Direct and Cross Examination of Neurologist Seth Tuwiner, MD in a Traumatic Brain Injury Case

Transcription

1 Direct and Cross Examination of Neurologist Seth Tuwiner, MD in a Traumatic Brain Injury Case pril, 0. This is the redacted trial transcript of Seth Tuwiner s testimony in a case tried in pril, 0 in the Circuit Court of Fairfax County. This transcript includes the direct and cross examination of Dr Tuwiner,, a local neurologist who is hired with some frequency to testify on behalf of insurance companies in cases where a traumatic brain injury is alleged to have occurred. This transcript may be valuable and important to lawyers who are facing Dr. Tuwiner in a trial and we will be happy to provide the unredacted copy to those lawyers. (This copy does not have either our client or the young defendant identified. Neither deserved to have to go through this trial.) Seth Tuwiner has been paid over $,000 in the last three years by State Farm for medical-legal work. In this case he prepared a report (also available) that claimed that our client, a year old lawyer had only suffered a chest wall contusion when he was T-boned. State Farm, who hired Dr. Tuwiner to testify, never offered a penny to settle the case. The jury returned a verdict of $0,0. State Farm did not appeal the verdict. Transcript and other information about Dr. Tuwiner is available to plaintiff s attonreys from BenGlassLaw Old Lee Highway, B Fairfax, V 00 info@benglasslaw.com

2 P R T I L T R N S C R I P T V I R G I N I IN THE CIRCUIT COURT OF FIRFX COUNTY -x PLINTIFF PLINTIFF, Plaintiff, -vs- CSE NO. CL BENJMIN T. Defendant, Defendant. -x Circuit Courtroom J Fairfax County Courthouse Fairfax, Virginia Thursday, pril, 0 The above-entitled matter came on to be heard before the HONORBLE RNDY I. BELLOWS, Judge, in and for the Circuit Court of Fairfax County, in the Courthouse, Fairfax, Virginia, beginning at : o'clock a.m. PPERNCES: On Behalf of the Plaintiff: BENJMIN GLSS, ESUIRE JMES BRENIO, ESUIRE On Behalf of the Defendant: HETHER BRDOT, ESUIRE - CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

3 C O N T E N T S WITNESS DIRECT CROSS REDIRECT SETH TUWINER, M.D. PLINTIFF, 0 PLINTIFF RICK LSH KTHLEEN PLINTIFF 0 E X H I B I T S FOR IDENTIFICTION IN EVIDENCE DEFENSE EXHIBIT NO. PLINTIFF EXHIBIT NOS. -D DEFENSE EXHIBIT NO. DEFENSE EXHIBIT NO. DEFENSE EXHIBIT NO. 0 DEFENSE EXHIBIT NO. DEFENSE EXHIBIT NO. PLINTIFF EXHIBIT NO. PLINTIFF EXHIBIT NO. 0 CERTIFIED VERB TIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0)

4 E X C E R P T O F P R O C E E D I N G S (The Court Reporter was sworn by the Clerk of the Court.) (Whereupon, at approximately : o'clock a.m., the jury entered the courtroom.) THE COURT: Good morning. Ms. Bardot is your witness ready? MS. BRDOT: He's in the hallway, sir. (The witness entered the courtroom.) THE COURT: THE WITNESS: THE COURT: Good morning. Good morning. Ms. Bardot. MS. BRDOT: I call Seth Tuwiner. Whereupon, 0 SETH TUWINER, M.D. a witness, was called for examination by counsel on behalf of the Defendant, and after having been duly sworn by the Clerk of the Court, was examined and testified, as follows: DIRECT EXMINTION BY MS. BRDOT: Good morning, Dr. Tuwiner. Good morning. CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

5 Thank you for. coming back this morning and accommodating us. Could you go ahead and state your name and your business address for the jury. Seth Tuwiner. Business address is Sandridge venue, Suite 0, Leesburg, Virginia 0. Can you please tell the jury your education, starting with medical school. I did my medical school at the Technion Faculty of Medicine, finishing in 00. I did my internal medicine internship at the University of Southern California, finishing in 00. I did my three-year neurology residency also at the University of Southern California, finishing in 00. I did a clinical neurophysiology and epilepsy fellowship at Thomas Jefferson Medical Center finishing in 00. nd then at the same institution in Philadelphia, I did a neuromuscular disease fellowship in 00. Can you tell the jury your work history since 0 finishing your education. I've been in private practice for myself since 00 in Leesburg, Virginia, and my address has changed in the past year and a half, but it's the same area. CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

6 your field? What does it mean to be Board Certified in For any specialty, we have to first, of course, do the residency, we have to pass through the subject matter. Typically, when I took my initial boards, it's a written and then there's an oral board, but for most of the substantive boards, it's a written exam. Certified? What is the significance of being Board You have to reach a certain level of knowledge of competence to be able to pass. These exams are very difficult, very broad, and then it's also important to practice for recognition and hospital privileges and such. nd you're Board Certified in what area? 0 My first Board is neurology. I have additional sub-specialty certifications that are under the auspices of the merican Board of Psychiatry and Neurology which include brain injury medicine, clinical neurophysiology and what that includes is electrical testing of the peripheral and central nervous system, such as electroencephalogram, visual potentials for nerve testing. Subspecialty certification in vascular stroke CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

7 neurology. lso nerve muscular medicine. nd then additionally, I have additional certification called the -- by the merican Board of Electrodiagnostic Medicine which primarily deals with neuromuscular disease, peripheral nerve testing that. was a written and oral exam. nd then lastly, I'm certified in interpretation of carotid ultrasound and transcranial doppler ultrasound. That's testing of blood flow in the carotid arteries and brain by the merican Society of Neuroimaging. nd you mentioned the merican Board of Psychiatry and Neurology and you're certified by them. re you a diplomat with a specialty in brain injury medicine under that group? re there any other neurologists in the Commonwealth of Virginia who hold that certification? 0 the Board? To my knowledge, no. Do you have any role in writing questions for Yeah. For the past -- this is my second cycle -- so the Brain Injury Board will nominate they' request candidates to help them write questions, so I've CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

8 been doing that for two years. This is the second cycle that they've requested that I assist. re you affiliated with any hospitals? I have privileges at Loudoun Hospital which is across the street from my office, and also Stony Spring Hospital. It's a new hospital in ldie or Sterling but I take calls at both hospitals but one hospital no longer -- they do what's called teleneurology, so I'm on call now just at Loudoun Hospital every fifth week, I'm on call. assume? nd you're licensed to practice medicine, I In which jurisdictions? I'm licensed in Virginia and Maryland as well. Explain to the jury what the field of neurology entails. So, neurology is a field that encompasses 0 diseases or symptoms that would be due to some disfunction or problem in the brain, peripheral nerve or muscle. So, for example, there's lots of different conditions that affect the brain, such as multiple sclerosis, stroke, epilepsy, head trauma or brain injury, CERTIFIED VERB TIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

9 just to name a few, and spinal cord multiple sclerosis, masses, tumors. So as neurologists, what we do is we get a history, we examine patients, we may do certain diagnostic testing such as EEGs or electroencephalograms, nerve testing, or MRI studies, ultrasounds, or we may refer to other specialists for further evaluation. What does a typical day look like for you? So, a typical day, most of my time is in the 0 office, so I see patients from eight till about four to five on a daily basis. I'll have a lunch break. I see at least a hundred patients a week as a treating doctor. Most of my time is, you know, seeing patients. Every fifth week I'm on call, so for example, this week I'm on call at Loudoun hospital and we get called during that week, any emergency in the middle of the night whether, you know, it's routine or a life threatening condition. So, when I'm on call, I round the hospital in the morning and the evening after my office hours. re you on call now? You've got it covered now? CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

10 Yeah. I had to testify, I had to get coverage for people to field calls. Yesterday when I was supposed to be here, I rounded in the morning. Luckily there was nothing overnight for this morning, but typically I will round and I had to get coverage for fielded calls as of today. How much of your work is forensic work, meaning evaluating cases that are in litigation and providing expert testimony? So, ten to percent of my time I'm a forensic expert. So, again, I see patients as a treating doctor over 0 patients a week, but to percent of my time I may review records, I may have somebody come to my office, I'll examine them, I'll look at the records and I'll formulate an opinion. Is your work when you do forensic work all defense work? What's your mix? So, I don't choose or request either formulate or to look at the records or examine somebody. Most of my 0 work is defense work. I do do plaintiff work. I'm currently engaged in four plaintiff cases, but I'm requested mostly from the defense. Do you approach cases differently if its your CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

11 patient versus a plaintiff versus a defendant? No. I look at the records. I examine the person if it's an examination, and I render an opinion based on the objective information. nd when you say objective information, what do you mean by that? So, examination findings, diagnostic tests, sometimes not.everything is objective, so there are conditions that have subjective symptoms, but as we have to, as physicians, determine do these symptoms meet criteria, do they conform in terms of how symptoms present with that particular condition. Do you do any volunteer work within your field? Yeah. Since 0 I've volunteered at the Loudoun Free Clinic. Up until January of this year, I used to spend half a day there. come to my office. I now have patients just You've handled cases for my firm over the last 0 eight years or so, is that fair? I'm sorry, repeat the question? You've handled cases for my firm over the last eight years or so, is that fair? CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

12 How many cases would you estimate you've handled for my firm? My best estimate is anywhere from range, to 0 cases between or so attorneys. You have an understanding between the attorneys or so in my office? How many cases have you handled for me over the last years I've been practicing? I think anywhere from two to four, I'm not exactly sure. Do you recall whether your opinions have always been favorable to my client? I recall one case where I favored the plaintiff's side. If you'd look in the white binder in front of you? 0 t Exhibit Number, please. What is that? This is my CV. CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0)

13 MS. BRDOT: move to introduce that. MR. BRENIO: THE COURT: MS. BRDOT: Your Honor, at this point, I d No objection, Your Honor. It's in. (The document previously marked Defense Exhibit No., for identification, was received in evidence.) t this time, I d also offer Dr. Tuwiner as an expert in the field of neurology and brain injury medicine. MR. BRENIO: THE COURT: No objection. He'll be so qualified. BY MS. BRDOT: I asked you to get involved in this case, Dr. Tuwiner, to evaluate the complaints that Mr. PLINTIFF relates to the accident from the perspective of a provider who specializes in neurology and brain injury medicine; you understand that's what I asked you to do; correct? 0 nd in order to be thorough in this case and render opinions that are based on the medicine and the objective evidence, what documents did you review? CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

14 I was provided with a large box of records and I ll just read these records in brief. I'm just going to go through them. So, INOV Fair Oaks Hospital records; 0 Metropolitan Ear, Nose and Throat and Facial Plastic Surgery; OrthoVirginia; Integrated Neurology Services, PLLC; Fairfax MRI Center; records from Dr. John Patrick Feola; Virginia Spine Institute; MRI Reston; Cardiologist, Dr. Syed Tariq Shahab; Virginia Therapy and Fitness Center, PLC; Northern Virginia Vision Center; INOV lexandria Hospital; Fairfax County Police Department; etna Health Insurance claim history and prescriptions, Safeway Pharmacy; EHL Legal Firm, P.C.; INOV Fairfax Hospital; Blue Cross Blue Shield; Optima Choice; COSTCO Pharmacy; Fair Lakes Urgent Care; Jonathan Kline, M.D.; Plaintiff s response to State Farm's first interrogatories; ugust, 0 deposition of Mr. PLINTIFF; deposition of Dr. John Feola done November 0, 0; neuropsychology evaluation by Dr. Wilken s February, 0; neuropsychology evaluation by Dr. Kay, January, 0. I've received also seven CD ROMS. The images are reviewed. The brain MRI and various other x-rays and spine x-rays, shoulder x-rays, and those comprise the CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

15 records that I ve reviewed. nd are those the types of records which persons in your profession review and rely upon in order to formulate opinions when giving forensic testimony? Did you also have an opportunity to examine and evaluate Mr. PLINTIFF? Yes, I did. When was that, please? The examination took place February, 0. What was his appearance when he arrived? Pleasant, polite, respectful, well dressed, appeared comfortable, no issues. During the interview part of the examination, what did you notice about his affect? I mean, for the most part I thought that Mr. PLINTIFF was pleasant. I didn't see that his affect was depressed, you know, he did express frustration with some of his symptoms. I didn't find him depressed or anxious. 0 Normal affect, very pleasant. nd he recorded your interview; correct? Yes, he did. You've not been furnished a copy of that; CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0 -

16 correct? No, I have not. How long was your interview? I mean, I estimate I was with him about an hour and minutes, I believe, and this is just an estimate. pproximate one hour interview, minutes in. The length of the interview, is that typical when you're seeing a patient or a forensic person? It may vary. If it's a forensic case, you know, I will spend -- it depends on the complexity, anywhere from a half hour to up to an hour. If it's a patient, if it's a follow-up patient, again, it depends on the complexity that I treat. It could be anywhere from minutes to 0 minutes. If it s a new patient, if they're healthy and young and it's not complex, it may take to 0 minutes. If they're elderly, they have lots of medical problems, it could take more time. It just depends on the case. 0 interview? Is it fair to say this was a pretty lengthy Yes, yes. What did Mr. PLINTIFF tell you during the interview which is pertinent to the opinions which you've CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0 -

17 formed in this case? Can you just take a look at your report and relay to the jury? Well, what I had you know, this information provided was directed by the questions I asked, so he provided information about what he remembers in relation to the car accident; symptoms that he may have felt, but his recollection of events he discussed how he felt after the accident, you know, information about his emotional state and any cognant symptoms or mental faculties, any pain symptoms, and he provided history in reference to my questions. Did he have any notes that he used as he spent an hour and minutes conveying to you his history, his symptoms, et cetera? I don't recall. I just know that there was a recorder. I don't remember if -- I don't think he took notes. I think it was just recorded. Did you perceive any difficulties in his recall or memory as he sat and spoke with you? 0 No. Did you also do a physical examination? What did that consist of? CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

18 So, as a neurologist, there's different components of the exam. So, the first part is called the mini-mental status to a different variance that there's (indiscernible) cognizant assessment, but the mini-mental status exam we ask, we assess speech, short term recall, visual spacial abilities, spelling. It really is kind of a screening tool that it's comprehensive as a neuropsychological examination. The next part is called a cranial nerve exam. So the cranial nerves are nerves around the face. They include - - we take a device, we look into the back of the eyes to look at what is called a (indiscernible). We check visual fields. We assess eye movements, facial sensation, motor function, tongue movements, palate elevation. The next part is the motor examination and we assess the tongue. We look to see if 0 there's any asymetries or if there's difference in strength on one side and there's gross measures and subtle measures to assess that. Part of the motor examination is coordination and the coordination checks part of the brain called the cerebellum which is the back of the head. So patients will do what's called finger to nose and (indiscernible) CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0} -

19 testing. nd then the next part is reflexes which we take a hammer, gently tap different parts of the body to see how the reflexes respond. nd then there is sensory exam where -- and this may depend on, you know, what we're looking for, but there s different types of sensation. There's pin prick, there's temperature, there's something called Julian Position Sense and these are different types of sensation and that's guided of course by the clinical part of the hand. assess somebody's walking. nd then we s you examined Mr. PLINTIFF, did you find anything abnormal in his mini-mental status exam, his cranial exam, his motor exam, his reflexes, his sensory or his walking? No. On his mini-mental status exam, inside of 0, he got a out of 0. His short-term recall was one out of three, but for age that s not abnormal in the overall context. He did have decrease to pin prick. I'm sorry, I'm just going through my records. 0 Sure. On the left side, we call it Dermatome. So the Dermatome reflects nerve roots. So if you have like a CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 ) -

20 back problem and any number of nerve roots, Ll, L, L reference to the bones in the spine, and if there may be a pinched nerve, we document how that s mapped out on the leg, so it looked like he had decrease to pin prick in what's called the Sl Dermatome. That's in the lower back kind of where the top of the back meets the top of the rear end? For lack of a better explanation. nd when you did this examination, did you do it in the same manner that you would do it if you were seeing a patient? Correct. fter conducting a review of the materials, you've identified, interviewing Mr. PLINTIFF and examining Mr. PLINTIFF, did you reach a conclusion to a reasonable degree of certainty in your field as to whether or not he suffered a mild traumatic brain injury or any injury to his head in the accident of June, 0? 0 nd what conclusion did you reach? It was my opinion with a reasonable degree of medical certainty that Mr. PLINTIFF did not sustain any CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0 -

21 0 traumatic brain injury. In order to diagnose a mild traumatic brain injury, what are the criteria and where do you draw from? So, for mild traumatic brain injury, there's a whole list of criteria. There's World Health Organizations, Centers for Disease Control, Veterans dministration, Department of Defense. There's merican cademy of Neurology, there's Congress of Rehabilitation and then the DSM- also -- it's the foundation of the DSM- criteria for traumatic brain injuries based on all those other criteria. Now, there's lots of criteria, but all of us share the following components; loss of consciousness, confusion or lack of memory in relation to head trauma and those are the main, main criteria. Sometimes they also recognize seizures after trauma can be a criteria or transient weakness on one side or numbness on one side, but the major criteria are loss of consciousness, confusion or amnesia, any one of those. 0 What is the normal course of progression for an individual who suffers mild traumatic brain injury or concussion? It varies depending on the person, it depends CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0} -

22 on the degree of amnesia in relation to trauma. It's recognized that the vast majority of patients recover within 0 days, many within several days to weeks, but of course, this depends on a lot of different factors. When is the -- in a person who suffers mild traumatic brain injury, when are they at their worst? trauma. So they are at their worst immediately after Why is that? Well, when you have any force applied to your head, that is -- there is immediate functional disturbance of the brain. We say physiologic disturbance, so that 0 causes initially one of the criteria; loss of consciousness, confusion or amnesia, or a combination of that and then after that, the person is impaired. So that is the typical -- when I see patients, this is a typical kind of clinical description of what patients will express or what is documented in the records when they seek treatment. For example, in the emergency room, there is any of those and it has to be maximal, right after the deciding event. If a person reports experiencing cognitive CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

23 deficits days or weeks or months after the initial impact, is that consistent or inconsistent with a mild traumatic brain injury? Well, again, it depends -- I have to look at the whole context of a patient I examine or treat or assess. If somebody, for example, has a brain injury, there are maximal symptoms after and then there's gradual improvement and the vast majority improve if there's kind of residual symptoms after a maximal kind of cataclyptic presentation that that would make sense, but if there s time intervals where somebody is intact, in most cases it doesn't fit the clinical pattern. It has to be maximal at the presentation with gradual resumption or improvement. Do you hold an opinion in this case to a reasonable degree of certainty in your field regarding whether Mr. PLINTIFF suffered loss of consciousness in this accident? I do not think that Mr. PLINTIFF sustained a 0 loss of consciousness. I can explain why, but I'm just I'm going to ask -- go ahead and do that. Okay. So, if somebody has a head injury and they sustain a loss of consciousness, again, what that CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0 -

24 reflects is there's some force applied that causes immediate disfunction of the brain. If you lose consciousness, typical scenario is somebody is riding, they see lights and then they wake up in the ambulance. There's a gap. It's a very uniform gap, so you don't remember the trauma and you don t remember events immediately. In a patient who sustains a loss of consciousness they re going to be confused in the lo immediate aftermath. They're not going to be able to ll l l l so if somebody passes out, let's say for seconds, and they have a memory gap of the trauma and events that they recall, so there's a black memory of the event, there's amnesia or lack of memory of events after trauma, we call that (indiscernible) amnesia. There s going to be some confusion and they're not going to be able to answer questions, make decisions, l there's going to be disorientation. It would be atypical 0 for somebody to be lucid and make clear, rational decisions. nd in this case, what did you find in your review of the case that led you to believe that Mr. PLINTIFF did not have a loss of consciousness, factually? CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0}

25 So, I looked at the records, I read his deposition transcript. So what I see is that the plaintiff, the OnStar system went on in his car. fter a very brief period he's able to not request -- to say that he's okay, doesn't need help. calls. He made several phone He was able to interact with the police personnel were at the scene. He was able to -- other people get his car out of the scene of the accident, so what I would expect is that if there was a brain injury, that this ability to make all these decisions, calls, I just don't think that somebody would be able to competently do that. It just does not fit. So that's part of the reason. nd I come to these conclusions and in talking with the plaintiff and reading his transcript and looking at the records. nd did you also see the records from Fair 0 Oaks Hospital and Dr. Feola on the day of the accident and five days later where there was a report of no loss of consciousness? Did that factor into your opinion or did you assess it independently to determine whether there was a CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) ~

26 loss of consciousness? It did because there's the documentation and historical narrative of a person's mental status and then there's that information parallel with documentation by other providers, so it all -- it's a totality of that information that makes sense to me as a neurologist and that's part of the -- part of being able to render this opinion in this matter. How objectively as a neurologist would you discern whether there is confusion such that a mild traumatic brain injury may be diagnosed? I'm sorry, could you repeat that question? Sure. How objectively as a neurologist would you determine whether there is confusion such that you would diagnose a potential mild traumatic brain injury? So again, if somebody says they're confused, I have patients who come to me and they'll say, "I felt dazed." They use the word "dazed" okay. That's a common 0 description for confused. person, a lot of things. nd that could mean, for a lay Some people could be anxious and they could say, "I felt dazed" or "I felt confused". I have to determine what do you mean. I have my role is to ask to CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 I (0) -

27 determine define confused, what do you mean. nd also look at the records. To me, confusion is not somebody who makes phone calls, answers questions, and makes rational decisions. That's not confused. Confused is somebody who's disoriented, who cannot make decisions. that. So that's how I try to objectify I have an obligation to be rigorous and define what the patient needs because I just can't say, if somebody has chest pain, I can't say well, I'm not a cardiologist, of course, I'm not testifying as a cardiologist, but chest pain is not diagnostic for a heart attack. It could be musculoskeletal pain, it could be the lungs. So, again, as a parallel example, I have to define what that means. nd in this case did you make a determination 0 to a reasonable degree of certainty as to whether you believed Mr. PLINTIFF had confusion, objectively, which would support a mild traumatic brain injury diagnosis? confusion. I firmly felt that he did not have objective Was that because of the things you already CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0 -

28 testified about when you thought he didn't have loss of consciousness? It's the totality of everything; the records, what I stated, the rationale. Have you identified materials, resources, that you find reliable and authoritative to support your opinions in this case? Yeah. I provided authoritative statements inside of the literature. Do you have those with you? Yes, I do. Can you go ahead and at Exhibit Number for Your Honor and counsel, could you go ahead and identify the authoritative articles that you have provided and go ahead and read those, please. Give me one second, please. (Ms. Bardot passed documents to counsel and the Court.) 0 Go ahead, Dr. Tuwiner. So, I'll just itemize them. There's the Department of Veterans' ffairs, Department of Defense, clinical guidelines for management of a concussion mild traumatic brain injury. From book 00 and 00, there is a textbook that is very large. CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

29 It's by Nathan Zasler. It's a book of traumatic brain injury and that cites the World Health Organization definition of traumatic brain injury. There's Centers for Disease Control and what I refer to as the criteria following a traumatic brain injury. nd I also cited the DSM-. It says, "Psychiatric Manual" but we also other doctors can use it to refer and it defines not only concussion, but something called mild neurocognitive disorder and that's a cognitive impairment that somebody experiences immediately after trauma. Then according to that criteria, the cognitive disorder presents immediately and this is quoted after the occurrence of traumatic brain injury or immediately after somebody recovers consciousness. nd that's the -- those are the citations -- I mean, there's more statements, but those are the resources that I used. nd this might be a little tedious and a 0 little bit boring, but the rules do not permit me to put this in as an exhibit, so unless counsel agrees to that, I'm going to have to have you read that to the jury. I'm sorry. What specifically should I read? The quotations that you pulled out of each of CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0)

30 these, please. So if we look at number one, Department of Veterans ffairs, Department of Defense, Clinical Practice Guidelines for Management of Concussion, mild traumatic brain injury -- Okay. Can you read the site, just starting, " traumatic brain injury. Okay. " traumatic brain injury is defined as a traumatically induced structural injury and/or physiologic destruction of brain function as a result of external force and is indicated by a new onset or worsening of at least one of the following clinical signs immediately following the event. "ny period of loss of consciousness or decreased consciousness, any memory of events immediately before or after injury, and that's in there's paren (indiscernible) any alteration in mental state at the time of injury and confusion (indiscernible) slow thinking, alteration of consciousness and mental state, neurological deficit such as weakness, loss of balance, changing vision, (indiscernible), sensory symptoms, aphasia that may or may not be transient (indiscernible) nd then, according to Nathan Zasler, the CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

31 0 definition of mild traumatic brain injury provided by the World Health Organization collateral task force on mild traumatic brain injury is reported. "Subsequently, mild traumatic brain injury is an acute brain injury resulting from the (indiscernible) to the head from external physical forces. "Operational criteria for clinical identification include one or more of the following: Confusion, disorientation, loss of consciousness for 0 minutes or less, post-traumatic amnesia for less than hours and/or transient neurological abnormalities such focal seizures, focal signs, ( indiscernible) lesions not requiring surgery. "There's the Glasgow Coma scale of /. fter 0 minutes of this injury for a layer upon presentation for healthcare, these manifestations must not be lead to drugs THE COURT: Let me just stop you for a second. 0 Counsel, come to the bench. BENCH CONFERENCE THE COURT: I wonder if a more efficient use of our limited time would be to just mark the passages we want with the understanding that they can offer other CERTIFIED VERB TIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

32 passages from the same document if they wish. MS. BRDOT: Well, they haven't identified any other ones so I don't want to make some sort of agreement to let them identify something I don't even know what it is. It's required by statute to have been identified. THE COURT: Well, do you have a bunch of passages? MS. BRDOT: THE COURT: MS. BRDOT: THE COURT: I have a few. What? I have a few. Well, wouldn't you rather have the jury have the documents rather than him read it? MS. BRDOT: He disagrees with it. I mean, the rule doesn't allow for it. MR. BRENIO: The rule doesn't allow for it -- THE COURT: No, no, no, I recognize that. I'm just suggesting a way to more efficiently put on the evidence, but obviously -- 0 MR. BRENIO: THE COURT: MR. GLSS: (indiscernible) -- obviously object to it. Let me ask you this. In what form do you have the specific excerpts he's reading? have a form that you could -- Do you CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

33 MS. BRDOT: are in the binder. MR. GLSS: reading the whole -- I have the actual documents that Which are long and he's not MS. BRDOT: Right. nd I can title it and just pull out those sections. MR. GLSS: I don't care. ctually, I don't care. THE COURT: MR. GLSS: You what? I like your idea and we do not 0 object to your idea and if it will move the trial on, it's good with the Plaintiff. MS. BRDOT: We'll waive. I object to your idea if all of a sudden they're going to pull other excerpts out which they haven't designated and I don't know what they are. THE COURT: Well, maybe they're not. Maybe they just -- maybe what Mr. Glass is saying is he doesn't object to you just moving in the passages rather than reading them. MS. BRDOT: nd that's fine as long as this agreement is not conditional on him now pulling something out of somewhere else I've never seen and (indiscernible). CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 ) -

34 MR. GLSS: MS. BRDOT: MR. GLSS: This is not a trick. Okay. This is not a trick. MS. BRDOT: Okay. That's fine. We'll offer it. THE COURT: ll right. Thank you. OPEN COURT BY MS. BRDOT: Dr. Tuwiner, we appreciate the consensus, but rather than have the jury read all these, I'm going to pull out the excerpts and I'll make them an exhibit and you all will have them to look at at the time you deliberate, okay. So, let's move on. What is post-concussion syndrome? So, post-concussion syndrome it's used to 0 describe symptoms affecting the body, your mental faculties and possibly your mental faculties and possibly your mental health or psychiatric state as a result of a traumatic brain injury. What are the criteria for assessing whether someone has a post-concussion syndrome? Well, first it has to meet the criteria for CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

35 traumatic brain injury. So you first have to have the traumatic brain injury before you can have post-concussion syndromei is that accurate? That is accurate, correct. nd inasmuch as you do not believe that Mr. PLINTIFF suffered a traumatic brain injury, does it follow that you do not believe he has post-concussion syndrome? That is correct. Do you have an opinion as to Mr. PLINTIFF's cognitive state in the weeks and months and time frame leading up to the accident? I recognize that before the accident he i had a decline in his cognition. The reason for saying that is 0 that Mr. PLINTIFF sought out care with a sleep specialist after a seven-year gap because he's having some excessive time sleepiness. When I looked at a May 0 record from the spine surgeon for treatment of low back pain, there's a part called review of systems and confusion and memory problems were identified as a symptom. So, you know, I feel that this existed before the accident. I think that although the CERTIFIED VERBTIM REPORTERS LEONRD DRiVE FIRFX, VIRGINI 00 (0) -

36 0 neuropsychological testing that I reviewed did not support that there is any cognitive impairment. I think that Mr. PLINTIFF felt kind of a culmination of symptoms that made him feel cognitively impaired and I attribute that to the sleep apnea. In determining if a person has a traumatic brain injury as a neurologist, can you rely on the symptoms to make the diagnosis? No. It's -- you have to -- there s different approaches that I don't agree with -- I disagree but you have to meet the criteria for a brain injury to appropriately contextualize the symptoms that one would opine are post-concussion syndrome. It's even stated in, for example, in the criteria I cited that if somebody has headaches or dizziness or a lot of other cognitive impairment that you cannot use that to diagnose somebody. It's actually been my authoritative literature designation. So you have to meet the criteria because there's lots of other conditions that you could have headaches, dizziness -- and that's part of the doctor making the differential diagnosis, you have to meet the criteria and once you meet the criteria you have to CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 ) -

37 contextualize the array of symptoms. You just mentioned differential diagnosis. Can you explain to the jury what that means? So, any specialist or doctor when a patient 0 comes to them for a particular problem, we have what's called differential diagnosis, that is possible conditions that may explain the symptoms. So, for example, two days ago I was in my satellite office and a patient presented with headaches, sleepiness and fatigue and they thought that they had a brain tumor and there's something wrong with them. So, of course, you know, part of my differential diagnosis is that sleep apnea is one, there could be some other condition that this person could have, theoretically they could have a brain tumor or it could be related to stress, anxiety or some other headache disorder. So, my job as a doctor is in making this -- to narrow it down to a differential diagnosis, ask the appropriate questions and give the appropriate referral, but part of making a differential diagnosis is you get tests, you ask certain questions to rule in or rule out certain things. CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

38 nd in order to diagnose a traumatic brain injury, are you required by the Department of Defense or other criteria to do a differential diagnosis? It s stated in those volumes of literature that you can't make a diagnosis based on a constellation of symptoms. You have to consider a differential diagnosis and you have to meet the criteria. nd is sleep apnea one of the differential diagnoses that you have look at pursuant to those authorities when considering whether someone has traumatic brain injury? It's one of them. nd I think you said. earlier that you believe that the constellation of symptoms that Mr. PLINTIFF has been exhibiting have been a continuum of his sleep apnea problems; is that accurate? 0 this case? Correct. nd what caused you to draw that conclusion in I looked at his records probably at least from 000 to current. I saw.that Mr. PLINTIFF had two surgeries related to airway obstruction due to his anatomy and how that affected his sleep. nd I saw that he sought CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

39 treatment in February of 0 time frame requiring a third surgery because he was still having persistent symptoms. Furthermore, Mr. PLINTIFF is, you know, he's there's the body (indiscernible) all the symptoms that would lead me to believe that somebody is at high risk of sleep apnea and, furthermore, when I review the records, it is apparent that Mr. Bedford is not able to tolerate the mask. When one tries to use the device to help them feel better, it's not their fault, it's just uncomfortable, but as a result of that, that caused persistent symptoms. Can I have a glass of water? THE COURT: Yes, of course. (The Deputy assisted with Dr. Tuwiner's request.) BY MS. BRDOT: Dr. Tuwiner, based on your review of this 0 case, do you hold an opinion to a reasonable degree of medical certainty regarding whether Mr. PLINTIFF is capable of returning to work as an attorney on a full time basis? I think from a neurological standpoint, I would say yes. For other medical conditions or other CERTIFIED VERB TIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

40 medical reasons, I cannot opine, but from a neurological standpoint, I would say absolutely. Thank you. THE COURT: Cross? CROSS EXMINTION BY MR. BRENIO: Good morning, Dr. Tuwiner. My name is James brenio. I'm an attorney, obviously (indiscernible). So my goal here is not that I know about science. I'm not a doctor and I'm not going to try to pretend to be a doctor. I'm going to try to ask you about what words mean, okay? So, first of all, you mentioned your forensic orders. You would agree that forensic evaluation is vastly different than just a patient being in your office, right? Can you clarify what you mean, because I want to make sure I answer what -- different -- what that means. 0 Let me be very specific. personal injury related patient comes to you from an attorney and they say evaluate this, we need your opinion and we need you to come to court. CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

41 0 It s fair to say that you would treat that situation very differently than a patient coming in. I would treat it differently from the standpoint that I -- well, the similarities between treating and forensic is that I formulate an opinion, but the difference is, I don't treat that person. Okay. nd that's a big difference, right? Yeah. I don't treat or refer them. I m not a treating doctor. I don't have a doctor/patient relationship with that person. Exactly. You actually -- there's no doctor/patient confidentiality, right? Yeah. There's no -- well, there's limits of confidentiality to the extent that what that person tells me is in court and shared with you and the other attorney which would not happen in a regular treating relationship, it would not go to attorneys unless there was a, I guess, they requested records. You're also testifying to a jury in an open 0 courtroom as well, right? That's correct. nd it's fair to say that in this case particularly, you're posed to testify against PLINTIFF CERTIFIED VERB TIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

42 PLINTIFF. I wouldn t say -- I'm here to testify on the facts of my medical opinions. I don't want to say that I'm against Mr. PLINTIFF. I mean my opinions may not be favorable to what is claimed, but I just want to be clear in that distinguishable. I m not a doctor I m a lawyer. Barry's claiming that he has brain injury -- and you're saying he does not? Correct. So, you would say that that's against him. In that context, yes. nd you said that you oftentimes work for plaintiffs as well? 0 a plaintiff? How many times have you testified in court for Well, I've deposed, but not in court. So you've never actually testified in court CERTIFIED VERBTIM REPORTERS LEO NRD DRIVE FIRFX, VIRGINI 00 {0 -

43 for a plaintiff. plaintiff. Yeah. I've testified, but not in court for a Well, that's a huge distinction, right? To me, it's -- I just view it as testimony and so, whether it's in court or it's part of a video or to me, it makes no difference. under oath. I'm just giving my opinion So the attorneys don't treat it differently when you're in a deposition versus court? Well, they have different purpose. From my standpoint as a doctor, I don't see any difference. from your standpoint it's different, but from mine, I don't see the difference. Maybe So you don't make extra preparation when you're preparing for a trial versus a deposition. I do make preparation for a deposition. But I'm saying you make additional preparation in order to be tight (ph.) for trial. 0 Well, the same preparation I make for trial I would make for a deposition because I need to know my material and I need to know the facts in the case. nd you've testified for Ms. Bardot s firm CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

44 about 0 times; is that right? No, no, no, no. That's not accurate. I've done cases, most of those cases have settled. I've been deposed and I have a case list. I've been deposed in my office eight times, roughly, and I've been in court maybe eight to nine times, but -- nd let me but I haven't done -- MS. BRDOT: THE COURT: THE WITNESS: Let him finish his answer. Let him finish his answer. -- but I have not testified for a firm 0 times in court. statement. BY MR. BRENIO: That's not an accurate nd I apologize. I overstated that. You've worked with them on cases at least 0 times. Correct. Roughly. 0 nd that would be depositions, review and all those kind of -- Correct. You'd recognize them if you saw them? CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0) -

45 : :~~ < -..a.<- If I recognize The attorneys in her firm? You're pleasant with them? No reason I shouldn't. How many times do you think you've met with attorneys from her firm for preparing for cases in the last year? You mean 0 or 0? 0. I would say, and I'm just giving you an estimate, maybe three to four times, roughly. Four would be the most, but that's the best estimate I can give. attorney. nd when you say four, you mean with each Four interactions with -- so a total of four interactions with an attorney from their firm, so a total of four instances irrespective to who it was. How much have you been paid to testify here 0 today? $,00. nd how much total for your testimony in this case have you been paid? CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

46 I haven't determined that yet. I do bill for preparation and also I would have seen patients this morning, so I have to see how much time I lost, so I do plan to charge for time lost seeing patients this morning. Well, give the jury a minimum of what you think you're going to be charging. I think, I mean, I probably will charge $,00 because it's two full days of seeing patients. what I would charge. That's I'm talking about the entire case. I don't know. I would say another few thousand dollars. I don't know. I have to --,000? I would say no.,000? I can't - - I would say probably to $,000. Now, I just want to be clear so I get this right. 0 It's your medical expert opinion that Mr. PLINTIFF suffers no depression. I'm sorry. Repeat that question. Your expert opinion is that PLINTIFF PLINTIFF has no depression? CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0-

47 Well, there's a difference between depression and something called dysthymia. I wouldn t say that Mr. PLINTIFF has major depression. I would say that he has what call dysthymia, which is just sadness, but it's not to the extent that this person s in bed, can't go out of the house. That would be major depression. But I do think that there's a little bit -- of depressive features, depressive symptoms. But not diagnosed as depression. I would say no. I would not say that. nd, again, to be clear, you re saying he had no head injury whatsoever from this accident at all. That is my opinion. nd to be clear, you're saying he has no postconcussive syndrome flowing from the head injury. That is my opinion. Do you know when he stopped actually working? I believe it was formally November of 0. I may not be accurate, but that's what I recall. 0 When was the date of the accident? The date of the accident was June th, 0. nd so, it's timing here. I m going to -- I have a question. CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0) -

48 re you saying that if he had not been in the accident he still wouldn't be working right now? Repeat that question? You're saying -- that's all right. I'll ask another question. re you saying that if he hadn't been in the accident he would have been working? If he had not been in the accident? I don't know. I think that Mr. PLINTIFF had a lot of health problems that led up to the accident. of which was that his sleep apnea became worse and he sought treatment, so I think that there is a good One possibility that he would not, but I can't say for sure. I'm sorry, I -- so you're saying that you don't think he would have been working even if he wasn't in the accident. Because my opinion is that a lot of the 0 problems and symptoms he had were not related to the accident, so it is my opinion that most likely he may have not worked either at all or in the full capacity that he was prior to 0. CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 [0] -

49 re you aware that before the accident he was work 0 to 0 hours a week? So, I guess I'm trying to understand. How did he go from 0 to 0 hours a week to - Well, again, you know, there's health problems, somebody has health problems that can result, in my opinion, a lot of symptoms, so I don't relate the accident as the thing. I don't think that the Plaintiff had a brain injury, therefore, I don't think that that was the cause, from a medical neurological standpoint, that resulted in him not working. So is he lying? I'm kind of confused. How does it go from June working to -- Counsel, I can't -- I'm not here to speculate on people's internal motivations about lying. That's not my job. I'm here providing medical opinion. From a medical standpoint I think that he had a lot of problems and I don't think it's from the brain injury. 0 What happened June th, 0 to cause him from being able to work 0 hours a week to none, from a medical standpoint? Well, he had an accident, but again, I don't CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 {0)

50 relate that as the reason he cannot work. But I m asking you from a medical standpoint, what changed on June, 0 that caused him from going from 0 hours a week and raising six kids to not being able to work? gain, I think that that was due to his worsening health that started at least in February of 0. I know that he worked full hours, but I think that Mr. PLINTIFF required a third surgery, okay, and that's not from the accident, that is from sleep apnea. So, I can't just say that the accident -- it just doesn't fit medically for me. So, I guess I'm trying to -- what fits? What is the incident that caused him on June th to not be able to work full time? factors. It is a culmination of a lot of different Mr. PLINTIFF had bad sleep apnea. He used his device no more than four hours a night. He had a third surgery. Over time, this leads to him not feeling well. 0 He had back problems that he sought treatment in May of 0. He was on narcotics, multiple pain medications, and I think it's a culmination of various CERTIFIED VERBTIM REPORTERS LEONRD DRIVE FIRFX, VIRGINI 00 (0-