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


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 28, 2021, at 3:00 p.m. (ET), The TASA Group, in conjunction anatomic pathologist Dr. David Strayer, presented part two of a one-hour, interactive webinar presentation, Part II: 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 is said and what is suggested will reflect his experience as an expert witness, mainly relating to causation analysis.


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 hasPart II:  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. Part two of, "When the Truth is found to be Lies, Identifying and Handling Experts Who Deceive." The information presented by the expert 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 is and what is suggested here will reflect his experience as an expert witness, mainly relating 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 in Pennsylvania, 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 LIES. During the Q&A session, we ask that you enter this passcode into the Q&A widget, which is to the right of your screen. Please remember that if you are applying for CLE credit, you must log on to your computer as yourself and stay for the full 60 minutes. You are 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 the link to the archived recording of the webinar. Thank you all for attending today. And Dr. Strayer, the presentation is now turned over to you.

Dr. Strayer: Okay, thank you for joining us for the second part of our discussion of the approaches that I would suggest based on my experience for identifying and handling deceptive experts. I won't go back through my original introductory remarks. But I'll launch into the fifth of nine cases that are intended to illustrate with increasing degree of severity if you will, or problematic interpretation, if you will, the kinds of tactics or approaches that experts who are deceptive have in my experience commonly employed in order to try to be persuasive.

So, the previous cases, focus to some extent or other on what my perception is, was relatively less egregious transgressions, including slanting the facts, cherry-picking the facts, and such. These will be, generally speaking, more problematic transgressions if you will. And I'll start with this case. At the end, I will try to tie this together and make suggestions as to how I think it would be most effective for you to consider approaching dealing with people who are, shall we say, less than completely honest in these respects. So in this case, we're gonna talk about somebody who cites incorrect facts as an expert. In this context, an expert may, whether by intention or in error, misstate certain of the basic facts. This is almost always done to magnify or to extend the impact of the analysis that the expert is providing, and to make those analyses appear to be more fundamental to the issues related to the case.

Now, one of the things that I suggested yesterday and I will emphasize again today is that spotting these kinds of deceptions is an important function of your expert in the same field that the questionably deceptive expert is known to practice. So your expert then should be able to help you spot the factual errors, which are the problems in this particular case that I'm about to illustrate and to help you use them to your advantage.

So in this case, there was an elderly man who was crossing the street and he was in a crosswalk at a stop sign. The driver of the car, who is the defendant in this case, had stopped. He was blinded by the sun, which on the cloudy picture that's shown is not in evidence, but in the setting he was blinded by the sun. He didn't see the man crossing the crosswalk, and he hit the man. The driver stopped when he felt a bump. The man whom he had hit was on his back. He was unconscious beside the right front wheel, which is the passenger side wheel, and he was bleeding from the back of his head. The EMTs tried multiple times to intubate the person who was hit, but they were unable to do so. They also provided vigorous and prolonged cardiopulmonary resuscitation that was unsuccessful, so the person died. At autopsy, this is an illustration of the findings at autopsy. There are fractures that are shown here as lightning bolts. His right tibia was fractured, his right humerus is fractured. Several ribs on both sides were fractured. He had a fracture in the posterior part of his skull. And he had several additional injuries. There were friction abrasions on his right arm and leg, as well as on his right hand. There were contusions which is bruises, in both of his lungs, and he had a lacerated spleen and he had a laceration of his uvula which is in the back of the mouth. His neck and facial bones were intact. There was blood in both his airways and his mouth.

So the responsibility in this matter was not an issue, the driver was clearly at fault. The question was exactly how did all of this evolve? So the plaintiff's expert, who was a forensic pathologist said that the driver had heedlessly run over, that was his word, run over the decedent's body, ran over his right arm and right leg, the whole of the decedent's chest and head crushing the skull and his ribs and lacerating the uvula. In addition, the expert said or the presumed expert said that the impact pushed the right side of the body under the car. And in that setting, the car ran over the right upper abdominal quadrant. And it was in that location that the impact of the car tore the spleen, lacerated the spleen.

So, in looking at this case, the first thing that was obvious to me, and that should be obvious to your expert is that there is no possible path that the car could have taken that could have caused all of these injuries. With the pedestrian lying as shown here in this picture, which is obviously not of the case in question, but it's close to representation as I could find. With a pedestrian lying on his back next to the passenger wheel by the front of the car, the car could not possibly have run over his entire head and chest. The car was a 4000-pound car, was a 2-ton car with an engine in the front and the skull would have been crushed had the car gone over it as the plaintiff's expert had suggested. Rather, the posterior skull fracture probably represented the impact of the skull on the pavement. The weight of the car would, had it gone over the skull, have fractured the bones of the interior skull and the neck. Those were intact.

The uvular tear, the tear in the back of his mouth was probably a reflection not of the trauma caused by the car directly, but by a repeated attempt unsuccessfully to intubate the person who had been hit. In addition, to emphasize the extent of the exaggeration that was involved here, the sternum, which is the bone in the middle of the chest cage, and rib fractures are almost always caused by CPR. Vigorous CPR will cause rib fractures and it may fracture the sternum as well. A car wing as much as this car weighed with the engine in front therefore providing more weight in the front would have done far more extensive soft tissue and bony damage than was seen here. The skull fracture as I indicated was at the site where the head hit the pavement and probably does not reflect the car running over the head. The tire abrasions were only seen on the right side in this case. And that makes it almost impossible to imagine how the car would have traversed the body and gone over the skull and the entire chest. Finally, the "expert" said that the car's path over the right side of the upper abdomen would have caused a laceration of the spleen. Well, the spleen is on the left, it's not on the right, the liver is on the right and it was intact. So the splenic tear was almost certainly caused by vigorous attempted resuscitation.

So this expert, so-called, tried to link all of the injuries that were seen at autopsy. And in so doing, as I understood it, he was trying to produce the strongest story for the egregiousness of the transgression by the driver. In the process, what he did was he synthesized a scenario that couldn't possibly have happened using non-facts like the location of the spleen being on the wrong side. That was simply wrong. In the process, he did significant damage to the case that the plaintiff was trying to put forward, which is to say, his overzealousness, in producing the story, basically took away from the legitimate facts that the plaintiff's case had in its favor. Pointing out that his reconstruction of the sequence of events rested on major factual errors, basically unraveled the story that he was trying to tell. So this was a fairly straightforward case that illustrates the dangers of somebody trying to say too much. It's much easier, and I'll try to emphasize this, as I go on here this afternoon, it's much easier to stick to the facts. It may not be as colorful, but there's much less chance that you will be called out on inaccuracies that way than if you try to extend them to encompass a much broader situation than they justify.

So the next case is a case of an expert who is basically creating a fantasy that involves what I would say are distorted or strained, hypothetical conclusions of paths that were not taken in the course of the individual, the victim's life that are proposed as having the potential to have led to the patient's survival and health, whereas the result was the opposite. So the basic principle involved as illustrated here in this slide, it's what I call distorted or extreme hypotheticals, in this case, the expert knows the outcome. And using a commonly employed tool, which is 20/20 hindsight, the expert makes inaccurate connections to basically put together a scenario which is quite extreme, and which I will show you basically does not apply to the case. But with the goal apparently, of trying to make a more rigid or more absolute case. The expert basically provides a scenario which a careful opposing expert can say is just nonsense. So the context in which this expert's opinion is provided is indicated next. And it's basically that if the morons who were caring for the patient had actually done what they were supposed to do, if they had looked at or done X, then they would certainly, notice the absolutes, have found that the patient had Y disease, and then they would have absolutely acted to prevent Z complication, which only happened in situations in which the Y disease happens. And I'll illustrate that with the case in question.

So, the expert in this case, portrays a situation where there was only one possible course of action. And the course of action was absolutely obvious at the time of the initial incident, whatever that may have been. And in this case, it was a laboratory value. And if the path that the expert claims was unavoidable, had been followed, certain events absolutely would have occurred. You notice that in this rendition, there are no conditionals, there are no might, there are no coulds or maybes or possiblys or even probablys, only indisputable absolute rock-solid certainty. And the conclusion then was had the people who were taking care of this patient follow what was obvious, at least in 20/20 hindsight, what was obvious in the course of that patient's medical history, then the outcome would have been a happy one.

So what is the case? This is a 57-year-old woman of Filipino descent, and she had always been healthy. In 2005, her total white blood count declined to the point where it was just below the reference range. I'll say a word about the terminology reference range in a minute. However, the populations of cells that are constituents of the white blood cell population in the blood, which are mostly lymphocytes, and neutrophils, and a few others, all remained within their own individual population reference ranges, the woman had no symptoms. And all of her physical exams from that point for a number of years were normal. Five years later, she had a hip replacement. And two years after that she had an operation for colon cancer. Both of those were done at major medical centers, in the context of which operations, she had many physical exams, many laboratory studies, many white blood cell count analyses, all of these showed slightly low total white blood cell counts, but normal individual white blood cell population numbers. Now, my terminology reference range as opposed to normal, what we call a reference range in clinical medicine, and what many people substitute as calling "normal" is, in fact, a reference range, it's not a normal range. The reference range is determined whenever you have a laboratory test done is determined by a set of healthy values from healthy people who have the same test performed to basically calibrate the machinery that is responsible for the test.

The reference range is the mean, it's a bell curve, basically. It's the mean plus or minus two standard deviations. And what that does is it incorporates about 95% of the population of healthy and normal people. It's not the same thing as a normal range. Because the normal range is bigger than that, it would incorporate more standard deviations on either side of the mean. And it would also basically be reflective of other parameters such as the age, the gender, the ethnicity, and so forth and so on of the person involved. So the reference range is basically intended to provide exactly what it says, a reference. Some people may have values that are a little bit below or a little bit above the reference range limits if you will. And that does not mean that those are abnormal values. It just means that those are people who could fall perhaps normally within the two-and-a-half percent above and two-and-a-half percent below the limits of the reference range. So reference range is not the same thing as normal. So I'll continue.

In the winter of 2014, or about nine years after she had the first slightly low white blood count, she experienced several weeks of cough, and she had a fever and the fever was unresponsive to antibiotic treatment. She went to urgent cares, and she got antibiotic prescriptions, nothing helped. She then went to the emergency room and had a chest X-ray. The chest X-ray showed patchy infiltrates, which are these little white things shown that are highlighted by some of these arrows, and she was admitted to the hospital with a presumptive diagnosis of pneumonia. For the first time during this admission, nine years after the presumed or alleged, if you will, harbinger event, she had an enlarged lymph node in her neck. Notice that the lymph node is kind of in the posterior part of her neck, posterior cervical lymph nodes are absolutely classically involved in Hodgkin's disease. When that node was biopsied, it was found to be one of the forms of Hodgkin's lymphoma. So she was determined in 2014, to have had Hodgkin's disease.

So at the time of that admission, she was also noted for the first time after many, many physical exams over the years and in the hospitals to have had a large spleen, and the spleen was found eventually to have been enlarged by being filled with nodules of lymphoma which are illustrated here on the right. A normal spleen for comparison is shown on the left. Almost all of the white blood cell populations at this point in time were low. They were depressed, especially lymphocytes. And this was felt to be due to sequestration of the white blood cells by the enlarged spleen. The spleen is a filter. It basically has blood percolating through it all the time, if it is enlarged, and especially if there is some impediment to the normal or natural flow of blood through the spleen, as you see here with these masses of tumor then the spleen may sequester populations of white blood cells, so they don't circulate. And that is what is hypothesized here.

So, in addition to that, she had this pneumonia, and they did a lung washing, it's called a bronchial wash, and that showed a fungus called Coccidioides immitis. Now, this is a fungus. It's a pathogenic fungus that is most commonly seen in central California in the central valley of California near and around Bakersfield. It's well known in that area, people in that area call the disease that it causes to be valley fever. This particular patient did poorly and she died despite treatment for her fungal infection. And at autopsy she was found to have had widespread involvement in many organs by this fungal pathogen. So that's the story.

The plaintiff's expert said that the failure to diagnosis this patient's lymphoma in 2005 was the issue. And what the plaintiff's expert said was that when her total blood count, white blood count had dipped slightly, she absolutely should have had a complete workup, including a bone marrow biopsy and extensive radiographic evaluation of her entire body. He then went on to say, if she had had that kind of workup in 2005, she absolutely would have been diagnosed as having Hodgkin's lymphoma, and she would have been treated, she would still be alive, she would never have developed that awful infection. He also said that Coccidioidomycosis which is the infection caused by that fungus never occurs in or kills healthy people. It only affects people and particularly only severely who are immunosuppressed, such as patients who have Hodgkin's disease. Well, superficially, that looks convincing, the lymphoma had massively enlarged her spleen. She had sequestered a lot of her circulating protective white blood cell population that lowered her peripheral white blood counts. White blood cells protect against infection. The low white counts made her immunocompromised or her defenses were compromised, and she died of a disseminated infection. Further, it is also generally true that patients with Hodgkin's disease when they are treated usually do pretty well.

Unfortunately, that was a very substantial distortion of the facts and a very rigid approach to looking at the situation which was not applicable in point of fact. So from 2005 to 2013, before the year in which she had her fever and cough, she had no symptoms of Hodgkin's disease, and she had no symptoms of any impaired defenses. Mixed cellularity Hodgkin's lymphoma is notoriously spotty in terms of its organ involvement. It skips around the body, it's easily possible to have missed it over the course of those years. But even if she had had it in 2005, which I would submit is quite dubious, since it's only in retrospect, that it was hypothesized on the basis of a lymph node biopsy in 2014, that she had it in 2005. A biopsy could easily have missed it. And there was nothing to biopsy since there was nothing that appeared to be affected. Throughout all of those years, she had no symptoms. And there were no exam or lab findings throughout all those nine years that suggested that she had a lymphoma. In addition, she never had symptoms until just before she died of any kind of fungal infection affecting her lungs. But there's more. So she died of Coccidioides immitis infection. This is an infection that has virtually never been reported in patients with mixed cellularity Hodgkin's disease. So the notion that it only occurs in patients who are severely immunocompromised, such as mixed cellularity Hodgkin's patients like this one is simply not factually substantiable.

In addition, although this particular fungal infection is unusual in the eastern part of the United States, as I indicated, it's quite common in the West, especially in central California. And it's quite well understood to be potentially lethal, even in otherwise healthy people. Finally, she was of Filipino descent. And people of Filipino descent are genetically particularly susceptible to severe and often lethal infection with this particular fungal pathogen. So the expert report, of the plaintiff's expert in this case, basically relied heavily on the if X then Y assertions, and it was very heavily laden with absolutes and superlatives. In that context and a report that you see that's like this, ought to be suspect from the very beginning. Because in medicine there are very few superlatives, and there are very few absolutes. Almost everything is shades of grey. So when you analyze the facts carefully, that can highlight the weaknesses of reports of this nature, and offer avenues for challenge and rebuttal. Okay.

The next case is not a malpractice case, it's a personal injury case. But it illustrates another kind of deception that a wayward expert may be found to employ. So in this particular illustration, the expert asserts with basically rock-solid conviction, facts about which, at least as they describe them, the expert clearly doesn't know very much. So, in this setting, the expert uses terms and proposes potential processes and the evolution of a situation that do not apply to the situation as the evidence...or not substantiated by the evidence that applies to the situation. So a dishonest expert can describe a case, using terms that sound erudite that sound learned that sound sophisticated, but that in point of fact, can't be shown to have any application to the case at hand. So the expert can appear authoritative, which sounds very impressive, while all the time is speaking what is essentially little more than gibberish. And illustrating what I would claim to be either an extremely deceptive streak in temperament or ignorance of the field in which that person is supposed to be expert.

So the case is the following. A young woman was partying on the roof of a building, she was bumped by someone else, and she fell three stories. And you can see a picture of somebody who's lying on the set of steps by the building, she was rushed to the hospital where she died. The responsibility here, of course, was not an issue. The question was the duration of conscious pain and suffering. So, in this case, the defense expert said, and his key assertions are highlighted, that she landed on her head. He said that she was instantaneously knocked unconscious by hitting her head and that she had therefore no conscious pain and suffering. He claimed that she never regained consciousness because she had something called diffuse axonal injury, and I'll get to that in a minute. And that her injuries at the time of impact included immediate neurogenic and hemorrhagic shock. All this sounds very erudite and very impressive. Unfortunately, the facts don't bear that out.

So, one of my favorite movies is a Clint Eastwood movie in which he plays a San Francisco police inspector named Harry Callahan, who's called Dirty Harry. The movie is called "Magnum Force." And his mantra in that movie is that a man's got to know his limitations. So I would say a person's got to know his or her limitations. And exceeding one's limitations is potentially damaging to the case that you've been retained on as an expert. So, unsuperficially, the contention sound convincing, she landed on her head and bled profusely. She had sustained clearly major traumatic injuries to her skull, her shoulder, and her upper arm bones. It was claimed that she was immediately unconscious. In point of fact, she struggled for breath and she did not answer questions. So she was not fully responsive. It was claimed that she had diffuse axonal injury and therefore felt no pain, while she suffered head trauma, axons are projections from nerve cells, and they conduct nerve impulses, including pain impulses. So it's possible to assert that she had injury to her axons and that injury caused her to be incapable of feeling pain.

It was also contended that she had immediate hemorrhagic and neurogenic shock. Well, we all know what hemorrhagic means. It means having to do with hemorrhage or bleeding. Neurogenic means it starts somewhere in the nervous system. So what the expert was saying was that she had sustained neurologic injury and that she had bled substantially and that put her into shock immediately. Well, this is like a bridge too far. She landed on her head, maybe. Nobody saw her land. Her shoulder and arm injuries suggest actually that the principle first impact may well have been there. One doesn't know, that's something that's a fact one can't ever substantiate one way or another. It was said that she was immediately unconscious. Well, maybe. We don't know that either. It is known that when people reached her, she was coughing and struggling for breath. But that's not necessarily unconscious behavior, it's behavior that may reflect quite simply the most critical issue, which is that she was trying to breathe. More to the point, the contention that she had diffuse axonal injury and because the nerve cell projections were damaged, she felt no pain is simply not consistent with what diffuse axonal injury is.

In point of fact, by definition, it's a chronic condition. It occurs hours to days after the injury in question by definition. And while she certainly sustained severe injury, the time course in which she sustained that injury and died are not consistent with the time that's required for diffuse axonal injury to develop. Beyond that, it's impossible to substantiate that diagnosis for another reason. It is by definition, a diagnosis. It's only made by microscopic examination of slides. And no microscopic slides were taken by the medical examiner autopsy, so that contention simply has no basis in fact. Finally, the defense expert claimed that when she fell, she developed immediate hemorrhagic and neurologic shock, well, she certainly bled and she had brain injury. But the term however impressive it may sound is inappropriately applied here. Shock is by definition circulatory insufficiency, the heart doesn't pump well enough doesn't deliver enough blood with enough oxygen to maintain the functionality of the organs in the body. Neurogenic shock is a particular kind of shock. Usually, it comes from spinal cord injury, can come from brain injury, and it has very particular manifestations. It involves a slow heart rate because of the way the nervous system is injured. It involves severely low blood pressure and fluctuating and severely dysregulated body temperature.

At the same time, hemorrhagic shock is basically due to loss of blood, massive loss of blood. And in that setting, your blood pressure is low, and your pulse is fast. Neurogenic shock, your pulse is slow, your blood pressure is extremely low, and your temperature is all over the map. When the EMTs arrived, and when she was analyzed in the emergency room, her temperature was normal, 37 Celsius or 98.6 Fahrenheit, her blood pressure was a little bit elevated. But it's not dramatically elevated, and it's certainly not low. Her pulse is 110, which is slightly high. She didn't have either form of shock. She didn't have shock at all. So this expert tried too hard to make the case. He used the diagnosis...his goal was to show that the decedent did not suffer conscious pain or experience conscious pain and suffering. He used diagnoses that sounded superficially convincing, or at least superficially impressive, but he had no basis for making those diagnoses. They were all wrong. And therefore his attempt to be impressive actually wound up damaging the case that he was trying to make or the case that was being defended by the attorney who had retained him.

Okay, the next case is an expert who out and out lies, which is to say, anybody who is even remotely schooled in that area of medicine would know that this is a lie. And he goes ahead and lies anyway. And no, the expert is not Bruce Willis. But I put his picture here because he's bald, or he shaves his head. And this is a case of sun-induced injury to the scalp. Okay, so in out-and-out lying, the expert makes an assertion that he or she knows is simply not true, and bases it on some sort of observation that he or she knows does not represent the facts of the case, but has some superficially attractive aspects that make it seem as though it might be represented by the facts of the case. Usually, these kinds of lies are plausible on their surface, but any expert in the opposition will know that they're not true that they are lies.

So this was a case of a 61-year-old guy who developed squamous carcinoma of the scalp. Now skin cancers, as you probably are aware, with a few exceptions, and this is not one of those exceptions are generally fairly indolent diseases. Not many people die from these squamous cancers of the scalp. But anyway, this is what the tumor looks like. The pathologist said that the edges of the excision specimen when it was excised surgically, were free of tumor. So I'll explain to you what that means. In Layman's terms, it means that the detectable tumor detectable by pathology analysis had been completely excised. So how do we determine that? Before I go into the specifics of the handling of the skin specimen, I will describe to you what happened to this guy. A few years later, he developed a mass in his lung. It was also a squamous carcinoma, as a consequence of which the plaintiff's expert claimed that the lung tumor was a metastasis from the tumor on his scalp and that the pathologist who examined the tumor on his scalp had misread the specimen, he claimed it had been completely removed when it actually had not been. And what you see here is a picture of a lung with a lot of black stuff. The black stuff is carbon pigment.

And generally, carbon pigment in this density is pretty characteristic of someone who's a heavy smoker, which this patient turns out to have been. The conducting airway, the bronchus is shown here in the upper left of that picture, and the tumor is in the upper center part, it's white. And you can see from the pink arrow that the tumor arises from...basically affects the lining of the bronchus. That's important. That was along at autopsy. So when a tumor that is apparently localized is excised surgically, it's important to know for the sake of whatever future treatment may be applied clinically, it's important to know whether the entirety of the tumor at least such as we can see it has been removed. The way we analyze this in pathology is that we put ink on the excision specimen. In this case, as shown here in this picture, the ink is blue. So we tend to put the top of the specimen down, and we ink the bottom so that the deep margin which is the margin that abuts with the tissue that is remaining in the patient has ink on it. And then we section the specimen. And depending upon the individual pathologist and the way it's done, it could either be sectioned from the bottom to the top of the specimen or in this case from the deep margin to the skin, or it can be sectioned the other way around, simply a matter of what the pathologist tends to do as a matter of course.

So the plaintiff's expert in this case said that when the skin specimen was sectioned, a slice showed that cancer was present at the inked margin. So what you're seeing here is an upside-down picture of the specimen in question. So the epidermis, the superficial most layer of the skin is at the bottom. The fat, which is subcutaneous fat, the deepest layer of the excision specimen is at the top and you see that it's got this kind of turquoise ink which is what I showed you in the previous slide. The tumor is outlined here by the black dashed line. And you can see at the far right end of this particular frame, that there is some turquoise color that is basically going right down the tumor, the cut section of the tumor. So the plaintiff's expert claimed that this was a breach of standard of care, that as a result of this breach of standard of care in misdiagnosing a completely excised lesion, the tumor wound up spreading to the lung and killed the patient, and therefore was responsible for the patient's death. Okay.

Well, no, he lied. It's simple as that, really. So if you look at this, this is the same picture that I just showed you, on the left, all that stuff is tumor in the lower part of the picture. But you notice that the ink is not distributed the way it would be if it had all been applied to the entirety of that specimen. In point of fact, is a gradient, it's much thicker in the area where there's the fat, which is the top part of the slide. And it basically is much thinner, it's much more sparsely distributed in the point where the tumor is. And what's happened is exactly what I illustrate with a piece of cake that the ink was put on, and then the pathologist sectioned through the ink to the other side of the specimen, which in this case was the skin side, the superficial side. And in that case, he basically drew down with his knife, he drew the ink down through the tumor through the center of the specimen, not the edge, but the center, until it reached the epidermis part, the most superficial part of the skin.

Now, any pathologist who has ever done surgical pathology knows that that's exactly what happened. And the tumor was not present at the resected margin of the specimen. What happened here and what gives that appearance is that cutting the specimen in half has had to be done because the slide that the specimen was large enough, it didn't all fit on one slide. Cutting into specimen half, basically dragged down with the knife, dragged the ink down through the center of the specimen. So the ink there at the very bottom of this is not at the edge of the specimen, it's at the center of the specimen. The ink at the top is the bottom of the specimen or which is to say it's the resected margin, the deepest margin of the surgical resection. Furthermore, the plaintiff's expert claimed that the tumor that had metastasized to the lung was from the squamous cancer of the skin.

And point of fact, the tumor in the lung basically involved the bronchus and spread from the bronchus, peripherally in the lung. I have a quote here from one of the textbooks of cancer, which is edited by Vince DeVita, at the National Cancer Institute. And the quote is very straightforward, true endobronchial metastases, that is metastases that come from another organ, and that metastasized to the inside of a bronchus, conducting airway are rare. They're extremely rare. And all pathologists know that. Yes, many, many tumors from other organs will metastasize to the lung, but they don't metastasize to the bronchi, as a rule, they metastasize to the periphery. And as I indicated, the patient was a heavy smoker, he was set up to have lung cancer.

So to detect this kind of deception, your expert would be critical. Any diligent expert pathologist knows that if you cut through the ink and carry the ink down through the center of the specimen, as was done here, the ink is not at the tissue edge. And therefore the presence of ink at the cut part of the tumor does not mean that there was residual tumor left in the patient. It just means that the surgical specimen was excised, and cut because it was too big to fit on the slide. And the ink was carried down with a knife that cut it.

In addition, any pathologist would know that metastatic tumors to the lung are common, that metastases to the bronchi, the conducting airways are quite rare. And that of course, lung cancers in smokers that originate in smokers tend, not always, but they tend to originate in the large conducting airways such as this one did. And among the most common of those are squamous cancers. So that's a case of a pathologist who looked at the case and basically lied because he knew that there was no way that the scenario he was trying to push was in fact what happened.

The final case I'd like to talk about is a case in which data are falsified, or I believe it's reasonable to conclude that, let me put it that way. So, in this sort of a situation, an expert actually produces "data" that conflict with the findings from an unbiased source, which are standardized and certified. And such an unbiased source might be a hospital laboratory or a commercial laboratory or something of that nature. The expert redoes the test that the hospital lab in this instance or a commercial lab in another instance, finds certain kinds of results, and the expert redoes the test and announces the exact opposite results. And strangely, those results that he announces support the premise that he wants to put forward. He or she then puts together an explanation that tries to or purports to explain the difference between his result and the diametric opposite result that was done by an accredited laboratory.

So a 61-year-old man developed a cough, and he had a slight shadow on a chest X-ray. Unfortunately, that shadow was not pursued by his primary care physician. Two years later, an enlarged cervical lymph node on the lower neck was noticed on physical exam, a biopsy of that lymph node showed metastatic adenocarcinoma. A new chest X-ray identified a much larger lung tumor, which had developed in the area where the previous lung shadow had been noticed before. So I apologize for the Mac-to-PC issue here in this slide. Basically, the question is, how do we figure out where a tumor comes from?

So briefly, cells and tissues produce antigens, which are usually proteins, but occasionally other things like starches and stuff that are characteristic of and often specific for those particular cells or tissues. Now, when a tumor arises from those cells or tissues, those tumors that arise from those cells or tissues often keep the same antigens that are specific for the tumor side of origin, whatever cell or tissue type it may be. So, we detect these antigens using antibodies. And we do this with immunostaining, which is also called immunochemistry. And antibodies against those antigens are attached to something that has a color. Usually, the color is brown or blue, occasionally other colors red, maybe. And the colored spots on the microscope slide then illustrate where the positive cells are, and help you identify the site of origin or the tissue of origin of the tumor in question.

So, in this case, immunostains were done of the lymph node, the cervical lymph node, and they suggested they were positive for lung antigens. As a negative control on the right, you see the positive slide. On the left, you see the brown color, which indicates that the lymph nodes contents were derived from the lung. Those are lung antigens that were used in the antibody that is employed for the staining process. On the right side, the same antibody is used to stain a colon tumor, and you can see that it's negative, there's no brown color there. So following the diagnosis of metastatic lung cancer, the patient had radiation and chemotherapy. And he had certain genetic therapies that were assisted by genetic data from the tumor in question. The tumor regressed substantially, not completely, but largely. He had lots of scans that followed this, and about three years after he began having treatments. One of those scans was positive in his liver. So he had an operation to examine the liver. And it was noted, and you see a tumor here in the kind of upper left portion of the liver, this darker area, it was noted that the tumor had invaded the hepatic vein, and there's an arrow by that. And had spread in contiguity up the inferior vena cava into which the hepatic vein drains, and then into the right atrium of the heart. So it was basically a tumor in the liver that marched off the hepatic vein off the inferior vena cava and into the heart, all as one big mass. So there's the liver. There's the tumor. And there's the tumor that's in the hepatic vein.

Now, the liver tumor was also analyzed using the same kinds of analyses that were used for the metastasis in the cervical lymph node just a little bit ago. And here, the hospital lab found that the tumor was positive for antigens that a liver cell might express, but negative for antigens that the metastasis in the lymph node from his lung that a lung tumor might express, that was positive for liver antigens, and negative for lung antigens. So the patient died shortly after that of metastatic disease. No autopsy was done. The plaintiff claimed that the lung cancer had metastasized to the liver and elsewhere and that the delay in diagnosing the lung cancer caused the patient's death. Now, had the tumors spread to the liver from the lung, had the mass in the liver that was invading the vein and going up to the heart, had that been a primary lung tumor that metastasized to the liver, it would have expressed lung antigens and not liver antigens on the immunostains that we saw. Hospital studies show that express liver antigens but not lung antigens, meaning that the liver tumor was primary tumor in the liver, it was a second malignant tumor.

So the pathology expert redid the immunostains and wound up with two exactly opposite results from what the hospital found. He claimed that his immunostains showed that the liver tumor was positive for the lung markers that the hospital had found were negative, and that it was negative for the liver markers that the hospital found to be positive. That is to say his results were the exact opposite in two areas, both with the lung antigens and with the liver antigens. They were the exact opposite of what the hospital had found. And he claimed, therefore, that his data showed that the tumor had spread to the liver from the lung. This required explanation, how could that have happened? How could a hospital lab which is licensed and accredited have possibly gotten the wrong result twice? Well, the expert concocted a reason. And that's my interpretation. He claimed that the hospital lab had in fact done the stains wrong. And they used the wrong reagents the wrong antibodies, and that therefore the results were inaccurate. Well, I went back and I looked at what antibodies they used. And I found that in point of fact, the hospital lab protocols were absolutely accurate, they used the right antibodies and that the work was done correctly.

So, all laboratory tests in a hospital have to follow very strict protocols to ensure accuracy. If those protocols are not followed, a result that is a tissue specimen if you will, that is really positive for whatever, in this case, they would be positive for liver antigens, can appear or can be made to appear to be negative, and vice versa. Hospital labs in order to be accredited need to follow the protocols precisely. I have been a lab inspector for the College of American Pathologists, and we go through their lab protocols, I can tell you on inspection with a fine tooth comb looking for inaccuracies, so every major hospital laboratory has to follow protocol exactly. If you alter antibody or reagent concentrations, you can get the exact opposite data, which is precisely what I believe happened in this particular case. That is to say if you use a wrong antibody, or if you use the wrong antibody concentrations, something that appears to be positive can in fact, have been a negative tissue, if you just adjust the concentrations of the reagents, and vice versa. And that is what I would contend happened here. So in this setting, your expert is invaluable, with the new information that is generated by the opposing expert, with that information contradicting laboratory information from an accredited source, the "expert information" needs to be considered suspect, and your expert should be able to help you analyze the discrepancy and uncover the source of it. And as I indicate in this little cartoon, the devil is always in the details.

So, what do I suggest is the most effective way to handle deceptive opposing witnesses? I'm not an expert in courtroom technique but based on my experience and what I've seen the results to be, I would suggest that if your expert testifies before the dishonest expert, have your expert lay a framework a foundation that allows you, not him, not your expert, but you to address the dishonesty of the dishonest expert. It would be very important from my point of view to catch the dishonest expert with the facts. From my perspective, the facts are your friends, and they are the enemies of the dishonest expert. They will be what you use to hit him or her over the head. If your expert follows the opposing expert, use your direct examination of your expert to elicit the facts of the matter. And work those facts into your direct examination of your expert. And stress in that context, the factual lapses that the dishonest expert is guilty of I would advise personally against using your expert directly to challenge the dishonest expert. I would say that's much better done by the attorney rather than the expert. Just a suggestion.

And so when you plan your attack or your approach on dealing with a dishonest expert, your expert is your ally. And the honesty and the expertise of your expert are going to be fundamental to your ability to deal effectively with the dishonest expert and to draw a contrast between the dishonest and variably fabricated or deceptive approach that the dishonest expert uses, to contrast that with the actual facts of the matter, which is what your expert will help you present or what you will work with him to present. So from my point of view, the critical issues are getting the facts and getting the facts straight. And that your expert needs to both know his field and stick to the facts. And finally, your expert must be fundamentally honest. That's your best defense against a dishonest expert. So in summary, we talked about how to spot the different kinds of dishonesty and deception that reports from deceptive experts can contain. I've tried to illustrate the several ways that such experts might try to create a false narrative about the case in question. And finally, I've suggested approaches. Understanding that my expertise is in the science and the medicine rather than the courtroom technique. I've tried to suggest approaches that I hope will allow you to handle effectively deceptive or dishonest witnesses. Thank you for your attention.

Interviewer: Thank you, Dr. Strayer. That was amazing. If everyone could type in the passcode, the passcode is LIES. The first question I have for you, Dr. Strayer, is could the same invasive causative agents have caused both the lung and the liver cancer in case number nine?

Dr. Strayer: Well, what I didn't tell you about case number nine is that the patient was a smoker. And although liver cancer is not at the forefront of those tumors that are associated commonly with smokers, the presence of carcinogens from cigarette smoke in the blood can participate in causing liver cancers. I mean, among the other major causes of liver cancer are alcohol and hepatitis viruses, which may or may not have an association depending on the lifestyle of the person in question with that person's exposures. So the answer is the etiologic link or the causative link between liver cancer and smoking is much less dramatic than it is with lung cancer or with bladder cancer. But there is certainly the potential for that kind of similarity and causation. Yes.

Interviewer: Awesome. Thank you. We have reached the 4:00 hour, and any questions that were not answered, Dr. Strayer has said that I can send those over to him and he will answer those for you all. Thank you all for attending today. I will be working on getting your CLE certificates to you within the next few days. Not on the weekend, but Monday, Tuesday possibly. And thank you, Dr. Strayer so much for the two-parter, and all the information that you have provided for us.

Dr. Strayer: Pleasure.

Interviewer: This concludes our conversation, and if you all have any questions, feel free to email me or give me a call at TASA. Have a good day.

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