THIRD JUDICIAL DISTRICT COURT
FOR THE STATE OF UTAH
SALT LAKE CITY COUNTY
TERESA E. NAVE,
Plaintiff,
vs. Case No. 02-0912855
HIRES ENTERPRISES, INC.
d/b/a HIRES BIG-H,
Defendant.
Deposition of:
STEPHEN P. BRUEHL, Ph.D.
Taken on behalf of the Defendant
THURSDAY, FEBRUARY 16, 2006
VOWELL & JENNINGS COURT REPORTING
222 Second Avenue, North - Suite 328
Nashville, Tennessee 37201
1 APPEARANCES:
2 For the Plaintiff:
3 JEFFREY D. EISENBERG
Eisenberg & Gilchrist
4 215 South State Street
Suite 900
5 Salt Lake City, Utah 84111
(801) 366-9100
6 jeisenbe@braytonlaw.com
7 For the Defendant:
8 W. KEVIN TANNER
Paul H. Matthews & Associates
9
10 West Broadway, Suite 700
Salt Lake City, Utah 84101-2060
10 (801) 355-7007
paul-matthews@qwest.net
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1 I N D E X
2 Page
3 STEPHEN P. BRUEL, Ph.D.
4 Direct By Mr. Tanner 5
5 Cross By Mr. Eisenberg 92
6 Redirect By Mr. Tanner 115
7 EXHIBITS
8 Exhibit Description Page
9 Exhibit 1 12/15/05 Expert Witness Report 5
10 Nave vs. Hires
11 Exhibit 2 Somataform Issues to Address 10
12 Exhibit 3 Objective Research Evidence of 11
Brain/Body Changes in CRPS-1
13 Patients
14 Exhibit 4 Dr. Bruehl's legal notes - Nave 14
Case
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16 REPORTER'S CERTIFICATE 121
17 AMENDMENT SHEET 122
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PAGE 3
1 The deposition of STEPHEN P. BRUEHL,
2 Ph.D., taken on behalf of the Defendant, on
3 Thursday the 16th day of February, 2006, at
4 10:26 a.m., at the offices of the Department of
5 Anesthesiology, 1211 21st Avenue South, 701
6 Medical Arts Building, Nashville, Tennessee,
7 for all purposes under the Utah Rules of Civil
8 Procedure.
9 The formalities as to caption,
10 certificate, et cetera, are waived. All
11 objections, except as to the form of the
12 questions, are reserved to the hearing.
13 It is agreed that Fred W. Jeske, Court
14 Reporter, being a duly sworn Tennessee at-large
15 notary public, may swear the witness, and that
16 the reading and signing of the completed
17 deposition by the witness is not waived.
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PAGE 4
1 (Exhibit 1 marked.)
2 STEPHEN P. BRUEHL, Ph.D.,
3 having been first duly sworn, testified as
4 follows:
5 DIRECT EXAMINATION
6 BY MR. TANNER:
7 Q. All right. Dr. Bruehl, we've
8 previously introduced ourselves. My name's
9 Kevin Tanner. I represent Hires in this
10 matter.
11 Appreciate you giving us some time. I
12 know you're kind of compelled during -- for the
13 circumstances, but I appreciate it anyway. I
14 know you're breaking some time out of your
15 schedule today for us.
16 I read in your CV, you haven't given
17 any deposition testimony in the last four
18 years.
19 A. Um-hum.
20 Q. Have you given any deposition testimony
21 at all?
22 A. Yes.
23 Q. Okay. When was the last time?
24 A. Ah, it would have not been as an
25 expert, but it was a patient I was seeing in
PAGE 5
1 approximately 1998.
2 Q. Okay. So you were testifying as a
3 treating physician?
4 A. Yeah, it was a workers' compensation
5 case, where I had done a psychological
6 evaluation on the patient.
7 Q. All right. It's been a few years. So
8 let me just run through a couple of the
9 procedural kind of aspects.
10 A. Um-hum.
11 Q. The court reporter is taking down
12 everything we say, so we'll probably reach a
13 stage where you're anticipating my question and
14 I'll anticipate your answer. I'm going to try
15 to not cut you off so your answer and my
16 question don't overlap, and I would ask you to
17 do the same.
18 A. Um-hum.
19 Q. And then you, if you could give audible
20 answers, yes, no, if you need to make an
21 explanation. Head movements don't come across
22 very well on the record.
23 Also, if you don't understand my
24 question -- I don't pretend to be a medical
25 expert; I don't pretend to be much of any kind
PAGE 6
1 of expert. So if my question is unclear,
2 confusing or assumes some, something that you
3 think is incorrect, please feel free to ask me
4 to rephrase, or rephrase yourself and say,
5 Kevin, are you meaning to ask me this?
6 And by the way, "Kevin" is fine with
7 me, Doctor.
8 A. Okay. I won't remember that, I'm sure.
9 Q. That's fine. "Hey you" works or...
10 Also, this is your office. We're your
11 guests. If you need to take a break at some
12 point in time, water, restroom, whatever, we
13 certainly want to accommodate that.
14 A. I have it all here. I may need to rest
15 my voice, though. I've got a sore throat
16 today.
17 Q. Well, I'm going to try to go as briefly
18 as possible.
19 Um, to make things easier, what I am
20 going to do, and I've already had the court
21 reporter, I have asked him to mark as
22 Exhibit 1, is your report dated December
23 15th, '05.
24 Do you have a copy of that in front of
25 you?
PAGE 7
1 A. Yes.
2 Q. All right. Because we had another one,
3 just in case.
4 I'm going to use this primarily to
5 prevent you and I from having to spend a lot of
6 time rehashing. And I think I -- the report
7 follows an order that, I think, is conducive to
8 the, to the deposition.
9 I appreciate that.
10 Let me start with some preliminary
11 questions, though.
12 Other than this report, have you
13 prepared any other reports in conjunction with
14 this matter?
15 A. No reports. My own work notes.
16 Q. Okay. You do have work notes?
17 A. Yes.
18 MR. TANNER: And, Jeff, we don't have a
19 copy of those, as of yet, do we?
20 MR. EISENBERG: I don't think you
21 requested a copy.
22 MR. TANNER: We probably didn't.
23 If I send a request through you, can we
24 get those work notes?
25 MR. EISENBERG: Yes.
PAGE 8
1 MR. TANNER: All right, Doctor.
2 THE WITNESS: The work notes basically
3 will just back up the things that are in the
4 report.
5 Q. (By Mr. Tanner) That's fine. Do you
6 have those work notes with you today?
7 A. Yes.
8 Q. And I'm assuming that you have reviewed
9 those notes in preparation for today's
10 deposition?
11 A. Yes.
12 Q. All right. Then, at times, we may
13 refer to them during the course of our
14 discussion.
15 A. Okay.
16 Q. Actually, do you all have the means to
17 photocopy those?
18 A. I can print one out of that.
19 Q. Would you mind?
20 A. Off of these.
21 Yeah.
22 (Respite.)
23 MR. TANNER: Save you and I a step,
24 Jeff. I won't have to send you a request.
25 THE WITNESS: That's a two-pager.
PAGE 9
1 These are on different topics.
2 MR. EISENBERG: Why don't we have you
3 print out one more of those.
4 MR. TANNER: Actually, let's go ahead
5 and do two, and we'll go ahead and mark one as
6 an exhibit.
7 MR. EISENBERG: Print out two more.
8 We'll mark one as an exhibit.
9 THE WITNESS: How about I print out
10 three more and everybody can have one.
11 MR. EISENBERG: Starting to sound like
12 the Monty Python: Fear and surprise are two --
13 THE WITNESS: No, wait, three.
14 MR. EISENBERG: Three.
15 (Discussion off the record.)
16 MR. TANNER: All right. Let's just,
17 for recordkeeping purposes, let's go ahead and
18 mark the one entitled Somatoform Issues to
19 Address as Exhibit 2.
20 (Exhibit 2 marked.)
21 MR. TANNER: And Objective Research
22 Evidence of Brain Body Changes in CRPS-1
23 Patients, which is a two-page document with 17
24 numbered paragraphs, as Exhibit 3.
25 (Exhibit 3 marked.)
PAGE 10
1 Q. (By Mr. Tanner) All right. Can we
2 look at Exhibit 2, the somatoform issues, real
3 briefly?
4 Doctor, was this document prepared to
5 address somatoform issues in this particular
6 case, or is this a document that you prepared
7 to address somatoform issues generally?
8 A. These were referring specifically to
9 this case, as well as the process of
10 psychiatric diagnosis that applies in this
11 case.
12 Q. Okay. And then the same question as to
13 Exhibit 3, Objective Research Evidence, with
14 the 17. These look like citations to different
15 studies.
16 A. Yes.
17 Q. Is that correct?
18 A. That is correct.
19 Q. And again, is this a document prepared
20 in conjunction with this matter, or is this a
21 document you previously prepared for other
22 purposes?
23 A. This was prepared for this case.
24 Q. Could you give me a time frame on when
25 you prepared these two documents?
PAGE 11
1 A. These were both in the last two days.
2 Q. Okay. And earlier you referred to work
3 notes. Are these those notes you're referring
4 to, or are there other notes you were referring
5 to?
6 A. There were very raw work notes that
7 were used to prepare the original report.
8 Q. Okay.
9 A. Yeah.
10 Q. And those aren't something that you can
11 print out for us at this time?
12 A. Um, yeah, I think I still have it.
13 It's just -- it's basically an expanded version
14 of what's summarized in the actual December
15 12th report.
16 Q. All right.
17 A. Let's see.
18 The answer is yes, I can get them, if
19 you give me just a second.
20 Q. Please take your time. We understand.
21 A. Three copies again?
22 Q. Yes, please.
23 A. This is going to be nine pages each.
24 Q. Okay.
25 (Respite.)
PAGE 12
1 THE WITNESS: Going to make a copy for
2 myself also.
3 (Respite.)
4 MR. EISENBERG: Contained within this
5 nine pages of notes is Dr. Bruehl's review of
6 surveillance, and opinions relative to that.
7 As you know, Kevin, the judge has ruled
8 that that evidence is not admissible. There's,
9 I guess, some question still as to whether that
10 could come in at trial if the door is somehow
11 opened.
12 By producing this, I just want to make
13 it clear on the record that we are not at this
14 point in time affirmatively opening that door,
15 but, on the other hand, if that, if that
16 evidence is discussed directly or indirectly,
17 Dr. Bruehl has reviewed that video evidence, as
18 you know from his report, and would comment on
19 it.
20 So with that in mind, we are producing
21 it. You want to mark this as Exhibit 4?
22 MR. TANNER: Yeah.
23 MR. EISENBERG: It's nine pages of
24 notes.
25 MR. TANNER: Let's go ahead and do
PAGE 13
1 that.
2 MR. EISENBERG: I think there's two
3 copies in there.
4 (Exhibit 4 marked.)
5 Q. (By Mr. Tanner) Mr. Eisenberg just
6 raised a good point, and it's my understanding
7 as well; I agree with Mr. Eisenberg's
8 statements regarding the surveillance video.
9 Doctor, we'll just represent to you
10 that basically, as Mr. Eisenberg just
11 discussed, there has been a court order
12 currently in place that doesn't allow either
13 party to introduce surveillance evidence. And
14 as Mr. Eisenberg has articulated, as well as
15 any of us understand it, the judge's position
16 on that is that there is a possibility it can
17 come in, but we really don't know what that
18 possibility is. There's kind of this open-door
19 statement that's been made.
20 Your report, as Mr. Eisenberg just
21 pointed out, discussed the surveillance
22 materials. Your report also discusses those
23 surveillance materials.
24 A. Yes.
25 Q. Because we need to go over these
PAGE 14
1 reports, we're going to discuss those
2 materials, but only on the condition that I'm
3 not opening the door either.
4 MR. TANNER: Mr. Eisenberg?
5 MR. EISENBERG: No, I have no objection
6 to your asking him his opinion in the event
7 that something changes in trial.
8 Q. (By Mr. Tanner) All right. Well, with
9 that understanding, I may ask you some
10 questions about those videos.
11 And I appreciate you providing us these
12 materials, --
13 A. No problem.
14 Q. -- Doctor.
15 MR. EISENBERG: I can give you a copy
16 of that, in case he's asking you about --
17 THE WITNESS: I've got it.
18 MR. EISENBERG: Oh, you do?
19 THE WITNESS: Yeah.
20 MR. EISENBERG: Okay. That's the nine
21 pages.
22 THE WITNESS: I think I've got the same
23 thing that you have.
24 Q. (By Mr. Tanner) Okay. Just so that
25 we're -- and I'm sure the record is clear, but
PAGE 15
1 just so that we're all clear, your first report
2 is marked as Exhibit 1.
3 Exhibit 2 is your one-page Somatoform
4 Issues to Address.
5 Exhibit 3 is your Objective Research,
6 two-page document. And then Exhibit 4 is your
7 legal notes, which is your title at the top of
8 Nine Pages of Work Notes.
9 Is that your understanding?
10 A. Yes.
11 Q. Okay. All right. I could probably
12 read it off the wall, Doctor, but where did you
13 get your Bachelor of Science degree?
14 A. Belmont University.
15 Q. In what year did you graduate?
16 A. 1985, officially. I completed classes
17 in '84. I think it's listed as '85.
18 Q. Okay. And your master's degree, where
19 did you attain that?
20 A. University of Kentucky, in 1991.
21 Q. And your Ph.D., sir?
22 A. University of Kentucky also, 1994.
23 Q. For your Ph.D., was there a particular
24 area that was a topic of a dissertation or
25 research study that was required for your
PAGE 16
1 graduation?
2 A. Yes. My dissertation was on responses
3 to acute pain, how that was associated with
4 psychological coping, and whether endogenous
5 opioids were involved in those links.
6 Q. Since graduating in 1994, where was
7 your first employment or professorial
8 appointment?
9 A. First appointment was at Rush Medical
10 College.
11 Q. Where is that located?
12 A. In Chicago.
13 Q. How long were you there?
14 A. For three, three years.
15 Q. And what did you do there?
16 A. I worked clinically with chronic pain
17 patients in a multidisciplinary pain clinic,
18 and did some research.
19 Q. And just briefly, Doctor, I don't need
20 a full detail of those three years, but
21 generally what type of chronic pain patients?
22 A. That would -- a lot of the work I did
23 there was with RSD or CRPS patients, because
24 one of the physicians there specialized in
25 treating that and had a day a week that was
PAGE 17
1 devoted specifically to seeing CRPS patients.
2 Q. Okay. So what percentage would you say
3 of your patients fell into that category?
4 A. Were CRPS patients?
5 Q. Yes. Or RSD, I mean.
6 A. Yeah. At that time we were still
7 calling it RSD. And that would have been
8 approximately 50 percent of my patients.
9 Q. What was the makeup of the other half?
10 A. Primarily low back pain; some headache.
11 Q. All right. And at the end of that
12 three-year period, where did you move on to?
13 A. Went to -- the faculty appointment was
14 with Northwestern University in Chicago, and I
15 was working in the chronic pain program at the
16 Rehabilitation Institute of Chicago, which is
17 affiliated with Northwestern.
18 Q. Was that also a multidisciplinary pain
19 clinic?
20 A. Yes. It's about as multidisciplinary
21 as you can get there.
22 And that, that is a -- it was an
23 unusual pain program, because it was -- it
24 wasn't exactly considered inpatient, but it was
25 a program where the patients were in there five
PAGE 18
1 days a week, eight hours a day, for four weeks.
2 So we had a lot of opportunity to observe,
3 observe them.
4 And had a fairly high proportion of
5 patients there that were workers' compensation
6 or had legal issues going on.
7 Q. If the high majority were workers'
8 compensation, I'm assuming that many of them
9 had some type of on-the-job injury?
10 A. Yes.
11 Q. So it was a traumatic event --
12 A. Correct.
13 Q. -- typically?
14 A. Correct. Typically.
15 We had some private insurance patients
16 and self-pay people, but there was a high
17 proportion that were workers' compensation
18 related.
19 Q. Did you see RSD or CRPS patients during
20 that time period?
21 A. Yes. The director of that clinic at
22 the time, Norman Harden, had a strong interest
23 in CRPS, and that was part of the reason he
24 brought me there, because I had done research
25 on that topic before.
PAGE 19
1 Q. And how long were you at this
2 rehabilitation clinic for Northwestern?
3 A. About three years. And that was a
4 situation where it was clinical, clinical work
5 and some research also.
6 Q. All right. What was your -- could you
7 give me a brief summary of your research
8 activities while you were there?
9 A. Um-hum. My research at the
10 Rehabilitation Institute of Chicago was focused
11 primarily on the problems with diagnosing
12 Complex Regional Pain Syndrome and trying to
13 document that and find ways of improving the
14 diagnostic process. That was one of two lines
15 of research.
16 The other line of research is a, or was
17 an NIH-funded study, looking at dysfunction in
18 endogenous opioid systems in chronic pain
19 patients.
20 Q. All right. And after the Rehab
21 Institute of Chicago?
22 A. Um, now current position at Vanderbilt
23 University in Nashville.
24 Q. Forgive me. Lawyers aren't good at
25 math. So you came here in approximately --
PAGE 20
1 MR. EISENBERG: Speak for yourself now,
2 Kevin.
3 THE WITNESS: 2000.
4 Q. (By Mr. Tanner) 2000?
5 A. At the very end of 2000.
6 MR. EISENBERG: I got an A-minus in
7 calculus.
8 MR. TANNER: So did I 15 years ago.
9 Haven't used it much since.
10 Q. (By Mr. Tanner) And then I see from
11 your CV your current position is associate
12 professor of anesthesiology?
13 A. Um-hum. Yes.
14 Q. Has that been your position since 2000?
15 A. I was -- came here as an assistant
16 professor. I was promoted and got tenure in
17 July of 2005.
18 Q. Congratulations. That's pretty recent,
19 so...
20 A. Thank you.
21 It's a nice relief.
22 Q. Since coming to Vanderbilt for the last
23 five years, --
24 A. Um-hum.
25 Q. -- have you -- I read in your CV you
PAGE 21
1 published quite a few articles and chapters.
2 What has been your primary area of focus?
3 A. Well, there are really several primary
4 areas of focus.
5 Q. Fair enough.
6 A. The bread and butter research, the
7 stuff that pays the bills, is I've got an
8 NIH-funded study now that started in 2004, I
9 believe, that is looking at dysfunction in
10 alpha-2 adrenergic pain regulatory systems in
11 chronic pain patients. And that's kind of a
12 follow-up to the research I was doing in
13 Chicago on endogenous opioids, or basically
14 just looking at how individuals with chronic
15 pain develop problems in their natural ways of
16 producing analgesia and how that contributes to
17 chronic pain.
18 So that's one line of research.
19 Another line of research, which also is
20 funded now through the NIH, has to do with the
21 effects of anger expression on pain responses
22 and the role of endogenous opioids in those
23 links.
24 And the third area of research, which
25 has continued throughout my career, is on
PAGE 22
1 Complex Regional Pain Syndrome. And that right
2 now we've got a grant from the RSD Syndrome
3 Association looking, again, at the issue of
4 diagnosis, and whether the suggestions for
5 improving diagnosis of CRPS are going to be
6 helpful or not.
7 Q. Would it be fair to say, then, in the
8 last 10 years, at least one of your areas of
9 primary focus, then, is how to properly
10 diagnose RSD or CRPS?
11 A. Yes. And the other area in CRPS is on
12 the role of psychological factors, you know,
13 the question of how does that relate to CRPS?
14 So it's kind of half diagnosis and half
15 psychological aspects of CRPS.
16 Q. And without being too specific, Doctor,
17 generally, you generally agree that the
18 CRPS/RSD standards have been evolving during
19 that entire time period?
20 A. The diagnostic criteria?
21 Q. Yes.
22 A. The printed diagnostic criteria have
23 been out there since 1994, but there has
24 continued to be discussion about those criteria
25 and whether there are problems with the way
PAGE 23
1 it's diagnosed.
2 So the criteria themselves have not
3 changed during that time, although there is a
4 process going on now to do that.
5 Q. Okay. All right. And again, it's
6 going to sound like a very general question.
7 I'm turning now to what's been marked as
8 Exhibit 1. And this kind of relates to what
9 we're talking about. You've got some bullet
10 points of your relevant experience.
11 A. Yes.
12 Q. And you've mentioned a couple of
13 things. The first bullet point, you say, study
14 of diagnosis of CRPS and psychological aspects,
15 as we've just repeated, that what are -- and
16 then you have "see below" in that note. And
17 then I ran across a couple of different lists
18 through your notes of some psychological
19 aspects of CRPS.
20 A. Yes.
21 Q. Could you just briefly run through
22 those primary psychological aspects of CRPS?
23 A. To go through the articles?
24 Q. No. I don't want to go through the
25 articles. Just generally, in general medical
PAGE 24
1 terms, in the course of your --
2 A. Okay.
3 Q. -- research and study over the last 10
4 years, just a general overview of psychological
5 aspects that you feel are relevant to this
6 case.
7 A. Okay.
8 MR. EISENBERG: I'm going to object to
9 the question as being vague and ask you for
10 clarification.
11 Are you asking him whether he, to
12 describe the connection or lack of connection
13 between CRPS and psychological causes, or
14 something else, Kevin?
15 MR. TANNER: No, I'm not asking for
16 that.
17 I'm asking for --
18 Q. (By Mr. Tanner) Um, you have done
19 research studies that address the psychological
20 aspects of CRPS?
21 A. Yes.
22 Q. I'm asking specifically what are some
23 of those psychological aspects that you've
24 researched?
25 MR. TANNER: Is that better, Jeff?
PAGE 25
1 MR. EISENBERG: Well, if you can handle
2 that question, --
3 THE WITNESS: I can answer that.
4 MR. EISENBERG: -- fine. Fine.
5 THE WITNESS: And let me state
6 initially what our research question was.
7 Q. (By Mr. Tanner) Okay.
8 A. Okay. Our initial research question
9 that motivated this line of research was a
10 review of the existing literature that I did in
11 around 1991, where we looked at all the case
12 studies and reports in the literature on RSD
13 patients, and tried to take from that all
14 references about psychological status, positive
15 or negative.
16 And combining that with this general
17 clinical opinion prevailing at the time that
18 there was something unique psychologically
19 about CRPS patients. We went to this
20 literature and found that, of the reports in
21 the literature, it was fairly frequent for
22 there to be notations made that these patients
23 were depressed and anxious and were having
24 great difficulty dealing with the problem.
25 And the question that we posed, which
PAGE 26
1 others had suggested also, was whether
2 psychological factors could predict who
3 developed CRPS.
4 And our first study of that issue did
5 not directly address that question. We simply
6 tried to do a controlled study to see whether a
7 group of patients with RSD who were -- now
8 these were all RSD patients who had responded
9 to sympathetic blocks, were they any different
10 than a group of low back patients in terms of
11 psychological distress, like depression and
12 anxiety.
13 And we found in that particular sample
14 that they were -- the CRPS patients were
15 significantly more anxious. I think it was
16 just anxiety. Depression was a trend, the same
17 direction, for being more anxious and
18 depressed, than the low back pain patients and
19 patients that had non-CRPS limb pain.
20 Now, that did not address the issue of
21 what came first. So some other research -- and
22 that was consistent with some literature that
23 was out there, some of which has tended to show
24 CRPS patients look no different than other pain
25 patients. There's other literature that says
PAGE 27
1 they do.
2 And it's about 50/50.
3 We decided to do a prospective study to
4 test directly whether CR -- in CRPS patients,
5 whether psychological factors predicted onset
6 of the condition.
7 And the way we chose to do that was to
8 take a group of people who did not have CRPS
9 but who were going to be undergoing major
10 surgery, in this case total knee replacements,
11 and it's fairly common during the course of
12 that surgery to cause bruised nerves and have
13 conditions develop afterwards that look like
14 CRPS.
15 So we took these patients who didn't
16 have CRPS; we assessed their stress, perceived
17 stress levels in their life, anxiety levels,
18 depression levels, and assessed that prior to
19 surgery and then we followed them over the
20 course of six months after that to see who
21 developed CRPS-like symptoms, and then we
22 tested to see whether those baseline
23 psychological characteristics predicted who did
24 and didn't have CRPS.
25 And what we found was that at the
PAGE 28
1 three-month and six-month follow-up, about
2 13 percent of the patients had CRPS, but that
3 stress, depression and anxiety did not predict
4 who fell into those groups.
5 Now, that was really about the only
6 study to that time, at the time we submitted
7 that, that had used this prospective design to
8 test this issue that actually allows you to
9 make causal inferences.
10 And around the same time our study came
11 out, another study from the Netherlands came
12 out essentially showing the same thing, and
13 then I noticed just in the past couple of
14 months there was a third study, Prospective
15 Design, that also showed that depression and
16 certain personality characteristics did not
17 predict who developed CRPS.
18 So my opinion has evolved over time
19 from being -- from having a hunch that they
20 probably are involved in creating CRPS, to
21 being neutral on the issue, to, now that we
22 have more data, to actually being inclined to
23 think that anything unique about CRPS patients
24 in terms of distress levels is probably a side
25 effect of having a chronically painful
PAGE 29
1 condition like this.
2 Q. Okay. And I appreciate that
3 explanation.
4 This next question probably dovetails
5 into that same area. You, in your next bullet
6 point, talk that you have been involved in the
7 clinical assessment and treatment of CRPS
8 patients. My question is simply your role as a
9 clinical psychologist, --
10 A. Um-hum.
11 Q. -- if that's fair, --
12 A. Um-hum.
13 Q. -- what was, what was your role in the
14 clinical assessment of these patients?
15 A. My role was, as part of the
16 multidisciplinary team, to determine whether
17 the patients were experiencing any psychiatric
18 conditions according to the Diagnostic and
19 Statistical Manual of Mental Disorders, the
20 DSM-IV. So it was designed to find out whether
21 these patients were suffering from clinical
22 depression, anxiety problems, post-traumatic
23 stress disorder, as well as things like
24 somatization disorder, malingering, conversion
25 disorder.
PAGE 30
1 And this was done in conjunction with
2 the individuals doing the medical evaluations.
3 As far as the treatment that's listed
4 here, that involved providing psychological
5 pain management skills, things like relaxation
6 training, biofeedback, psychological coping
7 skills for managing pain more effectively,
8 being able to live more effectively with
9 chronic pain.
10 And if there was something like major
11 depression or anxiety disorders present, to
12 treat those underlying problems as well.
13 Q. All right. You mentioned that you had
14 treated or assessed a group that did have the
15 somatization or conversion disorders.
16 A. Secondary gain factors is what I said,
17 yes. I have seen patients with both those
18 disorders as well.
19 Q. My question is, in your experience with
20 these 150 or so patients working with, as you
21 said, medical professionals, which I imagine
22 means practicing physicians, MDs,
23 neurologists, --
24 A. Yes, correct.
25 Q. -- that group of people, how did you
PAGE 31
1 and these doctors work together on what I'm
2 going to call overlapping issues? And you can
3 correct me if I'm wrong, if you don't feel like
4 they're overlapping. You, you mentioned in
5 your report that you didn't diagnose CRPS in
6 these cases.
7 A. Um-hum.
8 Q. Correct?
9 A. Correct.
10 Q. But at some point in time you or the
11 doctors would have diagnosed in some cases, and
12 I'm not saying in all cases, a somatization, a
13 malingering issue, a conversion --
14 A. Yes.
15 Q. -- issue?
16 Was that a diagnosis that you and the
17 doctor that diagnosed CRPS came up together, or
18 did he have a concern, or could you give me
19 some examples of how that --
20 MR. EISENBERG: I'm going to object to
21 the question. He hasn't testified that in
22 patients where there was a diagnosis of CRPS
23 there was a diagnosis of somatization or
24 conversion or malingering.
25 I think he's indicated that his role is
PAGE 32
1 to evaluate the psychological aspects.
2 With that objection noted, you can
3 answer.
4 Q. (By Mr. Tanner) Let me rephrase.
5 In any of these patients that were
6 diagnosed with CRPS, was there also any time
7 diagnoses of somatization, conversion
8 disorders, malingering?
9 A. You don't get both.
10 Q. Okay.
11 A. If you receive the -- a legitimate
12 diagnosis of CRPS, then you don't get the
13 somatization diagnosis.
14 Now, I can think of a case of somebody
15 with a provisional CRPS diagnosis where, after
16 some behavioral observation, with dramatic
17 inconsistencies, some information we found out
18 from outside of the patient themselves, that it
19 turned out that it was a malingering issue, and
20 that she did -- and this was a case where she
21 did not have signs of CRPS. It was simply her
22 complaints of having these features, and that's
23 why it was a provisional diagnosis originally.
24 I don't make the medical diagnosis.
25 The physician makes the medical diagnosis.
PAGE 33
1 Q. Correct.
2 A. But if they have a question about that
3 medical diagnosis, whether the person really
4 has it, and we have other information from the
5 psychological evaluation, history and
6 behavioral observations of the patient that
7 would strongly support there being malingering
8 or conversion or somatization, then it was my
9 job to try to help make that decision.
10 Q. Okay. And I think that's my question
11 then. And I'm glad you got there better than I
12 asked for.
13 As we were discussing this, it made it
14 sound like you went in and did this diagnosis
15 to treat them for issues, depression, anxiety,
16 which can result, but then you had mentioned
17 that somatization, conversions.
18 That was my question. How did you --
19 if they were already diagnosed with CRPS, how
20 did you get to the somatization? So what
21 you're telling me is there was a preliminary
22 diagnosis of CRPS?
23 A. Yes.
24 Q. And you then moved forward with some
25 outside information?
PAGE 34
1 A. Yes.
2 Q. Okay.
3 A. And we, we saw patients that had, you
4 know, back pain, neck pain, headaches and all
5 kinds of things, and, you know, a very small
6 proportion of all those eventually were
7 diagnosed with one of these non-organic pain
8 disorders. That's a very difficult diagnosis
9 to make.
10 I didn't want to leave an implication
11 that it was only the CRPS patients that we ever
12 saw this in.
13 Q. No.
14 A. That's not the case.
15 Q. No, I didn't think so, but I do
16 appreciate the clarification.
17 What were some of these -- you
18 mentioned when you were looking for, if you've
19 got a reason to look for somatization,
20 malingering, conversion, you mentioned there
21 were outside factors and behavioral things you
22 looked for.
23 A. Um-hum.
24 Q. What were the behavioral indicators?
25 A. The biggest, most obvious behavioral
PAGE 35
1 indicator you look for are inconsistencies
2 between what the patient reports and what they
3 actually do.
4 Now, as an example, there was a
5 specific patient that I'm thinking of who
6 claimed that she could not use her arm for
7 anything. This was a unilateral CRPS Type 1
8 patient. She couldn't use her dominant arm. I
9 don't remember if she was right- or
10 left-handed, but it was her dominant arm, to do
11 any activities, you know. And every time I saw
12 her in clinic, she was, you know, guarding it,
13 holding it as if her arm was in a sling, and --
14 you know. And she was claiming that it just
15 was so incredibly painful, nothing could touch
16 it and she couldn't do anything.
17 Well, it turned out that she had very
18 few financial resources and she was involved in
19 a lawsuit, and we later learned from somebody,
20 who I think it was a family member, that she
21 had been working, cleaning houses on the side,
22 since developing CRPS.
23 And I asked her about this. And she
24 admitted that she was, you know, using her
25 hands to sweep, mop, dust, all kinds of stuff,
PAGE 36
1 which was entirely inconsistent with what she
2 was claiming initially about being unable to
3 use the arm. And that, in conjunction with the
4 consultations with the physician, who indicated
5 that she showed no objective signs of CRPS but
6 simply had the complaints of these things,
7 that's what ended up with her getting the
8 diagnosis of malingering in that case.
9 So behavioral observation of
10 inconsistencies like that is really important.
11 It may be an inconsistency over time, beyond
12 what would be expected with normal variations
13 in pain. I mean any legitimate chronic pain
14 condition, they're going to have good days and
15 bad days. You expect that. But when you get
16 dramatic changes, especially that are
17 associated with some type of situational
18 factor, you really start to be suspicious.
19 And an example would be a patient who
20 claims they're disabled and can't use their,
21 let's say, their leg for anything; they can't
22 walk effectively; can't do anything. And they
23 say that they can't work. Right?
24 Well, then it turns out that when you
25 ask them about their life at home, you know,
PAGE 37
1 what are your hobbies? Well, I enjoy, you
2 know, to be -- exaggerate, but say, I like
3 hiking. Well, do you still do that? Yeah, a
4 little slower than usual, but I'm able to
5 hike.
6 Now, that is inconsistent with somebody
7 who's claiming that they're too disabled to do
8 any work.
9 That's the kind of thing that makes us
10 suspicious.
11 So it's this behavioral observation and
12 inconsistencies over time and across the people
13 treating them that are the primary means of
14 diagnosing this.
15 Now, there are red flags.
16 MR. EISENBERG: We're talking about
17 malingering?
18 THE WITNESS: We're talking about
19 malingering primarily. And there are red flags
20 for something like malingering as well. The
21 inconsistent reports, they typically see
22 multiple physicians for the same thing,
23 because, you know, malingerers are not stupid.
24 They're doing this for financial gain, and they
25 realize the more people they see and the more
PAGE 38
1 they can document how bad their complaints are,
2 and the more they can jack up their medical
3 costs, the more they're going to be able to get
4 in the long run.
5 So, you know, you look for a pattern of
6 medical overutilization, and, you know, it's
7 not infrequent that you see medication overuse
8 and things like that as well.
9 Q. (By Mr. Tanner) All right. Appreciate
10 that. And I also appreciate Jeff's
11 clarification.
12 It's been my understanding we're
13 talking about malingering? --
14 A. Yes.
15 Q. -- for the last few minutes.
16 Other than -- and I still need to stay
17 on the issue of malingering. Are there other
18 tools besides getting this outside information,
19 observation source, are there psychological
20 tools or testing that can be used to
21 identify, and again we're just on malingering.
22 A. Right. If you look at the DSM-IV,
23 malingering is technically not a psychiatric
24 diagnosis. It's considered a V-Code, which
25 means that it's a focus of clinical interest.
PAGE 39
1 And so there are not formal criteria for it.
2 But the four things that are listed in
3 there that you would use to consider whether a
4 person has malingering is whether there's a
5 medicolegal context, whether there is a marked
6 discrepancy between the patient's reports and
7 the objective findings.
8 Another big one is lack of cooperation
9 during diagnostic evaluation and poor
10 compliance with treatment. And the last one is
11 presence of antisocial personality disorder.
12 So that's kind of the official things
13 you're supposed to be looking at in trying to
14 make this determination.
15 There are no validated psychological
16 tests that can tell you a person is
17 malingering.
18 I think there have been -- and I don't
19 even remember the names of them. There have
20 been a couple of people that have tried to
21 create things that would do that, but if you
22 look at that research literature, these things
23 are not widely used because they really don't
24 work very well.
25 Q. Okay. And I apologize, Doctor. You
PAGE 40
1 went through your list of four, and your third
2 one was lack of cooperation?
3 A. With evaluation and compliance with
4 treatment.
5 Q. Okay.
6 MR. EISENBERG: I don't think -- yeah,
7 I don't think he referred to it as his list. I
8 think this is out of the --
9 THE WITNESS: This is from DSM-IV.
10 Q. (By Mr. Tanner) By "his," I mean just
11 your testimony right now, what you were
12 reading.
13 A. And then the last one was presence of
14 antisocial personality disorder.
15 Q. I understand you're reading from the
16 DSM, Doctor. I appreciate that.
17 All right. That second criteria was
18 marked discrepancy in behaviors. That relates
19 to what we were just discussing.
20 A. Yes.
21 Q. Outside observations.
22 A. As well as the medical diagnostic issue
23 of whether it is patient self-reported symptoms
24 that are being used for the medical diagnosis
25 or whether there are objective observable
PAGE 41
1 signs.
2 So in the case of CRPS, is there
3 measurable differences in swelling? Is there,
4 you know, measurable differences in
5 temperature? Are there, you know, differences
6 in color of the skin that are obvious to the
7 physician doing the evaluation, that kind of
8 thing.
9 Q. Okay.
10 A. So if you have got self-report of all
11 these symptoms but there are no objective signs
12 and you have the medicolegal context and these
13 discrepancies between the reports and the
14 person's behavior and lack of cooperation,
15 that's when you would be suspicious.
16 Q. All right. The last few minutes we've
17 been talking about that in the context of
18 malingering.
19 A. Um-hum.
20 Q. And your report makes it clear that
21 malingering is not the same diagnosis as
22 conversion disorder?
23 A. You don't give both.
24 Q. Right.
25 A. You actually can't give any two of
PAGE 42
1 those. They are all mutually exclusive
2 diagnoses.
3 Q. Which is my next question. Let's take
4 the next one.
5 A. Um-hum.
6 Q. Let's take conversion disorder.
7 A. Okay.
8 Q. What would be -- and I want to go
9 through kind of the same as we did with the
10 malingering. What would be your tools or
11 process or manner of diagnosing a conversion
12 disorder?
13 A. Okay. The only accepted means by
14 mental health professionals of diagnosing any
15 mental disorder is the DSM-IV manual. These
16 are criterion-based diagnoses, which means you
17 match up what the person -- the symptoms and
18 signs the person is exhibiting with what's
19 listed in the diagnostic criteria. If they
20 meet those diagnostic criteria as worded, they
21 have the disorder by definition.
22 If they don't meet the criteria, then
23 they do not have the disorder.
24 So you don't use any kind of test
25 instruments, or anything like that, to make a
PAGE 43
1 diagnosis of somatization or conversion
2 disorder. And, in fact, I mean I'll just
3 mention, because I think Dr. Ochoa mentioned
4 the MMPI at some point in his deposition being
5 used for this.
6 The MMPI is often used in this kind of
7 situation, but the truth is the pattern of test
8 scores on the MMPI that supports conversion
9 supposedly, which is called the conversion V,
10 which means an elevation on scales 1 and 3 and
11 no elevation on scale 2, that is the most
12 frequent single profile on the MMPI in chronic
13 pain patients. It's like -- I don't remember
14 the exact number, but it's between 20 and 30
15 percent of chronic pain patients will show that
16 pattern.
17 And since conversion disorder, even in
18 clinic populations, is only about a 2 percent
19 prevalence rate. Clearly not all these people
20 have conversion, and that's the problem with
21 using something like the MMPI to make that
22 determination, is it's not sensitive and
23 specific enough to make that diagnosis.
24 And that's really why we use the
25 diagnostic criteria to make that determination,
PAGE 44
1 because there is no other way to do that.
2 Q. All right. So let's just run through
3 it. And I see --
4 A. I've got a copy of diagnostic criteria
5 here.
6 Q. All right. Well, let's run -- and
7 these are the -- again, you're quoting from the
8 DSMV-IV criteria, and these are the ones that
9 you would use in your experience and practice
10 to diagnose a conversion disorder?
11 A. Correct.
12 Q. Okay.
13 A. Okay. Conversion disorder. Criterion
14 A is one or more symptoms or deficits affecting
15 voluntary motor or sensory function that
16 suggest a neurological or other general medical
17 condition.
18 Q. Why don't you just give me the pages to
19 that.
20 A. Give you page 457.
21 Q. I still want you to go through them
22 briefly with me, each step.
23 A. Okay. So this can be the absence of
24 some function, or it can be the presence of
25 some symptom that would potentially be under
PAGE 45
1 voluntary motor or sensory control.
2 Q. Okay.
3 A. So sensation would be something that
4 would qualify for that, but to jump around a
5 little bit here, let me point out that the last
6 diagnostic criterion, criterion F, is that that
7 symptom or deficit is not limited to pain or
8 sexual dysfunction. And it does not occur
9 during the course of a somatization disorder.
10 And that's why you can't have both
11 diagnoses.
12 Now, in truth, if you apply these as
13 they're supposed to be applied, if a person is
14 complaining of pain and that's what you're
15 presuming is the conversion symptom, and any
16 functional deficits are a result of having that
17 pain and the impairment caused by pain, then
18 you wouldn't diagnose conversion. You'd
19 diagnose what's called pain disorder associated
20 with psychological factors in a medical
21 condition.
22 Q. Right.
23 A. Okay.
24 So if a person only has pain, you
25 probably would not give the conversion
PAGE 46
1 diagnosis. You're really looking historically
2 more at things like unexplained muscle
3 weakness, pseudo seizures, very odd sensory
4 patterns, you know, weird sensations that the
5 person says they're having that make no
6 neurological sense. That kind of thing.
7 So criterion A and F, I mean, are
8 inextricably linked in some way there.
9 Now B -- and this is the -- another
10 really key aspect of conversion is that
11 psychological factors are judged to be
12 associated with the symptom or deficit because
13 the onset of the symptoms or exacerbation of
14 the symptoms is preceded by conflicts or other
15 stressors.
16 And while it's not actually written out
17 in this criterion, if you read the other
18 information in the DSM, it basically says your
19 confidence in a diagnosis of conversion is
20 really tied to how close that temporal
21 relationship is.
22 Now, if I may here, just as an example
23 then, Dr. Ochoa in the case of Ms. Nave
24 proposed this diagnosis, stating that the
25 sexual assault she experienced in college would
PAGE 47
1 be a likely traumatic event that would trigger
2 something like conversion disorder.
3 And this criterion B in that context
4 would say that that doesn't meet the criterion
5 for conversion disorder because you don't have
6 the 20-year gap between the trauma and
7 development of the symptoms that are supposed
8 to be tied to that.
9 So it has to be a close temporal
10 association.
11 Now C, criterion C, is that if the
12 symptoms are not intentionally produced,
13 meaning you can't be a malingerer. If you're
14 trying to look this way to get money, then it's
15 not conversion; it's malingering.
16 Criterion D is that the symptom after
17 appropriate, meaning medical investigation,
18 cannot be fully explained by a general medical
19 condition, or the effects of a substance or
20 some type of culturally sanctioned behavior --
21 this is more dealing with African cultures or
22 certain what we would consider odd behaviors
23 are considered socially normal, and that does
24 not imply conversion.
25 Now, this particular case, I think the
PAGE 48
1 main thing that would apply in Terry Nave's
2 case is whether or not there is a recognized
3 general medical condition that can account for
4 her symptoms.
5 Q. But in this case, you would say CRPS
6 meets the criteria of that --
7 A. Yes.
8 Q. -- medically diagnosed condition?
9 A. Yes.
10 Q. And I appreciate that, because that's
11 the real reason I wanted to run through
12 these, and you have done that nicely, and I
13 appreciate it.
14 Doctor, --
15 A. Also, I do want to get into later why I
16 think that's the case, because I realize that
17 Dr. Ochoa disagrees with the idea that CRPS is
18 a legitimate medical condition, but we can come
19 back to that later.
20 E, criterion E, is that the symptom
21 causes distress or impairment. Clinically
22 significant distress or impairment.
23 Well, that's essentially what that
24 boils down to.
25 And then F, we've already gone over,
PAGE 49
1 that it's not limited to pain or sexual
2 dysfunction.
3 Q. Okay.
4 A. I do need to point out -- those are the
5 actual diagnostic criteria, and that is the
6 main thing you use in making the diagnosis, but
7 there is also -- and it's disappeared. Oh,
8 there it is.
9 There's also the issue with this of
10 associated features, and this is not listed in
11 the criteria, but if you look at the
12 descriptive text that is referring to
13 conversion disorder, there's been a lot of
14 research on what characterizes conversion and
15 what these people look like. And it's helpful
16 in trying to rule in or out conversion disorder
17 to consider some of those things also, because
18 these are -- and these apply not only to
19 conversion disorder but also to somatization
20 disorder.
21 That both tend to occur typically by
22 early adulthood. Often you start seeing it in
23 adolescence. Certainly you see it before age
24 25. And it is very rare to have it develop in
25 middle age out of nothing. Somebody who's
PAGE 50
1 never shown it before doesn't generally just
2 develop it in middle age.
3 And, in fact, in this text section
4 having to do with conversion disorder, they
5 actually state -- and I've got a page number
6 here, if you want it -- is that when you think
7 you are seeing conversion disorder in middle
8 age for the first onset, the probability of an
9 unrecognized neurological or other general
10 medical condition is high, meaning that you
11 have a high probability of a false conversion
12 diagnosis if this is the first time they've
13 developed it in middle age.
14 So that's, that's an important thing to
15 consider, is the timing of when these symptoms
16 start.
17 Another issue is how the complaints are
18 presented. And for conversion and somatization
19 disorder, both, you typically see very
20 colorful, exaggerated, dramatic descriptions of
21 things. You know, oh, I've got 100 out of 10
22 pain, and it's all over my body, and I can't do
23 anything. I mean, they're very dramatic
24 descriptions of things.
25 If you're talking about conversion in
PAGE 51
1 particular, other than this dramatic pattern,
2 you also might get the opposite, which is
3 called la belle indifference, which means that
4 if a person really had the medical problems you
5 had, you'd be upset about it, but you don't
6 look upset enough. So it's kind of a person
7 saying, I can't use my arm at all, I can't work
8 and all this, but they've got a smile on their
9 face and they don't seem disturbed at all by
10 that.
11 That is another characteristic of
12 conversion. That's kind of something that you
13 would see in the manner in which they describe
14 the symptoms.
15 They tend to be inconsistent in the
16 reports of the history of the problem. They'll
17 say one thing one day, something else the next
18 day.
19 Again, frequently seeing multiple
20 physicians at the same time, getting multiple
21 treatments at the same time. Often one
22 physician doesn't know what the other physician
23 is doing.
24 Often use multiple medications. Their
25 physical exams typically don't have any
PAGE 52
1 objective findings. You know, you don't see
2 visible changes to indicate there's a disorder
3 there. It's mainly just their own complaints
4 of symptoms.
5 Now, one thing with conversion in
6 particular that's important is, if you have got
7 a conversion disorder -- and let's say a
8 person's complaining of, you know, anesthesia
9 in one part of their body and pain in another
10 part. Well, if those truly are conversion
11 symptoms, they typically go away in a short
12 period of time.
13 And there's a study cited in the DSM
14 that shows that these conversion patients, the
15 symptoms go away in about two weeks.
16 So you would not generally think that a
17 conversion disorder would result in symptoms
18 lasting for years, because that's just not the
19 typical way things happen.
20 In conversion patients, if you look at
21 them demographically, tend to be lower
22 socioeconomic status; you know, they're not
23 very educated; they tend to be rural, and they
24 tend to not be very knowledgeable about medical
25 or psychological issues.
PAGE 53
1 So, to them, these weird reports of
2 symptoms may seem plausible, but to somebody
3 with a background at all in medicine or
4 psychological issues, it's totally
5 implausible.
6 So, I mean, you have to factor all this
7 in to making this diagnosis.
8 Ultimately, it's whether you meet those
9 specific criteria I laid out.
10 Q. All right. I appreciate that.
11 And it probably answers some questions
12 we're probably going to get into later.
13 Because underlying in all of this is, I
14 notice in your report, your position is Terry
15 Nave doesn't fall into, for example, the right
16 age category.
17 A. That's not a diagnostic --
18 well, actually with somatization, that is a
19 diagnostic criterion, which we haven't done
20 yet.
21 Q. And we haven't gotten to somatization.
22 A. But yes.
23 Q. Okay. I guess that's under the
24 associated features that you went through?
25 A. For conversion order, it's an
PAGE 54
1 associated feature.
2 Q. For conversion disorder?
3 A. Yes.
4 Q. And you didn't see, in your review of
5 her reports, any of these other associated
6 features that, for you, raised any red flags
7 with Ms. Nave?
8 A. No. The list that I just read you of
9 associated features, I do not feel in my
10 opinion that Terry Nave meets any of those.
11 And I also do not feel she meets the
12 criterion, the actual diagnostic criterion for
13 conversion disorder.
14 Q. Right. And you have given me, I think,
15 on F and C and E, and a couple of others, your
16 reasons for that.
17 A. Yes.
18 Q. All right. Well, let's move on to
19 somatization. And I apologize if I don't go in
20 the same order as your -- and again, you're
21 looking at the DSMV?
22 A. It's page 449 in DSM-IV, the
23 somatization disorder criteria.
24 Q. All right. And then briefly, if we
25 could do this again, you know, obviously I can
PAGE 55
1 read the diagnostics, but I have been
2 appreciating your comments on --
3 A. Okay.
4 Q. -- in your mind, what those each mean.
5 A. Okay.
6 Q. And if you could do that for me again,
7 just tell me this is the criteria; in my mind,
8 this is what it means.
9 A. Okay.
10 Q. And I may stop you with a question with
11 regards to Terry Nave.
12 A. If you would like --
13 MR. EISENBERG: Well, let me just
14 indicate that I don't mind some narrative, but
15 the way -- and this is no criticism in any way
16 of what you're saying -- the way depositions
17 are supposed to be conducted is question and
18 answer, not a tell-me-everything-you-know and
19 then a 15-minute answer.
20 So ask him some --
21 MR. TANNER: I can break it up, if you
22 like.
23 MR. EISENBERG: Yeah. And I don't mind
24 some narrative, within reason.
25 MR. TANNER: Okay.
PAGE 56
1 Q. (By Mr. Tanner) Let me break it up.
2 A. Okay.
3 Q. There are certain characteristics that
4 the DSMV has laid out for diagnosing
5 somatization disorders; correct?
6 A. Correct.
7 Q. And you've pulled the, these pages that
8 you have in your hand from the manual on DSMV?
9 A. Yes.
10 Q. All right. Could you give me what the
11 first characteristic is, just briefly? You
12 don't need to read it word for word to me.
13 A. It's multiple physical complaints that
14 are beginning before age 30 that occur over a
15 period of years that are significant enough
16 that the person's seeking treatment.
17 And these are generally meant to be
18 complaints that don't have any documented
19 medical basis.
20 Q. Okay. What type --
21 A. I do not believe Terry Nave meets that,
22 as long as we're on this.
23 Q. Well, according to -- pursuant to
24 Jeff's objection, I'm going to ask you
25 specifically --
PAGE 57
1 A. Okay.
2 Q. -- on each of these.
3 So multiple complaints that don't have
4 a medical reason stated. Could you give me
5 some examples, in your experience, --
6 A. Um-hum.
7 Q. -- of those type of complaints that
8 would fall into that criteria.
9 A. Well, in women, it would be complaints
10 of like menstrual pains where when they do all
11 the hormonal assays and checks for
12 endometriosis and all that, there is absolutely
13 nothing that they can find to explain it. So
14 they might have that. Plus they might have
15 headaches that don't seem to have any clear
16 basis and don't respond to treatment.
17 They might have, you know, unexplained
18 weakness in their hand. You know, it's
19 basically -- it could be anywhere in the body.
20 You know, they've got pain, pain in the butt.
21 You know, it doesn't matter what it is, but it
22 literally is multiple body locations, multiple
23 disorders that takes them to the physician, the
24 physician says, well, I can't find anything
25 wrong. You know, they keep coming back year
PAGE 58
1 after year with more of these regularly.
2 Q. All right. And you can say you --
3 A. And this is life-long pattern. That's
4 why they have this age criterion. You don't
5 develop this suddenly at age 40.
6 Q. All right. And you said typically it's
7 prior to age 30; is that --
8 A. It's not typically.
9 Q. Oh.
10 A. By definition, you don't have
11 somatization unless you have a demonstrated
12 pattern like this of persistent unexplained
13 symptoms over a period of years prior to age
14 30.
15 Q. And then, of course, that probably
16 answers the question, but we need to ask it.
17 And you feel that Terry Nave doesn't fall into
18 the category because she developed her symptoms
19 after age 30, significantly after age 30.
20 A. We have very good medical records from
21 her military, which falls between college
22 graduation and age 30, and if you -- I've
23 reviewed those in detail. And there is no
24 evidence at all of recurrent unexplained
25 problems.
PAGE 59
1 And she doesn't -- and I mean, frankly,
2 the other issue with this, which is really more
3 criterion B, is she doesn't have a wide
4 diversity of problems; they're pretty
5 circumscribed.
6 Q. Okay. The second category is wide
7 diversity?
8 A. Yes.
9 And they actually list locations that
10 you have to have symptoms in to qualify for
11 this diagnosis. And you have to have something
12 in all four of these. One is four pain
13 symptoms. And you can't just say, you know,
14 pain in all four limbs. That's not really four
15 different kinds of pain. What they're
16 really -- if you read the wording here, what
17 they're referring to is you've got some in the
18 head, some in your joints, some in your back,
19 some in extremities, some in your chest.
20 So you have to have this, you know,
21 widely diverse organ systems in the body that
22 are affected by pain.
23 You've also got to have two
24 gastrointestinal symptoms.
25 Q. Like ulcers?
PAGE 60
1 A. Ah, not -- no, because that is
2 objective. I mean you can --
3 Q. Ulcer-like symptoms, would that be --
4 A. Well, nausea.
5 Q. Okay.
6 A. Complaints of nausea. Persistent
7 nausea.
8 Q. Okay.
9 A. Bloating, diarrhea. You know,
10 complaints that you've got diarrhea. Two of
11 those, and these are like persistent. One
12 episode is not going to have you really
13 considered to be somatization.
14 You have got to have one sexual
15 symptom, which in women can be things like
16 irregular menstrual periods that's not for any
17 valid medical reason; excessive, you know,
18 complaints of excessive menstrual bleeding.
19 And you have also got to have one
20 pseudo-neurological symptom. This is
21 Dr. Ochoa's favorite term, is pseudo-
22 neurological symptom. And this is something
23 that looks like a neurological deficit for
24 which there is no evidence that it actually is
25 a neurological deficit.
PAGE 61
1 And that, most often, is going to be
2 things like coordination, balance problems,
3 paralysis. And there is a whole variety of
4 these things listed here.
5 So you have this set of symptoms before
6 age 30; takes you to the doctor multiple times
7 over a period of years. You've got to have
8 this diverse set of symptoms.
9 And the other issue is criterion C,
10 which is there can't be any medical condition
11 that can explain these. If you have got a
12 medical condition that fully explains the
13 patient complaints, you don't have
14 somatization.
15 Q. And again it's the obvious follow-up,
16 but the question I need to ask, in Ms. Nave's
17 case, because she had diagnosed CRPS, would
18 take her out of the criteria, in addition to
19 the other factors you've listed previously?
20 A. Yes, and because, if you look at Terry
21 Nave's presentation, her objective and
22 subjective complaints, they're entirely
23 consistent with what you would expect in a real
24 CRPS patient.
25 And then there's -- D is just saying,
PAGE 62
1 the criterion D is saying you can't have
2 malingering and somatization at the same time.
3 If they're intentionally produced, it's not
4 somatization.
5 MR. EISENBERG: Why don't we take a
6 sec?
7 MR. TANNER: That's fine.
8 (Recess from 11:40 to 11:43 a.m.)
9 Q. (By Mr. Tanner) All right. We'll go
10 back on, then.
11 Doctor, I'm going to run through -- and
12 you have answered a lot of my questions, and I
13 appreciate it, so I may skip around a little
14 bit in your report.
15 Just real briefly, in, in -- you
16 haven't given any expert testimony in the past
17 four years. Have you ever given expert
18 testimony in a CRPS or an RSD case before?
19 A. I have to think about how to answer
20 that.
21 No. She did not have CRPS. That was
22 the issue. Yes.
23 Q. Okay.
24 A. So I have given expert testimony but
25 not in cases having to do with CRPS.
PAGE 63
1 Q. And RSD, would the answer be the same?
2 A. Yes.
3 Q. I know they overlap a lot.
4 A. Yes.
5 Q. All right. In your report, you talk
6 about the review of the records. And you
7 discussed with me you went through her medical
8 records, including her military --
9 A. Um-hum.
10 Q. -- medical records?
11 Can you briefly summarize for me, or if
12 you have it available to you, the information,
13 the medical record information you were
14 provided. Do you recall what it was?
15 A. Yeah. I can characterize it. I mean,
16 this was her job -- two categories: Job
17 performance records, her performance
18 evaluations throughout her military career, and
19 then her medical records in the military.
20 Q. Did you also review her more recent
21 medical records?
22 A. Most --
23 Q. To your knowledge?
24 A. Most of them.
25 Q. Okay. For example, she's being treated
PAGE 64
1 by a Dr. Chung at one point in time.
2 A. Um-hum.
3 Q. Did you read his medical records that
4 were provided?
5 A. Yes. Yes.
6 Q. Okay.
7 A. I know I saw parts of it.
8 Q. And I don't need you to go line by
9 line.
10 A. Okay.
11 Q. But those medical records, I have
12 just -- you have looked at her medical records
13 up through her present diagnosis?
14 A. Yes.
15 Q. Okay. Then you also reviewed
16 surveillance videos; is that correct?
17 A. Correct.
18 Q. And I'll represent to you I've only
19 seen one set. So let me just ask you briefly,
20 I know I shouldn't -- Jeff's giving me a look.
21 MR. EISENBERG: Well, when you say one
22 set of surveillance --
23 MR. TANNER: Yeah. I never saw the
24 surveillance taken in Salt Lake. I only
25 saw --
PAGE 65
1 MR. EISENBERG: We sent to Dr. Bruehl I
2 think on a CD, I think.
3 THE WITNESS: (Indicating.)
4 MR. EISENBERG: There was a series of
5 surveillance. And it's -- without having the
6 actual written record in front of you, it's a
7 little difficult to know what's one day and
8 what's another day and what's another day.
9 THE WITNESS: I actually have dates. I
10 do have the dates on these, if it makes any
11 difference.
12 Q. (By Mr. Tanner) It makes a
13 difference. What are you -- Exhibit 4?
14 A. On Exhibit 4, on page 3.
15 Q. Okay. And you've got dates?
16 MR. EISENBERG: We have surveillance
17 from 11 of '04, from June of '05 and a number
18 of days in --
19 MR. TANNER: In September of '05.
20 MR. EISENBERG: -- in September of '05.
21 THE WITNESS: I think there may be
22 another.
23 MR. EISENBERG: I think we sent a
24 second additional surveillance.
25 MR. TANNER: Okay.
PAGE 66
1 THE WITNESS: It was a very abbreviated
2 one, that second one.
3 MR. EISENBERG: We sent it to him as it
4 was being sent, for whatever reason, to us in
5 separate productions.
6 MR. TANNER: Okay.
7 Q. (By Mr. Tanner) Let me just ask you
8 briefly, because I think your report --
9 MR. EISENBERG: So I think, just to be
10 clear, I think he received another surveillance
11 video, and I think it was done like October 2nd
12 or something of '05, and maybe there --
13 THE WITNESS: You know, I may have
14 written that on a separate sheet, because that
15 was after I had already done this. Let me
16 just -- if it makes a difference, let me just
17 see.
18 Q. (By Mr. Tanner) Just to briefly know
19 what dates you saw.
20 A. Well, there is one other. It didn't
21 change my opinion from what I determined in
22 this, but let me just see if there was a
23 separate. It looks like the only date that's
24 covered that's different is the 15th of
25 September, and October 2nd.
PAGE 67
1 Q. Okay. Both of '05?
2 A. Of '05, yeah.
3 Q. Okay. Thank you.
4 Okay. In the middle of -- I'm on --
5 you don't have your pages numbered, Doctor, so
6 I apologize. It's in paragraph 1, and it's the
7 first page of full text of your testimony. I'm
8 back in Exhibit 1. I apologize.
9 A. Oh. Facts and Opinions?
10 Q. Yeah. And if you go down about, oh,
11 12, 14 lines, there is "Information in her
12 deposition," starts in the middle?
13 A. Um-hum.
14 Q. Do you see where I'm reading from?
15 A. Yes.
16 Q. And the complete sentence states,
17 "Information in her deposition further
18 indicates that, as a consultant, she had gone
19 out of her way not to take financial advantage
20 of others."
21 A. Um-hum, correct.
22 Q. I just want to know what your, what
23 information her deposition, what statements you
24 can recall today, led you to that conclusion.
25 A. She stated specifically that in doing
PAGE 68
1 her computer consulting work with, I think it
2 was, some religious-affiliated organization,
3 that she was discounting them the hourly cost
4 down to a fairly low level compared to what she
5 was charging other people because she said they
6 couldn't afford it.
7 Q. And that statement was important to
8 you, and I think I know from reading the rest
9 of your report, but in your words, why was that
10 statement important to you?
11 A. Well, Dr. Ochoa, in his report, was
12 saying that Ms. Nave might be a malingerer
13 because of financial motivations. And if
14 you're trying to infer financial motivations,
15 you'd look for pattern in the past of having
16 taken financial advantage of others, or taken
17 financial advantage of situations.
18 And, to me, it just doesn't make sense
19 why a person who is willing to, you know, shave
20 off money to one of her customers because they
21 can't afford it would then turn around and
22 create phoney symptoms in order to make
23 money.
24 Q. Okay. And this just may demonstrate my
25 lack of understanding of malingering. But
PAGE 69
1 there is a sentence probably five or six more
2 lines down that says, "There appears to be no
3 rational motivation for malingering."
4 A. Um-hum.
5 Q. Then again I don't want to mince words.
6 Are there -- can malingering have motivations
7 that are irrational motivations, in your
8 experience?
9 A. People act because they expect to get
10 something out of it. You know, there is always
11 a rational motivation. Now, somebody else
12 might not agree that it makes sense to do that.
13 Q. Okay.
14 A. You know, a person who feels it's
15 illegal to lie to gain money would call that an
16 irrational motivation. But the truth is, in
17 the case of malingering, they're doing it
18 because they think they're going to get a
19 financial settlement out of it.
20 Q. Okay. So --
21 A. You can't look at that outside of the
22 context in which that occurs.
23 Q. All right. And that clears up my
24 question.
25 So the malingerer, in their mind, have
PAGE 70
1 a rational basis?
2 A. Yes.
3 Q. Okay. Later on you use the words to
4 describe Ms. Nave as an adaptive coper. What
5 you say is the ideal type of pain patient.
6 A. Um-hum.
7 Q. Um, just for our -- what is your
8 definition of adaptive coper? What is -- could
9 you describe what you meant by that term for
10 me?
11 A. I actually am borrowing that
12 terminology from this widely-used test
13 instrument in chronic pain called the
14 Multidimensional Pain Inventory. And what
15 they -- in developing this test, they looked at
16 a very large sample of chronic pain patients
17 and they did what's called factor analysis on
18 the characteristics in these patients and found
19 that basically you could lump patients into
20 three groups, with each of those groups looking
21 fairly similar.
22 The first group is the adaptive copers,
23 and these are people who have lower pain
24 intensity; they have lower emotional distress;
25 they have less impairment in their activities
PAGE 71
1 of daily living and worklife because of their
2 chronic pain, and mentally, in terms of what
3 they're dealing with, chronic pain, they're not
4 doing things that make their problems worse.
5 The worst thing you can do is go, oh,
6 God, this is terrible; I'm just going to give
7 up. And that's -- that kind of thinking
8 characterizes the second subgroup, which is
9 dysfunctional.
10 These are people with higher pain.
11 They don't deal with it well mentally. They
12 are much more distressed by it. They have a
13 lot of impairment in their life because of
14 it.
15 And all of these people are legitimate
16 pain patients; they've just responded to the
17 condition differently.
18 And adaptive, the key is adapt. She is
19 trying to adapt to the presence of CRPS in her
20 life as best she can, by, you know, accepting
21 that she may have some things she's limited in
22 doing, but within those limits, trying to do as
23 much as possible.
24 So she continues to work. You know,
25 has gone out her way to keep trying to work
PAGE 72
1 despite this, which I can't say is true of all
2 the CRPS patients I've seen.
3 It's kind of a motive, motivational
4 issue and the approach to the problem that's
5 reflected in that.
6 Q. All right. And you mentioned you had
7 borrowed it from this Multidimensional Pain --
8 and I didn't get the full name.
9 A. Multidimensional Pain Inventory.
10 Q. Does that inventory, is it like the DSM
11 with criteria, or is there some type of testing
12 that can be done?
13 A. It's a questionnaire. They fill out
14 this questionnaire, and based on those
15 responses, there's a computer program that --
16 (Cell phone ringing.)
17 MR. EISENBERG: Can I answer this?
18 MR. TANNER: Sure.
19 (Respite.)
20 Q. (By Mr. Tanner) I think he was
21 relating to whether there was some kind of a,
22 either a set of criteria that you could look at
23 or at some type of a diagnostic tool relating
24 to this pain inventory.
25 And you were saying that there is a
PAGE 73
1 questionnaire, and I think that's where we left
2 off. Does that sound right?
3 A. Yes.
4 Q. All right. So why don't you describe
5 that questionnaire for me.
6 A. It's -- I don't remember the exact
7 number of items, approximately 60 questions.
8 The patient fills it out. You enter the data
9 into a computer program that comes with it, and
10 it spits out -- one of the things it spits out
11 is whether this person looks like an adaptive
12 coper or dysfunctional patient or an
13 interpersonally distressed patient, which is
14 another category.
15 Q. All right. And what --
16 A. And this is intuitive. I mean, it's
17 not like it's hard to figure this out just from
18 talking with the patient, but there is a test
19 that assesses it.
20 Q. Well, that was my next question. You
21 didn't actually administer this questioning --
22 A. No.
23 Q. -- to Ms. Nave?
24 Which is my next question. You put her
25 in this category based on?
PAGE 74
1 A. Based on what's -- based, in part, on
2 the psychological evaluation done by
3 Dr. Thornhill; in part on the description of
4 how she is dealing with this in the medical
5 record with the various physicians that she's
6 seen, and also from her deposition. As well as
7 video, I guess, is part of it, too.
8 MR. EISENBERG: Would the military and
9 employment records also --
10 THE WITNESS: That would not be coping
11 with pain specifically, but I, I did use that
12 information from the military record and
13 employment records just to assess her general
14 coping ability.
15 MR. EISENBERG: Okay.
16 THE WITNESS: Yeah.
17 Q. (By Mr. Tanner) Let's be fair. So how
18 she handled responsibilities?
19 A. Yes.
20 Q. How she handled managing people?
21 A. Right.
22 How she handled stress.
23 Q. How she handled stress?
24 A. Yes.
25 Q. Generally?
PAGE 75
1 A. Yes. So I did assess that from the
2 record.
3 Q. All right. And what is it that you
4 gleaned from the video?
5 A. Well, what I saw in the video is
6 physical problem -- physical behaviors that
7 look like the kinds of things I would expect in
8 a patient who has lower and upper extremity
9 CRPS in terms of alterations and how they use
10 those extremities. Things like limps; how they
11 cross their legs; rubbing the foot; you know,
12 asking a friend to open a water bottle, that
13 kind of thing. That would all be like what I
14 would expect to see. So from the video, that
15 would be what I would glean.
16 Q. All right. And do you recall what
17 things in her deposition you gleaned from it
18 that also related to how you felt she handled
19 with stress and the pain?
20 A. Yes. Yeah, I think the best evidence
21 you can point to that she is really good at
22 coping with stress is the consistent reports
23 throughout her military career that she was in
24 positions with very high job demands, high
25 level of responsibility, multiple employees
PAGE 76
1 working under her, or multiple -- I don't know
2 what you call it in the military, but people
3 under her that she was responsible for
4 supervising, and even working with
5 headquarters, you know, Pentagon level things,
6 and her officers above her consistently say
7 that she thrived under stress; she performed
8 exceptionally well.
9 And, you know, since this is a pain
10 case and there is a question of conversion
11 disorder, I think the biggest thing you have to
12 look at is she had this high level of stress
13 over a long period of time; had at least two
14 foot injuries and a back injury while in the
15 military. And the medical records indicate no
16 chronic pain conditions developed after that.
17 And if she were prone to falling apart
18 under stress or using physical complaints to
19 get out of things or express psychological
20 conflict, or anything like that, she had the
21 perfect opportunity in the military to do that.
22 And it didn't happen.
23 And that, to me, is pretty convincing
24 evidence that she wouldn't suddenly just
25 develop this pattern now at age 40-something.
PAGE 77
1 Q. I apologize, Doctor. I'm looking
2 through my notes, and it appears you have
3 answered some of my next questions.
4 There is a large portion of this
5 paragraph 1 that goes on from the bottom of the
6 page, starting with, "Specifically I will point
7 to videotape evidence," and it kind of lists
8 several of the items that you just listed --
9 A. Yes.
10 Q. -- for us.
11 And then I would just -- your position
12 is, um, if I read your report correctly, that
13 you considered these behaviors consistent with
14 her condition based largely on the fact that
15 she was unaware that she was being watched. Is
16 that a fair statement?
17 A. That is correct. You would not expect
18 a person who is pretending to have an illness
19 such as malingering to exhibit these kinds of
20 changes when they were unaware they were being
21 observed.
22 Q. Then in Section 2, I think we've
23 anticipated these questions as well. This is
24 your paragraph that talks about "One can't
25 have."
PAGE 78
1 A. Um-hum.
2 Q. You disagree with Dr. Ochoa that she
3 can't have multiple conditions; she's got --
4 she fits in one criteria or she doesn't?
5 A. Well, in this case, she doesn't.
6 Q. Or doesn't fit any --
7 A. And doesn't fit any of the three
8 diagnostic categories we've talked about:
9 malingering, somatization or conversion.
10 MR. EISENBERG: Off the record.
11 (Discussion off the record.)
12 Q. (By Mr. Tanner) Let's look at, I think
13 it's at the end of numbered paragraph 2. It's
14 the page that's -- it's on the second page of
15 it, though.
16 There is a DSM diagnosis that you do
17 concur with; correct?
18 A. Actually, I was incorrect in my
19 statement in this.
20 Q. Okay.
21 A. I went and looked at the psych report.
22 She actually was diagnosed was psychological
23 factors affecting medical condition, which is,
24 has a very similar intent. It's just more
25 generic. It's not referring to pain
PAGE 79
1 specifically.
2 Q. Okay. Do you believe that that's the
3 correct diagnosis?
4 A. Well, it's not technically the correct
5 diagnosis.
6 Q. Okay.
7 A. Because that is the older diagnosis
8 you'd give in the DSM, the previous version,
9 DSM-III-R.
10 Q. Okay.
11 A. In DSM-IV, if pain is the primary
12 complaint, you don't give that. What you give
13 is pain disorder associated with -- what did I
14 say here? -- psychological factors in a medical
15 condition.
16 Q. Okay.
17 A. That is something that literally 95
18 percent of our patients in pain centers receive
19 that diagnosis, because it implies -- it does
20 apply to just about everybody who's got chronic
21 pain.
22 Q. Do you know if there has ever been any
23 psychological profiling that you reviewed of
24 Ms. Nave?
25 A. Can you clarify that?
PAGE 80
1 Q. Yeah. You make a statement here about,
2 and we talked about earlier, you talked about
3 this test you did with the -- and I think this
4 paragraph relates to that same testing or same
5 study that you did with me. I apologize. I
6 put my notebook in front of my face. That
7 patients had what you call normal psychological
8 profiles could develop CRPS with no statistical
9 variation from those that had an abnormal
10 psychological profile.
11 A. Correct.
12 Q. My question is, in the present case,
13 are you aware of any psychological profiling
14 that was done for Ms. Nave that you reviewed?
15 A. I did not see any questionnaire data.
16 I think the report says no psychometric tests.
17 I have it here. Let's see. Psychological
18 testing was not obtained.
19 Q. All right. This paragraph 5, we talked
20 about part of this, that you disagree with
21 Dr. Ochoa's characterization of CRPS-1 as a --
22 well, he has a different opinion on the medical
23 condition, that it is or it isn't.
24 I'm more interested in, you talk about
25 that there's flawed or the need to improve the
PAGE 81
1 diagnostic criteria for CRPS.
2 What are your concerns, or what areas
3 do you feel like are flawed in that diagnosis
4 that's currently being used, if any?
5 A. Yes. I brought that up because he was
6 making an effort to quote me, and he quoted me
7 incorrectly. And that nowhere in this article
8 that he was referring to did I ever imply that
9 CRPS is not a real disorder.
10 And I, just as an example, just a quote
11 from the end of the study, "Results of the
12 study confirm the existence of a syndrome which
13 is statistically distinguishable from other
14 types of known neuropathic pain." So we're
15 clearly not saying there is nothing there to
16 detect.
17 That was why I brought that up.
18 MR. EISENBERG: Let me, before you get
19 into an answer to Kevin's question, I don't
20 have an objection to you asking or the doctor
21 answering; I just want to preserve my objection
22 that this witness is, is not going to be
23 presented, I don't think, with respect to
24 making a diagnosis of CRPS, as he indicated,
25 that as a psychologist he's, he's not qualified
PAGE 82
1 to make a diagnosis of Ms. Nave.
2 I think this will go beyond the scope
3 of examination, and I don't want to open the
4 door by remaining silent as you ask him about
5 this. So I'll preserve my foundation
6 objection.
7 You can go ahead and answer the
8 question, Doctor.
9 Q. (By Mr. Tanner) Let me rephrase it
10 because I think Jeff raises a valid point.
11 Doctor, we discussed earlier, you never
12 diagnosed CRPS-1, -2, in any of those patients?
13 A. Not in this specific patient, correct.
14 Q. With that in mind, and understanding
15 that that is not your role, now can you tell me
16 in what ways you feel the diagnosis tools or
17 the criteria need to be improved upon in CRPS?
18 A. What our research showed is that the
19 currently worldwide accepted diagnostic
20 criteria, and that these are the criteria
21 published in the Taxonomy of Pain, which is a
22 diagnostic manual that's produced by the
23 International Association for the Study of
24 Pain, that the criteria that are listed in
25 there for CRPS are not specific enough. I
PAGE 83
1 mean, it's too easy to meet these criteria and,
2 therefore, it may tend to overdiagnose in some
3 patients.
4 And one of the largest reasons for that
5 occurring is because the way those criteria are
6 written, you can receive the diagnosis solely
7 based on the patient self-reporting that they
8 have had these symptoms. You can get it with
9 no objective signs at all.
10 And I can give you -- I mean, the
11 work -- this is the problematic wording. There
12 are actually two issues here. One is --
13 Q. What are you reading from, first?
14 A. This, this is a typed version of these
15 diagnostic criteria I'm referring to.
16 Q. Okay.
17 A. Now, criterion 3 says there is evidence
18 at some time of edema, changes in skin blood
19 flow or abnormal pseudomotor activity in the
20 region of pain.
21 If you take that verbatim, you could
22 give the diagnosis of CRPS based on a patient
23 who looks perfectly normal to you when they
24 come in saying, oh, you know, I tend to have
25 swelling and my arm gets red, because that is
PAGE 84
1 evidence at some time, via self-report, that
2 they have had this.
3 That's part of the reason why these
4 criteria are not specific enough. It's because
5 they don't require that you show objective
6 evidence of the condition at the time you're
7 undergoing evaluation.
8 And the other issue with this is, in
9 that same criterion, they're lumping together
10 edema, blood flow changes and abnormal sweating
11 activity. And in fact, what our research
12 showed is that skin blood flow changes are
13 really a separate issue from the other two.
14 And by lumping them together like this, it
15 actually makes it easier to get the diagnosis.
16 And Dr. Ochoa's opinion mistakenly was
17 that we were concluding that the entity of CRPS
18 is a non-specific entity, and that is not what
19 we were concluding.
20 We were concluding that our method of
21 diagnosing it needs work, and the current
22 criteria are not specific enough, and in fact,
23 we have proposed a revision to that that
24 increases the specificity, makes, makes it
25 better. That's currently under consideration
PAGE 85
1 for revising the taxonomy.
2 Q. I can probably imagine the wording,
3 based on what you have just told me, but what
4 is -- you're part of the group that's
5 submitting this new criteria?
6 A. Yes.
7 Q. And that group consists of you and
8 medical doctors?
9 A. Yes.
10 Q. Okay.
11 A. And I'm trying to think if there was
12 other, other disciplines. There may have been
13 a physical therapist involved, too.
14 Q. Okay. What is -- and I don't need the
15 exact wording, Doctor, but what is suggested
16 language or phraseology that you think would
17 fix or alleviate that concern?
18 A. Well, I just happen to have the book we
19 wrote.
20 Q. All right. And what's the book's --
21 A. We can enter it in here. I just have
22 to find the page where it's listed.
23 Q. We can always look it up. What's the
24 title of the book, though, Doctor?
25 A. The title of the book is CRPS: Current
PAGE 86
1 Diagnosis and Therapy.
2 Q. And who is the, I'm going to say,
3 primary author?
4 A. Well, its editors are Peter Wilson,
5 Michael Stanton-Hicks. He's British.
6 Q. They're entitled to the --
7 A. He's British royalty, you know. He's
8 one of those. And Norman Harden.
9 And this is published by the
10 International Association for the Study of
11 Pain.
12 Okay. Here we go.
13 It's on page, yeah, on page 54 and 55.
14 Q. All right. You just want to --
15 A. Do you want me to go over it?
16 Q. Yeah. Just summarize what -- we talked
17 about criterion 3 that had these two problems;
18 one, the self-reporting problem --
19 A. Right.
20 Q. -- without objective findings, and then
21 the second, that the blood flow was actually a
22 separate issue --
23 A. Right.
24 Q. -- from other characteristics?
25 A. Right. So the modification is that,
PAGE 87
1 the primary modifications are that we have now
2 broken out into two separate sections
3 self-reported symptoms and objective signs that
4 you see during the exam. And you can't get the
5 diagnosis without showing characteristics of
6 CRPS in both groups. Okay?
7 Q. Okay. Can I give an example --
8 A. Yes.
9 Q. -- that I think may speed this up?
10 A. Yes.
11 Q. So a patient comes in and says left
12 foot's colder than right foot, which is one of
13 the --
14 A. Um-hum.
15 Q. -- self-reporting characteristics, and
16 one of the criterion for CRPS. You're saying
17 that in addition to that you have got to have
18 the doctor take out the temperature gauge or
19 whatever he's uses in measuring --
20 A. Okay. It could be palpation. If there
21 is noticeable enough difference to say yes,
22 it's obviously colder than this side. Yes, you
23 could use a thermometer or whatever.
24 Q. Would that be an example of --
25 A. That's a distinction between the
PAGE 88
1 self-report and the objective sign.
2 Q. Okay.
3 A. And you would have to have both of
4 those.
5 And not necessarily the same one. I
6 mean, you can have the person coming in and
7 self-reporting edema, for example; yet, you
8 don't see that objectively, and they may not
9 mention that one limb is cooler than the other,
10 but when you measure the temperature, it, in
11 fact, is.
12 So it's -- this is not getting at
13 reliability issues. It's not saying that what
14 the person says has to match up with what you
15 see in the exam. It's just that you have to
16 have characteristics of CRPS in both groups.
17 Q. Okay. And just -- I think I
18 understand. I'm going to repeat it just so
19 that we're both clear.
20 So, for example, you've got edema, hair
21 growth, abnormal temperature, color changes.
22 A. Um-hum.
23 Q. Four of your common characteristics;
24 correct? Patient can come in saying, I get red
25 and splotchy and I get edema. Goes and sees
PAGE 89
1 the doctor and he feels noticeable temperature
2 change and maybe notices abnormal hair growth
3 on one extremity versus the other.
4 A. Um-hum.
5 Q. That would still meet your criteria?
6 A. Well, yes. Let me -- it probably would
7 be easiest to do this, and you're welcome to
8 enter this into the record if it makes it
9 easier. It's actually easiest to figure this
10 out not verbally but showing you; okay?
11 Q. All right. Well, what are we looking
12 at?
13 A. What we are looking at is -- let me
14 make sure I've got the right one here --
15 Proposed Clinical Diagnostic Criteria, and it
16 would simply be -- well, it's formatted a
17 little weird. But basically it would be a
18 checklist. You've got these four areas,
19 sensory changes. It's referring to pain
20 processing abnormalities; the vasomotor, which
21 is the color and temperature changes. Notice
22 it's now separate from the sweating and edema,
23 which is now its own factor. And then we're
24 adding this motor issues and the trophic
25 changes, like skin, hair and nail, which were
PAGE 90
1 left out from the previous version. You've got
2 all this here as self-reported symptoms.
3 And our, according to the research
4 we've done, saying that they have to report
5 things in least three of these four areas would
6 partially qualify them for the diagnosis.
7 Q. Okay.
8 A. In addition to that, during the exam,
9 the physician has to also note that these same
10 four areas, that they see at least something
11 in --
12 Q. Two of the categories?
13 A. -- two of the categories, as it's
14 worded here, yeah.
15 Q. Okay.
16 A. And that maximizes your ability to
17 detect people who have CRPS that also minimizes
18 the overdiagnosis of people who don't really
19 have it.
20 Q. Okay. Are these materials that you
21 just showed us the same language that's in the
22 text?
23 A. It's formatted slightly differently.
24 It's identical, should be identical language.
25 Q. Language is the same; formatting is
PAGE 91
1 separate?
2 A. Yes.
3 MR. TANNER: Okay. I don't think we
4 need to enter it, Jeff, unless you have reason
5 to.
6 MR. EISENBERG: Unh-unh.
7 MR. TANNER: Doctor, I don't have
8 anything else. Mr. Eisenberg may have some
9 follow-up questions for you.
10 And then I may have some after that,
11 but...
12 MR. EISENBERG: Let me take a minute
13 and talk to Dr. Bruehl here.
14 MR. TANNER: I can step out, rather
15 than everybody getting up.
16 MR. EISENBERG: If you don't have a
17 problem with that, I don't think I'll need more
18 than a minute or two.
19 MR. TANNER: No, I'm comfortable with
20 that.
21 (Recess from 12:20 to 12:31 p.m.)
22 CROSS-EXAMINATION
23 BY MR. EISENBERG:
24 Q. I'm going to be brief, Dr. Bruehl.
25 MR. TANNER: Jeff's told this white lie
PAGE 92
1 before, by the way.
2 MR. EISENBERG: Yes, I have.
3 When you have been in the business for
4 a while, your reputation, I guess, precedes
5 you.
6 THE WITNESS: Precedes you.
7 MR. EISENBERG: We'll see if I am or
8 not.
9 Q. (By Mr. Eisenberg) I want to just very
10 briefly ask you some follow-up questions
11 relative to point 7 of your report, and
12 point -- and also point 6 of your report.
13 Dr. Ochoa has made statements in his
14 deposition concerning the position of the NIH,
15 National Institute of Health.
16 Have you been personally involved with
17 work sponsored by the National Institute of
18 Health with respect to identifying the current
19 state of knowledge and the current medical
20 agreement to the extent that there is such with
21 respect to CRPS?
22 A. Yes.
23 I was invited to participate on a state
24 of the science panel that was sponsored by the
25 National Institute of Neurological Disorders
PAGE 93
1 and Stroke, which is one of the NIH institutes,
2 and it's the largest funder of pain research.
3 And the intent of that was to invite
4 experts in a variety of disciplines that were
5 addressing CRPS, get them all together to see
6 kind of where we were in our understanding of
7 the disorder and see what needed to happen in
8 the future.
9 And my role on that panel was, as the
10 psychologist, was to talk about the role, if
11 any, of psychological factors in CRPS.
12 Q. And did you give a presentation at that
13 conference?
14 A. Yes, I did.
15 Q. That conference was held in December of
16 2001?
17 A. Correct.
18 Q. Were there also other medical sciences
19 represented on this panel?
20 A. Yes. Neuroscience, anesthesiology,
21 neurology are the ones I can think of off the
22 top of my head.
23 Q. All right. So you neurologists,
24 anesthesiologists and neuroscientists
25 participated through their representatives?
PAGE 94
1 A. Yes.
2 Q. And in order to be invited, who, who,
3 who determined who would be invited?
4 A. Ah, Cheryl Kitt was the head of all
5 pain programs at NINDS. She's an employee of
6 NINDS. She, along with, I believe it was,
7 Howard Fields -- no. John Levine. Is that on
8 there?
9 Q. Yes.
10 A. Yeah, John Levine, who is at the
11 University of California at San Francisco, they
12 were the ones that put it together. And what
13 they had done was looked at the research
14 literature and what areas they wanted covered
15 and invited people who had been doing work in
16 those areas.
17 Q. Researching in these various fields of
18 medicine?
19 A. Yes, these are all researchers.
20 Q. All related to CRPS?
21 A. Correct.
22 Q. And NINDS is the National Institute for
23 Neurological Disorder and Stroke?
24 A. Correct.
25 Q. And is that a division of or sponsored
PAGE 95
1 by the National Institute of Health?
2 A. Yes, that is one of the institutes of
3 the National Institutes of Health.
4 Q. Now, were you actually a presenter at
5 that conference?
6 A. Yes.
7 Q. What did you present on?
8 A. I presented the -- a summary of the
9 data that had been published to that time on
10 the question of whether psychological distress,
11 things like depression, anxiety and stress,
12 precede and predict CRPS or, rather, might be a
13 consequence of having a chronically painful
14 condition.
15 Q. At that conference was the question
16 of -- first of all, was evidence, from your
17 perspective, thoroughly reviewed relative to
18 whether CRPS is a neurological versus a
19 psychological disorder?
20 MR. TANNER: I'm going to object on
21 lack of foundation, but go ahead and answer the
22 question.
23 MR. EISENBERG: Well, what
24 foundation would you like me to add, and I'll
25 be happy to supplement.
PAGE 96
1 MR. TANNER: Well, all of the research
2 that was presented at the conference.
3 MR. EISENBERG: Okay. I'll go back and
4 review this.
5 Q. (By Mr. Eisenberg) Let's talk about
6 the research that was presented at the
7 conference.
8 Was research presented from the field
9 of neurology?
10 A. There was research presented on --
11 these are research studies that were presented
12 on the role of the sympathetic nervous system
13 in CRPS. Then there was data presented on the
14 other potential pathophysiological mechanisms,
15 which included things like inflammatory
16 mediators, cytokines. There was data presented
17 on central nervous system, that is, brain and
18 spinal cord changes, associated with CRPS. Um,
19 there was some genetic data presented.
20 So there was a variety of different
21 types of data related to this issue that were
22 presented.
23 Q. Approximately how many experts from
24 various fields of medicine and psychology
25 attended this presentation?
PAGE 97
1 A. I'm thinking it was around 15, I think.
2 And it may even be listed in here. There were
3 few people, one, two, three, four, five, six,
4 seven, eight, nine, ten -- there were 12 listed
5 and there are a few others that weren't listed
6 here. And I remember David Borsook from
7 Harvard was there, and there were some other
8 people in addition to that.
9 Q. All right. It indicates here in what
10 I'm reading that Dr. Wilfrid Janig from
11 Germany --
12 A. Janig.
13 Q. J-a-n-i-g?
14 A. Yes.
15 Q. Attended?
16 Briefly describe what his standing is
17 in the field of CRPS research.
18 A. He is the -- he has a very strong
19 reputation in neuropathic pain research. He is
20 a German researcher, a very careful animal and
21 human researcher who has written extensively on
22 neuropathic pain in CRPS.
23 Q. I think his name stands out, in my
24 mind. Was he the lead author in the, in the
25 compilation of work from the most recent IASP?
PAGE 98
1 A. Yes. He was one of the editors of the
2 book that came out of the 2001 meetings.
3 Q. Yes.
4 A. Yeah.
5 Q. That compendium of research --
6 A. Yes.
7 Q. -- published by the International
8 Association for the Study of Pain?
9 A. Yeah, it was a review of the research
10 on that.
11 Q. There are minutes, are there not, or at
12 least a summary of, of that conference that's
13 published?
14 A. It's an online summary of the
15 conference at the NINDS website.
16 Q. It's entitled Reflex Sympathetic
17 Dystrophy/Complex Regional Pain Syndrome State
18 of the Science Meeting Summary?
19 A. Yes.
20 Q. I want to ask you about a statement
21 that's written. You were not -- let me ask
22 you, did you actually prepare this written
23 summary?
24 A. I did not prepare the summary.
25 Q. But you've reviewed it?
PAGE 99
1 A. Yes. And it accurately summarized my
2 recollections of the meeting.
3 Q. All right. A statement is made in
4 here, which begins at page 2 with the
5 statement, "Dr. Ralf Baron and Wilfrid Janig
6 presented clear evidence of sympathetic nervous
7 system dysfunction in their experimental
8 studies of patients with RSD/CRPS."
9 Was that, in fact, reviewed?
10 A. Yes, it was.
11 Q. Was other evidence reviewed?
12 A. Yes.
13 Q. There is a statement made here that
14 states, "This evidence led the participants to
15 generally agree on the following key issues."
16 And I'm quoting, "One, RSD/CRPS is a
17 neurological, rather than psychological,
18 disorder. And, two, RSD/CRPS is likely to be a
19 disorder of the central, in addition to the
20 peripheral, nervous system."
21 Having personally attended this
22 conference, participated in the discussion, is
23 that statement that I read an accurate
24 statement of the consensus that was discussed
25 at that meeting of experts?
PAGE 100
1 A. Yes, it is.
2 Q. Was Dr. Jose Ochoa in attendance at
3 that meeting?
4 A. I do not recollect him being there.
5 Q. If Dr. Ochoa testified that either in
6 deposition or in trial that there is a growing
7 body of acceptance of his pseudoneurological
8 explanation of CRPS, based upon your own active
9 participation in the field of research and on
10 committees like this, do you agree with that?
11 A. I have heard his ideas discussed in the
12 context of these types of meetings, and while
13 people are aware of this idea, it is not
14 considered to be a credible explanation for the
15 syndrome of CRPS. At least by the people that
16 I have interacted with in a research context.
17 Q. And you, you have -- have you continued
18 to remain active in both research and committee
19 work of leading experts in the field?
20 A. Yes, I have. Through the diagnostic
21 manual revision changes and a research study
22 we're doing now that's an international
23 multisite study.
24 Q. Did you serve on a revision task force,
25 specific to your last answer, and attend a
PAGE 101
1 meeting in Hungary of the International
2 Association for the Study of Pain in 2003?
3 A. It wasn't the IASP meeting, but it was
4 a meeting that was sponsored by them. It was
5 designed specifically to focus on issues of the
6 diagnosis of CRPS and ways to improve it.
7 Q. Were issues relating to the
8 state-of-the-art research and what it meant in
9 the field of CRPS discussed at that meeting in
10 2003 as well?
11 A. Yes.
12 Q. I don't -- I want to be true to my
13 promise of being relatively brief.
14 With respect to that 2003 meeting, was
15 there a panel of leading researchers and
16 scientists from around the country in
17 attendance?
18 A. It was actually worldwide. Wilfrid
19 Janig and Ralf Baron from Germany were there,
20 as well as some Dutch researchers and prominent
21 U.S. researchers.
22 Q. Again, was there a discussion of
23 etiologies of CRPS and such --
24 A. Yes, there was discussion.
25 Q. -- of varying theories of CRPS?
PAGE 102
1 A. Yes.
2 Q. Was the statement made in the minutes
3 that I read from you, from the meeting in
4 December of 2001 also agreed upon in 2003; that
5 is, that the evidence allowed general agreement
6 that RSD/CRPS is a neurological rather than a
7 psychological disorder?
8 A. Yes.
9 Q. Based upon your active participation,
10 does that remain true today?
11 A. Yes.
12 Q. You have compiled a list of some of the
13 research science, have you not, which was
14 marked as Exhibit Number 3?
15 A. Yes.
16 Q. And you have -- and those are research
17 studies?
18 A. This was not meant to be an exhaustive
19 list, but I just went back, the literature,
20 mainly over the last five years or so to pull
21 some articles that were dealing specifically
22 with CRPS Type 1 patients; that is, patients
23 without demonstrable nerve injury according to
24 the traditional exam. And I was trying to pull
25 articles specifically that would provide any
PAGE 103
1 information about possible organic
2 abnormalities that could be detected that were
3 associated with CRPS.
4 Q. In response to a statement by
5 Dr. Ochoa -- and I'll say that this is
6 paraphrasing him, but if it's his testimony
7 that there is not credible scientific evidence
8 to show neurological injury in CRPS Type 1
9 patients, first question is, is that, is that
10 research something that you follow as part of
11 your professional career?
12 A. Yes. In preparing for writing
13 articles, for presentations, for talking about
14 pathophysiology, I have read the current
15 research on that.
16 Q. And you are an active participant in
17 the effort to revise the diagnostic criteria as
18 well?
19 A. Correct.
20 Q. And you are one of the co-authors of a,
21 of an article --
22 A. Correct.
23 Q. -- addressing that subject?
24 A. (Nodding yes.)
25 Q. And is it important for you to stay
PAGE 104
1 current in terms of the research in the field
2 of CRPS in order to discharge those
3 responsibilities?
4 A. Yes.
5 Q. All right. We've done what I call
6 laying foundation.
7 Cutting to the chase, is Dr. Ochoa
8 correct, in your opinion, when he says there is
9 not scientific research to support a neurologic
10 etiology for CRPS?
11 A. I disagree with Dr. Ochoa's opinion,
12 because in examining this literature, the -- if
13 truly CRPS Type 1, which means there is no --
14 clinical exam does not reveal evidence of a
15 major nerve injury, that in those
16 patients, that all of these patients are not
17 experiencing an organic disorder and, instead,
18 are experiencing a psychiatrically-generated
19 pain condition, which is my understanding of
20 what Dr. Ochoa had stated.
21 I would say that that is impossible,
22 because you look at the literature, what you
23 see is these CRPS-1 patients have abnormalities
24 in nerves on skin biopsy; they have functional
25 differences in the sympathetic nervous system
PAGE 105
1 that can be detected using quantitative
2 testing. And, in fact, responses on the
3 sympathetic measure predict who develops CRPS
4 after a fracture in people who don't even have
5 CRPS. So you can see this sympathetic function
6 difference after a fracture and know who is
7 going to develop CRPS later.
8 You've got brain imaging studies, using
9 MRI, using magnetic resonance spectroscopy and
10 a bunch of other brain imaging techniques where
11 you can see differences in the brain of CRPS
12 patients compared to other pain patients are
13 controls, including, for example the size of
14 the area in the brain that's devoted to
15 representing that particular limb that's
16 affected is consistently reduced in magnitude
17 in the area affected by CRPS compared to the
18 other side. And if you take a healthy person
19 and look at those same two things, they're
20 going to be identical in size.
21 In my mind, this information,
22 information about altered levels of
23 inflammatory chemicals in the cerebral spinal
24 fluid, you know, there are differences in
25 oxygen utilization. I mean, all these are
PAGE 106
1 objective indicators using well validated tests
2 that show even in these patients who supposedly
3 have no demonstrable nerve injury, there is an
4 organic disease going on.
5 Now, I agree that we don't fully know
6 that there is one cause of it. And the NIH
7 meeting concluded that there are probably
8 multiple causes, interacting to produce the
9 condition.
10 But I, I had just pulled here 18
11 articles which all -- or 17 articles which all
12 showed exactly the kinds of changes that seem
13 to go along with CRPS, so...
14 Q. And I think this was covered earlier,
15 but as a follow-up to the last thing you said,
16 your own contribution to this has been to look
17 at research into whether there are, there are
18 validated studies and doing studies yourself to
19 determine whether there may be a psychological
20 cause of CRPS?
21 A. Yes. We have conducted studies to
22 address that issue specifically.
23 Q. And, and has there been any research,
24 peer-reviewed research, validating the theory
25 that psychological factors cause CRPS?
Continued
PAGES 107 -122
based upon and supported by published scientific research studies. Legal cases involving legitimate complex regional pain syndrome (CRPS) patients can be undercut by use of clinical expert opinions not grounded in the current research literature, and by taking advantage of past confusion and diversity of clinical beliefs about this complex disorder. I believe that the only way to successfully challenge such opinions is with solid scientific information. This is the underlying principle of evidence-based medicine, and should also be the basis for decision making involving CRPS in both the clinical and legal context.