‘Nose Doc’ pleads Fifth

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Updated: August 4, 2011 4:20PM

Ear, nose and throat specialist Dr. Mark Weinberger repeated the same 17 words more than 20 times in his videotaped deposition played Thursday in Lake Superior Court in Hammond.

Sounding more like a mob witness than a physician, Weinberger varied his answer only slightly to questions from plaintiff attorney Kenneth Allen.

“On the advice of counsel, I am asserting my Fifth Amendment right to not answer the question,” repeated the man whose face appeared on billboards a decade ago throughout the region as “The Nose Doctor.”

While his ongoing failure to respond to Allen’s questions protected Weinberger’s legal rights — he faces an April 27 federal sentencing hearing for criminal health care fraud and at least 350 more medical malpractice lawsuits — it enabled Allen to present the jury with a narrative favorable to his client, Shawn Barnes, and the estate of her mother, the late Phyllis Barnes.

In the fourth day of the medical malpractice trial of Weinberger and co-defendant Valparaiso physician assistant Joe Clinkenbeard, the jury finally had a chance to see and hear Weinberger. The two face civil allegations that they failed to diagnose Phyllis Barnes’ laryngeal cancer, a cancer that eventually spread through her lymph nodes from her neck and into her lungs and killed her in September 2004. Her death came months after Weinberger fled the United States and traveled Europe as an international fugitive until his 2009 capture by Italian police.

The morning’s proceedings opened with testimony from Peggy Hood, who described her younger sister, Phyllis Barnes, as “a very dignified lady who took a lot of pride in her appearance.” Allen’s legal team then played a PowerPoint photo slide show of Barnes while Hood identified the subjects and settings. Those photos showed a fashionably dressed petite woman with lively eyes, a beaming smile and short hair in the years before her cancer. Jurors witnessed the progression of her laryngeal cancer, which spread from her neck to her lungs, robbing Barnes of her voice, looks and eventually her life, but not her spirit.

Later photos showed Barnes masking the surgical opening in her throat with necklaces. She’d lost weight and the chemotherapy and radiation caused facial bloating.

“I feel what happened to her took away her dignity,” Hood said.

She said her sister had “a soft, Southern accent” and a beautiful voice and was devastated at how she sounded after her larynx removal.

Defense attorneys declined to cross examine her and Judge Diane Kavadias Schneider requested the next witness. With theatrical flourish, attorney Allen paused, and responded with the name Mark S. Weinberger.

Weinberger appeared haggard in the videotaped deposition. He was seen only from the chest up from a side profile, and he spoke in calm, even tones.

Since Allen knew his interrogation would elicit the same response, he asked leading questions, starting with Weinberger’s alleged failure to diagnose Barnes’ cancer and moving on to his lavish and costly lifestyle and apparent lack of remorse. Weinberger listened carefully to each question, sometimes glancing at his attorney, James Hough, before repeating the same response.

Allen probably could have asked Weinberger if he’s played a role in the Kennedy assassination and received the same answer. The attention of jurors, who had listened closely from the beginning, seemed to fade with the repetitive responses.

Allen asked if Weinberger enjoyed his time in the Mediterranean on the lamb, whether he’d stashed away money or diamonds in Swiss bank accounts and whether there was any excuse for his behavior besides greed. Weinberger’s answer was always the same and plaintiffs rested their case at 11:31 a.m.

After lunch, Hough and Clinkenbeard attorney Georgianne Walker presented motions to dismiss, motions that Judge Kavadias Schneider denied. The court atmosphere grew testier over legal rulings. Allen exploded with fury in one exchange, while Hough and Clinkenbeard attorney Georgianne Walker appeared equally angry.

Kavadias Schneider calmed them several times and admonished the lawyers to remain civil.

Hough presented his defense of Weinberger and called his first witness, fellow ear, nose and throat specialist Dr. Scott Kaszuba. Kaszuba, who practices in suburban Naperville, Ill., reviewed Barnes’ long history of chronic sinusitis and the failure of medical treatment of her symptoms and concluded she would have been a likely candidate for sinus surgery. That attacked Allen’s claim that the surgery Weinberger performed on his client was unnecessary.

But Allen bruised the impact of Kaszuba’s testimony, getting him to admit that, given her history of complaints and years of smoking, he personally would have checked Barnes’ throat for cancer, something Weinberger allegedly never did.