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Cross-Examination of Defense Medical Experts in Traumatic Brain Injury Cases:

A Diligent Search for the Truth

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Mechanics of the Closed Head Injury:

I. Obtain concessions regarding anatomy and known mechanics of injury.

2. ls a blow to the head necessary? (i.e. Shaken Baby Syndrome, where the head strikes

nothing; or Acceleration/Deceleration injury, where the body is arrested by a seatbelt or

airbag before the head strikes an object.)

3. Does a concussion constitute an injury to the brain or brain damage?

4. An Acceleration/ Deceleration injury slams the brain (which floats in spinal fluid) into the

interior of the skull, which has sharp, bony protrusions. lt is not smooth like the inside of

a basketball. The brain may then bounce back into other opposite side of the skull, resulting

in at contrecoup injury. Such a mechanism can also tear and shear brain tissue.

5. Can the brain he concussed without loss of consciousness?

a. Phinneas Gage: a railroad worker tamping dynamite had a long steel spike blasted

through the bottom of his jaw through the top of his skull, without losing


b. Are there any signs of altered consciousness/amnesia, as evidence of concussion?

c. Patient's memory is notoriously inaccurate as to whether patient lost consciousness.

If he/she is unconscious, how much would he/she know? Sometimes a person whom

observers saw unconscious only reports being “dazed.”

6. Is it common for traumatic brain injury patients to have normal neurological exam?

7. Is it common for traumatic brain injury patients to be oriented three times: to know who they

are, where they are, what day it is, and who is the President?

8. X-rays: the plain film x-rays will not diagnose a brain injury. They can only show possible

skull fractures, bone injuries or swelling soft tissue.

9. CT scans and MRIs frequently are normal because most traumatic brain injuries cause

damage to microscopic tissues such as neurons, axons, or dendrites. In these diffuse

microscopic areas of the brain, injuries will not show up on imaging studies unless the

injuries are concentrated in one area.

10. All EEG will only demonstrate a seizure if one is actively occurring at the time the test is


11. Sleep studies will sometimes demonstrate seizures during a night of sleep.

12. Have you seen normal studies of this type in your own patients, who had traumatic brain


13. Does the traumatic brain injury patient having normal findings in these areas rule out

traumatic brain injury?

Types of Typical Symptoms of Post-concussion Syndrome/Mild TBI:

l. Physical

2. Cognitive

3. Behavioral

4. Emotional

What are Client's Symptom By History?

1. Facts of the traumatic event.

2. Pre-trauma symptoms.

3. Post-trauma symptoms.

4.. Are these symptoms consistent with post-concussion syndrome'?

5. What is your diagnosis?

Attacking Opposing Experts:

When cross-examining experts in TBI injury cases, you must give the jury reasons to doubt

their opinions.

I. You should choose your territory carefully. It is important not to rehash and argue with the

defense doctor about each of his opinions. This strategy will merely reemphasize the

doctor’s points, and position yourself on the doctor‘s own turf. You must choose your own


2. Use your expert as a resource for ideas to attack the opposing expert‘s opinions.

2. Review the doctor's report carefully. Compare it to the medical records concerning the

patient to find inconsistencies.

3. Obtain admissions and concessions of important evidence. Find the weak spots on which

to focus your attention on trial, regardless of what the doctor said on his/her direct


4. Focus on the financial incentive. The doctor has to testify in a certain, and paint him/her

as a hired gun. Fees of $300-$400 per hour are common and could be more at trial.

Sometimes experts require first class airfare, luxury accommodations, and limousines.

Middle class jurors are frequently "shocked" at these fees.

5. Obtain concessions that the doctor is not a treating doctor, but merely an expert witness, who

is critiquing and criticizing based on the plaintiffs reports, not “hands on" examination of

the patient.

6. Have the doctor admit the quality and credibility of his opinion depends on complete

information and then demonstrate that he does not have it. Expert opinions regarding

traumatic brain injury require knowledge, training, and experience, as well as a fair and

accurate analysis.

7. Catching the defense doctor in a few “black and white" errors can he devastating to his

credibility. For example, in the deposition (attached to this paper), an excellent

neuropsychologist affiliated with the Shepherd Center hired for a neuropsychological IME,

criticized Dr. Larry Hartlage, neuropsychologist from Augusta, Georgia, as to Hartlage's

methodology in investigation of background information, The doctor felt that it was

improper for Dr. Hartlage to ask the plaintiff, Mr. Tillman, if he had lost consciousness,

feeling that his opinion would be inaccurate. The IME neuropsychologist went on the state

that he could not tell from the medical records whether the plaintiff was unconscious.

During cross-examination, I was able to show him four places in the medical records where

the police officer, the EMT, the emergency room physician, and a consulting neurologist all

indicated that Mr. Tillman had been unconscious at the scene. I was able to further discredit

the IME doctor‘s diagnosis, as he described a fracture of the maxillary sinus, contradicting

all of the medical records describing the injury as a zygoma fracture. The IME

neuropsychologist‘s report stated there was no indication in the medical records that Mr.

Tillman was confused, however, we proved in cross-examination that TilIman was described

as confused in the EMT report and the emergency room report by the emergency room doctor

and nurses. On cross-examination, the IME doctor was forced to read the record stating that

the patient was awake, alert, confused, and that he was not oriented times three. Also, the

IME doctor, l feel, exaggerated the patient’s history, accusing him of being a substance

abuser because someone in his car had a "joint" on them, and calling him an arsonist because

he had been arrested when some boys were burning a forklift pallet inside of an abandoned

building to keep warm. The cause of these discrepancies was that the defense lawyer hadn't

provided the defense expert with all of the pertinent medical records.

8. Always be on the look out for a lucky break. After concluding the deposition of the defense

neuropsychologist, I noticed an article by Dr. Hartlage on the expert’s desk. It turned out

that the defense neuropsychologist was citing an article on malingering written by Hartlage

in a paper the defense doctor was writing. Before the court reporter left, I had her set up

again and elicited questions from the IME neuropsychologist indicating he was using a

published Hartlage article concerning malingering as a learned treatise source in an article

he was writing concerning traumatic brain injury, even though he attacked Hartlage‘s

opinions concerning my client.

9. It is important to establish that the doctor has incomplete information in some important

aspects of his/her diagnosis. If possible, establish the defense doctor‘s deficiencies or

limitations in knowledge, training, or clinical experience in traumatic brain injury. Usually,

the plaintiff’s lawyer can establish a bias on the part of the defense expert. Prove that the

defense expert testifies frequently for the defense; that he has an ongoing relationship with

insurance companies and their counsel. Aim to demonstrate that he has an ongoing

relationship with worker's compensation lawyers, and insurers, that his hourly charges are

exorbitant, and that the total amount paid for his work on the case is outrageous. Their

amounts are usually shocking to most jurors.

10. Attempt to show faulty, unfair, judgmental analysis. Establish that the doctor did not

correctly analyze data. If you can find a few areas where deficiencies are "black and white"

and obvious, the credibility of the expert will be neutralized.

11. Obtain an admission from the doctor that the plaintiff is honest. This may include an

admission from the neuropsychologist that the testing was valid (MMPI).

12. Establish that the plaintiff complained of certain symptoms, which are consistent with brain

injuries such as impaired memory, fatigue, confusion, distractibility, sleep disruption, etc.

13. Show that the expert focuses on the negative and does not concede obvious positive factors.

14. Obtain concessions from the expert that a mild traumatic brain injury does not necessarily

mean a mild deficit for people who are involved in mentally demanding careers.

15. Obtain admission from the defense expert that if there is injury to the brain, any damage

is significant. Since the brain regulates, coordinates, and organizes the systems of the body

and provides us with the ability to think and know who and what we are, any injury,

including mild injury, can be devastating.

16. Juries usually decide cases for reasons other than expert witness testimony; therefore, if you

can score clear, obvious points against an expert, the jury will probably discount his or her

testimony and rely on your expert's testimony. Victory is achievable.

17. Obtain admissions about the bio-mechanics of how brain injuries are caused and how areas

to different areas of the brain are manifested in clusters of recognized behavioral and

cognitive symptoms.

18. Remember competing expert witnesses hired by opposing litigants usually cancel each other

out. Frequently these cases are won based upon what lay witnesses have to say about the TBI

victim, not what the experts say.

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