Unveiling TEAM: A Paradigm Shift in Expert Assessments for Personal Injury Cases

Prepare to revolutionize expert assessments in personal injury cases with Dr. Richard Batson and Dr. Joshua Goldenberg as we unveil the groundbreaking Tort Expert Assessment Model (TEAM). With seven years of forensic work, TEAM meets evidence-based medicine standards. We dissect its 12-domain structure, aiding experts and attorneys in navigating complex injury cases. We explore the role of medical expertise in legal battles, focusing on traumatic brain injury (TBI) cases and the synergy of medical details with lived experiences for a holistic view. We close with insights into rebuttal and burden balancing in legal proceedings, equipping listeners with essential tools for constructing or dismantling cases. This dialogue is invaluable for those in legal and medical fields and anyone interested in the fusion of science and law.

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Transcript

Introducer: 0:02

Welcome to the Brain Injury Forensics Podcast presented by Brain Injury Research Solutions, a forensic services and contract research organization. Join Drs Richard Batson and Joshua Goldenberg as they interview nationally and internationally renowned experts and dive into the latest developments in brain injury forensics, applied medical research, state-of-the-art forensic methodologies, gold standard advanced neuroimaging and numerous brain injury-related medical topics.

Dr. Joshua Goldenberg, Co-Host: 0:37

This is just a reminder before we start that while we are doctors and have advanced training in forensic medical science and forensic epidemiology, and we will be discussing topics that involve medicine and the law, the information in this podcast is not medical, legal or other professional advice, and this podcast is provided for informational and educational purposes only. You should not rely on anything you hear as a substitute for medical care by a physician or other qualified medical professional or legal advice from a licensed attorney. Always consult with your physician or other qualified medical professional for medical advice and an attorney for legal advice. Hello everyone and welcome to the Brain Injury Forensics Podcast.

Dr. Joshua Goldenberg, Co-Host: 1:23

This is your host, Dr Joshua Goldenberg, and Dr Richard Davis Batson. We are here today to introduce to the world a new model, a new approach that we have put together to really, we think, change the way we look at expert tort work writ large. So, Dr Batson, do you want to kind of introduce this idea and then we can kind of drill down into the nitty gritty and maybe, as you're introducing it, tell the audience a little bit about what drove us to get here? What was the why behind this model?

Dr. Richard Batson, Co-Host: 2:05

The why, besides obsessive, compulsive tendencies, I think probably, by the way, good afternoon, or I think it's afternoon, yeah, good afternoon, dr Goldenberg. So I think what drove us. So, first of all, we're going to be introducing a framework today. Let's think of it as a framework, or a model, or a method. We debated over what to call it, but we were calling it the tort expert assessment model acronym team, so the team approach and this is version 1.0.

2:38

I'm sure we'll have a 2.0 by next year, but this is a culmination of about seven years of doing forensic work and working primarily in the personal injury setting of traumatic brain injury, but also other areas as well, and so the model can apply to different types of personal injuries or torts and it's not limited to the brain injury space, which is where we generally function. It's got a broader applicability. But I think for us this came out of and of course we speak to this in several other of our podcasts a disillusionment or dissatisfaction with the expert witness work inside of the personal injury space. We feel that it doesn't remotely parallel the standards within medicine that are laid out through evidence-based medicine and many other areas, and so this is a culmination of our disappointment and frustration, and there's a lot and a response.

Dr. Joshua Goldenberg, Co-Host: 3:40

A response and a response, a light, a rebuttal. A rebuttal to what we see a rebuttal to what we see.

Dr. Richard Batson, Co-Host: 3:48

So the idea of this model or the team approach toward expert assessment model or you can also call it a method, because you can apply it as a sequence of steps or checklists or things that are done in tandem, although it's much, much more than that. The goal of this is to really assist both experts in improving their expert assessments, evaluations, testimony, et cetera, how they meet their burden of proof if they're working on the plaintiff's side. On the defense side, there's different issues that we'll discuss, but it's also to help attorneys to gain a framework about what's actually possible with a comprehensive model, to make sure important things are not being overlooked. And so I think we all have room to grow, as, whether we're expert witnesses or whether we're personal injury litigation attorneys, this model is for both and it requires both. It requires the perspective of the expert and it requires the perspective of the attorney or the litigator to really make this model yield its full potential.

Dr. Joshua Goldenberg, Co-Host: 4:58

Yeah, and one of the things that you've pointed out and we've done it, like you said, we've done a bunch of podcasts on some of the problems that we're seeing in the existing structure of this, one of which is the due diligence aspect, right, and you've kind of codified that one as well in the past and ways we've thought about this, and I think this is the way I look at this is, yeah, it's a culmination of seven years of thinking about and talking about and working through these problems no-transcript.

Dr. Richard Batson, Co-Host: 5:45

I mean, in a way, those have listened to our podcast on the cred approach right C-R-E-D. Due diligence is the last of the factors and in a way, this model supplements the cred approach and fits into the space of due diligence to make sure that we're actually doing our due diligence, and so I think it supports the cred approach for those that have listened to our podcasts on that particular topic.

Dr. Joshua Goldenberg, Co-Host: 6:13

Yeah, so let's talk about it. Why don't we break it down? I think it'll make more sense to people once we get into the pieces of it. So we're talking about this as a comprehensive way to approach, sort approach, expert work, both for the expert and the attorney around personal injury space and the assessment thereof. What are the components of it? And we'll go into detail just for the listener's benefit. We're going to go into the detail of each one of these separately and do our due diligence with each one, if you will in the podcast, but let's do. Why don't we go through kind of a broad scoping view of the different aspects of this and maybe with some brief explanations as we do so?

Dr. Richard Batson, Co-Host: 6:55

Absolutely Well, I think. First of all, today we're just going to do an outline and a brief overview. There are 12 different domains within the tort expert assessment model and we're going to briefly go over those domains today and kind of outline what we're going to do over the next 12 podcasts, which is to go over each one of the domains in greater detail than we will today. So let's start with the overall map. So we have 12 different domains. The first we call field and we talk about a field-first approach, and this is where the litigators, the attorneys, come in.

7:38

And, of course, expert witnesses should understand something about the legal arena. In fact, the APA guidelines that we have discussed talk about the importance of experts having a basic working knowledge of the law. Part of that is understanding the tort type. So are we dealing with a brain injury tort? Are we dealing with a malpractice case? Are we dealing with toxin exposures, etc. Dealing with a malpractice case, are we dealing with toxin exposures, et cetera. But also understanding the jurisdiction. And of course, for the attorneys that goes beyond jurisdiction to looking at judge, jury, the types of witnesses, the burden of proof within a particular tort type. Is it a toxic exposure tort, which might have different standards than, say, a traumatic brain injury and so forth. So that's what we call a field-first approach, which is understanding the lay of the land and, as we said to others when we were teaching this, dr Goldenberg, experts need to understand the field that they're going to be in.

Dr. Joshua Goldenberg, Co-Host: 8:41

Yeah.

Dr. Richard Batson, Co-Host: 8:43

When an expert testifies, he or she is coming into the litigation space. That's not that they're going to be in. Yeah, when an expert testifies, he or she is coming into the litigation space. That's not what they're using. It's a very different world.

Dr. Joshua Goldenberg, Co-Host: 8:51

Which is a different world. It's a different world, different culture, there's a different language, and so, like I don't want to, you know, under count this. You know this is, as some, I'm trying to remember back. So you acclimated me to this forensics work in this forensics world, and I was thinking back to my early experiences. The whole thing felt extremely foreign to me. There's different languaging, there's different terms, there's different concepts. The way people think about evidence and talk about evidence is different, and so, unless you are one of these rare birds like we've become and there are a few other out there where this is pretty much all they do most forensics experts are going to be yeah, they're doctors, they're scientists, they're experts in their field and they're coming up to do a couple cases and there's just a whole vocabulary. Even that's needed to feel comfortable as an expert, I think.

Dr. Richard Batson, Co-Host: 9:47

Yeah, and I think you know we're now talking to experts that might be listening to this as opposed to attorneys. But the other thing is, you know experts need to know enough and to that extent, you know, in my opinion the attorney has a certain responsibility to educate the expert as much as possible so they know what they need to go. Moving into what's essentially a foreign field right, it's not what they're used to. You're not in the clinical setting and you're not even in the research space. If you're in academics or you're a professor or you're in the research environment Totally different space. So we've got to understand the field. So that's what we mean by a field first approach and we'll do a whole podcast there that 100 percent focus on, let's say, tbi or whatever it is.

Dr. Joshua Goldenberg, Co-Host: 10:50

Right, but the vast majority of them do not Right. So they may have had a couple of cases, they may have some, you know, some experience under their belt. They may have talked to colleagues that do this, but for the most part the overall strategies, the legal lay of the land, they may not be familiar with. So that's also part of that sort of field. First approach right From the attorney perspective.

Dr. Richard Batson, Co-Host: 11:10

You can think of the field first approach also as getting enough medical training Right yes, in a particular area. So it's really field can apply to the legal field, but it can also apply to the medical field, and so, while the expert needs to move into a field of testimony that's very different than what he or she is used to, the attorney is now required to know enough about the type of injury or tort from a medical or scientific perspective.

Dr. Joshua Goldenberg, Co-Host: 11:39

Love it.

Dr. Richard Batson, Co-Host: 11:40

Love it. So that field first approach really really shows that it's incumbent upon the attorney to get sufficient education and knowledge, medically or scientifically, in the area that they're working in. Yep, perfect, so I think that's how much I would emphasize there and that may be taking basic anatomy courses or learning the pathophysiology behind a particular type of injury and various other medical issues that are there, so that when they're moving into that field they can competently work with the expert witnesses that they've retained or to cross-examine expert witnesses on the opposing side.

Dr. Joshua Goldenberg, Co-Host: 12:19

Well, okay, just a quick, and I know we want to move on because we got 12, but just a quick anecdote because I remember a couple of years ago we were present just to this point we were presenting to an attorney who had a case involving loss of smell after traumatic brain injury and you literally had a virtual reality skull with the olfactory bulb and had the attorney kind of literally, you know, manipulate the skull with their virtual arms and understand the tracks and where that went, and I just thought that was such a great example of building comfort in that space. That wasn't her space, obviously, but I think that's a great anecdote of that.

Dr. Richard Batson, Co-Host: 13:03

Yeah, I remember and I'm not trying to remember which software I was using, but it was a VR platform and you can literally make the brain huge. You can make it like the size of four or five feet wide and you can step into the brain and look at the olfactory bulb and olfactory nerves and tract and so forth.

Dr. Joshua Goldenberg, Co-Host: 13:22

Well, that was a trip for me and I did dissection.

Dr. Richard Batson, Co-Host: 13:23
Yeah, we all did dissection.

 Dr. Joshua Goldenberg, Co-Host: 13:27

I did all that work. That being said, I think that it kind of was really very useful to get a sense of the field from the medical perspective for the attorney. So, okay, excellent. So we got field first. We're basically getting everyone comfortable with each other's fields, whether it's the attorney in medicine, attorney in TBI-specific medicine or whatever we're talking about, or TBI-specific litigation, rather and then also the experts getting comfortable in the legal space and also sharing what we know about case law in that area as well. All right, what's the second domain?

Dr. Richard Batson, Co-Host: 13:59

Second domain is what we call mapping, and that's short for forensic case mapping. And forensic case mapping is a method that we developed based on our dissatisfaction with medical chronologies and standard record reviews, so it's sort of like a record review on steroids, if you will. We've got an expanded review of records. We present the data in many different ways. In fact I could probably throw it over to you, dr Goldenberg, to cover all the elements of that, but I think we'll save that for another day. But the bottom line is we include everything in there, from record reviews to chronologies, to diagnostic lists, to IME comparisons, medication reviews, an in-depth analysis of pre-existing conditions, presenting the data along the lines of symptoms and conditions as a narrative rather than the traditional way, because that's ultimately what we use when we read. We want to see things aggregated around the symptoms and the conditions and not just in a linear or chronological fashion. And then recommendations.

:15:09

We often derive research questions from the record reviews and we try to present the data graphically as much as possible and to extract any quantitative data as well Questionnaire scores, any other labs, anything that we can put into quantitative graphical representation and as broad as possible. At least you know you're hoping for five years predating an injury in question, a loss, so that you can really get a trajectory of how the person has changed, something we call burden of medical care maps, where you can see a clear uptick in the number of medical visits after an injury. We do something called susceptibility mapping, which looks at pre-existing conditions, and then we also do something called aggravation and exacerbation maps. So we'll go into all of that. But again, it's basically beyond a normal record review, and we choose not to use the term record review because it's much more than that.

Dr. Joshua Goldenberg, Co-Host: : 16:11

It's literally a map of the entire case and a foundational starting point as well, extraordinarily dissatisfied with the standard quote unquote MedCron that everybody gets right, whether it's nurse-based or you're hiring doctors abroad to do it. We've just been, after seeing hundreds of these, just highly, highly disappointed, and so this is sort of a complete reworking, also using sort of modern. One of the insights that we had was this is really sort of a qualitative research project, getting into this data as well as the quantitative component, and so we're using modern qualitative research methods and software to sort of derive this useful information and map it out strategically, like you said, which is why we're calling it the Forensic Case Map. Perfect, okay, let's move on to number three.

Dr. Richard Batson, Co-Host: 17:02

Okay, number three is lay witnesses, and this is something that attorneys will know well, but it's also important for experts to understand what goes on with lay witnesses, and so this can be employers, work colleagues, colleagues, family, friends, cohabitants, teachers, coaches, et cetera, and I think most attorneys know the importance of lay witnesses. They help to bring a narrative side to what's actually happened with a person, a more human side. As a doctor or as an expert, we tend to get caught up in the medical side and in the scientific side, which misses a huge part of the story, which is what's happening, sort of in an ecological way, in their everyday environment. And you know, part of my learning around lay witnesses has been, you know. For example, you know, in the traumatic brain injury space, historically the two strongest disciplines had been neurology and neuropsychology. Now that's changed. We have a lot more disciplines now that represent the potential sequelae or chronic effects of traumatic brain injury. But historically you would often see neurology and neuropsychology and neuropsychology.

18:27

And so neuropsychology is rigorous tests of cognition across different domains that are standardized, age-normed, sex-normed, et cetera. But it happens in a lab-like environment, right, it happens in a room. It happens in a room often with just white walls or a plain color and there's no distractions, right, it's just the neuropsychologist or the psychometrician. So there's nothing going on, right? It's not like you have kids making noise or you're driving in traffic or you're walking in a complex environment. And so one of the things that we know is that what happens in that testing environment doesn't always translate well into the real world. What we call real world effects, and we have a term for that in research called ecological validity, and so, for example, neuropsychology only has moderate ecological validity, which means what you see in the lab is not necessarily what you see in the real world. It's a very different set. You know, until we can test somebody in the real world when they're walking through Costco under bright lights, trying to shop and pick out things when they've had a brain injury, that's a very different environment than a neuropsych.

Dr. Joshua Goldenberg, Co-Host: : 19:32

Yep, and I think it captures the change in a very powerful way in my experience. So you do these formal neuropsych testing but a random person doesn't go and get a baseline neuropsych test right. So they're guesstimating what their prior levels of cognition were and they're like, oh well, you know they're still in normal range or just kind of low normal. And then you talk to their boss I mean, these collateral interviews can be so powerful and you talk to the boss who's like I know this person, top performer, and now they can't even finish their workday. It takes them an hour to compose an email. Or you talk to a mother and they're like I know my daughter, and this is a different human in front of me today right, that stuff is so powerful, not just to the jury, right, like that sort of like human connection, but also I agree to the jury, right, like that sort of like human connection, but also I agree to the experts to try to understand that trajectory of change and how abrupt that can be. That is not captured in these formal assessments or is often missed anyway in my experience.

Dr. Richard Batson, Co-Host: 20:36

Yeah, and I think many experts maybe don't understand how important the collateral interviews are, or they don't have access to them, and so they get stuck in the medical side or the scientific side.

20:50

I think, more importantly, you know, the job of the expert and this is per all the ethical guidelines that we have talked about in prior podcasts is to stay neutral and to try to find the truth as close to it as possible, and if you're just doing medicine without looking at lay witnesses, you're not going to come as close to the truth, and so due diligence we've talked about this fitting into the model of the cred approach, which is due diligence would also include lay witness data, or what we call collateral information in medicine, and that could be through, you know that could be through depositions or declarations that are supplied from lay witnesses, or it could be in some cases that the expert themselves interviews some of the lay witnesses as well. So there's different ways to do it, but the lay witness data needs to be there and an expert wants to ask for that from an attorney.

Dr. Joshua Goldenberg, Co-Host: : 21:49

Yeah, that's right.

Dr. Richard Batson, Co-Host: 21:52

Right, if, if, if it's not given to them, they need to say to the attorney who are your lay witnesses, please provide data so I can look at this. Yeah, yep, and, and only and only in that way will there be a balanced view that also, you know, considers the ecological validity that that is so important in these cases.

Dr. Joshua Goldenberg, Co-Host: : 22:20

Here's all the medical records, here's all the information we gather, and I want you to read this interview, or I want you to watch this video. I want you to hear from the mother, because that is essential ecological information, as you put it, which I just love. That is so often missed if you're just reading through paper charts. So fabulous. Okay, how about the next one? Evaluation?

Dr. Richard Batson, Co-Host: 22:40

Yeah, and I would say also and we'll talk about this more under lay witnesses but you've got to also segment lay witnesses into witnesses that might have secondary gain. This is important from a defense standpoint too, because I want to be fair here in covering both sides. Witnesses that't have secondary gain, they're not. There's nothing that they're benefiting from, uh from from compensation, whereas a family member, on the other hand, um, would possibly benefit from the compensation, and so you have to look at it, uh, and sort of segment it out that way as well.

Dr. Joshua Goldenberg, Co-Host: : 23:18

That's right.

Dr. Richard Batson, Co-Host: 23:19

So let's look at um, the next one. The next one is the evaluation process. So number number four. So let's go back. First is field, okay, field first, then forensic case mapping or mapping, then lay witnesses and then evaluation. And we talk about a comprehensive evaluation and we're going to be going into that in depth.

23:41

But a comprehensive evaluation means ideally that you're starting with validated questionnaires and that's part of the intake. Those are peer-reviewed validated questionnaires across whatever area of investigation that you're involved in. So, for example, what I do in my practice, I use a lot of different questionnaires because I'm asked to look at a brain injury in a comprehensive way to try to understand the global sequelae or aftermath of the injury and then to make appropriate referrals to other experts or treaters to make sure that we understand the full nature and extent of the damages. So that's the goal. So to do that, you've got to do validated questionnaires, you've got to have an interview, an in-depth interview, not five minutes, not 15 minutes, not 20. We usually go three hours and then a physical examination. If there are cognitive sequelae, some type of cognitive testing or at least a referral out for that In my area of endocrinology some type of cognitive testing or at least a referral out for that.

24:45

In my area of endocrinology, laboratory assessment and dynamic testing for pituitary deficiencies, imaging modalities and we often think of neuroimaging in the brain injury space, but I often also do DEXA scans, bone scans why You've had a brain injury, you've got vestibular symptoms, dizziness and balance. You've in frequently. In fact I had a case like that last week where the lady had fallen six or seven times. Since the injury she had undiagnosed I won't say undiagnosed, but undertreated vestibular symptoms and she'd never had any falls before Right and she's postmenopausal, which means she's already at risk for osteoporosis. So that DEXA scan to see is she susceptible for fragility or a low trauma fracture? That's going to change the trajectory of the case. We need to know that. So things like that, various types of imaging that need to be there and then referrals to other specialties as necessary.

Dr. Joshua Goldenberg, Co-Host: : 25:43

Yeah, now, I want to underline this because I'm up front and center when you do these evaluations, getting them scheduled, getting a sense of these. People are sometimes confused about this, so I just want to underline this a little bit. This is not a standard medical evaluation. This is a comprehensive forensic evaluation. We're talking about I don't know 20, I mean just from what you do like 20 different validated questionnaires, not just a couple of questionnaires thrown at the patient and a visit waiting room, right. We're talking about, after that, two to three hours of comprehensive interview.

26:18

This is after the medical records have been like, thoroughly evaluated and summarized ahead of time. We're talking about an extensive laboratory workup, imaging, brain imaging, et cetera, et cetera, in addition to these referrals. So this is an extreme level of due diligence which is necessary, I think, to objectively capture a lot of these things that people are experiencing and they may not even be aware. I mean, my favorite example is you know vision issues right and they won't even put that in their intake. And then you'll do an official assessment or ask them about reading and it turns out that they have convergence insufficiency and they had no clue right. These are important things that need to be documented that can be missed with without a really thorough evaluation and certainly without a forensic evaluation.

Introducer: 27:13

If you'd like to learn more about our unique approach to brain injury forensics, email us directly at info at braininjuryresearchsolutions.com, or learn more on our website, www.braininjuryresearchsolutions.com. There you can sign up for webinars, explore featured papers and learn about the team. Enjoy the podcast. Don't forget to rate us and review us on Apple Podcasts to help spread the word.

Dr. Richard Batson, Co-Host: 27:57

Yeah, I would agree I mean, I think one of the reasons I enjoy forensic work is you've got more time and so in a clinical setting you maybe have a half hour hour max on initial intake.

28:09

My initial intake is 90 minutes in the clinical setting and then follow-ups are usually about a half an hour. But you're not able to. You're not able to flex in the same way, because the role is really different. The role is really to understand what's going on and then try to treat, whereas the role at least if you're doing plaintiff the role is to understand the nature and extent of the injuries right, fully, completely comprehensively. That's different than a defense role. There's different roles that are being played.

28:41

So, at least from a plaintiff perspective, a comprehensive evaluation is absolutely necessary. Defense is oftentimes dealing with the issues that are raised or alleged by the plaintiff and then seeing do we agree or do we disagree? Is it valid, is it not valid? So I think those are obviously different roles, but the comprehensive evaluation, at least for the plaintiff side, to me is fundamental and absolutely necessary. Sometimes you see doctors doing paper review, where they're doing review of records only, and I have some cases where I do that, where my role is limited. But ideally you can be in the space where you get to do all these different things to fully evaluate and examine the claimant Excellent, let's move on to the next one, just for sake of time.

Dr. Joshua Goldenberg, Co-Host: : 29:32

What comes next?

Dr. Richard Batson, Co-Host: 29:34

Next is literature. So we're at number five and we have spent a great deal of time in past podcasts talking about the importance of evidence synthesis, epidemiology, also sometimes pathophysiology. You know you can have medical literature that speaks to the underlying mechanisms, which speaks to biological plausibility, which is one of the Bradford Hill criteria also adopted in the Freeman threefold criteria as well. So, but epidemiology, evidence synthesis and pathophysiology critical. And for those that have not listened to our past podcasts on the use of epidemiology, what we refer to as forensic epidemiology or applied forensic epidemiology, those podcasts go into depth on this topic and of course we'll cover it again. We'll go over the basics again. And, dr Goldenberg, of course this is your area that you teach in and you're going to have a lot to say about that. Why don't you say a few things today and then we can move on from there to the next one?

Dr. Joshua Goldenberg, Co-Host: : 30:39

Yeah, I think you're right. I think we've covered this extensively in other podcasts. But briefly, I would say this is I think you're right, I think we've covered this extensively in other podcasts. But briefly, I would say all of this is unique to the field. This is extraordinarily unique to the field where we're literally using case mapping and other forms of information to drive research questions that we then go to the literature to, or forensic questions that we then go to the literature for and oftentimes build like de novo evidence synthesis projects, things that will eventually end up being published as peer-reviewed literature.

31:09

I mean these are using state-of-the-art, high-quality evidence approaches, scientific approaches in a forensic setting, which is just not done currently and again, we think needs to be the new gold standard around understanding what is the evidence supporting or refuting some form of, let's say, sequelae or the emergence of seizures after two years post-TBI? What is the evidence to support that or refute that, what is the quality of that evidence, et cetera. So these are things that we take extraordinarily seriously. We evaluate literature, we extensively search through the literature and then we'll often build de novo projects and research papers out of that, all of which to inform the forensic case and oftentimes, actually most of the time. That information, those nuggets of data, will then go into a formal, what we call evidence-based causation analysis, which is the next part of this next domain in the team approach which will then be used to run those numbers. So why don't we rotate into causation analysis, the next domain?

Dr. Richard Batson, Co-Host: 32:18

Sure, so we're moving from literature now, which was number five, to number six is causation, and causation analysis is something that's not taught in medical school. Doctors are not trained how to think about causation in the legal environment. This is a legal question of causation, which essentially is an inferential method. Essentially, causation isn't obvious. You have to infer causation and there are different peer-reviewed published methods for approaching causation in personal injury litigation, and so the oldest being the Bradford Hill criteria, but also the Seric-Fourcier, the Freeman model from 2008, and then more recently, the inference model that I believe we covered in a past podcast briefly, but we're going to go into all of these in podcast number six and we'll do an in-depth discussion of peer-reviewed causation methods for causation, inferences, determination. So I think we'll leave that for today, because that's a pretty big topic, unless you've got something.

Dr. Joshua Goldenberg, Co-Host: : 33:29

Yeah, I agree, and also not normally done. And again, just to underline this, doctors are experts in diagnosis and treatment. That's what we're trained in. That's how it works. We don't need to figure out causation right Causation. That's how it works. We don't need to figure out causation right Causation when we talk about causation from a forensics perspective. This is a very different skill set, closer probably to epidemiology than anything else, or, to just straight up, benchtop research than anything else. And so, again, this is something that needs to be applied and is very often missed and sort of your standard provider expert is not necessarily trained in this.

Dr. Richard Batson, Co-Host 34:07

Yeah, I mean. I'm always shocked, dr Goldenberg, how many reports being the vast majority of them have no mention of any causation methodology.

Dr. Joshua Goldenberg, Co-Host: : 34:16

Yeah.

Speaker 3: 34:17

They don't deal with fundamentals of causation analysis. It's not their world, and if you critique the reports from the standpoint of using a peer-reviewed method, they often don't pass muster. They're not up to snuff, and so knowledge of causation by a skilled expert can also be an important part of rebuttal as well, to make sure that an opposing expert has met really their level of due diligence in applying a peer-reviewed causation methodology.

Dr. Joshua Goldenberg, Co-Host: : 34:52

Yep, totally agree Useful on both sides of the spectrum here. And then moving into the next one, guidelines. Tell us a little bit about how that might play a role within this assessment model.

Dr. Richard Batson, Co-Host: 35:04

Absolutely, and I'm going to pass it over to you in a minute because I know this is an area that you love working in, which is you know guidelines. Here we're talking about clinical practice guidelines that may be in the medical space. We're talking about appraising those guidelines, because a lot of guidelines are garbage. In fact, I think earlier today in a meeting you were talking about how you know 95% of clinical practice guidelines, even from high level groups, oftentimes don't pass the test, so to speak. Clinical disease state reviews, consensus and position statements those are critical. Also, ethical guidelines like the ones we've covered, the AMA no-transcript clinical practice guideline. So I think that's critical. Um, the the clinical practice guidelines are important to study and understand because they're often used as learned treatises or authoritative texts, if you will, and the assumption is well, it's authoritative and therefore it must represent best available evidence, and that's just not always true. So I'm going to send that one to you. Dr Goldenberg, why don't you tell us a little bit more about?

Dr. Joshua Goldenberg, Co-Host: : 36:46

Yeah no, just briefly to you, dr Goldenberg, why don't you tell us a little bit more about yeah no, just briefly authoritative, but garbage, right?

36:55

I mean, there's been a huge amount of work over the past five years it's very recent in how you build and critique high quality guidelines, and so all the problems that you just mentioned are rife within the guideline community.

37:07

And so you'll have a guideline and it may indeed be 10, 12 years old and not incorporate recent research evidence. But also the guideline itself may be using antiquated approaches to building guidelines, may be rife with bias, et cetera, et cetera, and we now have, thanks to researchers in this field, really clear, transparent, objective ways of doing guidelines and critiquing guidelines. And because the court views these often as well, this is sort of the authoritative stance without understanding that actually we have a crisis in the guideline world, right, Sort of the emperor with no clothes type of thing, and we really need to oftentimes educate the court, educate the attorneys, educate other experts, educate the jury. That, okay, this is what the guideline says. But let's look at this guideline and understand this better. And sometimes they're fabulous and that's wonderful, but we need to be able to fully critique that because they play such a sometimes outsized role in these cases.

Dr. Richard Batson, Co-Host: 38:10

Perfect, yeah, and we'll talk about that in the. We'll talk about the agree to method and other other peer reviewed instruments for actually reviewing guidelines in a future podcast, but it'll be podcast number seven, so let's jump to number eight. What do you think?

Dr. Joshua Goldenberg, Co-Host: : 38:24

Perfect, okay. Rebuttal this is your space. Tell us about rebuttal.

Dr. Richard Batson, Co-Host: 38:28

Yeah, I do a lot of rebuttal work. I enjoy it. I think the key with rebuttal is you know when you're doing rebuttal. You're looking oftentimes at IME reports or depositions or declarations.

Dr. Joshua Goldenberg, Co-Host: : 38:40

Independent medical examination.

Dr. Richard Batson, Co-Host: 38:43

Independent medical examinations, yeah, or evaluations, and so you know, the key in rebuttal, in my opinion, is taking a comprehensive approach like the one we're talking about, making sure that you're covering all the different aspects inside of the rebuttal, which includes, you know, understanding the epidemiology, in particular, understanding what is a comprehensive evaluation so what was not actually evaluated. What is a comprehensive evaluation? So what was not actually evaluated. Understanding causation back and forward to see if the other expert is actually applying and utilizing a peer-reviewed causation methodology and if they are using one, are they using it correctly? Understanding ethical guidelines, very well, and forensic practice guidelines. And holding other experts accountable, and yourself I mean, we're not going to all be perfect, but we're going to try to get as close as we can to that bullseye and so holding other other experts accountable and calling them out when they're not following those guidelines. So I think all of that's critical.

Dr. Joshua Goldenberg, Co-Host: : 39:44

And, oh my God, the cherry picking.

Dr. Richard Batson, Co-Host: 39:47

And the well the cherry. Yeah, the cherry picking is over the top. Yeah, Cherry picking is.

Dr. Joshua Goldenberg, Co-Host: : 39:52

And calling that out. It's so important.

Dr. Richard Batson, Co-Host: 39:54

Yeah, cherry picking for those who haven't listened is selective use of evidence and it's when you go in and you grab medical literature that supports your view and you ignore all the stuff that does not support your view and that you know totally not acceptable in the medical community and the research space and evidence-based medicine.

Dr. Joshua Goldenberg, Co-Host: : 40:12

And against the ethical guidelines in the forensic space and against the ethical guidelines.

Dr. Richard Batson, Co-Host: 40:16

So cherry picking is a big one. That's critical. So all of those things, all of the skills that are sort of in this team approach that we're outlining today, should be brought to bear on rebuttal. And so, in a way, this sort of domain approach, you go through all these different domains and you make sure that you've covered the ones that are most important inside of a rebuttal.

Dr. Joshua Goldenberg, Co-Host: : 40:40

Fabulous. I'm looking forward to us getting to that one in depth. Okay, next one I have here is burden. Let's talk about that.

Dr. Richard Batson, Co-Host: 40:49

Yeah, so we finished rebuttal. That was number eight, burden is number nine, and so, really, burden of proof, which includes burden of production and burden of persuasion. But in terms of, you know, burden of persuasion, we're not going to cover that. That really starts to happen in the trial setting but from the expert standpoint, the burden of production within burden of proof. So to make sure that what you're putting forth is admissible, right, it's not going to be excluded, the science is sound. And then the other one that we see that's so important is sufficiency of evidence, which means is there enough, Are one's opinions supported sufficiently, the factual basis of one's opinions? And I would say in many, many IME reports that I read that burden of production is really not being met and yet people, you know experts, are rarely excluded because of that. So the sufficiency of evidence is critical. Admissibility, of course, we'll go into that in depth later on, but I think that's probably a good overview today. Excellent, anything from your side.

Dr. Joshua Goldenberg, Co-Host: : 42:04

No, I am very curious to hear your take on this when we go into more depth on this, because I think a lot of this, if I'm understanding correctly, comes to exclusions with experts and really being the best expert you can be in understanding the burden that you have as an expert and, for the attorney, understanding the burden that they have. And it's just, it's, it's essential, and part of it plays into everything we've been talking about, part of it plays into understanding the field, et cetera. But yeah, very, very, very important sort of crosses over both the medical, scientific and legal aspects of things. And speaking of the legal aspects, let's let's roll into the next one, number 10, which is the work directly with the attorney.

Dr. Richard Batson, Co-Host: 42:46

Yeah, I want to come into that. But I would also say on burden of proof. I mean, keep in mind, it's the plaintiff that has the burden of proof, and so if you're looking at this from the defense standpoint, it's just making sure that the plaintiff expert is meeting their burden of proof and this model can be used to critique a plaintiff expert either direction.

Dr. Joshua Goldenberg, Co-Host: : 43:07

That's right.

Dr. Richard Batson, Co-Host: 43:08

In fact, that's a great thing, I think, if defense attorneys got ahold of this model and started holding all plaintiff experts accountable to what's feasible within the model and within the constraints of any particular case and we'll talk about that. There are constraints to operate within, but that good faith effort has been made within the constraints of the case, which includes funding and many other things the size of the case, the policy limits that there's been a good faith effort to go through a comprehensive approach like this and to try to apply it as broadly and deeply as possible.

43:46

Excellent as broadly and deeply as possible, excellent. So that's number nine, uh, burden Number 10 is attorney. Um, we, this is attorney and we we say attorney, attorney competency, um, attorney, cooperation and communication. And so the competency here refers to the attorney's competency. And so, uh, you know, experts are often called by attorneys because they're deemed to be competent or they've heard from colleagues, if they've never worked for them before, they've looked at prior testimony. That's, you know, the attorney needs to assess the competency of the expert. That's critical, but the expert also, in my opinion, needs to assess the competency of the attorney.

Dr. Joshua Goldenberg, Co-Host: : 44:31

Yes.

Dr. Richard Batson, Co-Host: 44:31

What? How much experience do they have with a particular type of tort?

Dr. Joshua Goldenberg, Co-Host: : 44:35

Yeah.

Dr. Richard Batson, Co-Host: 44:36

For example, traumatic brain injury. I see attorneys saying oh yeah, I've got a lot of. You know, I'm a. I'm a traumatic brain injury. I'm not sure the language they use. I think there's limitations within the field on what you can use. But the point is you know they're implying that they know a lot about traumatic brain injury and my experience has been that's just not true most of the time.

Dr. Joshua Goldenberg, Co-Host: : 44:56

Yeah.

Dr. Richard Batson, Co-Host: 44:57

They might believe that they know a lot, but they really don't know a lot. And because every area within traumatic brain injury is complex, right, and so you're going to have limitations within, you know, as a medical expert you're going to be limited within certain areas. It's going to require consulting or working in an interdisciplinary manner to gain a better understanding of the damages, and so forth. So I think the idea of at least base competencies, core competencies, are critical and we're going to talk about that in the next podcast.

45:28

But I think core competencies for an attorney actually go far beyond the legal, and I think it includes the medical and scientific. It includes enough epidemiology to be able to look at medical literature and cross-examine and it includes a knowledge of causation theory. And I'll tell you I've literally asked attorneys can you tell me the three factors within the Freeman causation model? Because that's a distillation from the Radford Hill criteria and it's simplified, but so it's really the leanest, easiest model to apply and they don't even know the three factors, right? So how can you effectively cross-examine if you don't understand basic causation theory? So I think the expert needs to interview the attorney because you want to have a high level of competency from both sides.

Dr. Joshua Goldenberg, Co-Host: : 46:16

And you don't want to be thrown to the wolves as an expert too right Like you don't want to be cross-examined and just totally destroyed, or you know, god forbid excluded. You know as an expert witness because you weren't prepped properly or the attorney just didn't know the space. So these are. It's really important for both sides.

Dr. Richard Batson, Co-Host: 46:32

Yeah, absolutely Absolutely.

46:34

And cooperation, you know the way we define cooperation is just that the attorney gives careful consideration of expert advice and recommendations, you know.

46:44

So I'll oftentimes be on a case and I'll say you know, this to me needs a referral to neuroautology, for example, because I think there's very, very high clinical suspicion of vestibular disorder and we need robust testing on this.

47:01

We need temporal bone CT scan with thin slices and et cetera, and I want the attorney to follow my advice, right To do that, and if they don't do that, it limits my ability to say that I've engaged in a full and comprehensive assessment, because I don't have certain answers to certain questions. So I think that you know we can't compel an attorney to follow everything that the expert asks them to do, because there are, you know, in particular, budgetary constraints that we'll talk about under the next one, which is funding, but that there should be careful consideration and way of the expert advice and the recommendations, and of course experts should be. You know you got to work with attorneys and so there should you have cooperative experts that are that are easy to work with as well, which brings us to communication, which is just making sure that that route of communication is timely and that there are well-defined roles and expectations.

Dr. Joshua Goldenberg, Co-Host: : 47:59

Yes.

Dr. Richard Batson, Co-Host: 48:00

So the expert knows I'm doing this, I'm not overreaching. What have I been asked to do? What questions have I been asked to answer? What's the legal question right or questions or set of questions? So all of those need to be broadly defined and then narrowly defined as well, very specific, so that the expert doesn't overreach or go into roles that are really not appropriate for the case.

Dr. Joshua Goldenberg, Co-Host: : 48:27

Yeah, and in our last few minutes here, there's two left funding and science. Why don't we finish up with these? And then, as we said, dear listener, we will be circling back and each one of these will get their own individual podcast. You'll be able to sort of track with us in much more detail.

Dr. Richard Batson, Co-Host: 48:44

Perfect. So funding is a recognition that we operate within a world of constraints financial constraints and so you know you can come in as an expert that has a lot of knowledge and you've got a wish list right. You'd like to have this A plus B plus C plus D and so on, but that might involve three other experts that are expensive and so forth, or neuroimaging, which is expensive, and various other costs. So it's asking questions upfront about funding, about budget Is there adequate funding and what are the funding constraints? Right? Policy limits can define that. Various other factors that lead to budgetary constraints and within those budgetary constraints, what are the priorities?

49:32

Because to me, the role of a good expert is to be able to look at the case within the budgetary constraints. Learned the hard way, you've got to work within budgets and you've got to stay within budgets and you've got to allocate and recommend evaluations, even if that harms you financially. So I'll give you an example. I mean, I have cases where I'm looking at the probability that they've got damage to the inner ear, which needs to be quantified with a neurotologist through physiologic vestibular testing plus thin slice temporal CT, versus the probability that they have endocrine dysfunction, and the clinical suspicion is so much higher on the vestibular disorder that if it was between the two I would say don't use me for an endocrine evaluation, go here and do this, even though I have no financial connection.

50:31

So it's being able to really triage, in a way, and look at priorities within a case to be able to say what's the most serious and the other one and I had that the other day, you know, with this vestibular case where it was like, okay, this lady has fallen six to seven times. Fortunately she's not re-injured herself severely. Of course she's restricted all of her activities. She no longer horseback rides, she no longer she limits her hiking, she just I mean, she's just not who she was. But when I look at that case it's and I understand, if you're 65 or over and you have a low trauma fracture, what the outcomes can be Permanent disability and early death. Right, that probably should be number one on my agenda as in terms of a priority and if there's limited funding, she should go there instead of you know, doing an endocrine evaluation, for example.

51:24

So it's getting those priorities straight from a legal perspective but more importantly, from a medical perspective, because, you know, take, for example, untreated growth hormone deficiency, which is something that we deal with. We've done a lecture on post-traumatic growth hormone deficiency I think that was two weeks ago. You know that can kill you slowly over the next two decades, but it's not an imminent threat to your life, Whereas falling is Every day. You have to walk and you could fall at any moment and have a hip fracture or lumbar spine or, you know, damage your wrists if you fall on your wrists and so forth, and so that's got to take priority.

Dr. Joshua Goldenberg, Co-Host: : 52:04

Yeah.

Dr. Richard Batson, Co-Host: 52:05

So it's understanding budgetary constraints. Another thing that we've moved to a model is, you know, having a fixed fee for the evaluation so that attorneys can actually predict within reason how much they're going to spend on a particular expert. And again, that comes from a hard path of learning. You know you can always, as an expert, you can always do better right, I mean you could spend. You can always, as an expert, you can always do better, right, I mean you could spend. You can spend weeks and weeks. If you're perfectionistic like we are, you know you've got to make sure that that is within the budget to spend that amount of time. And again, I've learned that the hard way. We've moved to a model where it's a fixed fee for an evaluation and if I choose to be extra, extra perfectionistic, then that's on me, that's not on the attorney, because they've got a number of different spaces and experts and other areas where they've got to allocate funds.

Dr. Joshua Goldenberg, Co-Host: : 52:54

Right, they have to strategize that.

Dr. Richard Batson, Co-Host: 52:56

And so there needs to be a predictable budget. There needs to be something predictable that they can, you know, cause they've got to go back to their client and and, of course, get it approved and so forth. So I think funding is a big discussion, but I think that gives a little bit of flavor for it today.

Dr. Joshua Goldenberg, Co-Host: : 53:10

Excellent, yeah, and we'll talk more about that in depth, and I think that's a super important piece of this. All right, why don't we close it out then with the last domain and then we will sign off for now and then circle back on these future podcasts?

Dr. Richard Batson, Co-Host: 53:24

Yeah, I think science is the last one. Yeah, I think science is the last one. And science has to do with whether your expert is involved in science or 1995. And it says whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. So what does that speak to? That speaks to whether your expert is just a hired gun and all they do is litigation, or whether they're genuinely interested in the topics that they opine on and so they're actually doing science. They have academic positions or affiliations or collaborations, they're publishing in a particular area, they're contributing to the scientific development of that area.

54:32

That's a very different kind of expert and it speaks more to neutrality. And I'm not saying it guarantees neutrality, but it speaks to neutrality in the sense that if they're involved in doing research, then they're more likely to have a scientific temperament which is going to lean towards, you know, hopefully towards greater levels of objectivity, neutrality. So I think that's important and the fact that it was called out and Daubert v Merrill Dow Pharmaceuticals is telling. I think there's a lot to discuss in that area, but the bottom line is to me a better expert, generally speaking, is going to be one who's actually involved in science in their chosen area of testimony, outside or independent of the litigation.

Dr. Joshua Goldenberg, Co-Host: 55:16

Yeah, love it. Well, there you have it. That is the introduction to the team approach and we will be going through each one in detail. Thank you, Dr Batson, for going through those and giving us a nice introduction to what this looks like and the purposes thereof and what we hope this model can achieve in sort of changing the world, if you will, around forensics in this space. So thank you, dear listener, for listening and look forward to the future podcast where we go into this in detail forward to the future podcasts where we go into this in detail Brain Injury Forensics.

Introducer: 56:12

Email us directly at info at braininjuryresearchsolutions.com or learn more on our website, www.braininjuryresearchsolutions.com. There you can sign up for webinars, explore featured papers and learn about the team. Enjoy the podcast. Don't forget to rate us and review us on Apple Podcasts to help spread the word.