Good morning, everyone. We are going to begin, and this is going to be a very interesting collaborative effort, by four professionals. We have two physicians and two attorneys for those chatting in the hallway. Anyway, I'm Dr. Ruczak. I'm a neurologist and also an occupational medicine physician. We have Dr. Michael Kosnett, who is an internal medicine and medical toxicologist. We have an attorney from Los Angeles, Tom Case, who is a defense attorney, and an attorney from San Francisco, Eustace Sanfal, from San Francisco. Dr. Kosnett has fabulous credentials, associate clinical professor in Denver, Colorado, Department of Environmental and Occupational Health, Colorado School of Public Health, boarded in internal medicine, psychology, and occupational medicine. I am board certified in occupational medicine and neurology, and I work privately, but also UCSF is where I teach. Eustace is in San Francisco, as I mentioned, and Tom is in Los Angeles. Everyone has a different perspective on consulting, and we're going to talk about forensic consulting. We're going to begin with a case, and then we're going to talk about the process and how to go from A to Z as best as one can, and try to have an approach to consulting that is standardized such that it is based on science and an opinion which one can communicate to one's peers and feel confident about that, and bring it to a medical legal setting. We have a simple case of a mild head injury with chronic debilitating dizziness and headaches, and unable to return to work after two years. When you have a case like this, you may be asked by either the plaintiff or the defense side to review, to determine whether your opinion supports that the present problems may be caused by the trauma, or whether there are other factors involved. You're looking into the definition of concussion and whether it's satisfied by the history that you're reading in the medical records. Mechanism of injury. Of course, you're very interested in past medical history, and what objective medical evidence there is of trauma in the medical records. Let's say a laceration, evidence or report of a change of mental status, Glasgow Coma Scale, amnesia. Is there consistency with a traumatic brain injury or concussion? You think about what factors are involved in this persistent problem. Are there other things involved? Is there depression and anxiety from the trauma, from a PTSD setting? Or is it from something else going on? Are there secondary events? Loss of family, friends, property, what have you? Has there been neuropsych testing, and has that been performed by someone who you can trust and who bases their opinions on their data and is familiar with literature? For instance, have they focused on validity? Has there been assessments of exaggeration? Is there any reason to believe there's deceit in their complaints? Some cases come with video, such that you have surveillance in workers' comp. It's called Sobrosa. There may be depositions, and you want to read those. Does a family or friend explain what's going on with this individual? They used to be able to do this. Now they can't. Yes, the trauma was catastrophic. No, it was no big deal. You have all kinds of different opinions you may hear. You're thinking about the idea of causation and figuring out what factors might be for the fact that the trauma caused the present symptoms. Then there are factors that are against causation. For instance, prior incarceration, emotional trauma, medical history. Could you really state that the pain and the problems the person has now could really have all been just a continuation of their prior problems before this event? For causation, there may not have been any history. In fact, there's literature that suggests that maybe 15 percent of people, maybe more, like 50, in some of the literature I've been reviewing, have persistent symptoms at two years. They may not be able to go back to work. What does a treating physician records say? Does a treating physician have any perspective or concerns in the records? Again, are neuropsychological testings been done? Is there consistency, validity, looking at all this? You're weighing these kinds of factors. One opinion might be that the present limitations are secondary to the trauma. While other factors may be influencing these, they have not been identified because there have not been anything that you've found. You've looked at the literature, you've looked at all the data, and that's maybe one opinion. Another opinion may be that, in fact, the complaints are in part significantly affected by another medical history or even exaggeration or motivation, and that the evaluator may or may not suggest deceit. Deceit is a challenging topic. It's not really advised to give out an opinion about deceit unless you have real evidence that someone has said they've literally manipulated you, manipulated the system, and it has happened. Maybe those numbers are different from what we all perceive they are. For an expert or a consultant to make that statement is challenging. If the neuropsych testing does not reveal validity, you can't necessarily use the neuropsych testing. Are all the experts aware of that? Do they all understand that? Or does that mean there's deceit, or does it just mean that's not valid? Those are two different topics. When you're in this role as a consultant, you need to be aware that this is a different model than being paid to treat someone or doing a medical legal eval from workers' compensation. There's a contract. You're a consultant. You have a method, and you want to propose that method to be standardized. But there are perspectives from these attorneys who call you. That doesn't necessarily mean it has to be your perspective, but you're balancing this idea of being available to give an opinion and spend your time with the ideas that those who want to pay you for your time have a hope for your opinion, and that's a challenging balance. You're thinking about the idea of causation, both epidemiologically and the other ways that it's been written about, including the Hill criteria. You maybe have to be aware that there are pretrial hearings, which may come before the whole case develops in some setting, to challenge anything you say in a hearing. So that may be very stressful, and you need to be aware of that. There may be a deposition. There may be all kinds of other factors, and we're going to learn more about that with our attorneys being present. But you want to be professional, and you want to communicate your professional background and establish an open, honest, communicative relationship and understand what the language is that you're being asked to consider, reasonable medical probability, causation, contribution to a cause, what does that mean in the environment you're in, county, state, or federal court. What's discoverable? Can you email the attorney or not? If you email the attorney, the other side neighbor will get any communication, so you need to know up front if that's important. Again, pretrial hearings are something you can talk to the attorney about. Will this case conceivably be involved in a pretrial hearing? That may be more relevant if you are asked by the plaintiff to spend your time reviewing a case. Again, we talk about the language, reasonable degree of medical probability, preponderance of evidence, the cause, contribution to the cause, burden of proof. More likely than not, substantial and not trivial. You'll hear all these things, but it's important to up front talk about this. Gathering information is what you're trying to do. You're going to probably want to give the patient a questionnaire if it's allowed. Sometimes what you want to do is not allowed. Sometimes you want to see the patient in the . . . it's not possible. Sometimes you may want to do a test on them and they will refuse. I've been in many settings where they won't answer any questions except for about the day of the event and today, that's it. What about all the history? How can you really come up with a good opinion when you don't get any information firsthand? Some settings you only get to review the records and then you'll be asked in a deposition, well, gee, doctor, et cetera, do you normally treat patients? Do you normally examine patients? Do you normally have a routine of rendering an opinion on just about what you read? Well, if it's a death case, you don't have that option. If they're another state, they may or may not come to you or you may be asked to go to them. Obviously, when I'm involved in cases, I say that, look, I can be at my best when I'm communicating about firsthand information, not secondary information, which comes from a report of some other doctor's handwritten note that is either illegible or maybe a template. You're interested in what the literature is on the topic and you're trying to describe a differential diagnosis. What are the issues here? What could the factors be involved in this complaint? You're listing them, which could be major, which could be minor. You're outlining your opinion, you're writing a report, you're considering during that exercise what challenges there might be. What would a colleague of yours say if they read your report? What would an attorney on the other side say? You're thinking about all these different things. If you read this report years later, what are you going to think about it? This can be a stressful experience if you don't have experience in doing this. You need to have time. Sometimes you don't have time. Sometimes you're asked to rush. Sometimes you should have done it yesterday. Sometimes you have other priorities. All this has to come into play when you are being asked to be a consultant on either side. Then it's time to prepare for a deposition. If you haven't had one of those in some setting, you have to be able to communicate your opinion and why. I like my reports to be thorough, so a deposition is easy for me because I'm pretty much reading what I wrote. My report is very thorough, explains what my opinion is to maybe a sixth grader, a non-physician, an attorney or anyone. If I can be a communicative professional, then I'll have an easier time in a deposition. You're practicing expressing those opinions to yourself, maybe to your partner, hearing other opinions, and you're being open to new facts. Maybe there's a different perspective you never thought of during this process and you'll consider that. Sure, when you're connecting with the attorney, how did they learn about you? Did they read a pay-per-view? Did they get referred by a colleague? How so? What kind of experience do they have? Have they done cases like this head trauma case, like a solvent exposure case, like a Parkinson's case, like a neuropathy case, like a mercury case? What have they done? How many years have they done it? Have they been successful? What are their goals for this case? Again, you're balancing that they have ideas about what the role of what you could be plus your ideas of what your role could be, this ivory tower scientist, and you need to balance those to provide a service in an open, honest, and scientifically-based way. But you're really asking yourself, is this topic in my wheelhouse? Do I know about it? Am I going to feel comfortable communicating about solvent encephalopathy or what have you? I am boarded in neurology, so these are my comfortable areas. If I get cases that have neurology and liver issues, sure, I'm boarded in OCMED. I know all about liver, but I'll often get a colleague. But everyone's different. Some people may use their bandwidth and do the best they can with their experience. Make sure you're clear on what you're doing and how you can communicate what you're doing because you're going to be asked, doctor, did you work for the plaintiff? Did you do work for the defense? You're being asked to be paid for your time to review this material and to provide an opinion based on your experience, the examination, testing, and your interpretation of those. If you can stick with that, then that might be an easy way to stay out of trouble in a deposition. You're being paid by the defense to give the defense what they want to retort the plaintiff expert. Isn't that what you did? Isn't that what they told you you were going to do? These are questions that can arise in a deposition. Clarify the rates. You want to have this documented. I like to be prepaid. Many don't do that, and all kinds of things can occur in that setting. It's just no fun to be chasing insurance companies' lawyers for fees. If you were going to set up your fee, and you're going to tell them what you're going to do, and you're open and honest and say that in three weeks I'm going to be able to be available for a phone call after I review this, and you do it, well, then I don't see why they're not going to want to pay you up front for the amount of hours that you've spent or going to spend the time to do that if you are consistent and hold to your deadline. You're putting that in a retainer agreement. You're proposing an amount of time. If they send you 2,000 pages of records, you propose an amount of time, the time for a literature review, time to write a report, time for a conference call. That amount of time times your hourly rate. That's what I'm going to ask for for now. We want an IME. Once I receive that check, and you're going to add the amount of time for the IME it would take, you're going to give them a scheduled date, or you could do it today, and then when the check is received, you will confirm it. If the check isn't received within two weeks of the valuation date, you're going to cancel that, and then you'll have to pay a no-show fee. I don't like to give the date out unless the check is received, because then you already have the no-show fee, and they can pay you another hourly hour for the no-show of the client or however it works. They may cancel. They may postpone. Anyhow, this is a lot of initiative work if you don't plan ahead. The details of a questionnaire are important because you're trying to get from the horse's mouth what happened. Often you may have the lawyer fill it out. You'll try your best to tell the attorney, if they are plaintiff attorney, that you want the person to fill it out with their own handwriting, because in a deposition, the other side is going to ask you, who filled out the questionnaire? You're going to say, well, here it is. It says that attorney Smith did, or whose handwriting is this? I don't know. Then they may ask the plaintiff, and the plaintiff didn't fill it out. It was the lawyer. These are small things, but you're trying to get details of that prior car accident from 15 years ago. Is there persistent pain in the neck from that? Did you have persistent headaches? You're really trying to give yourself a clean picture of what this person was like before the event, if it's a specific event, or before the event of years, if it was a chronic exposure type event, and then what's it like during the exposure time, and what's it like since the exposure to now. You really want to get a full view of all that. What are the activities of daily living before, during, and after, now, so you can understand what the disability might be. All these other things are important. Of course, occupational history, many providers don't know to ask that. Many doctors outside of workers' comp don't. There was an exposure. There was a trauma. No one knew what the job was, but if they had hand pain from the trauma, but yet they do repetitive arm work or keyboarding, and they did have a history of right-handed pain and weakness, well, there are two factors there, the trauma and the repetitive activities at work. They took a new job, and they're lifting and bending, and they climb, and they got hit in the head by a box after the car accident. These are all important factors. When you're taking a history, and you're with a person, you can look into pain scales and mood scales, because you need to get some sort of standardization and look at the records, what they say. So you're gathering information, and then you're thinking about objective testing, doing an exam, looking at objective findings, tests, and then you're documenting chronology, you know, daily activities before, during, after. How does the condition now affect their life, their disposition, their activity of living, their work, their ability to make a living, ability to function? You want to paint a picture in a report of what this person's like now. What were the frequency and intensity of problems before, during, and after, and you're detailing things. If there's employee records, there are academic records, military records, anything. You can be psychiatric reports, aptitude tests, obviously, and exposure. Neurology, you have the issues of cognitive challenges, and what were the grades, you know? What are the IQ now? If they've never had a neuropsych test, and now they have a neuropsych test at age 50 because they've had exposure to ethylene oxide, for instance, you know, how well did they have learning disabilities beforehand, you know? So what are the factors that could have contributed? So this history is detailed. You're assessing a knowledge of language and cultural barrier. There are many people who exaggerate because they don't know if you know and understand them and their language may not be their first, and is it deceit? Not necessarily, but it's exaggeration to get your attention. It may be cultural. So being really aware of that exercise. What did they do? What do they do now? You know, if you find inconsistencies that they can run, you know, a half marathon, but then they have problems with other complaints, it's, that doesn't make sense, right? I spoke a lot on Sunday about the idea of functional medicine, functional neurology, meaning that people have no objective findings and are distractible for, let's say, a tremor or have a non-epileptiform seizure. But there is such a thing as functional dementia, where people have anxiety and depression. They might have a mild cognitive impairment, but in fact they do quite well in neuropsych testing and they are very intellectual. And is there a subtle drop-off? Is there any reason to believe there's going to be a neurodegenerative situation and progression of this problem or not? This is where your communication with a neuropsychologist would be very, very helpful. When you're examining them, what body parts are of concern, you may find things that are unrelated. You're looking for a person with head trauma, you may find an asymmetric pupil that isn't related because it's now a year later and, well, that's probably congenital. You may find carpal tunnel from their repetitive activities, not from the trauma, not from the exposure, because the exposure doesn't affect the upper extremity predominantly compared to the lower. Say they had a neuropathy, that would be in the lower extremities, first at least. Objective testing is important, like laboratory data, learning about what laboratory data you want to try to get done, MRI, nerve tests, CT MRI, neuropsych tests I've mentioned, and methods of MRI testing. There's a lot of different variables in that, so familiarizing yourself with, let's say, for carbon monoxide versus manganese, you know, Parkinson's disease versus encephalopathy, looking at the hippocampus, et cetera. So looking at literature is important in that you may have animal studies only, you may have case reports only, you may have a prospective study. So how does that fit into your understanding of whether, you know, a solvent, metal, or pesticide could cause an unusual neuromuscular disorder, let's say? What's the age of onset in the epidemiology of a group of people with this atypical neuromuscular disease, Charcot-Marie-Tooth, let's say? And you have a case that looks like this, but what's the epidemiology of Charcot-Marie-Tooth? When does it normally present itself? Is there family history? Do we know about that? So for instance, in neurodegenerative disease, like Parkinson's and Alzheimer's, that may begin in the young 60s. So if you have a patient who develops this syndrome in the 50s, that might be relevant, because in fact, if you attended my Sunday lecture, a lot of solvents and metals, including carbon monoxide, well, that's from an event. But Parkinson's disease may present in idiopathic Parkinson's disease, just like regular Parkinson's disease, so to speak, at an early age of onset. If there's an exposure relation, there may also be heritable factors, but there's this early onset, very important. So when you speak about a test or literature, what's the sensitivity and specificity of the epidemiology? And you're looking for multiple opinions on this topic, so it's not just one writer who mentions, you know, exposure A and syndrome or diagnosis B. Your goal is that the diagnosis is based on the history, physical, and objective testing in the literature. You're listing differential diagnosis, and you're asked to explain why. You're being thorough and fair and accurate. Overall, your approach to the records, documents, deposition, history, physical exam, scrutiny with open-mindedness. You're considering an honest, fair, and accurate opinion regarding causation. You're listing differential diagnosis factors of causation. You're expressing your opinion verbally and confidentially, thoroughly. What factors have brought you to this conclusion? What are all factors that may contribute to a cause or present impairment? Are there minor or major contributions? Consider your opinion in writing and be comprehensive. Plaintiff, is this your slide? It is. Well, I'm going to now introduce, use dissent to St. Paul, who will communicate, and we're going to back and forth a bit after that. Good morning. I would be very interested in getting a little idea of who's in the audience. I'm curious as to how many of you have never done a forensic case, or have, say, done five or less forensic cases, if you could just raise your hand. Okay, good. It's important for me to understand who the audience is and who I'm talking to. The first thing I want to do is I want to have a little bit of a discussion about what does it actually mean to be an expert in a forensic case dealing with litigation. Our society is ultimately set up with rules based on our legal system, and doctors play an incredibly important role within that system. A lot of them don't understand that role, and they often get themselves in trouble. It's really, really important to understand what you're doing when you're acting as an expert, why you're doing it, how you fit within the process, and what is your long-term intent. Are you doing this because you have patients who are involved in the legal system, and therefore you need to explain accurately what's going on with your patient? That would be a non-retained expert. Or are you a retained forensic expert that's trying to look at everything and then come up with an analysis? Just like lawyers, there are good and bad lawyers, there are also good and bad doctors, and there are doctors that have the wrong motivation. I think it is incredibly important what you do as a profession, and it's incredibly important that doctors be ethical when they work within the legal field, and that they actually follow proper medicine and science. You will see that there are a lot of them out there that completely abuse the system for financial gain. It is one of the things that actually puts a bad name on the law profession and a bad name on the medical profession. We see it in the newspapers all the time. One of the things that I want to emphasize, especially for those of you that are starting out, is you need to have a methodology, a process, an analysis that you utilize that is ethical, that has foundational facts, that correctly uses science and medicine in order to come to an opinion that fits within the legal system. Part of the problem that doctors have all the time is trying to understand the medical jargon and how it correlates with the legal jargon. That can often get people in trouble because they don't understand the symmetry of how that's supposed to work, and we're going to go over some of that. If you want to do forensic work, it's incredibly important that you stay a teacher, and you should think of your model of how you are going to present as an expert as if you are a professor, because you are there to teach science, medicine to the jury so that the jury can make a determination. We know that there are both deductive, inductive thinkers, and that is one of the things that we have to understand in how we're presenting information to a jury. Sometimes we start out with a conclusion, explain the facts, the analysis, and then come back to a diagnosis and a conclusion in order to incorporate both types of thinkers. What is really important, though, is that you as a doctor are not just coming in there as an expert to say, this is the conclusion. You are educating the jury about what the underlying facts are, the analysis that a doctor would do in order to then come to a differential diagnosis and then attempt to rule things and rule out various diagnoses until you come to what is most likely the probable, the most likely conclusion as to what's going on with the particular patient client. You need to understand that that analysis is critical for you as an expert, and you need to go through all the steps. You have to understand the facts and the analysis because there may be an attorney on the other side that knows the science and the medicine as well as you do. If you don't, then you're going to get tripped up in that process. As you just learned and heard, you have to have a very detailed report that goes through everything that you have been provided. You can't just sit there and be a vessel for the attorney to provide information to you. You have to make sure you're getting all the information because ultimately what's at question for you as an expert is your credibility. The most important thing that I think you should take home from this is the concept of credibility. I, as a plaintiff attorney, I always get to go first. That means I get to set the stage. I get to set the parameters of what's going on, but you as an expert are getting up there and you get to do the same thing. When you get up there as an expert, you get to set the parameters. You get to establish what the facts are through your direct testimony. You get to establish what the scientific principles are, the analytical architecture of how you're going to then educate the jury. It's really, really important that you think about all these details because this is not just a passing thing where you just look at a few records, you'll look at some MRIs or some imaging, CT scan, and then walk in there and just kind of wing it. If that's what you're going to do, you will lose credibility and you will not be in the profession or in the practice of doing forensic work for very long because once you've been dinged a bunch of times within the court system, no one's going to want to utilize you. It's really, really, really important. If I can't emphasize this enough, be ethical. Follow the same rigor you would with your scientific analysis that you would amongst your colleagues that you would in a court of law. What do you need to think about? I'm going to go through a little bit of what my considerations are when I am looking at an expert and I am contacting an expert. I heard something actually earlier on in a lecture that one of the things you can do as an expert is charge a lot of money because people then think you're a really good expert if your fees and charges are high. I will tell you that is the most absurd statement I have ever heard. In fact, that expert is probably setting himself up for a lack of credibility. If you come in there and charge something different than you would normally and you've got some big, huge number of how much you've charged in order to do your analysis, what is that going to be the easiest attack for any attorney? Your credibility. Are you here for money or are you here to try to educate the jury and make sure that there is some scientific rigor to what the opinions are and what the jury should understand? Be mindful of how much you charge. That is going to go to your credibility. What I like to do is I like to talk to my experts up front. I like to understand what their qualifications are. I like to ask them questions that would imply what their ethics are. I would like to understand what their motivation is for why they're being an expert. I want to know whether they are consistent in the opinions that they offer or do they switch and say one thing when they're on the defense and something completely opposite when they're on the plaintiff's side or when they're advocating for their patients. If you find an expert or if that is what you do, you will have no credibility. I as a lawyer am doing multiple things in front of a jury. I am an actor. I am a director. I am playing chess. I am sometimes gambling over lots and lots of money. I am there to establish credibility, to educate the jury and to help them make an informed correct decision. If they do, then hopefully I'm going to win my case. Part of me establishing credibility is making sure that I have the right experts who actually know how to teach the information to the jury. If I just tell somebody what to think, they're going to reject much of what I say. If I explain to them the facts, if I explain to them the science, if I give them the analytical structure, they will almost always come to the right conclusion, which is the one that I want because I wouldn't have set it up that way. But you as doctors are one of the actors in this play that's being put on in front of the jury and you need to understand that. It's a really important role. Once I've gone through my general conversation with an expert, I often like to understand what their foundational knowledge is in an area. There are many times where I may be talking to a particular type of doctor and he's talking about what's on the MRI and I'm dealing with a spine injury. I start asking the doctor, okay, well, how large is the bulge? It's a very large bulge. Is it a herniation? Do you have a rupture of the annulus? Is there nucleus purposes coming out? What levels are we looking at? If we are actually measuring it, how much of the spinal canal space is being taken up? These are things that you have to make sure you're going to be able to answer. If I am questioning a doctor and they're trying to tell me the MRI supports their findings, but they can't run through any kind of specificity with regard to the actual images themselves, that's going to be a problem. Whenever you talk about any particular studies, exams, tests, you need to understand the foundational information that gives credibility to those particular findings. That's another thing that I'm always going to be discussing with an expert. Your working knowledge and what principles of medicine. Lots of doctors like to take a particular medical journal or some particular study, and a common one that we see in litigation is, well, everybody over the age of 50 is going to have some form of degenerative disc disease, so therefore, if you have degenerative disc disease after an accident and a disc bulge, you can't say to a probability it's related to the accident. Well, that's bad logic, bad science, bad epidemiology. We certainly know that someone who's been in an automobile accident and suffered trauma with any sort of significance is more likely to have some type of damage to their disc, and we know that if you have any kind of inflammation in the disc, that's going to be indicative of timing. So there's all kinds of analysis that can be done. So be careful that you don't fall into those types of traps of just making broad generalizations off of a specific study that doesn't necessarily correlate to the specifics of any individual case. Forensic analysis. I like to actually go through and explain the concept of a differential diagnosis to a jury, and then use the differential diagnosis and issues or test of inclusion versus exclusion, and then go through that kind of analysis with the doctor on the stand using the actual images, the tests, and things of that nature. The jury almost always gets it, and if the doctor is able to do that, then it provides a structure for the analysis that pretty much the jurors are always going to understand. Language. This is a very, very important thing. We're going to get to some of this, but in the analysis, jargon from the medical community and the legal community is really important to understand. The basic concept is in science, in medicine, you're not going to do surgery on a particular disc in the spine, or you're not going to do any particular treatment unless you have some, and doctors often use the term, certainty about what you're doing. Because you're not going to basically just go out on a fishing expedition and just throw out different things randomly to see if that actually treats the condition. So you need to do some kind of analysis. You come up with a working hypothesis, and then you try to attack that, and hopefully rule things in or rule things out as you go through it. In the legal jargon, we say it's probability, and the reality is in the legal system, it gives a huge advantage to the injured person. So we, from an economic standpoint, have decided within our legal system that we want to have a very broad set of circumstances where people are going to be compensated. So the actual evidentiary standard is just greater than 50%, more likely true. So if you weigh all the evidence, if the evidence just slightly tilts like that's the most likely result or conclusion as to causation or diagnosis or treatment, then that's what the plaintiff gets. So it is a system that is skewed in favor of the plaintiff. It's an important concept to understand. That's just the way our system is. Now, so when you are dealing with an opinion about any form of diagnosis or medical treatment, your opinion has to be based on probability, not certainty. Is it more likely true than not that this person has a herniated disc or this person was exposed to a toxic chemical at work? It is probability that you use as your standard. If you use the wrong standard in your analysis, your opinions may be thrown out of court. If your opinions get thrown out of court and that happens more than once, you may not be able to be an expert in the future because now your credibility can be attacked. So it's really important that you understand these things. The other thing is a particular causative event does not have to be the sole cause. So we have in the jury instructions something that's called multiple causes. So an event just needs to be a substantial factor in causing injury and it can combine with other events, previous events or previous conditions to create a result. Just because someone is unusually susceptible, they may be hyper susceptible to any kind of chemical exposure and therefore come down with various different diseases or physiological responses to chemicals. That person is still entitled to recovery even though a normal person would not. There are specific jury instructions in every state that cover all of these issues. These are things that you must know when you're doing your analysis. All right, so we are now gonna move, I'm gonna move through this a little bit quickly here to get to the next section. But the timing and the process, you need to make sure you discuss with the attorney so that way you know what the expectations are on you and so that way the attorney has an idea of what expectations you have with regard to obtaining information and going through the information. A report versus an outline. Every jurisdiction in court is a little bit different. Some require a complete detailed report. Others do not require a detailed report and you can just do an outline that's bullet points. Some of the different states have different standards of what must be provided and when it needs to be provided. A very, very detailed report like Dr. Ruchik described earlier, that is something where you are going to be explaining to the other side who is your adversary, exactly what your analysis is and if there's something that you haven't thought of, you may be subjecting yourself to cross-examination where you had not anticipated. So there are some strategic tactical things about whether you do an outline versus a full-blown report or you may just do a report related to your exam or you may just do a report that outlines the history from your medical record review. But these are all different considerations that all need to be discussed with the attorney and you should have a discussion upfront. Your first conversation with the attorney should be a long one because you need to understand and have a checklist of all these different things that you wanna make sure that you understand what your role is, what the expectations are of you. Deposition and trial testimony. I highly recommend reading other people who you recognize as smart, intelligent people that are experienced doing forensic work. It's good for you to get an understanding of what the pattern is. Reading several depositions will help you. Most attorneys follow a very simple pattern. They're gonna start off with your CV. They're gonna go through your educational background. They're gonna go through where you worked, what your patient population is. They're gonna go through whether you've done previous forensic work or not. They're gonna go through what your billing is, how much you've charged, what you've received, what foundational facts you think are important, which ones you've not considered or not are part of your analysis or contradict your analysis, what your diagnosis is. That's a pretty standard order of how a deposition's gonna be done. You will find that there are some attorneys that are much more creative. They may not start out that way. They may just start going through scientific principles or different tests, things of that nature, testing your medical knowledge to see if you actually have the foundational knowledge or have reviewed or understand all of the tests. So you have to be mindful of the approach that's gonna be taken, and hopefully, the attorney that you're working with can provide you some of that information. Cost of analysis and opinions. You should have some idea of how long it's gonna take you to do the work, and if you don't, that's usually a bad sign, at least from my perspective as an attorney. So I usually like to have an idea of, well, how long do you think it's gonna take you to go through the records? Do you have a structure of how you do your reports? How long will it take you to do your reports? You should basically have an ability to go through that type of information with an attorney in your very first conversation. For me, the most important thing that I usually try to discuss with people up front is what their methodology is, how they do their analysis, and then once, how they do their analysis, how they will deal with certain medical or legal issues that I already know are going on in the case. So from the standpoint of being an expert, always think of this general structure, foundational facts, scientific principles, and then what logical forensic analysis or methodology are you going to use? I'm gonna propose one here for you. It is a three-step process. It's a very easy structure to utilize, and it's one that has been approved by the courts, federal courts, and in fact, Neil Gorsuch, actually, in a written opinion has approved this, and it can basically be applied in any state and in any court. It comes out of a case called the Etherton case. It's a pretty simple, straightforward, personal injury-type case. You had a person who was rear-ended. They had some mild injuries, damage. It did progressively get worse, and it led to various surgeries. They went through the surgeries. The insurance company, as insurance companies tend to do, decided that what somebody else thought was the value of their services or the value of their harm was something much less. I know that's something only lawyers deal with. Doctors don't have any problems with insurance companies, but it does actually happen in the legal field. That was a joke. So what happened? The client and the lawyer said, you know what? This is just simply wrong. We're gonna actually sue the insurance company for committing insurance bad faith. This is something that you should learn as doctors because it's a foundational fact that helps you understand why lawyers and adjusters are doing some of the things that they're doing, but for the most part, there is ethics that apply to an insurance company to its own insured. There are zero ethics for an insurance company as it applies to a third party, the person who got injured that's separate and apart from the person who caused the injury who is the insured. So just so you understand, an insurance company has to do an unbiased analysis. That means they have to hire doctors that are not gonna be advocates for one side or the other. They have to provide them all the information and do a neutral analysis when it's a first party situation. So in this case, they sued the insurance company. The insurance company lost to the tune of a lot of money and it went up and they wanted to attack the experts methodology for establishing causation of injuries. And this is where I think it's really important. This is just the information. You could Google this and look up the case. You will use the citation, which is the Etherton versus owner, 2016, 829, F third, 1209. If you type that into the computer, you'll get the case. It's good for you to read some of the stuff so you see the language and how the language is being used. I also highly recommend that whenever you get hired by an attorney, you ask the attorney for a list of the jury instructions that they want you to use the language from for explaining your opinions and your testimony. So it should always be more likely true than not. Substantial factor for causation. A cause of other causes that contributed. Person's more susceptible to injury because of these preexisting conditions. That is the language that you need to learn to be able to speak with, even though it's different from what you would normally do within your own practice. So the three elements that, I'm just gonna sort of click through this quickly here. The three elements of causation analysis should be plausibility, temporality, and lack of a more likely alternative explanation. Now you're gonna see this does kind of fit within what a doctor would do for a differential diagnosis analysis. But first, you have to understand, this is a term that you should learn, mechanism of injury. Is there a mechanism of injury that is plausible, that makes sense scientifically? Often we have to use either chemistry or application of physics in order to understand this stuff but this is basic science 101 that you learned in medical school for the most part. Biomechanics of how an injury happens. How chemicals move through the body. Are you inhaling it? Is it being absorbed through your skin? How does it get into the bloodstream, the liver? These are all basic foundational scientific things but you need to understand and be able to explain plausibility. Could the incident have caused the injury? Incident severity. Was it a big, huge chemical exposure all at once? Was it little bits over a long period of time? What is the half-life? How long does it stay in the blood system? These are all simple scientific things that are gonna go to plausibility and whether you have a scientific explanation for why the person has the particular injury from the exposure or the event. And then you can apply epidemiology. Pretty much everybody has a little bit of a background in epidemiology when you come through medical school and you can apply that to help explain whether or not there is a significant risk within that particular population group related to that particular exposure or that particular event. So, plausibility. Very, very simple analysis. You're gonna be doing that in your head as you're getting a history from a particular patient but you need to break it down into these steps because this is how you explain it to a jury or a judge. Temporality. Well, this is an incredibly important thing. I don't know if any of you know Occam's razor but I'm gonna get to that. That's my nice little punchline that I think some doctors will use in explaining their testimony which often is quite effective with a jury. But temporality. Did the symptoms arise shortly before? Did they have all of the same symptoms before? Is there a change in their symptoms because of a particular event? These are all things that you have to be able to answer and it's just basic, simple logic, okay? A jury's gonna wanna understand some of this stuff and you need to go through and include this in how you're doing your analysis. All right. Lack of a more likely alternative. Oftentimes I'll use actually epidemiology for this. What is the likelihood of a spontaneous rupture of a cervical disc versus the likelihood that someone got a four millimeter herniation with inflammation in a hyper-intensity zone and their MRI and the left neuroforaminal opening that basically is not likely to have that happen. It is an easy way to help explain it. Then is there any other alternative explanation? Well, that's usually a process of elimination. You can rule things out and you can do an analysis to see if there is some other explanation. But this is a very simple analytical tool and structure that you can use for establishing the mechanism of injury and then providing a causation opinion. And anybody who's doing a diagnosis is basically gonna be requested that they provide this type of analysis in any type of forensic matter. Does anybody have any questions on this process thus far? Oh, I'm actually being told that I need to wait and have the questions done afterwards. So write those down and I'll be happy to go through them. So generally what I was gonna do is basically go through these steps but I think we're kind of beginning to run a little bit out of time because I can be a little verbose sometimes. So I'm gonna just kind of move through this. But just go through your steps when you're doing your analysis. You look at it. I was gonna do basically for a brain injury or a TBI. But you can go through, look at the studies. You can do your neuropsych testing. You can connect the dots. You can be getting a CT scan. Is there a bleed? No bleed right at the time of the ER. Then did the person get an MRI? Yes, they did. Did they have hemocidin on their MRI that showed up six months later? Yes, they did. Had there been any other event where they hit their head? No, there wasn't. This is the basic analysis that you're going through. Can you connect all the dots? Have you done a functional MRI? Can you show that in the area where you have the hemocidin, which is the blood stain from a rupture related to a particular portion of the brain, okay, I'm going too long. So here we go. I am now done. An Occam's razor. This is the one that I like to use. It makes a lot of sense to jurors. If you have a simple answer that explains everything and gives you the correct answer of what the likely conclusion is, you're most likely there. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Is the accident we're talking about, or the exposure we're talking about, a, quote, substantial factor in causing the plaintiff's injuries? You'll find that there's always going to be other factors. There's going to be things that happened before and after the accident that also contributed to the injuries. So you're going to have to make a judgment call on whether this particular trauma, in your opinion, is a, quote, substantial factor. Or does it not rise to the level that all the other things that might have contributed to this accident are so overwhelming that the accident we're talking about is not a substantial factor. It's a minor factor. How do you make that judgment? The best thing you can do is ask your lawyer to send you published decisions where the court found the evidence did not rise to the level of substantial factor. So ask the attorney who hired you, please send me half a dozen cases on point where the court came out one way or the other so I can understand how the courts are interpreting this substantial factor. This is going to give me an idea of how best to couch my opinion one way or the other. After you read these, every now and then, you're going to have to tell your attorney, I can't help you. I've read everything, I've seen everything you've done, and I can't give you the opinion you want. That's fine. But if it is the opinion you want, you're going to see in those cases the sort of analysis you're going to have to go through, the sort of cross-examination you're going to get from the other side on that substantial factor issue. I highly encourage you to videotape yourself with the attorney asking you questions. And you and the attorney look at the videotape of 10 or 15 minutes and go through it. What looked good? What didn't look good? How can I present myself better? If the jury doesn't like you, it's not going to be good for the case. You don't have to be charming. You don't have to be a great actor. You have to come across as honest and confident, not arrogant. If you're criticizing the other side, you want to do it politely. I understand Dr. So-and-so's opposite opinion. Let me explain to you why I think he's wrong. If you come across as an arrogant jerk, nobody's going to want to listen to your opinion, even if it's totally based on science. And as Eustace said, in addition to reading the actual published cases, get some depositions. Get three or four of them and read through them so you know how it goes. Those depositions, the attorney's going to ask you, what are all your opinions in this case and what supports them? I know there's different strategies. I always have my expert write a very detailed report. It's required in the federal system, but it's a very useful tool in the state system. In my reports, I go through every single fact and every single opinion, and I want a citation. So when you're deposed and the other side says, well, where does that come from? You have your report right in front of you, and you say, well, that came from Mr. So-and-so's deposition at page such and such, line such and such. Or how did you come up with that methodology? Well, that methodology is based on the following three peer-reviewed articles, which have been used in the system for decades. So there's nothing they're going to ask you at your deposition that you're not going to have a site for right there. You're not going to have to page through things, or I don't remember where that came from. You're going to be prepared. One of the things that comes up in neuropsych cases is that the juries are very skeptical of these neuropsych tests and what they can show. So if you've got an opinion that the patient was lying or deceptive or malingering, you're going to have to explain to the jury why you have that opinion in very logical steps. Explain, here's what the average person would do if they were trying to beat the test. And this is how we set this test up so we can catch that. And here's exactly what that person did in this case. It has to be explained thoroughly and persuasively. And again, go back to the video of your testimony in preparation, where you went through with your attorney and looked at your video. What looked persuasive? What didn't? What didn't look confident? What looked arrogant? Where are the missteps? And even down to what were you wearing? Did it come across well on camera? These things are important. Maybe they shouldn't be, but they are. If you've got two equal experts and the jury really likes one but doesn't like the other, that's not going to be good for the case. Your retainer is subject to negotiation. A lot of times, the attorneys will send you, here's the expert retainer we want you to sign. Don't just sign it. You should come up with your own retainer, if possible, and give that to the attorney. And that's negotiable, too. So it can go back and forth as far as how much your fees are, or whether you charge a minimum for a half a day, or however it goes. But just keep in mind that there's no set rule here. You and the attorney can negotiate something that's going to work for both of you. When you're at your deposition, what's going to happen is, from the defense side, if you're working on the plaintiff's side, the defense attorney is going to ask you whether your opinion is based on anything else. Is there any test you could have done that you didn't do? If that test came out differently, would that affect your opinion? You have to have a ready answer for those questions. Sometimes, the plaintiff simply could not afford to do every single possible test. And so you did the most important tests. And in your opinion, they support the diagnosis in this case. I'm going to go through these. And I want you to read them. I'm not going to read them for you. They're up on the board. I encourage you to look at them. If you have any questions after this, I'll be happy to answer them. I will tell you that the strategy on either side, when they're cross-examining you during your deposition, is to try to show that your testimony is inadmissible for some reason. Again, ask your attorney to provide you published decisions where the court found, for some reason, the expert's opinion was not admissible. Those will be immensely helpful for you to fill in those gaps to make sure that your opinion is not going to be one of those that's inadmissible. And these factors are in the Daubert decision, the US Supreme Court decision. And they're meant to get at whether the methodology you're using is scientific enough so it should be admissible. Because there was a lot of criticism that the courts were letting in what they called junk science. And some of the things to keep in mind are that the court is going to be very skeptical if the measurements you used were not objective. If something was hard, harder, or too hard, versus something that can be measured in centimeters, or Fahrenheit, or something objective. If your opinion is based on subjective measurements, there's an argument that that's not scientific. Because we don't have any objective way of saying how much harder something is. Another one that comes up all the time is margin of error. If you're doing a test that is 80% effective or 90% effective in predicting such and such, you want to have that at hand. What's the margin of error for whatever opinion you're giving or test you're relying on? If you don't know what the margin of error is, the other side is going to argue so. It would be anywhere between zero and infinity, correct? You don't want that question to be out there. You want to know what your margin of error is. And there's always the higher gun issue. Whether most of your practice is consulting rather than treating patients, if you charge a lot more for consulting, if you usually only consult for plaintiffs versus defendants, all these are going to be issues going towards bias. It doesn't mean that your opinion will be inadmissible, but it will mean that at trial, you'll be able to argue to the jury that we should believe the other side. Because this person is a hired gun. They may ask you how many of your patients miraculously recovered after a money judgment, or how many of your patients you continued to treat after the lawsuit was over. If you have any questions at the end, let me know. I hope you found this useful. Thank you, Tom. I guess these next few slides are going to be I guess these next few slides are basically things we've talked about before, but I was just basically going to pose them as questions to Eustace and Tom first. For instance, when you see a report, Eustace, where a doctor writes, in my experience, this is why my opinion is as such. I've been a board certified orthopedist for 30 years. How do you respond to that? How do you respond to the deposition? You read a report like that. If that's the only basis for why they're offering their opinion, I think on the most part, if you do your cross-examination properly, what are the foundational facts you're relying on? And either the person can articulate them or not. What is the scientific test that's being used to confirm or rule in or rule out? And I would hope that if I'm doing the particular deposition, I would already know what tests have been done, what the results are, and then I'm going to cross-examine them about these things. And if they don't have answers, I'm going to be filing a motion to have their testimony excluded. Tom, obviously, if you had an expert who wrote that in their report, how would you . . . what would you do if you've read a report of a defense expert who wrote that? Yeah, no, I agree. It is not usually acceptable to rely only on your experience if you're in an area that is based on science that allows objective testing. Yeah, I mean, same question. Let's say you have an expert report that says, I think the patient is faking. And there's no explanation as to what it is. Well, so that's also generally pretty much an easy one. There are going to be all kinds of different explanations for why someone does a particular thing. But if you don't have . . . Let's say you haven't done any neuropsych testing, you don't have an MMPI, you don't have any other foundational stuff. Now, if it turns out that the physician was looking out their window and they saw the person get out of their car and then pull, you know, a hundred-pound bag of concrete, and the person said, I can't lift more than five pounds and I've got a severe back injury, well, the doctor then has a foundational basis to say, I think they're faking and it's not believable. But absent you having foundational facts and then being able to apply that with some logical explanation, most of those opinions are going to be eliminated through what are called motions in limine. That's also referred to as pretrial motions. So basically what happens is you have discovery, the attorneys get all the facts, and you have expert disclosure and discovery. That's where you do your questioning of all the different experts. Then there's going to be a couple-week period of time where each side files motions to try to preclude certain evidence or opinions from coming into evidence before the judge. The judge rules on those, and there was a previous discussion of what's called a 402 hearing. If someone is challenging an expert's opinions, they can require the expert to come in just in front of the judge and be cross-examined. And if you cannot support your opinions, the judge will say, all right, you haven't met your burden, I'm throwing your opinions out, you don't get to come to trial. And you have to be prepared for that. Unfortunately, I mean, if a case goes to trial, it's not going to be clear-cut. There's not going to be somebody carrying a piano up the stairs or dragging 200 pounds of concrete. It's going to be something that's on the cusp. There's going to be evidence both ways. And from a defense attorney standpoint, I also use Occam's Razor. I would say this was a very mild accident. It was somebody being hit at five miles per hour, and now they're claiming $10 million in damages. Are they faking it? Well, they have 10 million reasons to fake it, and that seems to be the simplest explanation. How about motivation? I mean, let's say the individual has a wealthy family member, let's say they don't have to work, let's say they... I mean, are you allowed to ask questions like that of a plaintiff? I mean, that's kind of controversial. It depends. Sometimes, generally speaking, you can't go into the wealth of a plaintiff or a defendant unless it is something... Can't work no more? Yeah, so what I'm saying is that, generally speaking, the rule is you cannot do it. However, one party or another may waive the preclusion of that evidence and admit it for a particular reason, then you're opening yourself up to cross-examination and questions by both sides. Yeah, as Eustace mentioned, most of these issues will be resolved pre-trial in evidentiary motions, where you'll argue that it would be more prejudicial than probative to let certain evidence in. But then, if during the trial, the other side opens the door by, on their own, testifying about that, the judge can always change his or her mind about those evidentiary rulings. So, we have a lot of slides. I mean, I think we're talking about causation. We talked about this in the Hill criteria and chronology and reserving the right to say, as Eustace pointed out and Tom did as well, I can't support your case. My opinion does not necessarily fall into something that you'll be interested in. Be comfortable with your opinion, respecting others' experts. I like how you described, you know, when I read a report, let's say, by Dr. Kosnett, I mean, I respect Dr. Kosnett. My opinion is different for this reason, simply put. I mean, I've seen all kinds of reports, critical of other providers and physicians, but I find that kind of offensive. There's no point in that. You don't need to demean someone. Just simply say, I respect this physician, but my opinion is different. You know, that's all, and these are the reasons. Or I agree to disagree. And, you know, consider a challenge to your opinion. I think I want to give the podium over to Michael, and he can present this case, and maybe we can talk more about some of the other things. Okay. Well, Stan, do you want to? Yeah. Is it going on here? I'm going to forward it there. No, but, okay. I see. I see. Okay. I'm going to skip ahead, because we've, there's a lot of useful detail in these slides for you to read, but I want to, I think that talking about a case will sometimes help put some of these things in perspective. This is a case where there was a question of a movement disorder following a carbon monoxide exposure. It involved a 17-year-old high school student who worked at a fast food restaurant, and when she got to work at the beginning of her afternoon shift, she detected a smell of fryer oil in the restaurant, and it turned out that the exhaust fan to the fryer had failed earlier in the day. So what the folks who worked in the restaurant did was just prop open the back door to the kitchen to somewhat increase the ventilation, but kept the restaurant working and functioning. So at 5 p.m., however, the computerized security system that works in the back door required that the back door be closed, or the alarm would go off, because, for security purposes. So at 5 p.m., they closed the back door. And then over the next hour or so, the student, J.R., noted that she had the gradual onset of nausea, tiredness, and a mild headache. At 6.15, a carbon monoxide alarm, which was next to where she had been working back there in the kitchen, sounded, and all the employees and customers promptly evacuated. And she was waiting outside in the parking lot, and over the next 45 minutes while she was there, she had an increasing non-pulsatile headache and some photophobia. At 7.15, the EMS service transported her to the emergency department, giving her some oxygen at 15 liters per second en route. When she got to the hospital, they had problems with vascular access. She had a large body mass index. It was really hard at this particular hospital, wasn't a large hospital, where they weren't able. They weren't able to obtain carboxyhemoglobin levels, or other laboratories on her that evening. They did get it on some other coworkers who were working right alongside her back there in the kitchen, and they had carboxyhemoglobin levels of less than 1%. She went the next day to another facility, 19 hours after the event, and she had a carboxyhemoglobin level that measured 3.2% by co-oximetry, which was slightly above the laboratory reference range of less than 2%. So what happened next was interesting, because retrospectively, JR said that while she was in the emergency department, she noticed a bouncing movement of her hand on the night of the event. But no one in the record at that time made a note of that, and they in fact had released her to home an hour and a half after she was in the emergency department. But beginning the next morning, and continuing over the next 10 weeks, she experienced a dramatic, abrupt onset of shaking episodes that variously involved her extremities and her head. This continued periodically over this time period, not every day, but it occurred repeatedly, though episodically, and then it resolved in about eight weeks. She wasn't able to work during that time. By mid-September, she started school, and actually she went on to do some cheerleading and did fine, and she had no cognitive complaints. A workers' comp neurology examination that was conducted four weeks after the event noticed that her head movements stopped with distraction, and her neurological exam was otherwise negative, and that worker comp evaluation diagnosed a conversion disorder. Nevertheless, J.R. had filed a workers' comp concession claim six months after the event, and she saw a neurologist who provided an IME, and the neurologist said a couple of things in this report. Number one, the neurologist said that the carboxyhemoglobin must have been much higher than 3.2% at the time of the incident, because 19 hours later it was 3.2%, and there was a lot of video, actually, of these episodes, and his opinion was they were dystonic, influenced, semi-purposeful movements that were most probable that they are due to carbon monoxide exposure. And, you know, they thought that they had a case now, because they said, well, there was a carbon monoxide in the facility, and she developed this movement disorder that didn't exist beforehand. They have an expert of saying the levels must have been much higher. There is some literature on carbon monoxide and movement disorders, and that was their assessment. Now, I evaluated this case for the defense, and my opinions were as follows. I thought that, you know, she did have a headache, nausea, and some fatigue after the event, but she was in a facility that had high levels of volatile organic compounds. There was a grill that was, you know, a fryer that was not functioning. There was no ventilation. You can get a headache and nausea from that type of thing, and I thought that she had, you know, some self-limited complaints that could be attributed to the fact that there was no ventilation and no fan going in that area for that time, but it wasn't due to carbon monoxide. There was no evidence of significant carbon monoxide exposure. You know, a key thing, and you may have other cases like this, too, is that if someone is in a place where there's a carbon monoxide alarm and they evacuate promptly when the carbon monoxide alarm goes off, then they really haven't sustained significant exposure because that's the whole purpose of these alarms. They alarm at levels of carbon monoxide that are not going to be associated with severe injury, especially neurocognitive injuries, we should say, okay, neurological injury. In general, like this was a kiddy alarm, K-I-D-D-E, and they are based, this particular alarm, and they have an algorithm. They sound based on a certain level of carbon monoxide for a certain period of time, and generally they're geared to go off after a person who is performing a moderate degree of exercise and breathing in, you know, at a rate associated with a moderate degree of exercise that would increase their carboxyhemoglobin level in the blood by 3%. So like, for example, assuming a 0.8% background level, they would go off when a person had a level of 3.8%, you know, a delta of 3%, okay. And, you know, that is not, that kind of increase is not going to cause, be sufficient to cause even an acute neurological disorder as opposed to, you know, one that went on delayed with severe movement. The other thing is that, although she didn't have a carboxyhemoglobin level, people who worked alongside her did. And those levels, you know, were all less than 2. And then also, you can't use, there are limits to backward extrapolation, right. You can't use a level that is normal and then back extrapolate, you know, 19 hours previously. I mean, virtually everyone who has an, if, you know, if you came into an emergency department today and you had a carboxyhemoglobin level of 2%, no one could say, and you said you had a headache yesterday, no one could back extrapolate and say that your level was X amount of high this many half-lives before because there's not necessarily a basis to do that. In fact, if you start with a carboxyhemoglobin level of even like one of the coworkers had at 1.6% and then you back, say you assume that the half-life of carboxyhemoglobin, excuse me, is 4 hours on room air. 19 hours, if you back extrapolate 19 hours, you have a level of 96%, you know, which a person would be, that person would have a fatality much sooner than that. So, there wasn't a reasonable basis to do that. Now, what about her movement disorder in this case? Well, there are, I actually had this evaluated on the videos by two neurologists and there were, there was evidence of it that it was not consistent with the physiological movement disorder. For example, her head movement at various times went up and down and then it switched in the middle to going side to side and that's not physiological. That's not physiologic and there actually are, there is a whole literature on psychogenic movement disorders and she fit a lot of the criteria for that. We won't go into that, but. Some of my videos from Sunday? Yeah, you saw some of the ones. Quick question. Was she a smoker? No, she was not a smoker. But I wanted to just use this case as a jumping off point from my perspective on how I evaluate as a toxicologist the causation. And I use this approach, just as you had mentioned, a three-step approach. I use a four-step approach for the toxicology and I ask for, basically ask four questions. And I do this for all the cases, regardless of whether they're plaintiff cases or defendant cases or just a patient asking for an opinion. You know, does the patient have a medical condition that's known to be caused by the toxic substance in question? And that's actually two subsets, right? Number one is, what is the patient's medical condition? Make a diagnosis first. What do they have? And then secondly, is there a known nexus between that in the literature, you know, that's supportable? Second, has the patient received a dose of the substance of sufficient magnitude to cause the condition? Okay? So much of toxicology foundation deals with assessing dose and dose response. So you really try, you know, sometimes you don't have exact measurements, but you can look at analogous situations. Try your best to get some assessment of what the dose would be. My third point is temporality, which Eustace mentioned. You know, has the time course between the dose and the development of the illness been consistent with a causal relationship? You know, if the patient had the condition prior, it couldn't have been caused by that, right? Some things have a long latency period. Some things have to happen very quickly, you know? If someone has nausea and vomiting and diarrhea two weeks after a pesticide exposure, that's not caused by the pesticide exposure. Pesticides can cause nausea, vomiting, and diarrhea, but they do it right away, okay? On the other hand, certain things, you know, have latencies of weeks to years. And then finally, my fourth point, are there other factors in the patient's history that are as likely or more likely to be responsible for the condition? I once had an attorney come to me in a case in San Francisco of a dentist who had been using a supplement, a tea that he had gotten. And he said it was contaminated. He found out it was on the news that it was contaminated by lead. And there was, in fact, some lead in it, and he was complaining that was making him very fatigued. And I asked to, you know, look, I got the medical records, and I saw that he was taking diazepam or Valium 10 milligrams three times a day. And I called, you know, I put everything down, and I called the attorney. I said, I know why he's fatigued. It has nothing to do with that. So you have to look at, you know, at other factors in the patient's history. So that's my, those are my, that's my advice, and that's how I go through this. It's similar to what Eustace said. It's a little bit more directed towards dose response and toxicology. And remember, this is specific causation, right? This is not just in general does this exposure cause this disease, but let's apply it specifically to this patient. Thank you, Michael. My question would be on this case particularly, you know, what about the functional movement disorder? First of all, you described that the person went back to be a cheerleader. So at the end point, the person did great. So the disability idea and where is this person now is off the table. Obviously, during the time of the exposure and the convalescence, but what about the functional neurological condition? You didn't, we didn't really identify a prior history of psychiatric illness or what have you. So I want, Eustace and Tom as well, what are your first thoughts? First of all, how would you, as an expert, if you were to say, well, Dr. Cossett, is the functional movement disorder, is that caused? Is there relevant to the exposure? Whatever the exposure was? Obviously, if the specific question is carbon dioxide, you'd say no. But what about the VOCs? What about the experience? Well, that, you know, people can have cognitive and emotional sequelae of events that are sometimes significant. I'm not, I wasn't asked to opine on that, right? My opinion is not, as a psychiatrist, evaluating that aspect. My opinion was as a toxicologist, is there a toxic... You have to stay in your own lane. Is there a toxicological basis? It's very important for the audience. What comes up in these cases, which I've experienced a number of times, is when the testing comes out that way, the plaintiff's attorney will say, A, we have the quote, eggshell plaintiff. Yes, normal people exposed to that dose would not have had symptoms, but this person did because they were exceptionally sensitive. Second, psychosomatic illness. All right, the exposure did not cause any objective physical problem, but because of the exposure, because she got so scared, she honestly had these psychosomatic symptoms, and they affected her, and they made it so she couldn't work, and these are things that are real, would not have happened if she hadn't been exposed to the carbon monoxide and heard the alarm and gotten scared. So, even though she doesn't have carbon monoxide poisoning, she does have a psychosomatic illness that was caused by this exposure, and she's entitled to be compensated for it. The mechanism of medication is the alarm. Well, not necessarily just the alarm, but everything that went along with the alarm, and knowing that she was exposed, and having to go to the hospital, and they couldn't get a vein, and, you know, et cetera, et cetera, you know, a hundred things happened that scared her, including the alarm. I was going to say the broken fan. I didn't mean for that, the broken fan. No, it started, the back pattern started with a broken fan related to her work. Yeah, something. Okay. Yeah. Questions? Start in the front. Yes, that's you, sir. Michael, what you have up here really, as you know, mimics the NIOSH criteria for determining work-relatedness of disease, you know, from 1979, which is incorporated in the ACOM chapter on causation of disease in the guidelines. And so, when you're presenting it, I mean, presenting it like this, you usually use a citation, say, like, this is a generally accepted methodology in occupational medicine. Are you not asking for that? Well, no, that's a good point, John. I didn't realize that this was, you know, that those two other sources that you cited have set this forth as well. I think this is a generally accepted methodology that, and I think that it's useful to the extent that you mentioned that those are found in NIOSH and ACOM documents. Good to bring that up. Another source of information that some of you might want to look at at some point is the Federal Judicial Center has a book called The Manual on Scientific Evidence, and I think it's in its third edition or fourth edition now, but it has whole chapters on causation and how the courts have established it. So, that's another one. But, yes, if you have examples of how that foundation works. You know, the key thing I tell people, too, is there may be people who have a different opinion than you, and like Jonathan said, you know, good people can disagree. But you should have a reason, you should be able to present a foundation and a methodology that you used to get your opinion. Sure. Thank you for the presentation, that was excellent. We do have a question. One is, are these slides and PDFs available to us? They should be on the swap cart. I was told two weeks ago they were, but they're not. No, they are, they are. They are. Okay. They're on the swap cart. Slides, sorry, yeah. The second question is, Gordon, one of the panel members, many of us work for a company, we've employed an academic medical center, we've employed a physician, and also a medical practice. When we are consulting on medical legal cases, how do we facilitate working with patients in terms of separate cases? That's whether your HR is getting involved. If you have a job, they probably outlined that in your contract. Michael, any thoughts? Well, yeah. The question for those who are listening virtually, the other thing is if you work or you're employed by a certain organization and then you're asked to give an opinion in court, how does that, is that within the context of your work or your duties, or how do you separate that? Well, you know, the nature of occupational medicine, in many cases, is to give an opinion to resolve a dispute that ultimately may wind up in a venue like a court or another decision-making venue. I mean, technically, in principle, people shouldn't get ill at work, right? Or technically, people shouldn't be poisoned. So when there is an allegation that someone's gotten injured at work or ill at work or had a poisoning, there's likely to be a tort lurking somewhere in the background. And part of our, in our specialty, part of it is to help, it's within the tenets of our specialty to help provide opinions that help resolve those kind of disputes. I mean, that's a fundamental component of occupational medicine and toxicology, actually. And the American College of Medical Toxicology recognizes that, and ACOM recognizes that. So they should cover you. You know, that's part of, that's part of doing your job. Now, you may, if the evaluation arose in the context of your work, you know, in the clinic, evaluating a patient, then it should be covered as part of your time. You need to be careful, though, and have an understanding that if you do things on the side, whether you're malpractice insurance, you know, your liability insurance, professional liability insurance that your workplace offers will pay for that, you know. It's very seldom that folks who are offering their opinion in a matter are going to be, you know, subject to malpractice. But occasionally, you might be accused of it. And it's very important if you're going to do the work that you do have, you know, liability insurance. Even though the likelihood that those things come up is very, very rare. Yeah, that's between you and your company. You don't, you got to decide whether you have the ability to work outside your company. If you can, then it's an individual contract. It's a contractual issue as to how you're going to get paid and where the money's going to go. But as a matter of law, you will be compelled to testify regardless of whether the money's going in your pocket or it's going in your company's pocket. I guess we have one more of the questions. We're already over by seven minutes. So, yes, in the back of the room. Right. That's. Every state is different. You have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language. And if you get to a depot or a trial, what is the jury instructions we've been told by the attorneys? Yeah. And the second thing is that if MRI is done two days, two weeks after the accident, and you're told it's done in the six weeks, that cannot be used then? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language. And if you get to a depot or a trial, what is the jury instructions we've been told by the attorneys? Yeah. And the second thing is that if MRI is done two days, two weeks after the accident, and you're told it's done in the six weeks, that cannot be used then? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language. And if you get to a depot or a trial, what is the jury instructions we've been told by the attorneys? Yeah. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right. So, you have to ask the attorney who's asking you to spend your time, what jurisdiction we're in and what is the language? Right.

forensic consulting

head injury

chronic symptoms

reviewing medical records

assessing objective medical evidence

gathering additional information

credibility

standardized approach

expert qualifications

causation analysis

deposition

plausibility

temporality