Gavin Kirk vs. Varco International, Inc.

Reply to Opposition

Cal. Super. - 4th Dist.November 5, 2010

A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 DOUGLAS S. SAELTZER — BAR NO. 173088 KHALDOUN BAGHDADI — BAR NO. 190111 MELINDA DERISH — BAR NO. 228549 JUSTIN CHOU - BAR NO. 279137 WALKUP, MELODIA, KELLY & SCHOENBERGER 650 California Street, 26" Floor San Francisco, CA 94108 Phone: (415) 981-7210 Fax: (415) 391-6965 dsaeltzer @ walkuplawoffice.com kbaghdadi @walkuplawoffice.com mderish @ walkuplawoffice.com ichou@walkuplawoffice.com PETER W. ALFERT —- BAR NO. 83139 KAREN H. KAHN — BAR NO. 98404 MARK T. BALLER — BAR NO. 261331 HINTON ALFERT & KAHN LLP 200 Pringle Avenue, Suite 450 Walnut Creek, California 94596 Phone: (925) 279-3009 Fax: (925) 279-3342 palfert @hintonalfert.com ATTORNEYS FOR PLAINTIFFS ANNE J. KEPNER - BAR NO. 181078 JEFF RICKARD - BAR NO. 125180 rT TNT ~~ ATA Aa mA an KIRSTENE) ECTRONICALLY FILED NEEDHA superior Court of Califomia, LLP County of Orange 1960 The g2M40/2016 at 08:37:00 A San Jose. Clerk of the Superior Court one: (4 “gy'a Clerk, Deputy Clerk Fax: (408, =~ _ __ akepner @nkf-law.com kfish@nkf-law.com jrickard @nkf-law.com KARD AMANDA HAWES — BAR NO. 42800 LAW OFFICE OF AMANDA HAWES 123 E. San Carlos Street, #452 San Jose, CA 95112 Phone: (415) 987-1776 Fax: (408) 294-6885 Mandyhawes10@ gmail.com IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE GAVIN KIRK, a minor by and through his guardian ad litem Stephen Tobin Kirk, et al., Plaintiffs, v. VARCO INTERNATIONAL, INC, et al., Defendants. Case No. 30-2010-00423097 (lead case) No. 30-2011-00512364 No. 30-2014-00725306 [CONSOLIDATED] REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK’S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF Assigned for All Purposes to the Honorable Thierry P. Colaw (Dept. CX-105) Related Cases No. 30-2011-00519043 No. 30-2012-00586996 No. 30-2013-00629446 Action filed: November 5, 2010 Trial Date: January 25, 2016 REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 LAW OFFICESOF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 IL. SUMMARY OF REPLY In essence, the County claims that a physician retained by counsel to perform a physical exam on a minor pursuant to a motion to compel continues to provide “health care” to that minor for six months after the exam. The County has neither the legal nor logical basis to support this claim. In truth, the only health care Dr. Graham care provided to Gavin Kirk was during the physical examination and blood draw at Cedars Sinai on February 3, 2015. That day Dr. Graham incurred the legal, professional, and ethical duty to protect the private medical information and photographs he had obtained during the examination. Dr. Graham violated this duty, as well as the Court’s order regarding disclosure of the genetic test results. His conduct was unethical and illegal, and should be sanctioned. In an effort to justify his misconduct, Dr. Graham makes the implausible argument that he acted in Gavin's “best interest” when he violated his privacy rights for six months in an effort to exculpate defendant from liability, an effort for which he earned more than $100,000. With the same lack of credibility, Dr. Graham claims he believed the Court prevented him from informing Gavin’s parents (or his attorneys) that he intended to show Gavin’s photographs, medical history, and genetic tests results at European and U.S. medical conferences and also post them on a website. Likewise incredible is Dr. Graham’s claim that he confuses the plaintiffs who are compelled to submit to his examination as a retained defense expert with the patients who choose see him for their ongoing medical care and treatment, a claim that is particularly egregious given the extent of his experience and earnings (at least $250,000 annually) as a retained expert. The County’s last ditch argument is that if the Court finds Dr. Graham’s conduct was improper, the County should not be sanctioned because they were unaware of and did not ratify his behavior. This effort to sell out Dr. Graham should not be accepted, as county counsel was copied on emails setting forth his unlawful plans. Further, if Dr. Graham’s deposition testimony is to be believed, defense counsel ignored their professional responsibility to explain the Court’s order to him. Plaintiffs request that the Court grant their Motion in limine, and issue an order that Dr. REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS’ 2 on IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 LAW OFFICESOF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 Graham’s testimony be excluded, or in the alternative an order for the jury instruction and issue preclusion sanction set forth in plaintiffs’ Motion. I. DR. GRAHAM ONLY PROVIDED HEALTH CARE FOR GAVIN KIRK ON FEBRUARY 3, 2015. The County’s Opposition contains a lengthy discourse on HIPAA definitions but fails to include the definition of health care, which is set forth in 45 CFR §160.103 as follows: Health care means care, services, or supplies related to the health of an individual. Health care includes, but is not limited to, the following: (1) Preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure with respect to the physical or mental condition, or functional status, of an individual or that affects the structure or function of the body; and (2) Sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription. (Italics in the original.) Thus the only health care Dr. Graham provided to Gavin Kirk was on February 3, 2015, when he 99 ¢¢ examined him to provide a “diagnostic” “service” to the defendant. The County argues that as a physician Dr. Graham is a “covered entity” under HIPAA, and therefore he is supposedly permitted to “freely share information for diagnostic and treatment purposes without a signed patient authorization” and there should be “no secondary analysis regarding the nature, quality, or purpose of the services performed.” (Opp. 3:14-16; 3:23-25.) If defendant’s nonsensical interpretation of HIPAA was correct, once the plaintiff has been compelled to undergo an examination by the defendant’s retained expert, the defense expert is free to do whatever he wants, for as long as he wants with the plaintiff’s private medical information. IL. DR. GRAHAM AND DEFENDANT MISLEAD THE COURT BY CLAIMING DR. GRAHAM OBTAINED THE KIRKS’ CONSENT TO PUBLISH THEIR SON’S PHOTOGRAPHS AND TREATED GAVIN KIRK AS HIS OWN PATIENT. The County and Dr. Graham make much of the fact that Mrs. Kirk signed the Cedars-Sinai Conditions of Admission on February 3, 2015. This argument ignores the fact that she had no choice. Pursuant to the County’s motion to compel the examination by Dr. Graham and obtain a blood sample for genetic testing, and because of Dr. Graham’s insisting the examination be performed at Cedars Sinai, Mrs. Kirk had to sign the Conditions of Admission document before REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS’ STOR IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 LAW OFFICESOF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 the court-ordered examination could go forward. Indeed, this document was presented to her at the front desk of the clinic - Dr. Graham admits he did not see the document or review it with the Kirks. The only information he gave the Kirks as to how he intended to use the photos he took that day was to say the photos were “for diagnostic purposes.” (Deposition of Dr. Graham, appended to the Supplemental Declaration of Khaldoun Baghdadi (hereinafter “Baghdadi Suppl. Decl.” as Exhibit H (hereinafter “Exhibit H) at 36:10-38:2.) Dr. Graham misleads the Court by failing to mention, much less supply, the Cedars-Sinai consent form that he should have provided to the Kirks — The Cedars-Sinai Medical Center Authorization and Consent To Photograph and Publish. Had this consent form been supplied to the Kirks, it would have required Dr. Graham to fully inform them of the purpose for which he would use the photos, who would be authorized to use the photos, who would be authorized to receive the photos, and the Kirks would have been given the option to set any limitations on the “requested use”. (The Cedars-Sinai Medical Center Authorization and Consent to Photograph and Publish is appended to the Baghdadi Suppl. Decl. as Exhibit I.) But Dr. Graham never provided this consent form to the Kirks, nor the information that the form required. The County also misleads the Court by stating Dr. Graham “has utilized internet based HIPAA compliant services on about two dozen occasions during the past two years”) to imply that his posting of Gavin’ medical information and photos on Face2Gene was no different than his posting for his own patients. (Opp. 8:27-9:9.) To the contrary, when Dr. Graham posts his own patients’ medical information and photos on Face2Gene, the parents of his patients have first given their informed consent to enroll their children in Dr. Graham’s Face2Gene research study and knowingly consented to the publication by signing The Cedars-Sinai Medical Center Authorization and Consent To Photograph and Publish. (Exhibit H at 119:16 — 123:4.) The County lauds Face2Gene as “Internet based HIPAA compliant services” yet fails to mention that Face2Gene also has an Informed Consent form, which Dr. Graham failed to provide to the Kirks. (See Exhibit E to Declaration of Khaldoun Baghdadi in Support of Plaintiffs’ Motion In Limine No. 11.) Likewise, the County neglects to mention that Face2Gene has a Privacy Policy which Dr. Graham violated. When confronted with this policy’s prohibition on the use of its REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS’ oT IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) LAW OFFICESOF A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 website for “commercial use” Dr. Graham professed not to understand what that means. (See the Face2Gene Privacy Policy appended to the Baghdadi Suppl. Decl. as Exhibit J, at pg. 8, fourth bullet point; Exhibit H at 151:10 -153:5.) Dr. Graham insults the Kirks and this Court by claiming he frequently confuses his own patients with the minor plaintiffs he examines for forensic purposes, and “treated Gavin as though he was my own patient.” (Exhibit H at 117:20 - 118:23). This despite the fact that he earns at least $250,000 per year as an expert witness and had already earned $80,000 to $110,000 from this case before his deposition went forward. (Id. at 79:21-80:25; 250:20-252:2.) If there is any doubt that Dr. Graham did not act in good faith, one must simply compare this statement from paragraph 18 of his declaration “My patients are children and their families. 1 am sensitive to their concerns...” to his cynical statement about Mrs. Kirk in an email to defense counsel before the exam where he inquires “[a]re we allowed to ask the mother about her so-called exposure?” (Dr. Graham’s January 27, 2015 email to defense counsel is appended as Exhibit K to the Baghdadi Suppl. Decl. (emphasis added)). Dr. Graham and the County nonetheless expect the Kirks and the Court to believe he was “unbiased” and acted purely in Gavin’s “best interests” when he shared Gavin’s private medical information with various geneticists for six months in the effort to obtain a defense diagnostic theory, but withheld any information about an environmental exposure. Indeed, when one of the geneticists asked Dr. Graham on Face2Gene: “Any prenatal exposure?” he responded the next day by stating: “No prenatal exposures.” (Exhibit H at 137:15-18; the June 16 and 17, 2015 exchange on Face2Gene is appended to the Baghdadi Suppl. Decl. as Exhibit L.) III. DR. GRAHAM ALSO BLAMES THE COURT FOR HIS FAILURE TO INFORM THE KIRKS OF HIS INTENDED USE OF THE PHOTOGRAPHS. Dr. Graham also blames the Court for his failure to inform the Kirks of how he intended to use the photographs he took of their son: “Although, [sic] I had the Court’s permission to take the photographs at the time of the examination, I still respected the family and once again asked them, in the presence of their counsel, if I could take photographs of Gavin Kirk as part of my examination. I did not elaborate further on how I would use the photographs since I understand that pursuant to the Court’s order, at the request of plaintiffs’ counsel, I was not allowed to ask questions of Gavin Kirk’s parents af the time of the examination REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 LAW OFFICESOF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 other than a few questions to clarify the medical history.” (See Declaration of John Graham, M.D., Sc.D. in Support of County of Orange’s Opposition to Plaintiffs’ Motion In Limine No. 11 (hereinafter “Graham Decl. in Support of Opp.”) at 2:17-23, emphasis added.) Notably absent from Dr. Graham’s declaration is any explanation of how he could believe that being limited as to the extent of his questioning of the Kirks about Gavin’s medical history (which was contained in the voluminous medical records available to Dr. Graham) prevented him from fulfilling his ethical and professional obligation fo inform the Kirks as to what he intended to do with the photographs he obtained. Likewise, neither Dr. Graham nor the County offer any explanation of why they chose not to inform plaintiffs’ counsel of Dr. Graham’s intent to show the photos at conferences and have them posted online. Had Dr. Graham not violated his ethical and professional obligation to inform the Kirks, or had defense counsel not violated their ethical and professional obligation to inform plaintiffs’ counsel and the Court, the Kirks would have been able to exercise their son’s privacy rights and prevent Dr. Graham’s disclosure of Gavin’s private medical information to others not involved in this lawsuit. IV. DR. GRAHAM DID NOT ADVISE THE COURT HE WOULD BE SHOWING PHOTOS OF GAVIN KIRK’S FACE, BODY, AND PENIS AT EUROPEAN AND U.S. MEDICAL CONFERENCES AND POSTING THESE PHOTOS ONLINE ALONG WITH HIS MEDICAL HISTORY AND GENETIC TEST RESULTS. Dr. Graham declares he “Believes The Court Was Advised Photographs Would Be Shown To Others For Diagnostic Purposes.” (Graham Decl. in Support of Opp. at 5:23-24.) His current declaration is contradicted by his prior declaration in support of the defense medical exam, in which the only advising he did was to tell the Court he would use the photographs of Gavin Kirk “to document his clinical features and assist in my analysis and comparison of Gavin Kirk’s clinical and molecular findings with other patients ...” (See Declaration of Dr. Graham in Support of Defendants’ Demand for the Independent Medical Examination of minor-plaintiff Gavin Kirk, appended as Exhibit M to Baghdadi Suppl. Decl. (emphasis added).) Dr. Graham believes that when he says “my analysis” the Court should understand he means analysis by various unspecified “others.” (Exhibit H at 109:18-110:14.) In essence, Dr. Graham argues that when he declared he planned to use the photographs for REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS’ © oR IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 LAW OFFICESOF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 “my analysis and comparison” the Court should have understood he would take photographs of Gavin’s face, body and penis on an I-Phone, download the photos to his laptop instead of making them part of the medical record at Cedars-Sinai, keep the photos on his laptop for more than a year, show the photos to various attendees of European and U.S. medical conferences, load the photos onto a thumb drive, give the thumb drive to an unidentified “guy” from Face2Gene, and have “the guy” post the photos on line: Q. And did you think that your declaration explained to the judge what you were going to do with the photographs? A. Yes, did. (Exhibit H at 52:4-7.) V. DEFENSE COUNSEL WAS AWARE OF DR. GRAHAM’S MISCONDUCT AND DID NOT TRY TO STOP IT, NOR DID THEY EXPLAIN THE COURT’S ORDER TO DR. GRAHAM. Sensing the scope of this misconduct, the County then abandons Dr. Graham in the alternative, and asserts they “did not authorize, ratify, or pay for the offending conduct” (Opp. at 14: 2-5.) The problem with this argument is that it’s simply not true. Back on June 7, 2015, Dr. Graham sent an e-mail to the County’s counsel, informing her that he had “presented Gavin as an unknown at the European Society of Human Genetics 9 Dysmorphology session’,” that he “ran Gavin’s facial features though the Face-to-Gene software,’ that “they will run him by their expert panel too,” and “I will probably also present him as an unknown at the David Smith workshop” in August.” Attached to this email was the power point (“.ppt”) presentation Dr. Graham used for the conferences. (The June 9, 2015 e-mail from Dr. Graham to Ms. Khonsari is appended as Exhibit N to Baghdadi Suppl. Decl.) County counsel sent nothing in reply to this email. County counsel did not instruct Dr. Graham about sharing Gavin’s photos and test results at the upcoming medical conference, nor to take the posting down from Face2Gene. In fact, the posting was not removed until after the first session of Dr. Graham’s deposition, during which he had claimed the information was no longer there but then realized he had not removed it. (Exhibit H at 128:8-129:11; 250:3-10.) If Dr. Graham is to be believed, 1s This was a European medical conference. 2. ) This was a U.S. medical conference. 7 REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 defense counsel failed to fulfill their professional ethical obligation to explain the Court’s order to him: Q: Did any defense attorney ever tell you that you weren’t supposed to release the results of Gavin Kirk’s blood test to anyone other than Gavin Kirk’s attorneys, the defense attorneys, Gavin’s parents, or the retained experts? A: Tdon’t remember having any discussion like that. Q: When you told Ms. Khounsari that you were presenting Gavin at medical conferences, did she ever tell you you can’t give the results of his blood test? A: Tdon’t think we discussed it. Q: Did she ever tell you you can’t put the results of his blood test on Face2Gene? A: We didn’t discuss it. (Exhibit H at 268:9-22.) In order to protect Gavin’s privacy, plaintiffs have not attached the majority of the Face2Gene postings to this Motion, but will bring them to the hearing for the Court’s review. These documents demonstrate that Dr. Graham posted the results of Gavin Kirk’s blood test on Face2Gene, as well as his photographs and medical history. VI. CONCLUSION Contrary to what he now claims under penalty of perjury, Dr. Graham knew exactly what he was doing. The County was either complicit, or oblivious. For the forgoing reasons, plaintiffs’ Motion in Limine to sanction Dr. Graham and the County of Orange should be granted. Dated: February 10, 2016 WALKUP, MELODIA, KELLY & SCHOENBERGER ) ww a" py yr pd Zs Cart KHALDOUN A. BAGHDADI Attorneys for Plaintiffs 8 REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 LAW OFFICESOF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 DECLARATION OF KHALDOUN A. BAGHDADI I am an attorney at law, duly licensed to practice before all courts of the State of California. I am an associate attorney in the law firm of Walkup, Melodia, Kelly & Schoenberger, counsel for plaintiffs in the above-captioned matter. The following facts are within my personal knowledge except for those stated to be based on information and belief, and if called as a witness, I could and would testify confidently thereto. 1. I submit this declaration in support of Reply to Defendant’s Opposition to Plaintiffs’ Motion in Limine No. 11 to Exclude Testimony of Dr. Graham for Violation of Gavin Kirk’s Privacy Rights. 2. Attached as Exhibit H is a true and correct copy of the relevant excerpts from Dr. Graham’s deposition transcripts. 3. Attached as Exhibit I is a true and correct copy of the Cedars-Sinai Medical Center Authorization and Consent to Photograph and Publish. 4. Attached as Exhibit J is a true and correct copy of the Face2Gene Privacy Policy. 3. Attached as Exhibit K is a true and correct copy of Dr. Graham’s January 27, 2015 email to defense counsel. 6. Attached as Exhibit L is a true and correct copy of the June 16 and 17, 2015 exchange on Face2Gene. 7- Attached as Exhibit M is a true and correct copy of Declaration of Dr. Graham in Support of Defendants” Demand for the Independent Medical Examination of minor-plaintiff Gavin Kirk 8. Attached as Exhibit N is a true and correct copy of the June 9, 2015 e-mail from Dr. Graham to Ms. Khonsari. 1" 1" 1" 1" 1" 9 REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) 1 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, except as to those matters stated on information and belief, and as to those matters, I am informed and believe that they are true and correct. Signed this 10" day of February, 2016 at San Francisco, California. 7 J Ns 2 [2g ca ~N O Y a B A W KHALDOUN A. BAGHDADI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 LAW OFFICESOF WALKUP, MELODIA, KELLY 1 0 noel SCHOENBERGER | REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF 630 CALIFORNIA STREET DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK’S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF SANMANC ECO, CA 94108 KHALDOUN BAGHDADI IN SUPPORT THEREOF - CASE NO. 30-2010-00423097 (LEAD CASE) (415) 981-7210 EXHIBIT H 10 11 12 13 14 13 16 17 18 15 20 21 22 23 24 25 JOHN M. GRAHAM, JR., M.D., Sc.D. Pagel IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE GAVI N KIRK, a minor by and through ) Case No. his guardian ad litem Stephen ) 30-2010-00423097 Tobin Kirk, et al., ) (lead case) ) No. 30-2011-00512364 Plaintiffs, ) No. 30-2104-00725306 ) (CONSOLIDATED) Vs. ) ) VARCO | NTERNATI ONAL, INC., et al., ) VOLUME I ) Pages 1 to 238 Defendants. ) Cl ) VIDEOTAPED DEPOSITION OF J OHN M. GRAHAM, JR., M.D., Sc.D FRI DAY, DECEMBER 18, 2015 Reported By: Shirley Koch, RPR California CSR No. 10849 CERTIFIED Washington CCR No. 3096 Hawaii CSR No. 467 LLL) |gTe} HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 wait for her to ask her questions. Page 3 2 THE WITNESS: Okay. 3 MS. DERISH: And I'm -- I'm going to ask 4 you, Counsel, not to wave your hand to interrupt him 5 md answer because if he's answering, he should be 6 al lowed to finish his answer. And he's an expert. ] He can answer without being told when to stop 8 speaking. 9 BY MS. DERI SH: 10 Q. So as to this form that you've just given 11 me, when did you get it from the hospital? 12 A. | think this past week. 13 Q. And did you ask Ms. Kirk to sign this form? 14 A. No. When she came to be seen, she went to 15 admissions, and they asked her to sign this consent 16 to treatment. 17 Q. Did you go over this form with her at all? 18 A. | did not go over this particular form 19 because it's electronic, and it disappears into the 20 electronic medical record somewhere, which is why 21 didn't have it. 22 But when | took pictures of Gavin, [ did 23 ask her for permission to take pictures for 24 diagnostic purposes. And she and her husband agreed 25 in the presence of their attorney. |gTe} HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 Q. Did you have Ms. Kirk sign any other TT 2 at this visit? 3 A. No. 4 Q. And when you say you asked Ms. Kirk and her 5 husband if you could take pictures of Gavin for 6 | diagnostic purposes, did you tell them what you 1 meant by that? 8 A. | believe that was my specific phrase. 9 t's what | say all the time. | didn't go into detail. It had already been requested as part of the declaration for the IME examin the first place. Q. Did vou tell them anything else about the photos other than that you were getting them for diag- -- taking them for diagnostic purposes? A. | don't think we had an extended discussion about it. In the declaration, we indicated that we would like to take photographs to compare with other similar patients. Q. Let me ask you that question again, Doctor. When you were talking with Mrs. Kirk and Mr. Kirk about photographing their son, you said you told -- asked them if you could take photos for diagnostic purposes; correct? A. Yes. Q. Did you tell them anything else about the HG Litigation Services - HGLitigation.com 2 JOHN M. GRAHAM, JR., M.D., Sc.D. 1 photographs? Page 38 2 A. No. 3 Q. How often do you take photographs of your 4 pediatric patients? 5 A. Just about every clinic. 6 Q. Why do you take photos of them in every 1 clinic? 8 A. To document the exam as a dysmorphologist, 9 the physical features are a key part of how we make 10 diagnoses and compare what we see in the patient 11 with what we find in the literature. 12 Q. When you say just about every clinic, do 13 you take photos of every patient in every clinic? 14 A. Not every patient. If the patient has 15 unusual features, | take pictures of them as part of 16 the record. 17 Q. When you say as part of the record, how do 18 you make the photographs part of the record? 19 A. We have a database, and we -- it's HIPAA 20 protected, password protected. And those 21 photographs are stored in that database at Harbor 22 We have a specific camera that we use to take 23 pictures. Again, that's all stored in a HIPAA- 24 protected environment. 25 Q. Let's focus on Cedars-Sinai since that's OF HG Litigation Services > HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 could in the request to the judge? Page 52 2 A. Because | thought we were explaining what 3 the diagnostic process was all about. 4 Q. And did you think that your declaration 5 explained to the judge what you were going to do 6 with the photographs? 1 A. Yes, | did. 8 Q. As of 2/13 were you familiar with the 9 Cedars-Sinai privacy practices? 10 A. Yes. 11 Q. And did you under- 12 A. |"m assuming you mean 2/13 is 2015. Or 13 not. 14 Q. Both, | guess. 15 A. Yeah. | 16 Q. You -- 17 (Simultaneous speakers.) 18 THE REPORTER: [I'm sorry. | can't make a 19 record if you both speak at the same time. 20 | BY MS. DERI SH: 21 Q. You left in 2013 and returned in 2015; 22 right? 23 A. Well, | was there between 2013 and 2015 24 doing consultations. But I've always been aware of 25 the HIPAA code. I've worked on the IRB for many DO HG Litigation Services > HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 strike that. rege 19 2 Which attorneys have you talked to about 3 this case as you've been working on it? 4 A. Ms. Khonsari, Mr. O'Malley and Ms. Lad- 5 Laddon. Laddon (pronouncing)? 6 MS. LADDON: Laddon (pronouncing) 1 BY MS. DERI SH: 8 Q. Have you had some trouble with getting 9 payment for your work on this case? 10 A. | eventually got paid. 11 Q. Did you have to -- 12 A. | actually got overpaid. 13 Q. Did you have to send e-mails about that and 14 complain about that? 15 A. From time to time. 16 Q. And were there delays in getting paid? 17 A. There may have been. There was -- | think 18 there was some confusion. | think Ms. Khonsari's 19 of fice changed from one building to another because 20 of a fire. There was -- but everything worked out. 21 Q. How much have you earned on this case so 22 | far? 23 A. | think it's around $75,000. 75, 80,000 24 has been billed at this point, and | have not yet 25 billed for work done since August. og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 Q. How many hours have you worked on this TH a 2 since August? 3 A. | think it's about 80. 4 Q. So how much additional will that be? 5 A. | think the total number of hours is around 0 210. Something like that. 1 MS. KHONSARI: | just want the doctor to 8 clarify. Is this just for Ryan or just for the two 9 children, the hours? 10 THE WITNESS: For these two cases, yeah 11 BY MS. DERISH: 12 Q. Now, in Ryan's case, as of August 2015, had 13 you submitted bills that totaled $70,000? 14 A. | 'd have to add it up 15 Q. Could you do that, please. 16 A. Sure. | think it's a little easier if | do 17 it by hours, 18 Q. Okay. 19 A. So should -- 20 Q. Do you always charge the same per hour? 21 A. Yeah. 22 Q. Okay. 23 A. She paid my initial bill twice. 24 (Witness whispering to self.) 25 THE WITNESS: 220 all together og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 alterations. rage 107 2 Q. Which other patients were you referring to? 3 Your patients? 4 A. No. | was referring to patients in the 5 literature and to patients encountered by my medical 6 genetics colleagues. 1 Q. And did you have any concern that with your 8 declaration, the court might think that when you say 9 the photographs were "to document certain features," 10 that you meant that these were going to go in the 11 medical record? 12 A. | messed the last part of that. |'m sorry. 13 Q. Did you have any concern that the court 14 would read your declaration and think that you were 15 going to put the photographs into the medical 16 records? 17 A. No. | did not interpret it that way. 18 Q. Did you think the court would understand 19 that when you said you were taking photographs of 20 Gavin Kirk to document certain features and assist 21 in your analysis, that that meant that you were 22 going to be showing his photos to other people? 23 A. | interpreted this as inform ng the consent 24 that | wanted to compare Gavin Kirk's clinical 25 features as documented in the photographs to other |gTe} HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 patients that might have the same qanetl ef asnamie, 2 alterations, whether they be published cases or J cases that colleagues had seen that were similar 4 Q. What do you mean when you use the word 5 | "my"? 6 A That means in this case we're saying "my 1 analysis." That would be what's going on in my _8 | head. 9 Q. Did you have any concern that when the 10 court read this that when you said that you were 11 taking these photographs to "assist in my analysis," 12 that the court would think you meant you'd be the 13 one looking at the photos and not other people? 14 A. No, | didn't have that thought. 15 Q. When you compared Gavin's photos to other 16 patients, how did you do that? 17 A. | would typically download an article and 18 look at the published photographs and compare those 19 published photographs with -- and at one point 20 Gavin's facial features and clinical features were 21 so embedded | didn't need to pull his photos out 22 anymore. But | would look at the pictures that had 23 been published in the articles and compare them with 24 what | remembered about Gavin, 25 Q. Did you e-mail any physicians and ask you DY HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 Q. Did you identify a genomic variation rage 1 2 responsible for Gavin's condition? 3 A. No. 4 Q. Did you identify a genetic variation 5 responsible for Gavin's condition? 6 A. No. 1 Q. And at the time you submitted your 8 declaration to the court, you were telling the 9 court, quote, This process will allow me to 10 determine whether there is an underlying genetic 11 condition and, if so, whether that condition was 12 inherited or not, end quote? 13 A. That's true. 14 Q. And was that an accurate description of 15 what you thought you were going to learn from the 16 genetic tests that you wanted to do? 17 A. Yes. 18 Q. In your declaration to the court of 19 strike that. 20 In your declaration to the court of 21 December 18th, 2015, did you ask for any permission 22 from the court to show Gavin's photos and the 23 information from his medical history at conferences? 24 A. No. 25 Q. Did you ask for any permission or |gTe} HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 authorization from the court to post Gavin's ihotos 2 and information from his medical history on 3 Face2Gene? 4 A. No. 5 Q. Did you think you needed to obtain 6 permission from the court before you did such 1 | things? 8 A. No. 9 Q. Why not? 10 A. t's part of my usual practice. 11 Q. Usual practice in taking care of your 12 patients; right? 13 A. Yes. 14 Q. Is that part of your usual practice in 15 medi col egal cases? 16 A. | frequently get the two confused. | 17 treated him [ike | would my own patient in trying to 18 get a diagnosis. 19 Q. You treated Gavin like he was your own 20 | patient? 21 A. | treated Gavin as though he was my own 22 patient in trying to come up with a diagnosis for 23 | him. 24 Q. When you are taking care of your own 25 patients, do you post their photographs on og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 Face2Gene? rage 12 2 A. | have on occasion. 3 Q. How often? 4 A. It's relatively new, and when | first 5 explored doing that, | asked them if they were HIPAA 6 compliant. And they said yes, they had taken it ] through an IRB in New York City and said that 8 everything was HIPAA compliant. 9 Again, like my laptop, it's password 10 protected. Only people that are connected with 11 consulting on these unusual cases that are of 12 unknown diagnosis are allowed to look at the images. 13 No names are used. Nobody can get into the site 14 who's not part of the diagnostic process within the 15 HI PAA-protected Face2Gene site. 16 Q. Prior to Gavin, how many of your patients’ 17 photos and medical history have you posted on 18 Face2Gene? 19 A. Probably 20 to 25. 20 Q. Do you conduct a research study for 21 | Face2Gene? 22 A. | have. 23 Q. And in that research study, is there a 24 consent form that your patients or their families 25 have to sign before you enroll them in the research og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 | study? Page 120 2 A. | always have patients sign consent forms 3 for research, yes. 4 Q. And when you've posted photos of your 5 patients on Face2Gene, has that been as part of a 6 research study? 1 A. That was part of the research study. The 8 patients whose pictures | posted were consented for 9 research and they were published as part of 10 delineating the clinical conditions. And the 11 research that we were conducting was basically to 12 see if we could teach computer to recognize key 13 facial features in a particular syndrome and suggest 14 what genes might be sequenced in that. 15 Q. Do you have a copy of that consent form? 16 A. Which consent form? 17 Q. That you use when your patients consent 18 before you posted their information to Face2Gene. 19 A. Yes. 20 Q. Can you print it out, please. Can you 21 e-mail it to Ms. Khonsari, and maybe she can print 22 | it here. 23 A. You want the actual patient consent forms? 24 Q. | don't want any signed -- 25 A. You want a blank form? |gTe} HG Litigation Services HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. Page 121 1 Q. consent forms, 2 (Simultaneous speakers.) 3 Q. Exactly. 4 THE REPORTER: One at a time 5 THE WITNESS: Okay. | have that. 6 MS. KHONSARI: Is that different from what 1 | | have? 8 THE WITNESS: This. 9 MS. KHONSARI: Yeah, | do have it. 10 brought copies. 11 MS. DERISH: That's all right. 1'd rather 12 see the doctor's file from the doctor. Thanks. [If 13 there's something -- 14 THE WITNESS: That's the one -- 15 MS. DERISH: ~-- he doesn't have then -- 16 THE WITNESS: That's the one we signed for 17 consent to publish and photograph. 18 MS. KHONSARI: | think this was part of the 19 depo notice request. So | had the extra copies. 20 MS. DERISH: | see. Thank you 21 (Exhibit No. 11 was marked for 22 identification.) 23 BY MS. DERI SH: 24 Q. Doctor, let me show you what |'ve just 25 marked as Exhibit 11, which is what you just handed 1 HG Litigation Services HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 me. 1s this what you have patients sign or their 2 2 parents sign when you're going to publish their 3 photos on Face2Gene? 4 A. It's what | have them sign when I'm going 5 to publish their photos in a -- in a journal. 6 Q. There's no other form that you have them 1 sign besides Exhibit 11? 8 A. No, no. This is for publishing a patient 9 in a journal or a textbook 10 Q. And for the research study that you did 11 with Face2Gene, were you putting the patients’ 12 photographs and their medical histories on the 13 | website? 14 A. We were just using their photographs, which 15 had previously been published in a journal and 16 consented for such. We were using those photographs 17 to train the facial recognition software to 18 recognize that particular syndrome. 19 Q. Okay. So for the patients where you posted 20 their photos on Face2Gene, these are patients whose 21 photos had already been published in medical journal 22 | articles? 23 A. Yes. 24 Q. What consent form do you use when you 25 publish a patient's photographs in a medical journal og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 | article? rage 123 2 A. This consent form 3 Q. And that's it; nothing else? 4 A. Nothing else. 5 Q. Does anyone at Cedars-Sinai know that 6 that's what you do with your patients’ photos, post 1 them on Face2Gene? 8 A. Face2Gene is created as a diagnostic assist 9 for medical geneticists. And the way it works is 10 the geneticist that's seeing a patient in clinic 11 doesn't immediately recognize what the patient has 12 takes a picture of the patient's face and then 13 submits it electronically to Face2Gene for a 14 diagnostic assist. 15 Q. Does anyone at -- strike that, 16 Have you told anyone at Cedars-Sinai that 17 you take photos of patients at Cedars-Sinai and post 18 them on Face2Gene? 19 A. Yes. 20 Q. Who have you told that to? 21 A. | spoke with corporate compliance and risk 22 management both about this and reviewed this 23 particular situation with them and they didn't see 24 any HIPAA issue. 25 Q. Did you talk with anyone at Cedars-Sinai in og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 account on Face2Gene? rage 128 2 A. | think | had to fill out some paperwork, 3 but that was about it, or | had to fill out an 4 electronic form, 5 Q. Did you have to acknowledge that you would 6 be compliant with their privacy policy? 1 A. | don't remember 8 Q. Do you still have Gavin's photos up on 9 Face2Gene? 10 A. They're not on Face2Gene. They were 11 submitted as an unknown. We collected input for the 12 next week or two. Then it was taken down 13 Q. Have you taken all of Gavin's information 14 off of Face2Gene? 15 A. Yes. It's no longer there. 16 Q. When did you take it off? 17 A. [t's taken off as a part of -- the unknown 18 consultation is something that occurs over a period 19 of a week or two. Once all the input has been 20 gathered and nobody else has anything to say, it's 21 taken down. 22 Q. Okay. So | -- on behalf of the Kirks, | 23 want to make very clear on the record right now you 24 do not have their permission to have any of Gavin's 25 photos or information from his medical history on og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 any website, including any aspect of Face2Gene, rege 129 2 whether it's your own account or an account you have 3 other people accessing. 4 Can you promise me it's not on there? 5 A. | will e-mail them and make sure that it 6 Q. 1 A. -- if it wasn't taken down, it is. But 8 it's my understanding that once the initial input 9 was collected froma group of about 20 consultants, 10 then they take it down, and it's destroyed and 11 nobody keeps it. 12 Q. And when you say e-mail them, you mean the 13 people at Face2Gene; right? 14 A. The -- the consultants that consult on 15 unknowns for Face2Gene. Those individuals are given 16 a set period of time to respond. And most of wus, if 17 we don't know what it is, we don't respond. And 18 eventually it goes away, and we don't ever see it 19 again. 20 Q. So is there someone at Face2Gene you can 21 contact to make sure -- 22 A. Yes. 23 Q the photos aren't there anymore? 24 A. Yes. 25 Q And can you -- og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 cause for this patient's condition; right? rage 137 2 A. Find a cause. It doesn't necessarily need 3 to be genetic, but, yes, | was trying to establish a 4 diagnosis. 5 Q. And as a geneticist, you were trying to 6 establish a genetic diagnosis? 1 A. That's correct. 8 Q. What testing did you do to look for any 9 other diagnosis other than genetic? 10 A. | read quite a bit of literature on organic 11 solvents and volatile -- volatile organic compounds. 12 | "ve had long involvement with The Teratology 13 Society and am very comfortable with environmentally 14 determined birth defects. 15 Q. Did you talk to any other geneticists or 16 other physicians about Gavin to try find out if he 17 had an environmental exposure? 18 A. No. 19 Q. The mission statement that | just provided 20 to you from Face2Gene, have you ever read it before? 21 A. | think | looked at it on-line one time. 22 (Exhibit No. 13 was marked for 23 identification.) 24 | BY MS. DERI SH; 25 Q. "11 hand you Exhibit 13. It's the |gTe} HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 A. | was curious when you were going to + 2 my opinions in the case. 3 Q. Did you talk about anything else? 4 A. Talked about Face2Gene. 5 Q. What did you discuss about that? 6 A. That | would try and come up with the name ] of the quy. 8 Q. Anything else? 9 A. | think that's pretty much it. 10 Q. Going to the privacy policy for Face2Gene 11 that we were looking at, in the section that says, 12 "Posts that contain Personal Health Information," 13 was it your understanding that by giving the thumb 14 drive to the guy at the conference from Face2Gene 15 that this person would be posting Gavin's personal 16 health information for you? 17 A. Yes. 18 Q. And do you see in the all cap letters where 19 it says, "We urge you to read out data sharing and 20 protection policy and sections pertaining to how we 21 treat PHI posted or uploaded through our services in 22 user agreement before doing so. If you do not agree 23 to these terms, do not post any PHI through our 24 services." 25 This is page 3, same section, og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 A. Okay. Yeah. | discussed the privacy rage 12 2 policies with him before we made the posting. 3 Q. Did he show them to you? 4 A. No. 5 Q. Did he tell you you should read them? 6 A. No. 1 Q. If you could look at page 8 of the privacy 8 policy in the section that says what your 9 obligations are. If you could look at the first 10 bullet point there, where it says, quote, You must, 11 at all times, respect the terms and conditions of 12 the then-current Privacy Policy and the User -- User 13 Agreement. 14 Was that your understanding when you gave 15 | the thumb drive to the man from Face2Gene? 16 A. Yes. 17 Q. And if you look at the fourth bullet point, 18 do you see where it says, "You must use our public 19 message boards for clinical, not commercial use"? 20 A. Yes. 21 Q. Was that your understanding when you gave 22 | the thumb drive to the man from Face2Gene? 23 A. Yes. 24 Q. And what was your understanding about what 25 clinical use means? og HG Litigation Services - HGLitigation.com JOHN M. GRAHAM, JR., M.D., Sc.D. 1 A. Help with a diagnosis. rage 193 2 Q. Did you have any understanding that 3 commercial use means money? 4 A. | wasn't quite sure what commercial use 5 Implied. 6 Q. Do you know what the word commercial means? 1 A. | understand that means commerce and 8 exchange of funds. 9 Q. Did you feel that when you were giving the 10 thumb drive to the man from Face2Gene that contained 11 the photographs and portions of the medical history 12 for Gavin Kirk that you were doing this in a purely 13 clinical capacity? 14 A. Yes. 15 Q. And did you think there was any commercial 16 aspect to what you were doing? 17 A. No. 18 Q. Why not? 19 A. There was no exchange of funds. 20 Q. You were going to be paid for your work on 21 the case by defense counsel though; right? 22 A. | did not charge for any of the time spent 23 trying to get a diagnosis for Gavin, either in the 24 unknown sessions or at Face2Gene. That was part of 25 my process. |gTe} HG Litigation Services - HGLitigation.com 10 11 LZ 13 14 La 16 17 18 19 20 21 22 23 24 25 JOHN M. GRAHAM, JR.,M.D., Sc.D |, the undersigned, a Certified Shorthand Reporter of the State of California, d hereby certify: That prior to being examined, the 0 Page 238 witness in the foregoing proceedings were by me duly sworn to testify to the truth, the whole truth, nothing but the truth; and That said proceedings were taken by me stenographically and was thereafter transcribed typewriting under my direction, said transcript being a true and accurate transcription of my shorthand notes. | further certify that | am neither into financially interested in the action nor a relative or employee of any attorney or any of the parties. IN WITNESS WHEREOF, | have this dat subscribed my name. Dated: December 27, 2015 SHIRLEY KOCH Certified Shorthand Reporter in and for the State of California License No. 10849 Expiration Date: December 31, 2015 Henjum Goucher Reporting Services, 6- DEPO 1-888-65 1-888-656-3275 Toll Free Fax e L P. og HG Litigation Services - HGLitigation.com 10 11 14 13 14 % 0 16 17 18 19 20 21 22 23 24 25 JOHN GRAHAM, JR., M.D. Sc.D. - VOLUME 2 Page 239 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE GAVIN KIRK, a minor by and through ) his guardian ad litem Stephen Tobin ) Kirk, et al., ) ) Plaintiffs, ) ) VS. ) Case No. ) 30-2010-00423097 VARCO I NTERNATI ONAL, INC., et al., ) ) Defendants. ) (Pages 239 - 371) lo ) VI DEOTAPED DEPOSITION OF J OHN GRAHAM, JR., M.D. Sc.D. VOLUME II FRI DAY, JANUARY 8, 2016 (od 91113» LIV leds] oa) Reported By: Shirley Q. Casilan, CSR No. 12361 |gTe} HG Litigation Services - HGLitigation.com JOHN GRAHAM, JR., M.D. Sc.D. - VOLUME 2 { 0 Did you -- Page 250 2 A -- and it's not there anymore 3 Q Did you find out how long the presentation and 4 photos of Gavin Kirk were on the unknown portion of the 3 Face2Gene website? 6 A It was on this restricted area of the website /] | fromthe time | posted it, which | think was mid-June, 8 until the time | took it down, which was after my 9 | deposition, that there had been no commentary on it for 10 | months. 11 Q Did you have any discussion with anyone at 12 Face2Gene on the telephone after your deposition? 13 A No. | don't have any phone contact with them 14 Q Okay. 15 MS. DERISH: I'm just going to put a Post-it on 16 this. Because you're going to do a copy without the 17 staples? 18 MS. KHONSARI: Yeah 19 | BY MS. DERI SH: 20 Q How much money do you earn per year as an expert 21 witness? 22 A | haven't added it up. | usually do it in late 23 January to pay my L.A. business tax, and | haven't done 24 that yet. 25 Q Okay. DY HG Litigation Services - HGLitigation.com JOHN GRAHAM, JR., M.D. Sc.D. - VOLUME 2 1 Just as an estimate, how much did you earn Fae 2 2014 as an expert witness? 3 A I't would not be an estimate. It would be a tota 4 guess. | don't know. 5 Q Was it more than $250,000? 6 A Probably. 1 Q Was it more than $500,000? 8 A | doubt it. 9 Q So was it somewhere over $350,000? 10 A | don't know. 11 Q Was it over $400,000? 12 A |'ve already told you. | haven't added it up 13 | -- anything | tell you would be a wild guess. 14 Q Yeah, Just to clarify, I'm not asking about 2015 15 because it's -- from what you're telling me, it sounds 16 like you haven't -- 17 A Oh, 2014? 18 Q Right. So -- 19 A | haven't looked at that for well over a year 20 Q Well, what's your best estimate of how much you 21 | earned as an expert in 2014? 22 A | would guess it was somewhere around 250- 23 Something like that. 24 Q And is that roughly how much you've earned as an 25 | expert each year for the past five years, or some years og HG Litigation Services - HGLitigation.com JOHN GRAHAM, JR., M.D. Sc.D. - VOLUME 2 1 has it been more? rage 252 2 A | think it's pretty close. 3 Q Have you submitted any invoices for this case 4 | since August of 2015? 5 A No, | have not. 6 Q Have you made any attempt to add up the number of 7 | hours that you are going to invoice for this case, since 8 you weren't paid in 2015? 9 A Yes. | think we discussed this at the last 10 deposition, and at that time, | think it was 80 hours, and 11 | "ve done another six since then. And | was overpaid last 12 year by 12,500 because one invoice was mistakenly paid 13 | twice. So | deducted that amount -- | will deduct that 14 amount from my next invoice. 15 Q And is it correct all your work that you've heen 16 | doing for the county has been at the rate of $500 an hour? 17 A That's correct. 18 Q So will you be subtracting 21 hours from the 86 19 hours? 20 A | remember it was 12,500, which I think is 25 21 hours 22 Q | can't do the math that fast. I'll take your 23 | word for it. 24 A | could be wrong. | can't do it in my head 25 either. |gTe} HG Litigation Services - HGLitigation.com JOHN GRAHAM, JR., M.D. Sc.D. - VOLUME 2 1 | discussions. rage 269 2 Q Did any defense attorney in this case ever tel 3 | you that the results of the testing are to be disclosed 4 | only to counsel for Gavin Kirk, counsel for the various 5 defendants in the Kirk matter, to Gavin's parents, and to 6 | experts retained by counsel for the parties? 1 A | don't remember having any discussion about 8 that. 9 Q Did any defense attorney ever tell you that you 10 | weren't supposed to release the results of Gavin Kirk's 11 | blood test to anyone other than Gavin Kirk's attorneys, 12 | the defense attorneys, Gavin's parents or the retained 13 | experts? 14 A | don't remember any discussion [ike that. 15 Q Did any defense attorney ever -- strike that. 16 When you told Ms. Khonsari that you were 17 | presenting Gavin at medical conferences, did she ever tell 18 | you you can't give the results of his blood test? 19 A | don't think we discussed it. 20 Q Did she ever tell you you can't put the results 21 | of his blood test on Face2Gene? 22 A We didn't discuss it. 23 Q Did you ever ask anyone if you could talk about 24 | the results of Gavin's blood test on Face2Gene? 25 A We didn't discuss it. |gTe} HG Litigation Services - HGLitigation.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOHN GRAHAM, JR., M.D. Sc.D. - VOLUME 2 Page 371 REPORTER'S CERTIFI CATE |, SHIRLEY Q. CASILAN, CSR No. 12361, Certified Shorthand Reporter licensed in the State of California do hereby certify: That the foregoing proceedings were taken before me at the time and place therein set forth, at which time the witness was duly sworn by me; That the testimony of the witness, the questions propounded, and all objections and statements made at the time of the examination were recorded stenographically by me and were thereafter transcribed; That the foregoing is a true and correct transcript of my shorthand notes thereof. | further certify that | am not a relative or employee of any attorney of the parties, nor financially interested in the action or the outcome thereof. IN WITNESS WHEREOF, | have subscribed my name SHIRLEY Q. CASILAN, C Certification No. 123 Expiration Date: 4/20 HG Litigation Services 1-888-656-DEPO — = Z o HG Litigation Services - HGLitigation.com 1 EXHIBIT I (CEDARS-SINAI MEDICAL CENTER. AUTHORIZATION AND CONSENT TO PHOTOGRAPH AND PUBLISH PATIENT 1.D. CONSENT FOR PATIENT PHOTOGRAPHY AND PUBLISHING | hereby consent to have Photographs, videotapes, digital images or other images made of myself or my family members by Cedars-Sinai Medical Center (“Medical Center”) and/or my physician(s) (or by other persons as permitted by the Medical Center or my physician(s)) while under the care of the Medical Center, and/or consent to interviews with a member of the news media or a representative of [name of entity/organization]. | understand that Cedars-Sinai Medical Center will retain the ownership rights to the Photographs, videotapes, digital, or other images made by the Medical Center. | also understand that | waive any right to compensation for permitted uses or disclosures of the Photographs and/or interview material. The Medical Center, its directors, officers, agents, representatives, employees, and my physician(s) and any other person participating in my care are hereby released from any legal responsibility or liability for activities to the extent indicated and authorized herein. | understand and agree that these Photographs and/or interview material may be used by the Medical Center, my physician(s), the news media or by [name of organization/ entity] for the purposes outlined below (e.g., treatment, payment, health care operations (including medical education), public relations/publicity): NOTE: If health information, including Photographs, will be used or disclosed for purposes beyond treatment, payment or health care operations, a separate Use and Disclosure of Health Information — Patient Photography and Publishing form must be completed and signed by the patient. “Photograph,” as used in this consent, means a recording through visual means, including but not limited to motion picture, still photography, videotape, video disk, scans, and any other mechanical, digital or computerized means of recording and reproducing images in whatever manner disseminated or published. Patient's Name: Identification Number: Signature of Patient or Patient's Legal Representative Date If Signed By Other Than Patient, Indicate Relationship Signature of Witness Date TAB 15 (MISCELLANEOUS) DISTRIBUTION: WHITE = Medical Records; YELLOW = Patient; Pink = F 3) Page 1of3 (3 “ | / (CEDARS-SINAT MEDICAL CENTER. AUTHORIZATION AND CONSENT TO PHOTOGRAPH AND PUBLISH PATIENT LD. AUTHORIZATION FOR USE OR DISCLOSURE OF HEALTH INFORMATION — PATIENT PHOTOGRAPHY AND PUBLISHING Cedars-Sinai Medical Center (“Medical Center”) is requesting your authorization to disclose your health information, including Photographs and interview material. The following is information about the health information at issue, to whom it will be disclosed, how we will otherwise disclose your health information if you sign this form and your rights with regard to this Authorization. The last page of this form is the signature page that we request you sign to provide us your authorization to use or disclose your health information as described in this form. 1. Specific description of the health information: OJ Photographs, videotapes, digital or other images 0 Other (please specify): 2. Persons/classes of persons/organizations (by name or function) who are authorized to make the requested use or disclosure: 3. The persons/classes of persons/organizations (by name or function) authorized to receive the disclosed health information: 4. A) Each purpose of the requested use/disclosure: B) Any limitations on the requested use/disclosure: 5. Expiration Date/Event: This Authorization will expire on: 6. Right to Modify or Revoke: | understand that | have the right to modify or revoke this Authorization in writing at any time subject to the exceptions stated below. To modify or revoke this Authorization, | understand that | must make my request in writing and clearly state that | am modifying or revoking this specific Authorization. In addition, | must sign my request and then mail or deliver my request to: with a copy to: Exceptions To Right of Modification or Revocation: | understand that my written modification or revocation will not affect the ability of the Hospital to continue to use or disclose my health information to the extent that it has already acted in reliance on this Authorization. For example, the Hospital cannot rescind disclosures it has already made, and may use my health information as necessary to bill and collect for services rendered. TAB 15 (MISCELLANEOUS) DISTRIBUTION: WHITE = Medical Records; YELLOW = Patient; Pink = Public Relations Form No, 6562 (Rev. 4/03) Page 2 of 3 CEDARS-SINAI MEDICAL CENTER. AUTHORIZATION AND CONSENT TO PHOTOGRAPH AND PUBLISH PATIENT 1.D. 7. 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Face2Gene is a search & reference tool provided for informational purposes and not intended to replace the clinician's judgment or experience, nor should it be used to diagnose or treat medical conditions. 12/3/2015 3:43 PM EXHIBIT K oh — From: Khonsari, Arezou Sent: Tuesday, January 27, 2015 10:59 AM To: ‘Graham, John, M.D., Sc.D. Subject: RE: Meeting re: Gavin Kirk v. County of Orange We can talk about her exposure at our meeting. | think | know where | am going. If | get lost, | will call you. thank you Arezou Khonsari Partner | Vice-Chair Asbestos Litigation Practice Arezou.Khonsari@lewisbrisbois.com Lewis Brisbois Bisgaard & Smith LLP 633 W. 5th Street, Suite 4000 Los Angeles, CA 90071 T:213.580.3930 F: 213.250.7900 www. LewisBrisbois.com This e-mail may contain or attach privileged, confidential or protected information intended only for the use of the intended recipient. If you are not the intended recipient, any review or use of it is strictly prohibited. If you have received this e-mail in error, you are required to notify the sender, then delete this email and any attachment from your computer and any of your electronic devices where the message is stored. ~---0riginal Message----- From: Graham, lohn, M.D., 5¢.D. [mailto:lohn.Graham@cshs.org] Sent: Tuesday, January 27, 2015 9:35 AM To: Khonsari, Arezou Cc: Graham, John, M.D., Sc.D. Subject: RE: Meeting re: Gavin Kirk v. County of Orange Importance: High Do you want me to meet you somewhere at Cedars before the 2:00 meeting this afternoon to show you where we are meeting? | will have my cell phone with me (310-746-8941). Are we allowed to ask the mother about her so-called exposure? If not, perhaps you could highlight where this exposure is documented, since it is not in her medical records. John From: Khonsari, Arezou [Arezou.Khonsari@lewisbrisbois.com] Sent: Friday, January 23, 2015 2:43 PM To: Pierson, Tyler Cc: Graham, John, M.D,, 5¢.D. Subject: Re: Meeting re: Gavin Kirk v. County of Orange Ok thanks Sent from my iPhone Arezou Khonsarij Partner | Vice-Chair Asbestos Litigation Practice Arezou.Khonsari@lewisbrisbois.com Lewis Brisbois Bisgaard & Smith LLP 633 W. 5th Street, Suite 4000 x. Nira 30 Date:_! i le Shirley Q. Casilan, GSR iyo, 12361 EXHIBIT LL Dr. Leticia Spinoso Physician, Genetics, Instituto Nacional De Ciencias 6/16/15, 8:46 PM w Any prenatal exposure? $ Prof. Serdar Ceylaner g Physician, Genetics, Intergen Genetics Diagnosis A. 6/16/15, 908 PM ae Hi John CDG is the most possible option. We have several other similar cases. Dr. Oana Moldovan Physician, Genetics, Santa Maria Ho pital, Lisbon, ., 6/16/15, 11:53 PM tr Dr Graham, | agree with Bohring-Opitz (Oberklaid-Danks) suggestion. Look at the ASXL1 gene again = John Graham Ff Physician. Genetics harbor vicla a Flhyoiuial ly A 1S 1ELICS, [al )( G/17/15, 7:00 PM hhh Thanks for your suggestions. | am familiar with Bohring-Opitz syndrome and have an article in the current online AJMG on this condition. He does not resemble any of the patents I've seen with this condition. | have asked the lab to recheck the sequencing of ASXL1 ans ASXLS3. | have asked the lab to recheck known CDG genes. MICRO and COFS syndromes were on the top of my list when we did the exome sequencing, so | am confident they were examined. His penis is normal, which seems inconsistent with MICRQ.. [ro prenatal exposures. Jr November 2009, Dr. Richard Gatti at UCLA ruled out a disorder Involving double-stranded DNA repair with a normal lymphocyte radiosensitivity assay and normal western blot analysis for ATM protein (deficient in ataxia telangiectasia), aprataxin protein (deficient in ataxia with early-onset A EXHIBIT M LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW Oo 0 9 a U r A W O N N O N B N R O N N N N em mm e k em e k b k ed e k fe d je 0 J O&O U h & W N = © UV NN E W N E s DECLARATION OF JOHN GRAHAM, M.D., Sc.D. I, JOHN GRAHAM, M.D., Sc.D. declare as follows: 1. I, John Graham, M.D., Sc.D. submit this declaration in support of Defendants’ Demand for the Independent Medical Examination of minor-plaintiff Gavin Kirk and his parents Stephen Tobin Kirk and Sarah Kirk which will include taking blood and cheek swab samples to perform molecular genetic testing indicated by minor-plaintiff Gavin Kirk's medical history and prior genetic evaluations by his treating geneticists. 2. I have personal knowledge of the facts stated below, unless otherwise stated, and, if called upon to testify, could and would testify competently thereto. 3. Iam aboard certified pediatrician and medical geneticist. 1 received my Sc.D. from John Hopkins University and my M.D. from the Medical University of South Carolina. 1 completed a pediatrics residency at Boston Children’s Hospital, a Dysmorphology fellowship at University of Washington at Seattle, and a Developmental Disabilities fellowship at Boston Children’s Hospital. From 1988-2013 I was the Director of the Division of Clinical Genetics and Dysmorphology at Cedars —Sinai Medical Center and Director of Clinical Training for the UCLA Medical Genetics Fellowship Training Program. Prior to that, [ held similar responsibilities at the Dartmouth-Hitchcock Medical Center in Hanover New Hampshire. My research includes a wide variety of medical conditions that lead to developmental disabilities including teratogenic and craniofacial disorders as well as the genetics of common birth defect syndromes. Ihave focused my research on finding genes for genetic mental retardation syndromes and for conditions that result in recognizable patterns of human malformation, including Cerebro-Oculo-Facio-Skeletal (COFS) syndrome. Attached hereto as Exhibit “A” is a true and correct copy of my current curriculum vitae, 4, In preparation for this declaration and in anticipation of the Independent Medical Examination, I have reviewed the following documents: (1) Plaintiffs’ Operative Complaint; (2) Gavin Kirk’s medical records; (3) Sarah Kirk’s medical records; (4) Stephen Kirk’s medical records; (5) Deposition of Sarah Kirk; (6) Deposition of Dr. Zadeh; (7) Deposition of Dr. Abdenur, (8) Gavin Kirk’s and his parents’ written responses to defendant’s discovery regue 4839-9732-7649.1 DECLARATION OF JOHN GRAHAM, M.D. LEWIS BRISBOIS BISGAARD &SMTHLP ATTORNEYS AT LAW OC 0 N S hh EE W O R N BN O N N O N O N N O R N O N e m em e k mk ed f k je mk be d pe d pe C 0 qd 4 Un Ea W O N E O C & O S N dD E W N = D (9) the available reports of environmental testing at 840 N. Eckhoff ; (10) the Defendants’ Demand for Independent Medical Examination of Gavin Kirk and his parents and (11) Plaintiffs’ Response and Objections to the Defendants’ Demand for Independent Medical Examination of Gavin Kirk and his parents. 5. It is my understanding that Plaintiffs contend that minor-plaintiff Gavin Kirk's injuries were not inherited from his parents, that in fact there was an in utero insult when his mother was allegedly exposed to chemicals during her pregnancy. In order to diagnose Gavin Kirk's injuries and conditions and evaluate the possible causes of those injuries and conditions, it is necessary to perform both a physical examination and molecular genetic testing. 6. My examination will be consistent with that performed by other board-certified Medical Geneticists and with clinical consultations in connection with such practices. It will consist of examination procedures and molecular genetics testing that is currently routinely used by clinical geneticists examining patients for conditions such as those alleged by minor-plaintiff Gavin Kirk in the above-captioned action, none of which is painful, protracted, intrusive, or substantially different in kind and character from those utilized by minor-plaintiff Gavin Kirk's own treating physicians. 7. My examination of minor-plaintiff Gavin Kirk will include only the diagnostic procedures necessary to evaluate the potential sources and causes and extent of the injuries and conditions alleged by minor-plaintiff Gavin Kirk in this action. 8. My examination will include a detailed physical examination and clarification of Gavin Kirk's and his parents’ medical history left unclear from my review of his medical records. The examination will also include taking of photographs of Gavin Kirk to document his clinical features and assist in my analysis and comparison of Gavin Kirk’s clinical and molecular findings with other patients with the same genetic/genomic alterations. 9. I am a trained medical geneticist, clinical teratologist and dysmorphologist, which means that I am trained to look at the subtle patterns of altered development in the way someone is put together from a physical standpoint and determine if that pattern is consistent with what has been reported in other patients with the same genetic/genomic alteration. I will conduct a 4839-9732-7649.1 2 DECLARATION OF JOHN GRAHAM, M.D, Sc.D, LEWIS BRISBOIS BISGAARD &SVITHLLP ATIORNEYS AT LAW o e 9 aN in E W N N O N O R N N N N N BR em em ek mk je k ed ed ed 0 9 a UN A W N = Oo 2 0 a n R E N N = D complete physical examination of Gavin Kirk to analyze his physical features and compare them to known patterns associated with previously reported patients with the same genetic/genome alterations. A physical examination of Gavin Kirk is essential to matching and comparing his genetic/genomic information to his physical manifestations 10. When this information is combined with the information obtained from the corresponding molecular genetic analysis, it will assist me in determining minor-plaintiff Gavin Kirk's diagnosis by allowing me to confirm that his genetic/genomic findings are consistent with findings detected on his physical examination or reported in his medical history. Additionally when I have the results of both the physical examination and laboratory testing, I will be able to compare minor-plaintiff Gavin Kirk's results with those of case in literature who have the same genetic/genome abnormalities to aid in determining the cause of his injuries and conditions and his prognosis. 11. My analysis will involve the use of current molecular genetic techniques in a certified molecular genetic laboratory to confirm the genetic basis of the genetic condition affecting minor plaintiff Gavin Kirk and determine the origin of his genetic alterations. Currently available genetic techniques have advanced substantially since the last records of any completed genetic testing of Gavin Kirk, which took place in 2012. The genetic techniques available today will provide relevant information that could not be determined using older testing techniques. All components of the examination I intend to perform are standard practice in the medical genetics field to evaluate a patient presenting with developmental disabilities and congenital malformations. 12. In fact, the genetic blood testing I am requesting is precisely the type of testing recommended by minor-plaintiff Gavin Kirk's treating geneticists, Dr. William Wilcox in 2009; Dr. Jose Abdenur in December 2012, and earlier this year as well as Dr. Touran Zadeh this year. The test was likely not performed in 2009, as it was not available in a clinic laboratory. The family wanted to pursue the testing in 2012, but insurance did not cover the cost of the test. Since 2012, the availability and cost of genetic testing for sequence analysis of the entire coding region of CSB, CSA and whole exome sequencing has changed dramatically. The testing is no longer restricted to the research level and the cost for the entire testing is approximately $2,500. 4839-9732-7649.1 3 DECLARATION OF JOHN GRAHAM, M.D, Sc.D. LEWIS BRISBOIS BISGAARD &SVITHLLP ATTORNEYS AT LAW Oo G 0 ad SN i Aa W N | I T c 0 I SN WU EA W R N E O C 0 NN N N E W N = 13. Based on my background, training and experience and my review of the pertinent medical records of Gavin Kirk, I will request venous blood samples containing lymphocytes with DNA to be collected by an experienced phlebotomist during the time of this Independent Medical Examination with back-up cheek swab DNA (rubbing a small sponge along the inside of his cheek to collect shed epithelial cells containing DNA), with the molecular analysis to be performed at the certified Fulgent Clinical Diagnostics Lab in Temple City CA, one of several certified molecular genetic labs in this region that is qualified to perform this type of molecular testing. I have no financial relationship with this laboratory, and I will ensure that the proper chain of custody is documented and maintained as the blood and cheek swab samples are collected and delivered by UPS in collection kits provided by this designated lab. 14. A phlebotomist will take a single blood and cheek swab sample from each individual, Gavin Kirk, Sarah Kirk and Stephen Kirk. I will not need separate samples for other testing. To perform my analysis I will need approximately 10 to 20 ccs of blood (approximately 2-4 teaspoons) from Gavin Kirk, Sarah Kirk and Stephen Kirk plus the cheek swab samples. 15. Once these samples for DNA analysis are obtained, I will request the lab to perform sequence analysis of the entire coding region of CSB and CS4, including deletion/duplication analysis, in GAVIN KIRK to confirm a diagnosis of Cerebro-Oculo-Facial-Skeletal (COFS) Syndrome ( which is allelic with Cockayne Syndrome, Type II and caused by mutations in CSB), with reflex whole exome sequencing, since mutations in CSA can also cause Cockayne syndrome and there are other autosomal recessive conditions that cause similar clinical features as those seen in COFS. 16. Once the genetic basis of GAVIN KIRK'’s condition is established, carrier testing would be performed on samples from his parents Sarah Kirk and Stephen Tobin Kirk. 17. My examination will also include the taking of a cheek swab samples from Gavin Kirk, Sarah Kirk and Stephen Kirk in case further confirmation is needed in a different tissue. 18. My analysis will assist in diagnosis by identifying the genomic and genetic variations responsible for his condition. This process will allow me to determine whether there is an underlying genetic condition and, if so, whether that condition was inherited or not. 4839-9732-7649.1 4 DECLARATION OF JOHN GRAHAM, M.D, Sc.D. 19. Furthermore, the examination along with the molecular genetic testing will be useful Jud for the purpose of determining, evaluating and assessing plaintiff Gavin Kirk's diagnosis and ireatment, the scope and extent of his injuries, the prognosis and natural history of his medical condition, including damages and causation issues, and to prepare for testimony in this matter. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on December 18, 2014, at Los Vhz =f IGAN M GRAHAM, JR ML Se Angeles, California. No 8 9 S N B t E W N N O O N O N N N N RN R N R em e k e k mk pe d f e d em t f e d e d pe d @ 0 S N nn Ee W N = OS O W N a N E W N = Oo LEWI S BRISBO 4827-0056-4513.1 5 IS DECLARATION OF JOHN GRAHAM, M.D., Sc.D. EXHIBIT N -—2 ee ED ee AE eS A SOR Eo I Ppa From: Graham, John, M.D., Sc.D. Sent: Tuesday, June 09, 2015 1:51 AM Ta: Patrik Vitazka; Khonsari, Arezou; Sherri Bale Cc: Ashley Marth; Deborah Copenheaver; Graham, John, M.D., Sc.D. Subject: RE: GeneDx - Gavin Kirk case Attachments: Graham ESGH Unknown.ppt importance: High Hi Patrick and Sherri, I presented Gavin as an unknown at the European Society of Human Genetics Dysmorphology session to see if anyone had seen a similar case with negative exome sequencing results and negative biochemistry evaluations. I have attached that presentation for future reference. Two genes came up that I would like you to double-check to see if there are any findings: WWOX (an investigator in Geneva was quite keen on this gene) SEPSECS (apparently intragenic deletions have been seen in this one, and our array CGH on Gavin was an old one from 2007) The differential diagnoses that came up included the ones I suggested: COFS and Warburg MICRO syndrome. I also ran this facial features through the Face-To-Gene software, but his face was not recognized as being specific to any condition in LDDB, OMIM or their other sources. They will run him by their expert panel too. Please let me know what you find, The plaintiffs have asked for my final report. I will probably also present him as an unknown at the David Smith workshop in August, but 1 think this European group is more diverse in its experience. Please let me know you received this. I have a poor internet connection. John From: Graham, John, M.D,, Sc.D. Sent: Wednesday, February 25, 2015 9:31 AM To: Patrik Vitazka; Khonsari, Arezou; Sherri Bale Cc: Ashiey Marth; Deborah Copenheaver; Graham, John, M.D., Sc.D. Subject: RE: GeneDx - Gavin Kirk case Hi Patrik, Here is a selection of the images. When I examined him, he did not have the cachectic habitus of COFS/Cockayne syndrome, but he has been G-tube fed for most of his life with very little activity. He does not have the under-developed genitalia of MICRO syndrome either, so my initial impressions from reviewing his records seem unlikely. He has severe microcephaly with brain atrophy and treatment-resistant seizures, as well as growth failure with congenital contractures and rapidly progressive scoliosis which required instrumentation with expanding rods to keep him alive and breathing. John From: Patrik Vitazka [pvitazka@genedx.com] Sent: Wednesday, February 25, 2015 9:10 AM To: Graham, John, M.D., Sc.D.; Khonsari, Arezou; Sherri Bale Cc: Ashley Marth; Deborah Copenheaver Subject: RE: GeneDx - Gavin Kirk case Dear John, Yes please, we'll take them if you can share them with us. Thank you, Patrik From: Graham, John, M.D., Sc.D. [mailto:John.Graham@cshs.org] Sent: Wednesday, February 25, 2015 12:05 PM To: Patrik Vitazka; Khonsarl, Arezou; Sherri Bale Cc: Graham, John, M.D., Sc.D. Subject: RE: GeneDx - Gavin Kirk case Thanks Patrik, I have pictures of the patient if you need to match him up with previous cases. John From: Patrik Vitazka [pvitazka@genedx.com] Sent: Wednesday, February 25, 2015 6:20 AM To: Graham, John, M.D., Sc.D.; Khonsari, Arezou; Sherri Bale Subject: RE: GeneDx ~ Gavin Kirk case Thank you very much. We'll prepare everything on our end and will be waiting for the Court Order to issue the sample transfer. Please feel free to contact me with any questions, Best regards, Patrik patrik Vitazka MD PhD FACMG Director Whole Exome Sequencing - XomeDxXpress GeneDx | Exome Program 205 Perry Parkway | Gaithershurg, MD 20877 T3015192100 x. 6214 | F 301 519 2892 | pvitazka@genedx.com | www genedx.com From: Graham, John, M.D., Sc.D. [mailto;John,Graham@cshs.org] Sent: Tuesday, February 24, 2015 8:45 PM To: Khonsari, Arezou; Sherri Bale Cc: Patrik Vitazka; Graham, John, M.D., Sc.D. Subject: RE: GeneDx - Gavin Kirk case Thanks for catching that. 1 think the lab req is correct. John From: Khonsari, Arezou [Arezou.Khonsari@lewisbrisbois.com] Sent: Tuesday, February 24, 2015 5:25 PM Ta: Graham, John, M.D., Sc.D.; ‘Sherri Bale’ Cc: Patrik Vitazka Subject: RE: GeneDx - Gavin Kirk case There is a typo. The samples were collected 2/3/2015. thanks From: Graham, John, M.D., Sc.D. ito: Sent: Tuesday, February 24, 2015 5:21 PM LAW OFFICES OF WALKUP, MELODIA, KELLY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR OO! SAN FRANCISCO, CA 94108 (415) 981-7210 PROOF OF SERVICE (CCP 1013a, 2015.5) I am over the age of eighteen years and not a party to the within action; my business address is and I am employed at Walkup, Melodia, Kelly & Schoenberger, 650 California Street, San Francisco, California 94108. On the date below I served the following document(s), the original of which was/were produced on paper purchased as recycled, in accordance with Rules of Court §201(b): REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK’S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF to: Please see attached service list. _X (BY ELECTRONIC SERVICE VIA ONE LEGAL) Based on a court order, I caused the above-entitled document(s) to be served through One Legal at https://www.onelegal.com addressed to all parties appearing on the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy of the One Legal Filing Receipt Page/Confirmation will be filed, deposited, or maintained with the original document(s) in this office. I declare under penalty of perjury that the foregoing is true and correct. Executed on Hy [oonpa— LILY CONNORS February 10, 2016, at San Francisco, California. PROOF OF SERVICE: REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS® MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF LAW OFFICESOF A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET TH FLO SAN FRANCISCO, CA 94108 (415) 981-7210 SERVICE LIST Thomas Cadden, Esq. Thomas Kao, Esq. Andrew Sussman, Esq. CADDEN & FULLER LLP 114 Pacifica, Suite 450 Irvine, CA 92618 Tel: 949-788-0827 Fax: 949-450-0650 Counsel for Defendant: VARCO HEAT TREATING COMPANY dba DIVERSIFIED METALLURGICAL SERVICES, INC tcadden @caddenfuller.com cbusch @caddenfuller.com asussman @caddenfuller.com Arezou Khonsari, Esq. Jim Fraser, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 221 North Figueroa Street, Suite 1200 Los Angeles, CA 90012 Tel: 213-250-1800 Fax: 213-250-7900 Counsel for Defendant: ORANGE COUNTY Arezou.khonsari @lewisbrisbois.com Jim.fraser @lewisbrisbois.com Shurla. Thomason @lewisbrisbois.com Ashley.Langill @lewisbrisbois.com John O’Malley, Esq. Tarifa Laddon, Esq. Sarah Moses, Esq. Elizabeth Weaver, Esq. NORTON ROSE FULBRIGHT 555 South Flower Street, 41° Floor Los Angeles, CA 90071 Tel: 213-892-9209 Fax: 213-892-9494 Counsel for Defendant: NATIONAL OILWELL VARCO; VARCO INTERNATIONAL, INC. tarifa.laddon @nortonrosefulbright.com john.omalley @nortonrosefulbright.com sarah.moses @nortonrosefulbright.com elizabeth.weaver@nortonrosefulbright.com Anne Kepner, Esq. Kirsten Fish, Esq. Jeff Rickard, Esq. NEEDHAM KEPNER FISH & RICKARD LLP 1960 The Alameda, Suite 210 San Jose, CA 95126 Tel: 408-244-2166 Fax: 408-244-7815 Co-Counsel For PLAINTIFFS Akepner @nkf-law.com Kfish@nkf-law.com JRickard @nkf-law.com Mandy Hawes, Esq. LAW OFFICES OF AMANDA HAWES 123 E. San Carlos St., PO 452 San Jose, CA 95112 Tel: 415-987-1776 Fax: 408-294-6885 Co-Counsel For PLAINTIFFS mandyhawes10@ gmail.com Peter W. Alfert, Esq. Karen H. Kahn, Esq. Mark T. Baller, Esq. HINTON, ALFERT & KAHN, LLP 200 Pringle Avenue, Suite 450 Walnut Creek, CA 94596 Tel: (925) 279-3009 Fax: (925) 279-3342 Co-Counsel For PLAINTIFFS PAlfert@hintonalfert.com KKahn @hintonalfert.com MBaller@hintonalfert.com PROOF OF SERVICE: REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 11 TO EXCLUDE TESTIMONY OF DR. GRAHAM FOR VIOLATIONS OF GAVIN KIRK'S PRIVACY RIGHTS; SUPPLEMENTAL DECLARATION OF KHALDOUN BAGHDADI IN SUPPORT THEREOF