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When "the Truth" is found to be Lies: Identifying and handling experts who deceive

TASA ID: 12912

Note: This webinar was approved for CLE credit in CA, NJ, PA and IL (general and professional responsibility: Legal Ethics). 

Disclaimer: Please remember that if you are applying for CLE credit you must attend for the full 60 minutes of the LIVE presentation, not the ONDemand version. If a participant is seeking credit in states we are not approved to issue credit and the participating party seeking credit incurs a fee to receive said credit, it is not the obligation of TASA to remit payment for such credit. It is the participant's obligation to remit payment to the state in which they would like to receive credit.

On October 27, 2021, at 3:00 p.m. (ET), The TASA Group, in conjunction anatomic pathologist Dr. David Strayer, presented part one of a two-part, one-hour, interactive webinar presentation, When "the Truth" is found to be Lies: Identifying and handling experts who deceive, for all legal professionals. During this presentation, Dr. Strayer tried to help you identify and address concerns relating to inappropriate or deceptive expert witness testimony.  What was said and what was suggested will reflect his experience as an expert witness, mainly relating to causation analysis.


Part I: When "the Truth" is found...to be Lies: Identifying and Handling Experts Who Deceive from The TASA Group, Inc. on Vimeo.

About the Presenter: 

David Strayer, MD is the professor of pathology, anatomy and cell biology, as well as professor at the Sidney Kimmel Cancer Center at Thomas Jefferson University.  He has served as an expert witness in over 100 cases filed in state and federal courts in PA, NJ, DE, NY, MD, and TX. Most of his work is on behalf of defendants, but he has performed expert work for attorneys representing plaintiffs as well as those representing defendants. His expertise involves medical malpractice, industrial accidents, personal injury lawsuits, and objective assessment of cases. He has participated in and chaired over 20 professional grant review panels including NIH, American Cancer Society and others.


Interviewer: Good afternoon, and welcome to today's presentation, "When the truth is Found to be Lies: Identifying and Handling Experts Who Deceive." The information presented by the expert today is not to be used as legal advice and does not indicate a working relationship with the expert. In today's webinar, Dr. Strayer will try to help you identify and address concerns relating to inappropriate or deceptive expert witness testimony. What it said and what is suggested here will reflect his experience as an expert witness, mainly relatin6g to causation analysis.

To give you a little background about our presenter, Dr. David Strayer, he is the professor of pathology, anatomy, and cell biology, as well as professor at the Sidney Kimmel Cancer Center at Thomas Jefferson University. He has served as an expert witness in over 100 cases filed in state and federal courts and PA, New Jersey, Delaware, New York, Maryland, and Texas.

Most of his work is on behalf of defendants, but he has performed expert work for attorneys representing plaintiffs, as well as those representing defendants. His expertise involves medical malpractice, industrial accidents, personal injury lawsuits, and objective assessment of cases. He has participated in and chaired over 20 professional grant review panels, including NIH, American Cancer Society, and others.

Attendees who require a passcode, the word for today is TRUTH. During the Q&A session, we ask that you enter this passcode into the Q&A widget. The Q&A widget is located to the right of your screen. Please remember, if you are applying for CLE Credit, you must log onto your computer as yourself and stay for the full 60 minutes. You're also required to complete the survey at the end of the program. Please note that CLE Credit cannot be given to those watching together on a single computer.

Tomorrow morning, I will send out an email with a link to the archived recording of the webinar. The slides can be downloaded from the Resource List at the widget to the left of your screen. Thank you all for attending today. And, Dr. Strayer, the presentation is now turned over to you.

Dr. Strayer: Thank you. And welcome to this presentation. The title of it as indicated is when "the truth," and the truth is in quotes, is found to be lies. And my goal here is to try to help practicing attorneys identify and deal with experts, hopefully, mostly opposing experts who are deceptive in one form or another. This is a two-part webinar. So today is the first hour and tomorrow at the same time will be the second hour, which will be the concluding hour of this discussion.

So, how did I come upon this? Well, a lot of years ago, I was driving back home on what was then called New York Route 17. I was going to my home in Connecticut after a summer of undergraduate research in chemistry laboratory in Ithaca, New York. When I got to White Lake, New York, traffic simply stopped moving. I pulled off the road, and I went through the tree line as other people were doing. And what I saw is indicated in that picture. And you can follow that link to YouTube.

Basically, it was Jefferson Airplane singing a song, "Somebody to Love," which begins "when the truth was found to be lies." And so when I came upon the situation that I'll describe to you in a minute, I thought of that title as a title for a webinar to, hopefully, be informative to people who are dealing with deceptive opposing witnesses. So this is a case-based presentation that, as I indicated, is intended to help you figure out who among your opponent's experts is, in fact, being deceptive, or worse. And then to address how to handle them, to identify a strategy as to how to handle them in dealing with the litigation in question.

So, a brief description of my background is here and the numeration of my professional biography as indicated. I've been at a number of institutions over the course of my years. And some of them would be considered to be fairly illustrious. I am currently a professor of pathology, anatomy, and cell biology at Sidney Kimmel Medical School and Sidney Kimmel Cancer Center at Thomas Jefferson University in Philadelphia.

My expert witness work has mostly involved causation, but it also has involved standard of care analysis. It has involved discussions of conscious pain and suffering. I've written reports and attended depositions and given trial testimony in aggregate and well over 150 cases. I stopped counting a long time ago, I'm sure it's over 200 by this point in time venued in a number of different states. Most of the time, I'm retained by the defense, although certainly not always. The breakdown of these cases is approximately as indicated, most of them are medical malpractice and related issues. There are some that are traffic, industrial and other kinds of accidental personal injury, and then there are additional cases that have been involved product liability, industrial exposures of various kinds, and others as indicated here.

So my published expertise is illustrated by the fact that I'm the principal editor of one of the two major textbooks of pathology that is used in medical schools in the English-speaking world. And the areas in which I have published, both as part of my editorship of this book, of this monograph, which is now in its eighth edition, which came out about a year ago. And in peer-reviewed research articles in the medical literature, my expertise is indicated on the left.

So, the background for this discussion is that about two-and-a-half years ago, I gave a webinar for TASA that basically focused on how best, from my point of view, attorneys can utilize experts, particularly causation experts, in the process of strategizing and presenting your case to juries and magistrates. That particular webinar focused on what, from my point of view, as principally a causation expert, what causation experts do, and what kind of credentials I thought were important for people to be that. I discussed what I believe good causation experts do and how they handle cases. I discussed their most important characteristics in terms of the way they analyze materials and the way they present themselves. And, finally, I discussed certain kinds of analyses that are routine in the kinds of practices that I have engaged in as part of my hospital and university-related activities and how those practices may be helpful in making and securing legal cases.

Just to summarize what I said there, basically, I said the characteristics of good causation experts are what I indicate here, a degree of meticulousness and thoroughness, an ability to put the story together, to connect the dots, if you will, to tell a coherent and intelligible story from the facts that are presented or that are available. I felt it was very important that good causation experts avoid jumping to conclusions, which is to say they wait until they get all the information before they formulate their conclusions, that they know the breadth and the depth of any given field in which they propose to offer an opinion. Importantly, that they stick to the facts, that they don't go beyond what is directly and readily supportable by the information in hand.

And, therefore, that they are capable of understanding both the strengths and the limitations of the case of the attorney who is retaining them. I thought it was very important to avoid assumptions, which is to say you look at everything with an open mind and you don't close out information preemptively because it doesn't agree with your freeform conclusions. And the most important characteristic by far was honesty. We'll get to that.

So, in the question and answer session that followed my webinar, although I felt that I had to address lots and lots of different issues, almost all the questions that were addressed to me were concerned with one particular aspect of my presentation, and that was dishonest experts. To be specific, I was asked, "Do experts sometimes act as advocates?" The answer, of course, is yes. How often does that happen in my experience? More often than not is the answer. Do experts lie? Yes. But more often than not, not lying, they deceive. And there are ways that they deceive that I'm going to discuss. How often do they deceive, or lie, or both? Most of the time.

And then how can you detect that, and how can you deal with it? Well, to find out the answers to those, I'll ask you to stay tuned.

So, after my webinar, TASA asked me to prepare another webinar. And I thought that since most of the interest in what I had said the first time around focused on something that was only part of a much larger discussion, which was to say, the honesty or dishonesty of experts, I thought that addressing that in a separate webinar would be the most helpful kind of thing that I could do to help attorneys deal with the kinds of things that I have come across on a regular basis.

Well, COVID intervened. And so, it took a little while for this to come to fruition, but here we are. So, I'm going to discuss how to identify and deal with what happens when experts are less than forthright with the truth and how to identify situations in which that is, in fact, the case. In my experience, it always helps to be wary of both the expertise and the honesty of experts, both yours and your opponents. So we'll talk about how, from my point of view, it's most effective on your part to spot a deceptive expert report or a deceptive expert, how to detect the most common types of dishonesty and dishonest experts that I at least have seen and encountered, and then, finally, how to deal with them.

So, as a general rule, in my experience, the best way to defend yourself, the most effective way to defend yourself against dishonest experts is to have an honest, and I stress honest, and skilled expert in your corner. Your experts are really best equipped to handle and to help you handle and identify deceptive experts on the opposition. It may not be as simple without an expert that can go head-to-head with the expert that you're questioning. So, it's always most helpful, in my experience, to have somebody who can look from your corner at the material that the opposing expert is using to try to defend and formulate his or her opinions.

So, beginning with deceptive reports. In my experience, reports that are deceptive, which is to say less than honest, and I'll discuss this in much greater length in a little bit, are replete with several particular kinds of assertions. They are full of conditionals. If something, in particular, had taken place, then the consequence that the expert claims would certainly have followed. These reports use these conditional assertions, which are really just hypotheses, as though they are absolutes and givens. So they will follow the ifs, the statement that begins with if with a second statement that includes definite words like would and certainly would happen, certainly will have happened. And they strive mightily to avoid conditional consequences to the if statement such as may, or might, or could, that express a degree or imply a degree of ambiguity.

Their statements, that is to say, are unambiguous. If things had gone the way they should have gone, then something, in particular, would have happened. There are no other possibilities. Such reports are in addition often vague and inexact. They tend to fudge. They tend to talk around an issue. They tend to obfuscate with excessive verbiage or lots and lots of extraneous information that you don't really need and that doesn't apply. They tend to emphasize that the foundation of the reports is not necessarily published data that is peer-reviewed, and, therefore, part of the scientific literature, but rather their experience, which is something that obviously circumvents the question or tries to circumvent the question of how accurate, in fact, the foundation of the report is.

Sometimes they will stray from the area in which they have expertise to offer opinions that impact on other areas. So, if they have expertise in one aspect of medicine, for example, they may offer an opinion that basically focuses on another specialty or another area of medicine. And then on occasion, you may find that they will invent or hypothesize things that they present as fact, but that are, in fact, just fantasies or ideas that seem to have popped into their heads with absolutely no foundational background or area of peer-reviewed support.

Now, in the course of all of these discussions, what I'd like you to please bear in mind is that most reports have one or another of these various tactics included in them. And it's not only the use of these tactics, but really the overuse of these tactics. When a report relies extensively on these kinds of deceptive statements or approaches, then that is what it should set off alarms. I will also emphasize that not all reports that you don't like are dishonest and not all reports that you like are honest. Dishonesty comes in a lot of different flavors and anybody who is involved in a legal proceeding needs to be on the alert for that kind of activity, whichever side it's on.

So, I'm gonna talk about how to spot tactics that are used by dishonest experts. And I'll do so in the context of using case illustrations. Now, some of my discussion of these cases, necessarily, because they're mostly medically related, involves a little bit of discussion of the medical facts that underlie both the case and my dissection of it and my illustration of the dishonesty of the expert or experts involved. So I'll ask you to try to bear with me.

So, there are basically a number of different strategies that are used by dishonest experts. And they may or may not be conscious, but they are certainly used to deceive. And I've enumerated them on this slide and the slide that follows. And I'll go through these sequentially. The first several will be discussed this afternoon and the next several remaining ones will be discussed tomorrow. So dishonest experts may shade the reports. And I'll give you an illustration of exactly what that looks like in a minute. They may slant or obscure the information in question by citing irrelevant, but some seemingly attractive data that they would prefer to have you think, in fact, would address the issue, whereas, in fact, that data do not address the issue.

And at the same time, they will ignore relevant facts that do, in fact, address the issue in question. They'll create or try to create cause-effect links that don't exist. Everybody likes to have ideas of what cause-and-effect relationships exist in a particular case. And one of the most important and most commonly used tactics that I have seen on the part of dishonest experts is trying to forge links where links don't exist. They may also, and often do, apply little bits of literature or pieces of the case history that exclude other parts of the literature and other parts of the case history and that, therefore, are focused on leading you to a contrived or a predetermined sequence of events that in point of fact is only marginally relevant to the case in question, but they would like to have you think is central.

In addition, they can cite incorrect, or misleading facts, or "data," or they may interpret events based on inaccurate presumptions or facts that they derive either from their own imagination or from misstating literature. The other strategies that they use, and these are in increasing order, I think, of egregiousness. So the first ones that I indicated in the previous slide are usually somewhat subtle and they are usually not incredibly either blatant or awful, which is to say deceptive or misleading. As we go down the list, you'll see that a lot of these on the second slide here are really more egregious than the ones on the first slide. And they may be more difficult to ferret out and to deal with.

So they would include fantasizing in order to create distorted or inaccurate projections of outcomes that would be different from the outcome that, in fact, happened in the particular case. And the fantasies are the basis for these distorted outcomes. They may assert "facts" about which they are ignorant, but they assert them with such authority that they want to give themselves the air of knowing what they're saying, even when they don't. In some cases, they'll not lie.

And, finally, what I consider to be the worst of all of these situations, I've seen situations in which "facts," or data, or results were fabricated, or I believe were fabricated in order to discredit reliable and authoritative data that are obtained from a different source.

So, I'm going to illustrate all of these with case history, starting from the most subtle to the most blatant of these tactics, and the most egregious at the end. And what I would suggest you think about as I go through these is a plan of action that includes fundamentally working with your experts to apply the kinds of understanding of the tactics that are used by deceptive experts to spot the suspect reports and, therefore, the suspect experts, and finally, to confer with your expert to determine how best to address and to handle, in a testimonial situation, dishonest expert.

So, when I was a child, there was a TV show called "Dragnet" in which a sergeant in the Los Angeles Police Department named Joe Friday used to begin each and every program by saying that "the story you're about to see is true, the names. And I've added specifics, and identifiers, and dates, and places, and all sorts of other things have been changed. And the idea here is to protect the people who are innocent and those who might not be quite so innocent."

So, the first case is an example of slanting or shading a report so as to lead one to an inaccurate conclusion or an inaccurate analysis of something that can be analyzed in a more straightforward and direct way, but requires honest dissection of the situation. So, shading reports is basically sticking to the facts of the case, more or less, within the somewhat loose boundaries of medical practice. That is to say, no dishonest facts are created. The facts of the case as they are established are enumerated. It does not necessarily involve blatantly lying or fantasizing, but it presents an interpretation of the sequence of events that is geared towards maximizing one possible understanding of the case in order to achieve a desired result. In point of fact, in this particular instance, and in many that are like it, there are alternative interpretations, none of which is absolutely 100% certain, but which are probably far more likely than the one that is presented.

So, here's the story. A 64-year-old man with no relevant cardiovascular history complains all of a sudden of pain radiating down both of his arms and the backs of his shoulders. Now, the day that preceded the evening when he complained of his pain, he had been at a carnival and he was carrying his granddaughter on his head and shoulders the entire time, the whole afternoon. So we went to the emergency room, and he had electrocardiograms taken. And they were normal as indicated in the upper frame. Now, many myocardial infarctions or heart attacks, if you will, show a kind of abnormality of the electrocardiogram that looks like what I've indicated here. It's called ST-segment elevation or STEMI.

In this particular case, he didn't have that. In addition, there are blood chemistries that can help you detect the necrosis of heart muscle. The most commonly used because it's quite specific are troponin levels. And these were tested repeatedly for eight or nine hours after he came to the emergency room. They were always normal. There are other cardiac enzymes or other enzymes that you test in the blood, which may or may not be slightly less specific than troponin levels. And these were also normal. They did a cardiac cath, catheterization of his coronary arteries, and that was normal. Since there was no evidence of ongoing cardiac disease, he was discharged. He died suddenly at home two days later. No autopsy was done.

This is not an uncommon type of story. So the plaintiff's expert said that radiating arm pain is common in myocardial infarction, heart attack, and that the fact of his radiating arm pain was not adequately pursued in the emergency room. The plaintiff's expert also said that the patient's negative electrocardiogram reflected a kind of myocardial infarction called a non-ST elevation myocardial infarction, or NSTEMI, which is about as common as the kind in which there is ST elevation. So it's a common form of heart attack. He also indicated that troponin values may be normal early in the course of a myocardial infarction. Finally, the plaintiff's expert said that the patient died as a result of a myocardial infarction that was in progress when he was in the emergency room.

Now, I will emphasize that points one through three all contain some truth. But they are presented in a way that's both deceptive and intentionally misleading. So, the plaintiff's expert testimony was just accurate enough to be convincing until the defense expert examined it carefully. Beginning with a telltale sign such as you see here, the absolutely rigid and unequivocal if then statement was as I indicate here. If this patient had been adequately worked up, he would have been diagnosed and he would have survived. These are presented as unequivocal conclusions without any hint of ambiguity.

Well, let's fact-check this. So the levels of troponin and other proteins may, in fact, be normal for a few hours after the beginning of a heart attack. But normal values eight or nine hours after the beginning of a heart attack would be extremely unlikely. This holds for troponin as well as the other blood markers that we use to suggest the patient's having a heart attack ongoing. Radiating arm pain and myocardial infarction is very common. But it mostly is unilateral. That is to say it affects one side rather than both. It is only very infrequently bilateral, and infrequently, that is, radiates down the back. It is much more likely, in point of fact, given the patient's history, that what he was experiencing in terms of pain radiating down his back and his arms was nerve root compression from carrying his granddaughter on his shoulder all day long.

Without an autopsy, it's impossible to say why this man died. There's absolutely no information to support the assertion that he ever had a myocardial infarction, whether two days before his death when he was in the emergency room or ever. And even if he had had a myocardial infarction two days prior, there is no knowing why he died. So, the whole sequence of events that was laid out so carefully and is based on statements that are true but not complete is inaccurate.

In this particular situation, an expert-like report of this nature is flawed, but it's more suddenly flawed than some that I will show you shortly. You don't know and you can never show that this man did not die of a heart attack. You can only say that it's very unlikely that he had a heart attack when he was in the emergency room. Eight hours of normal troponin values and a normal cardiac catheterization make the possibility that he was suffering an acute myocardial infarction at that time really quite unlikely. So the case that he had an MI in the emergency room was pretty weak, no matter how much the expert tried to dress it up.

Furthermore, lacking an autopsy, there's absolutely no information that suggests or supports the contention that he ever had a heart attack. There are lots and lots of other ways he could have died suddenly. There is no way of distinguishing.

Okay. The next major tactic that I found commonly in situations in which deceptive experts are used is slanting or cherry-picking facts to support a particular conclusion while ignoring others that don't. So in this particular setting, an expert does not apply the literature or the facts of the case honestly. He or she will avoid some or all applicable data and select only data that appear to be relevant. And it's that appearance, in some cases, that is the most deceptive aspect of their testimony or their reports.

They will cite references and they will give the appearance of authenticity, all the while misleading. So here's an example from my experience. A non-smoking man who worked in a confined space with a heavy smoker wound up developing lung cancer. He sued the smoker and the cigarette maker. This is a case of secondhand smoke. The experts for the defense pointed out that cancer that is caused by cigarette smoking is a dose-response effect, generally speaking. The more carcinogens you inhale, the greater your chance of getting cancer. That's true.

He also noted that the concentrations in secondhand smoke of the carcinogens that are most closely linked to lung cancer in smokers are so small that, generally speaking, the plaintiff's cancer could not have been due to secondhand smoke. It is true that the concentrations in secondhand smoke of the carcinogens that are most commonly linked to lung cancer in smokers are relatively small. They're very dilute.

So let's fact-check him. The first part of his report is correct. Concentrations of the carcinogens that are linked to lung cancer in smokers are probably to dilute in most cases in secondhand smoke to be dangerous. Superficially, that seems like it's about right, but you need to look further. Secondhand smoke is not the same as mainstream smoke. Mainstream smoke, being that which is inhaled by the smoker, secondhand smoke, of course, being that which is cast off to the environment. Cigarette ends burn hotter, and they generate different kinds of compounds from the compounds that are in mainstream smoke.

Many of the compounds in secondhand smoke are more dangerous, i.e. toxic or carcinogenic than are the components of mainstream smoke. And I've listed here some of them that are known to be toxic and carcinogenic that are present, generally speaking, in much higher concentrations in sidestream smoke or secondhand smoke than they are in mainstream smoke.

So, as the experts said, the carcinogens that are linked to lung cancer in mainstream smoke are far more dilute in secondhand smoke. But that statement is deceptive because it doesn't address the issue. Secondhand smoke is carcinogenic, but it's different carcinogens that are generally responsible for cancers in people exposed to secondhand smoke. So the expert in this particular setting cited facts that were correct, but he misapplied them, intentionally, to a case that needed a different set of facts. So dealing with this contradiction requires that your expert fight that expert's distortions with facts. You don't find distortions with more distortions. You fight them with facts.

So, your expert needs to cite the facts that are applicable to the case and make it clear that those are not the ones that the opposing expert is trying to use to obscure the issue.

Okay. Case number three is a situation in which an expert tries to create links that simply don't exist. And they do this by neglecting to use the literature and by focusing on some of the more dramatic aspects of the case while ignoring the foundational details of the case.

So, in this setting then, an expert tries to link two or more events that occurred in a temporal sequence, but probably had little or no connection to each other. And the more tenuous the connection, the more important it is that this particular kind of analysis be applied. So, the opposing expert strains logic and tries to create connections, cause-effect links, that are highly improbable. And in so doing, they rely upon the desires that most people have to see a cause-and-effect relationship in a temporal sequence, even when that cause-effect relationship may not exist, or where things may, in fact, have evolved in a different context from the one that is being presented.

So, here's the story. This is an elderly woman who had a five-year history of metastatic bladder cancer and she had a history of a very unsteady gait. She was crossing a dark street at night. The driver was going slowly. He did not see her. He heard a thunk and he stopped. She was on her back. She was lying on the street next to the front left of the driver's wheel. She had extensive facial trauma on her left side, as you can see in the picture, but she was otherwise uninjured.

Her facial injuries were treated and she went to a rehab facility to deal with the recuperation. She had no other injuries. While she was at the rehab facility, "she fell from bed." She broke her hip and required a total hip replacement. She was then moved to another rehab facility, but she continued to have problems walking. She remained largely immobile and was bed bound. For a couple of months in the second rehab facility, she died of sepsis.

Going back to the original lesion, the original major medical problem she had, her bladder cancer was discovered five years previously when she noticed that her arm was painful. It was noted by X-ray that she had a lesion in her arm and her humerus. That lesion was biopsied and was found to be a metastatic bladder cancer. And then she was treated for her tumor. So, the growth of the tumor was arrested by chemotherapy, then the tumor became resistant to the chemotherapy. It was then treated with a new batch of drugs, it then progressed, and so forth and so on. There was a cycle of treatment and regression, followed by resistance and more treatment with different drugs and so forth.

And this, she had been undergoing for a number of years. She had many metastases documented at the time of this accident. She had metastases in her spinal cord which probably caused her to have the unsteady gait that I mentioned earlier. She had metastases in her ribs and she had a five-centimeter metastasis in the neck of her femur, which is indicated here by the arrows in the X-ray. Her hip fracture, which she suffered while she was in rehab, was at the site of that metastasis. So, what the plaintiff's expert said was that basically there was a sequence of events that I've laid out here. He said, "When the car hit her, she fell down. Had she not been hit, she wouldn't have been in rehab. Had she not been in rehab, she wouldn't have fallen from the bed. Had she not fallen from the bed, she wouldn't have broken her hip. Had she not broken her hip, she wouldn't have remained in rehab." And it was in the second rehab where she died from sepsis from an infection. So the accident basically triggered the string of events that led to her death from infection.

Well, from the very beginning, this is a problematic analysis. The car that hit her, the only part of that car that had blood on it, her blood, was the left front tire. In point of fact, if you look at this diagram, you can see that it's not possible for her to have been walking on the street to have been hit by a car, and fallen, and for only that tire to have had any blood on it, and for the only injury to have been on the left side of her face. More likely, there's a different scenario that took place.

If the car had hit her while she was walking, there would be blood on the hood and injuries to her legs. The blood on the tire and the fact that the injuries were limited to the left side of her face, whereas if you look at this diagram, if she were walking and were hit by a car, the injuries would probably be on the right side of her face, that meant that she had probably fallen before impact and that the car hit her while she was looking up at the car from lying down on the street. She remembered nothing.

Then the question of whether the fracture that she sustained in rehab caused her to fall or whether the fall caused her to fracture her hip becomes important. There is a significant medical literature that shows that trauma, which is to say, in this context, falling in the rehab facility, is not usually the cause of pathologic hip fractures, by which I mean hip fractures that take place in the context of a preexisting condition such as osteoporosis or a metastatic tumor. In point of fact, usually what happens is the metastatic tumor at the fracture site weakens the bone. So, the bone does not break because the patient fell, but rather, it breaks because weight is put on it when the person gets up from bed, for example, or from a sitting position to a standing position. That is to say, the break caused the fall, not the other way around.

So the causal links that the expert tried to forge here were at, very best, very, very filmy, very iffy. People do prefer to understand a cause-and-effect relationship among events that occur in a sequence. And the expert did give them that sequence. He strung a line from the very first event to the last event, the first event being the automobile accident, and the last event being her death. To argue against this compellingly, you need to analyze the facts. You need to apply to literature such as I just described and be aware of the sequence of factors that determine what happened and how it happened.

The final case that I'll talk about this afternoon before our break is a case in which literature is misapplied or case data are misapplied to "substantiate" a fantasy on the part of the expert." So in this setting, medical literature may be correctly cited, but it's applied to a situation to which it doesn't apply so that the factually correct medical literature is used to support a scenario that the expert is trying to spin, a story he's trying to spin or she's trying to spin, that really doesn't wind up being accurately described by the literature that's being cited.

So here's the story. A severely handicapped nonverbal 38-year-old woman was resident in a long-term care facility. Because of the risk of aspiration, aspiration being breathing in something gastric contents or breathing in something from your digestive system into the lungs, because of the risk of aspiration, she required a modified diet. In the month indicated here, January 2014, she had a mild cough, but she didn't have any fever and she didn't produce any sputum. On examination, her lungs were clear, the cough resolved. She coughed a bit after feeding approximately 10 days after the cough had resolved, and occasionally thereafter.

Sometimes she produced sputum, but she didn't have a fever. And then finally, three days later, she had a fever and she was taken to the hospital. At the hospital, she had a blood culture, which was positive, and she received antibiotics. Her blood pressure and temperature were low. Her white blood count was elevated. These are all signs of sepsis. Her chest X-ray showed patchy infiltrates that are highlighted by the green circles, that were in her lung, as well as atelectasis, which is partial collapse of, in this case, her right lung. Her blood cultures were sterile after antibiotic therapy. However, she continued to do poorly. She developed severe metabolic imbalances and she eventually died.

So, at autopsy, the cause of death was indicated to have been acute bronchopneumonia complicated by the pathologic equivalent of what we call acute lung injury or acute respiratory distress syndrome. She also had pleural effusions, which is fluid in between her lung and her chest wall. And she had scars, again, in between her lung and her chest wall. Now, when you see what I'm about to show you, which is basically the foundational aspects of the expert's report, you should bear in mind that acute bronchopneumonia is a patchy infection. This is a picture of a lung that you see here on the right-hand side of the slide. It's a fixed lung, so it doesn't have the usual coloration that we associate with lungs, which is red, fixed, and formalin.

Foci of acute bronchopneumonia in fixed lungs appear as kind of whitish-tan areas against a brownish background. The brownish background being the normal lung, the whitish tan areas being the areas that are not penetrated well by the fixative and, therefore, remains white.

What the plaintiff's expert said, in this case, was that bad care in the nursing home caused her to suffer two weeks of undiagnosed pneumonia. And so, there's pain and suffering involved here. He cited the literature for the duration of the different pathologic stages of acute pneumonia, and he basically applied them to this case. So what he said, and the literature on this is absolutely correct. He said it takes two to seven days for a normal lung, which I've highlighted here, this is unfixed lung, kind of reddish-bluish. It takes two to seven days for that lung to progress to a stage of what we call red hepatization, which is essentially the blood vessels in the area become dilated and engorged. There's hemorrhage into the area, and that makes it red. Okay?

And then it's four to seven days as you see at the bottom of the slide for adhesions to develop and for the next stage of pneumonia, another three to seven days, to evolve, which is called the stage of gray hybridization where there's massive consolidation of the lung by lots and lots of inflammation as the body tries to deal with the infection. Now, all of this is information that can be gleaned from literature, and it's absolutely correct. The problem is the way it's applied.

So, the expert said that her cough after a meal was due to poorly delivered feedings and inattentive care that caused her to aspirate, and then she developed aspiration pneumonia. He then said that her pneumonia began with aspiration and progressed over the timeframe in question. And he used the data that I just showed you about the progression from normal to red hepatization to grey hepatization to fit the ultimate outcome into the timeframe for the point where she started coughing, or where she coughed a little bit.

Well, his numbers seemed okay. When, in point of fact, he's talking about all the wrong thing. This is apples and oranges. And the information he's trying to provide and present as being relevant are, in fact, for an entirely different kind of pneumonia, which she did not have in terms of the autopsy, and which he claims that she had.

Okay. So the stages of pneumonia that he cites are for a different kind of pneumonia called lobar pneumonia, which is where one lobe of the lung is affected and the rest of the lung is normal. And what it looks like is the upper left frame where one lobe is completely white and the other lobe is completely normal. The upper lobe is completely white. The lower lobe is completely normal. She had bronchopneumonia, which is a patchy pneumonia that is kind of diffusely splattered, if you will, throughout the entire lung. He claims that aspirated food caused her pneumonia, but, in point of fact, aspiration pneumonia is an entirely different phenomenon. It is not the same as bronchopneumonia. Oftentimes, and somebody who has aspirated in the timeframe in question, the aspiration has caused abscesses.

And I'll show you the pathology in a second. So, in the lower right frame, you see what normal lung looks like histologically. In the upper right frame, you see what she had, which is... Now, in the normal lung, you see lots of white areas, those are the air spaces. And that lung, they are filled with air. In the bronchopneumonia lung, there's some that have air in them and there are some that have a bunch of little dots in them which represent the inflammatory cells that are reacting to an infectious process. Aspiration pneumonia, which is what he claimed she had looks entirely different. Because part of aspiration pneumonia is a reaction to the foreign material that's aspirated. That was not part of her pneumonia. That was not what she had. Lobar pneumonia, which is what he tried to relate her disease to, in terms of the time course that he presented as being relevant, in fact, is a totally different process. And you can see, in lobar pneumonia, the entirety of the lung field is filled with inflammatory cells, unlike what she had, which is the bronchopneumonia in the upper right.

So the holes in his case are illustrated here. The so-called expert pathologist cited the literature correctly, but he misapplied it, which is to say he quoted literature accurately, but he applied it incorrectly to this case. He referred it to a different kind of pneumonia from the one that the patient had. Patient had bronchopneumonia, which is patchy. The literature that he cited applied to lobar pneumonia, which is diffuse. He also said that she had aspirated causing her pneumonia, but there was no evidence of aspiration in the autopsy material. Aspiration of pneumonia is entirely different. To the "timeframe" that he "calculated" as the basis for his conclusions relating the patient's eventual death to misfeeding while she was in the extended care facility was irrelevant. He used the wrong information to try to justify the timeline that he had created. Your pathologist should be able to flag this and to help you rebut it.

Interviewer: Okay. We've come to the end of part one. If everyone could type the passcode, TRUTH, into the Q&A widget, that'd be perfect. If you have any questions, we have about eight minutes left. If you have any questions, feel free to type those in, sorry, the Q&A as well. So we'll wait a little bit, see if some questions pop up. And just please remember that, you know, if you are applying for the credit, you had to have been on for the full 60 minutes. And I see everyone's putting the passcode in, so no one's gonna have an issue with that. And when I end the presentation, if you could just fill out the survey, that'd be perfect too. If by some chance there's a snafu with the survey, then I will email it to you. Dr. Strayer...

Dr. Strayer: Yes, ma'am.

Interviewer: Here's a question. What percentage of experts are bad experts?

Dr. Strayer: That's a rather broad question. I would define a bad expert as an expert who tries to be deceptive or who doesn't know what he or she is doing. And in my experience, I would say what percentage...I would say certainly a lot of them are. And whether they are deceptive intentionally or whether they appear to deceive because they either go beyond their expertise or because they don't know what they're talking about in one way or another, that's a mixed bag. But I would say, generally speaking, at least half of the experts that I have encountered, both those who are additional experts on the same side as me and those who are opposing experts, at least half are what I would consider to be, in one form or another, bad experts.

Interviewer: Go ahead.

Dr. Strayer: And, again, my definition of a good expert is somebody who limits him or herself to the facts, who make statements that are well-founded based on those facts, and is honest.

Interviewer: To another. But don't these experts expect to get caught? How can they fudge so much?

Dr. Strayer: Well, since that's not my mindset, I can't really psychoanalyze them very well. I can tell you that, in a lot of cases, they rely on some of the kinds of deceptions that I indicated that are not always easy to catch. I mean, the issue of secondhand smoke, for example, is not an easy one to catch. And as I'm sure you're aware, the Surgeon General's Office spent a lot of time trying to deal with the issue of secondhand smoke and its potential effects on health against a smokescreen that was put up by experts that were provided by people who had an economic advantage or an economic basis for wanting to sell lots and lots of cigarettes.

So, to the best of my ability to tell, most of these experts who deceive in the ways that I've described and the ways I will describe tomorrow don't expect to be caught. I think that they say whatever they think sounds compelling or, if you will, impressive. And I have a case like that tomorrow that I'll talk about. And they simply expect that they can bluff their way through.

Interviewer: Is there a data bank for notifying others about experiencing lying experts?

Dr. Strayer: I have no idea.

Interviewer: And do you have any tips on making a technical issue clear to lay people on a jury, when two experts have differing views and the technical issues are usually complicated?

Dr. Strayer: The way I deal with it, now, one of the things I'll try to emphasize tomorrow is that your expert should not directly challenge the opposing expert. Your expert to present the fact that he or she understands them, and it then is, from my point of view, anyway, most effective if the attorney is the one who challenges the opposing expert directly. But, fundamentally, the issue that I believe this person is asking is that Mr. Kinsley, if I read correctly, the issue really is how best to present complicated data to people who are not used to dealing with that kind of situation.

And in that context, what I would say basically is that I fall back on the fact that I have a lot of years, more than I care to think, of experience teaching students. And a lot of how one teaches students is basically trying to express complicated concepts and to link complicated concepts in a construct that they might not necessarily have the background information to understand well.

So, what is important here is to... It may seem obvious, but, believe me, I've seen lots of situations where good experts simply can't express themselves well. The challenge then is to express yourself in simple words, to avoid really complex diagrams or complex illustrations. I don't show, generally speaking... Only rarely do I show pictures of pathology because most people are not used to seeing what cells look like under a microscope. I would project them in PowerPoint, but the point is the same. I just tried to describe, and I do so in simple terms. I make contrasts in ways that I think are easy to understand for people who are not immersed in the kind of medical terminological world that is what I inhabit, essentially.

That may be vague, but I think it's kind of a case-by-case basis. The important thing from my point of view is to try to put yourself in the position of a juror who may be expert in something, but something much different from what you're trying to convey. The juror may be a chemical engineer, and he or she may be expert in how to put together a fertilizer plant. This is off the top of my head. But they don't know what sepsis is all about or they don't know how lung cancer develops, or things of this nature, or how it grows. So, in that setting, what you have to do is simply provide them with a basic framework in which to understand what you're saying in words that are as simple as possible without having to go back over your terms and redefine them and redefine them again. And it takes work.

It's something that, for a lot of people, is not intuitive, and it doesn't come naturally, but in order to be effective in communicating, you have to be able to communicate. And that means who is your audience, and how are they best approached to help them understand what you're trying to say? That's the best I can do. And it's a complicated question. It's an excellent question. I'm not sure that I have answered it fully, but that's the best I can do.

Interviewer: Okay. So we do have two questions left over, however, we have reached the 4:00 mark, and to respect everyone's time, I will end the presentation here. But just remember to check in for tomorrow's presentation for part two. And we want to thank Dr. David Strayer for his presentation this afternoon, and we look forward to tomorrow. You all will be getting the recorded presentation. So, just look for that in your inboxes. And I do apologize for not having the PDF in the Resource List. It was too large to upload. This concludes the presentation today, and I look forward to seeing you all tomorrow. Thank you.

Dr. Strayer: Thank you.

Previous Article Part II: When "the Truth" is found to be Lies: Identifying and handling experts who deceive
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