon; and the generally accepted occurrence rate of these unknown risks and complications of the procedures applies uniformly to all qualified surgeons, regardless of their skill level.

Therefore, the possibility of the risks and/or complications occurring to Ms. Mitchell would not ⁴²⁵ have been different in the hands of another surgeon.... These statements in his affidavit are not refuted. Id. at 781-82. We agree with this analysis.

While a physician obviously violates the standard of care by performing an operation that he or she is incompetent to perform, the duty to obtain the patient’s informed consent does not require that the physician advise the patient that (1) “I might make a mistake during the surgery,” or (2) “there are more experienced surgeons in the area who are less likely to make a mistake.” We reject the proposition that, in the absence of evidence that the physician has somehow misled the patient and/or was not qualified to perform a particular procedure, a patient in need of that procedure can assert an “informed consent” action on the ground that the physician who performed the procedure failed to advise the patient that there were other physicians in the locality who had even more impressive qualifications and/or experience. 5 For example, we decline to hypothesize that Dr. Selesnick’s duty to obtain informed consent would include the duty to advise a candidate for surgery that — although he performs about 100 ear surgeries every year — there are surgeons in the area who perform about 200 ear surgeries every year. 6 We therefore hold that Dr. Goldberg did not breach his duty to obtain appellee’s informed consent by failing to advise appellee that there were more experienced surgeons available in the local area. ⁴²⁶ Appellant also argues that he was entitled to a motion for judgment at the conclusion of appellee’s case-in-chief because appellee failed to produce evidence that (1) appellee would not have sustained a brain injury if the operation had been performed by a more experienced surgeon, 7 and (2) appellee never testified that, if he had been advised about the danger of a brain injury, he would not have consented to the surgery. 8 In light of our holding that the duty to obtain informed consent does not include the duty to advise the patient that there are more experienced physicians in the locality, we do not reach the merits of these arguments. ⁴²⁷ From our review of the record, however, we also conclude that appellant is not entitled to a new trial on the ground that he was unfairly prejudiced by the submission of the informed consent claim to the jury. Like the case of Arrabal v. Crew-Taylor, supra, the case at bar involved both a lack-of informed consent claim and a negligence claim. It is oftentimes the case in medical malpractice actions that the plaintiff will have two alternative theories as to why a treating physician is negligent. For example, if a doctor negligently performs an operation and the patient suffers surgical complications due to that negligence and also performs that operation without the patient’s informed consent, the patient may proceed on the two negligence theories simultaneously, viz: the theory that plaintiffs suffered injuries because the doctor negligently performed the operation and the alternative theory that, if the defendant had provided the patient with the necessary information prior to surgery, a reasonable patient in the plaintiffs position would have declined the surgery.

In the foregoing hypothetical, no matter what theory prevailed, the damages would be the same. Arrabal, supra, 159 Md.App. at 688-689 , 862 A.2d 431 . (Emphasis added). If the jury had resolved appellee’s negligence claim in favor of Dr. Goldberg, but resolved appellee’s informed consent claim against Dr. Goldberg, because of our holding that an informed consent claim cannot be based upon Dr. Goldberg’s failure to advise the patient that there are more experienced physicians in the locality, we would have (1) vacated the judgment on the informed consent claim, and (2) remanded for a new trial at which appellee’s informed consent claim would be based solely on the ground that he should have been advised about the risk of brain injury.

In the case at bar, of course, (1) the jury actually found that Dr. Goldberg breached the standard of care by negligently performing the operation, and (2) the evidence was sufficient to support that finding. Under these circumstances, we are persuaded that appellee’s “lack of experience” evidence was not admissible only on the ⁴²⁸ informed consent issue. We are also persuaded that there exists no reasonable possibility that a new trial on the issue of whether appellant negligently performed the operation would result in a different verdict on that issue. We therefore hold that appellant was not unfairly prejudiced by the fact that the jury was presented with both the negligence claim and the informed consent claim.

IV

Appellant’s post-trial memoranda included the following arguments: 5. Counsel for the Plaintiff also made several inappropriate and inflammatory comments to the jury during the prosecution of his case and during closing arguments. The inflammatory comments were as follows: a. During his cross-examination of the Defendants’ neu-ropsychologist, David Schretlen, M.D., Plaintiff’s counsel improperly implied that Dr. Schretlen had previously examined the notorious sniper defendant Lee Boyd Malvo and concluded that Malvo was “brainwashed” into committing the shootings and therefore was not culpable.

Plaintiff’s counsel specifically referred to the “sniper case” in his cross-examination of Dr. Schretlen and there was no question that the jury understood the reference. The defense counsel moved immediately for a mistrial, which was denied by the Court. Appellee’s responsive memorandum stated: In an effort to show that Dr. Schretlen was a “minimizer or maximizer, as the case called for,” plaintiffs counsel first brought out the fact that Dr. Schretlen (who is a Ph.D., not an M.D., as the defense inaccurately states)had testified in another recent trial that the plaintiff had only minimal disabilities despite flunking most of the neuropsychological tests he gave her. Plaintiffs counsel then brought out that Dr. Schretlen had tested a young man in a criminal case for eight hours and that the defendant had flunked only one of the battery of tests given.

Dr. Schretlen agreed that this ⁴²⁹ was so. It was obvious to both counsel and the witness that although the name of the defendant, Lee Boyd Malvo, had not been mentioned, that was who counsel’s query was directed at. The defense waited until next question to object. That question sought to “close the loop” by asking Schretlen to agree that despite Malvo only having failed one test, Schretlen was still willing to testify that the defendant might have been criminally insane when he participated in the Washington area sniper killings.

After the objection, the court then instructed plaintiffs counsel to go no further along this line. Counsel complied. The issue of Schretlen’s prior testimony never came up again. The issue now is whether this single piece of evidence was so unfairly put into the case as to constitute grounds for a new trial by itself.

The plaintiff disagrees. The sniper case was only mentioned in the context of showing Dr. Schret-len’s “minimizer/maximizer” tendencies. If the defense thought that the identity of the case was so prejudicial that it should not be mentioned, the defense should have so moved in limine, or when the line of questions started. Schretlen’s participation in the Malvo trial is a matter of public record and is listed on his list of cases in which he has testified, a list that was provided by defense counsel to plaintiff’s counsel shortly before trial.

(See attached.) The defense’s failure to raise this issue until after “the cat was out of the bag” could be easily seen as an effort to sandbag. The defense motion in essence seeks a mistrial. Nothing improper occurred, but even if it had, the appellate courts caution that “a mistrial is to be declared only where it is ‘manifestly necessary,’ or ‘under urgent circumstances,’ or ‘only in very extraordinary and striking circumstances,’ and declaring a mistrial is not ‘to be lightly undertaken.’ ” Owens-Illinois, Inc. v. Gianotti, 148 Md.App. 457, 476-77 , 813 A.2d 280, 291 (2002), quoting Cornish v. State, 272 Md. 312, 318 , 322 A.2d 880 (1974). The Schretlen matter in no way reaches that threshold. ⁴³⁰ The record shows that appellant offered Dr. Schretlen as an expert in the field of neuropsychology, and that the following transpired during the voir dire of this witness: Q.: ...

I mean, you are hired here basically as a minimizer, aren’t you? [Appellant’s Counsel]: Objection, Your Honor. The Court: Overruled. A.: I certainly didn’t see myself as being a hired as a minimizer. I saw myself being hired as a neuropsychologist.

Q.: Now the case before that [referring to a case where the doctor had previously been called as an expert witness], that you testified in court, was a criminal case, right? A.: I’m not sure. Q.: Okay. Well, you testified a young man, about 18 years old, and you did a daylong battery of tests on him and he tested abnormal in one or two of the tests, right?

A.: Oh yes. I know who you are speaking of. Q.: Okay. He was only abnormal in one or two tests?

A.: That’s right. Q.: Okay. And that young man, you were willing to come into court and testify that he might have been brainwashed into murdering 10 people in the sniper thing, isn’t that true? [Appellant’s counsel]: Objection, Your Honor. A.: That is absolutely incorrect and outrageous.

The Court: Sustained Q.: Well let’s talk about it for a minute. A.: Yes. Q.: The young man’s name— [Appellant’s counsel]: May we approach, Your Honor? During the bench conference that followed, the circuit court sustained appellant’s objection, explaining that the court was “not going to allow [appellee’s counsel] to get into this area.” The trial proceeded, and it was not until the following day that ⁴³¹ appellant moved for a mistrial.

The record shows that the following transpired at that point in time: [Appellant’s counsel]: I’ve been very concerned about cross-examination of Dr. Schetlen [sic] (inaudible) that’s highly inflammatory and this is a hearsay issue, and counsel is in a calculated questioning [sic] brought out in his questioning that it was the sniper case he found that the defendant was brainwashed in which it was anyone who ever lived in this area knows what that is and that’s Lee Malvo. It was on the front page of every paper in this area. The killings occurred near this courthouse. Everybody is involved and it was calculated to prejudice the Defense, even though after he had gotten the question out, the Court sustained the objection.

My first concern is the damage had been done and accordingly, I respectfully move for a mistrial. The Court: All right. [Appellee’s Counsel]? [Appellee’s Counsel]: My intent was to bring out, and I have brought out previously that, I was trying to impeach his credibility on being a minimizer or a maximizer, as the case may call for, and in that case, the point was, and it was the most recent trial that he testified in before my other trial. It was right on his list and if they had any problem with me getting into it, they certainly could have mentioned it, but my point was that he testified — . The Court: Well, they did.

They objected. [Appellee’s Counsel]: No, but I mean, I mean, ahead of time because it was right on this list of, that [appellants’ counsel] gave me a list of the man’s testimonial appearances before he appeared and it was very prominent on the list. So my point was that he did an eight hour test on this other guy, found only one abnormal test in the entire eight hours and still was willing to come into Court and testify as he did, and I thought that was quite a legitimate contrast to, you know,