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1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 -----------------------------x
2
3
NATIONAL ABORTION FEDERATION,
3 MARK
4 CAROLINE WESTHOFF, MD, MSC;
4 CASSING HAMMOND, MD,
5 MARK HELLER, MD,
5 TIMOTHY R.B. JOHNSON, MD,
6 STEPHEN CHASEN, MD,
6 GERSON WEISS, MD,
7 on behalf of themselves and
7 their patients,
8
8 Plaintiffs,
9
9 v. 03 Civ. 8695 (RCC)
10
10 JOHN ASHCROFT, in his official
11 capacity as Attorney General
11 of the
12 officers, agents, servant,
12 employees, and successors
13 in office,
13
14 Defendants.
14
15 ------------------------------x
15
16
16
17
17 Before:
18
18 HON. RICHARD CONWAY CASEY
19
19
District Judge
20
20
21 APPEARANCES
21
22
22 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
23 Attorneys for Plaintiffs
24
24 (212) 549-2600
25 BY:
JULIE STERNBERG, ESQ.
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1 APPEARANCES (continued)
2 WILMER CUTLER
2 Attorneys for Plaintiffs
3 2445 M Street, N.W.
3
4 (202) 663-6235
4 BY:
A. STEPHEN HUT, JR.
5 AMY KREIGER WIGMORE
5 KIMBERLY A. PARKER
6 LORIE CHAITEN
7
8 ELIZABETH WOLSTEIN, ESQ.
8 SHEILA M. GOWAN, ESQ.
9 JOSPEH PANTOJA
10 Attorneys for Defendants
10
11
12 (212) 637-2800
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 (Trial resumed)
2 THE COURT: All right, plaintiffs may call their next
3 witness.
4 MR. HUT: Your Honor, plaintiffs call Dr. Timothy
5 Johnson.
6 TIMOTHY JOHNSON,
7 called as a witness by the Plaintiff,
8 having been duly sworn, testified as
follows:
9 DIRECT EXAMINATION
10 BY MR. HUT:
11 Q.
Good morning, Dr. Johnson.
12 A.
Good morning, Mr. Hut.
13 Q. Doctor, where are you currently employed?
14 A.
I'm currently employed at the University of Michigan.
15 Q.
Are you a physician, sir?
16 A. I
am, yes.
17 Q.
What positions do you hold at the University of Michigan?
18 A. I
am professor and chair of the Department of Obstetrics
19 and Gynecology. I'm a Bates Professor of the Diseases of
Women
20 and Children. I'm an Arthur Thurnau professor. I'm professor
21 of Womens Studies. And I'm a research scientist in the Center
22 for Human Growth and Development, all at
University of
23 Michigan.
24 Q.
Would you briefly describe for us, Doctor, your
25 responsibilities in these various positions?
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1 A. My
medical school responsibilities have to do with medical
2 student education and training, postgraduate
and subspecialty
3 training and education.
4 My hospital responsibilities have
to do with
5 administering the department of obstetrics
and gynecology, the
6 inpatient services, subspecialty services
and the various
7 clinics and with recruitment, quality
assurance issues of the
8 faculty.
9 Q.
Could you explain, briefly, your duties as Thurnau
10 professor at the college?
11 A.
Thurnau professor is a three-year appointment that's given
12 for undergraduate teaching excellence, and I
received that in
13 recognition of undergraduate teaching in the
women's studies
14 department in the College of Literature,
Science and the Arts
15 and the expectation --
16 THE COURT:
The college of what, Doctor?
17 THE WITNESS: I'm sorry.
Literature, science and the
18 arts.
19 THE COURT: Nothing to do with --
20 THE WITNESS: No, I have an appointment in the
21 undergraduate college as well as the medical
school.
22 Q.
Doctor, can you explain briefly your responsibilities as
23 research scientist at the Center for Human
Growth and
24 Development?
25 A.
The Center for Human Growth and Development is a research
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1 unit that's involved with various aspects of
prenatal and early
2 childhood development and growth. And as part of my research
3 activities, I mentor and work with research
scientists and
4 post-doctoral students in that center.
5 Q. Do
you have any research responsibilities in connection
6 with the medical school, Doctor?
7 A.
Yes. In addition to my own
research program in fetal
8 assessment, I am responsible for the
research activities of the
9 department.
10 Q.
Dr. Johnson, are you a plaintiff in the action?
11 A.
Yes, sir.
12 Q.
Why did you bring it?
13 A.
Well, I brought the action because of my interest in this
14 topic.
15 I became involved in 1997 in
litigation in Michigan,
16 became more aware and more involved in the
medical aspects of
17 intact induced abortion procedures and have
kept track of
18 litigation statutes that have been passed
since 1997 and have
19 become involved with those.
20 Q.
With respect to your involvement in the case you referred
21 to in Michigan, what was your role there,
Dr. Johnson?
22 A.
Well, initially I was asked to serve as the Court's expert
23 in Michigan suit.
24 Q.
Who was the judge in the Michigan action?
25 A.
Judge Gerald Rosen.
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1 Q.
And could you explain, briefly, the circumstances under
2 which Judge Rosen asked you to serve as his
Court-appointed
3 expert?
4 A. Well, all I can say is that Judge Rosen
decided that he
5 wanted to have a medical expert assist him
with the medical
6 issues of that statute and asked me if I
would be willing to
7 serve in that capacity. And I agreed.
8 Q.
Had you known Judge Rosen previously?
9 A.
No, sir.
10 Q.
Did you read his opinion in Evans v. Keller?
11 A.
Yes, sir.
12 Q.
Based on that reading, can you tell the Court here whether
13 Judge Rosen relied on the testimony you gave
in Evans v.
14 Keller?
15 MS. GOWAN: Objection, your Honor.
16 THE COURT: Sustained.
He can't tell what the Judge's
17 mind was thinking. And the opinion speaks for itself.
18 Next question.
19 Q.
Before you were appointed to serve as the Court-appointed
20 expert in Evans v. Keller, Dr. Johnson, did
you form any view
21 on the opinion of intact variation D&E?
22 A.
No, sir.
23 Q.
Lets learn a little bit more about you, Doctor. From where
24 did you obtain your medical degree?
25 A. I
received my medical degree from the University of
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1 Virginia in 1975.
2 Q.
And in addition to your medical degree, sir, have you
3 received any other medical training?
4 A.
Yes. I completed four years of
residency in obstetrics and
5
gynecology from 1975 to 1979 at the University of Michigan.
6 And then I did a two-year fellowship in
maternal fetal medicine
7 at the Johns Hopkins Hospital.
8 Q. We
have had other witnesses refer to maternal fetal
9 medicine but, briefly, can you explain for
the Court what that
10 discipline entails?
11 A.
It's a subspecialty of obstetrics and gynecology that deals
12 with high-risk and complicated pregnancies.
13 Q.
What's a high-risk or complicated pregnancy?
14 A.
Well, it would be a pregnancy complicated by either a
15 maternal high-risk condition, maternal
medical complication,
16 maternal surgical complication, a
pregnancy-related
17 complication or a fetal complication such as
a fetal
18 abnormality, a fetal birth defect, genetic
abnormality.
19 Q.
Following your fellowship, what did you do?
20 A. I
served four years in the United States Air Force. I
21 served two years in Biloxi Mississippi at
Keesler Air Force
22 base, and then I served two years at Andrews
Air Force base in
23 Washington, D.C. where I also had an appointment
at the
24 Uniformed Services University of Health
Sciences, which is the
25 military medical school in Bethesda.
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1 Q.
Was your service in the Air Force in the medical corps of
2 the Air Force?
3
A. Yes, I was in the Air Force
medical corps.
4 Q.
Were you honorably discharged from the Air Force, sir?
5 A.
Yes, sir.
6 Q.
What rank had you attained at the time of your discharge?
7 A.
Major.
8 Q.
Following your --
9 THE COURT: Where did you start at?
10 THE WITNESS: I started at second lieutenant.
11 THE COURT: When you went on active duty what did you
12
have, what rank?
13 THE WITNESS: I was initially commissioned as second
14 lieutenant when I went on active duty, in
the medical corps I
15 was captain.
16 THE COURT: So you just went up one rank in four
17 years?
18 THE WITNESS: Yes, sir.
That's in four years; yes,
19 sir.
20 BY MR. HUT:
21 Q.
What did you do after you left the service?
22 A. I
was appointed to the faculty at Johns Hopkins Hospital
23 and I was a member of the Division of
Maternal Fetal Medicine
24 and the Department of Gynecology and
obstetrics at Johns
25 Hopkins.
I was there from 1985 to 1993.
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1 I moved through the ranks, was
appointed to be
2 residency program director of the
department. Eventually I
3 became the director of the Division of
Maternal Fetal Medicine
4 and was promoted to Associate Professor of
Obstetrics and
5 Gynecology and Associate Professor of
Pediatrics.
6 Q.
Where did you go, Dr. Johnson, after Johns Hopkins?
7 A. In
1993 I took my career and appointment at Michigan and I
8 have been there since then.
9 Q. Do
you currently practice medicine, Doctor?
10 A.
Yes, sir.
11 Q.
For approximately how long have you practiced?
12 A.
Since 1975.
13 Q. In
what area or areas do you specialize in the practice of
14 medicine?
15 A. I
specialize in obstetrics and gynecology and in high-risk
16 obstetrics.
17 Q.
For how long have you specialized in those areas?
18 A.
Well, I have, I have been active in maternal fetal medicine
19 since I completed my fellowship in 1981 and
during my training
20 from '79 to '81.
21 Q.
How did that specialization of obstetrics an gynecology,
22 how long have you had that specialty?
23 A. I
received and completed that training in 1979.
24 Q. Do
you have any board certifications, Dr. Johnson?
25 A.
Yes. I'm board certified in
obstetrics and gynecology and
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1 I am also certified by the subspecialty
board of maternal fetal
2 medicine.
3 And I am currently recertified and
up to date in both
4 of those certifications.
5 Q. Do
you treat patients, Doctor?
6 A.
Yes, sir.
7 Q. In
what setting or settings do you do that?
8 A.
Well, I treat patients both in an ambulatory setting, I see
9 patients in an outpatient clinic at the
university hospital and
10 at one of our outlying health clinics. I also am involved in
11 direct patient care on-call in the hospital.
12 Q.
For what types of problems or conditions do you treat
13 patients, Doctor?
14 A.
Well, I see patients with a spectrum of routine obstetric
15 and gynecologic problems.
16 I see pregnant patients, I see
gynecologic patients
17 for annual care, for typical-type
gynecologic problems --
18 abnormal bleeding, other kinds of problems.
19 I also see high-risk patients,
complicated patients
20 that either come to me or are referred to me
with pregnancy
21 related complications.
22 When I am either working in the
hospital on labor and
23 delivery or covering the hospital as part of
my faculty duties
24 I would be responsible for patients in labor
and delivery,
25
patients in the obstetric inpatient unit, and also would be
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1 responsible for patients who came into the
emergency room with
2 gynecologic emergencies. And I would go with those patients if
3 they needed to to the operating room for
surgery.
4 Q. Do
you perform abortion procedures, Doctor?
5 A. I
do; yes, sir.
6 Q.
What types of abortion procedures do you do?
7 A.
Currently I am involved, because of my call schedule, only
8 in medical induction procedures.
9 Q. Do
you have privileges to perform surgical procedures?
10 A.
Yes, sir.
11 Q.
And what about your call schedule involves you only in
12 medical induction procedures?
13 A.
Well, currently because of my administrative and daytime
14 duties I take call usually on, on the
evening or on weekends.
15 I don't cover the operating rooms or the
units during the
16 daytime, which is the time that surgical
procedures are carried
17 out.
18 So, because of that the patients
that I see are
19 patients who are admitted for medical
induction during my time
20
on call.
21 Q.
Prior to your current schedule and in the past, what types
22 of abortions have you performed?
23 A.
Both medical and surgical abortions, first and second
24 trimester.
25 Q. And
by medical abortions in the second trimester, can you
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1 again tell the Court what you mean?
2 A. I
am talking about abortion inductions that are induced
3 using medications, using drugs to induce
labor and to cause
4 delivery.
5 Q.
And by surgical procedures in the second trimester, what do
6 you mean by that, sir?
7 A.
Surgical procedures would be operative procedures to
8 perform evaluation of the uterus, so,
D&E procedures.
9 Q. Do
you manage spontaneous abortions in the course of your
10 practice?
11 A.
Yes, sir.
12 Q.
How do you do those procedures?
13 A.
Those patients present to the emergency department --
14 generally occasionally to labor and delivery
-- but to one of
15 our acute triage units, and they're
evaluated and then I would
16 participate in their management.
17 Q. Have
you had any training, Dr. Johnson, in abortion
18 procedure?
19 A.
Yes, sir.
20 Q.
Could you describe it for the Court, please?
21 A.
Well, as a resident and as a fellow I received didactic --
22
THE COURT: Can you tell us where
it occurred and when
23 it occurred?
24 THE WITNESS: Sure.
25 As a resident from 1975 to 1979 we
had lectures,
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1 directed readings and were involved in
abortion procedures at
2 University Hospital. Those were --
3 THE COURT: That was in Virginia?
4 THE WITNESS: No, that was at the University of
5 Michigan.
6 THE COURT: University of Michigan.
7 THE WITNESS: When I was a resident between '75 and
8 '79; so at that time most of those
procedures were
9 mid-trimester procedures because of the
practice in the
10 hospital.
I had some experience at Planned Parenthood with
11 first trimester procedures as a resident.
12 Subsequently, from 1979 to 1981, at
Hopkins, I
13 received further training. At the time, from 1979 to 1981,
14 Hopkins had a large abortion research unit
and the fellows,
15 including myself, were responsible for
managing the
16 complications in that unit, managing the
problems in that unit,
17 doing any procedures that needed to be done
in that unit at
18 night when we were in-house managing those
patients.
19 Since then I have continued reading
the medical
20 literature and attending conferences,
attending quality
21 assurance meetings, departmental meetings,
and continued to be
22 involved in the education and training of
our residents who
23 participate in abortion training in our
institution.
24 Q.
You made reference in that answer, Dr. Johnson, to the
25 </