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EXAMINATION 2- Direct and Cross Exam of Expert Neurologist Witness in car accident case

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called as a witness herein, having been first duly sworn, was called to the stand and testified as follows:


Q. Dr. Shenker, will you state your full name, please?

A. It's David Shenker, S-h-e-n-k-e-r.

Q. What is your occupation, Dr. Shenker?

A. I'm a physician and I practice neurology.

Q. Are you licensed to practice in the State of Illinois?

A. Yes. I was licensed in June of 1969.

Q. Doctor, let me show you what we have marked as Defendant's Exhibit No. 8 and ask that you take a look at that, please?

A. That's my CV, my resume.

Q. Is that resume current, Doctor?

A. Yes, it is.

Q. Doctor, where did you receive your education?

A. I went to Tufts University School of Medicine in Boston, Massachusetts. I got an M.D. in 1968.

Then I came to Chicago and I trained in internal medicine here at Rush-Pre?? terian-St. Luke's one har of that and then three years of neurology residency at Rush from '69 through '72.

Q. Is that where you did your internship also?

A. Right. I did both my internship and my neurology residency there.

Q. Have you received any honors, Doctor?

A. Yes. Well, I was Phi Beta Kappa at Bowdin College, B-o-w-d-i-n, and I was chief resident at Rush, which is a position given to the top resident in neurology.

Q. Did you serve in the military, Doctor?

A. Yes. I was lieutenant commander in the United States Navy from 1972 through '74 assigned to the public health service in Washington.

Q. And Doctor, do you have any academic appointments?

A. Yes, I do. I'm an assistant professor of neurological sciences at Rush Medical College where I teach on a weekly basis.

Q. Doctor, you specialize in neurology?

A. Yes, sir.

Q. And would you explain for the ladies and gentlemen of the jury what ne ology is?

A. Sure. It's the treatment and diagnosis of diseases of the brain, the spinal cord, the nerves and the muscles so it includes such things as stroke, epilepsy, multiple sclerosis, movement disorders such as Parkinson's disease, tremors, et cetera.

So multiple things and also including trauma to various parts of the nervous system.

Q. Are you board certified in neurology?

A. Yes. I was board certified in October of 1974.

Q. And what does it mean to be board certified, Doctor?

A. Well, it is the American Board of Psychiatry and Neurology. It's a joint board. You have to have been in an accredited residency that the American Medical Association approves.

Then once you finish that in neurology you had to do two years of either private practice or military service or research and then you take a board examination which is an eight hour written examination of which one quarter is psychiat and three quarters nelalogy.

And if you pass that, six months later you take a four hour oral examination, one hour in psychiatry and three hours in neurology and if you pass those two, then you're board certified.

Q. And you accomplished all those steps?

A. Right, exactly. I passed when I took the examination in 1974.

Q. Are you affiliated with any hospitals, Doctor?

A. Yes. I'm still on the staff at Rush and I go to Illinois Masonic, Grant and St. Elizabeth's.

Q. Are you a member, Doctor, of any medical associations?

A. Yes. The American Medical Association and the American Academy of Neurology.

Q. Doctor, are you currently in private practice?

A. Yes, I am.

Q. And what is the name of that practice?

A. Well, I have two private practices. One is at Rush where I'm a member of the University Neurologists, which is the full-time group and second Marshall I. Matz, M.D. and David M. Shenker, M.D, which is my private practice.

Q. Is that - are those practices limited to the field of neurology?

A. Yes. Exactly.

Q. Doctor, do you know when my firm first retained you to examine Mark Gustafson?

A. Must have been sometime during the latter part of this past year, I believe.

Q. And are you charging my firm for your time?

A. Of course.

Q. Did you request any documents from us prior to your examination of Mr. Gustafson?

A. Well, it was my understanding that I would be provided with whatever medical records were available.

Q. Can you tell the ladies and gentlemen of the jury what documents you were provided with?

A. Sure. Well, there were records from Dr. Kandel, K-a-n-d-e-l, the Holy Cross Hospital emergency department, reports of various tests including an MRI scan of the lumbar spine on two occasions, an EMG; in other words, a neuromuscular test of leg, left leg, record from a Dr. Turner, a Dr. Hamilton, a Dr. Brayton, B-r-a-y-t-o-n, a Dr. Allen. I think that's it.

Q. Did you review those documents, Doctor?

A. Yes, sir, I did.

Q. And did you use those documents and records in formulating your opinions in this case?

A. Yes, I did.

Q. Likewise, Doctor, did you examine Mark Gustafson?

A. Yes. I saw him on January 17th of this year.

Q. Where did that examination take place?

A. In my office at 1431 North Western Avenue in Chicago.

Q. And how long did that examination take?

A. I probably spent somewhat less than an hour with him.

Q. During that examination, Doctor, did you observe the walk or gait of Mr. Gustafson?

A. Yes, I did.

Q. And would you please describe for the ladies and gentlemen of the jury his walk on that day?

A. Well, I thought it was a very strange or bizarre gait. As he walked he was very stiff-legged, and he would hike his right leg up as he walked pushing off with his left leg, and it didn't make sense to me in terms of the anatomy of the nervous system, how the nervous system is constructed or the physiology of the nervous system how the nervous system functions, so it's what we would call a non-physiological gait.

It's not something that makes sense in terms of how the body works.

Q. Had you ever seen a walk or a gait similar to that?

A. Well, I've seen strange gaits before, and I can't tell you if I saw one exactly like that, but it would fit into the general category of something that doesn't make sense in terms of the workings of the human body.

Q. Would you explain further, Doctor, what you mean by it doesn't make sense in terms of the human body?

A. Sure. Well, if you damage certain parts of the nervous system, then that damage will change himpeople walk.

So if, for example, you damage your spinal cord, you might walk in a very stiff manner like that sort of.

If you have damage to the balance center in the back of the brain called the cerebellum, your feet might be wide apart and you might sway.

If you have an absence of sensation in the bottom of your feet so you cannot feel where you're walking, again, you might tend to sway.

But he really didn't fit into any of those categories. So it didn't make sense to me based on my knowledge of disease processes acquired over 27 years of being in practice.

Q. On January 17th of 2001 when you examined Mark Gustafson did you also observe a shaking or tremor in him?

A. Yes. Indeed. He had a very marked and very fast tremor of his left leg indicating as he was sitting in the chair and that secondarily caused his body to shake, and secondarily, obviously since everything's attached, his right leg to shake.

It was a very very fast tremor, and then when he got up, the tremor tended to quiet down.

It also changed frequently in how fast it was going, which is an important point. So this tremor and the gait were the two very striking things that I noticed about him, the tremor and the walking.

Q. And subsequent to that observation did you conduct an examination of Mr. Gustafson?

A. Yes, I did.

Q. And would you please tell the ladies and gentlemen of the jury what that examination entailed? And then we'll go through the results.

A. Sure. Well, it entailed going over the history with him. My nurse had taken a history. I reviewed that history with the gentleman and that it involved doing a standard exam which, of course, is first observing the person, observing the tremor, observing how he's speaking to me, seeing if he was alert and oriented; in other words, if his mental faculties were normal, watching him walk, checking the strength of his arms and legs.

So in other words, pull, push, I'm residing, tapping reflexes,becking sensation with a pin for pain, a tuning fork where you strike it and it vibrates for vibration and what we call joint position sense where you move the fingers up and down or their toes up or down with the eyes closed and see if the patient knows which way they're pointing.

It involved coordination, such things as going from his nose to my finger and back, such things as rapid alternating movements like that, (indicating). And the examination of the nerves of the head and neck so the eyes, the facets, et cetera.

It also involved range of motion testing so seeing how far he could bend over from standing up, seeing when lying back how far I could straight leg raise his legs, palpating and so forth.

Q. And, Doctor, if you would please, what were the results of those examinations?

A. Well, as I mentioned earlier, he had this constant shaking which was coming from his left leg but which caused his torso to shake and his right leg to secondarily to shake No. 1 so this very very fast tremor, which varied not only in how marked it was, so it could be like this or like that, (indicating), but also in the frequency so it might be very fast or it might slow down.

In addition, when he stood up, the tremor did seem to quiet markedly and was still present to some degree however. Okay.

I discussed the walk, this peculiar walk. He had no objective weakness. His strength was good in all the muscle groups so whether it was grip or biceps or triceps, et cetera, and the same for the legs, that was fine.

I tapped his reflexes which were all normal. I checked sensation as I discussed. That was normal.

I checked the nerves of the head and neck, so-called cranial nerves referring to the head and those were all okay

And so the findings really were those of a gait change and the tremor. Now, in terms of range of motion testing when he was standing straight up and bent over with his leg straight, he could do that to 90 degrees.

So if this is his body and he could bring the upper part of his body down to 90 degrees, which is normal range of motion.

So this is his legs and his trunk and he brings his upper body down. That's fine. And I did the reverse. He's lying down and I brought his left leg up.

At about 75 degrees bringing that leg up he complained of back pain in the left side of his back and then I brought the right leg up and at about 90 degrees he complained of some back pain again on the left.

So there were some inconsistencies there with range of motion testing. About 90 degrees he could bend over, but he had some pain at about 75 degrees on the left with straight leg raising.

Q. Doctor, what's the significance, if any, of the discrepancy between his ability to bend over yet to a 90 degree normal position, yet his inability to lift his legs to a normal position, if any?

A. Well, you're basically bending at the same point, right? You're bending at the waist so whether you are standing and bringing your upper body down or whether you're lying down and bringing your legs up, it's the same point at which you're bending.

You're doing it from one direction to the other. It should be identical.

Q. Go ahead. You were going to discuss other results?

A. And I palpated his spine; in other words, pressed and asked him if it hurts, and it did not.

Q. You stated that he did not have any reduced strength in his legs; is that correct?

A. Correct.

Q. And how did you test for strength in his legs?

A. Well, if this is a leg, I would have him raise it. I'd try to push down on it. I'd have him bend the knee and try to straightened it up. I'd have him try to pull it down.

If this is his foot, (indicating), I'd ask him to push it down against resistance, and what you're testing is the different nerve roots coming out of the lower back.

So there are nerve roots for the upper of the leg and nerve roots for the lower part of the leg.

It's a way of checking that just like checking sensations. They supply sensation to areas of skin.

Checking reflexes is testing the nerve roots because these nerve roots control your knee jerk and your ankle jerk.

Q. Was Mr. Gustafson's strength in his legs the same in both the right and the left?

A. Yes, it was.

Q. You also stated that there was no nerve damage. Do you recall that?

A. There was no evidence I found of any nerve damage. And again, we know that because nerves do certain specific things so they test strength.

They control strength, they control reflexes and they control sensation. And he had no deficiencies in sensation or strength or reflexes. Those were all okay.

Q. And that's an indication to you that there was no nerve damage?

A. Exactly.

Q. And are the tests,Debtor, which you just described for the ladies and gentlemen of the jury, are they customarily typically used by neurologists to test for strength and nerve damage?

A. Right. That's part of what we do every day on just about all of our patients.

Q. And range of motion, correct?

A. Exactly.

Q. Did you perform an examination other than what you've told us about on Mr. Gustafson's back?

A. Well, I mentioned palpating and I pressed all over his spine and so forth and he had no complaints of discomfort when I did that.

Q. Doctor, did you perform any other tests that we haven't discussed?

A. No. I don't think that I did.

Q. Have you told us all of the results of the tests that you conducted?

A. I think I have.

Q. Doctor, based upon a reasonable degree of medical certainty do you have an opinion as to whether or not Mr. Gustafson suffered an injury to his back from the March 16, 1996 automobile accident,

A. I do have an opinion.

Q. And what is that opinion?

A. That he did suffer injury to his back.

Q. What type of injury did he suffer?

A. Soft tissue injury.

Q. Would you explain to the ladies and gentlemen of the jury what is meant by soft tissue injury?

A. Okay. Well, if you start from the inside and go out, inside you have the spine; in other words, deep within the tissues you have the spine.

And so it's bones piled one on top of the other with disks in between. You have nerve roots in the inside, and then as you come out you have ligaments.

As you get further out, you have subcutaneous tissue meaning under the skin, you have muscles and obviously you get to the skin.

So soft tissue would refer sometimes to skin. Mostly by that we mean subcutaneous tissues, the tissues under the skin.

The tissues that surround the muscles, the muscles themselves the ligaments, but not bone, not nerves and not disks.

Q. Doctor, do you have an opinion based upon a reasonable degree of medical certainty as to whether or not Mr. Gustafson would have experienced any discomfort as a result of that soft tissue injury back in March of 1996?

A. Yes, I do.

Q. And what is your opinion, Doctor?

A. Oh, I think he would have.

Q. Do you have an opinion, Doctor, based upon a reasonable degree of medical certainty as to how long that type of pain or discomfort would have lasted?

A. A few weeks, a month, you know, something of that magnitude.

Q. And what do you base that opinion on?

A. Well, I guess I base it on my training and my experience in practice and the nature of soft tissue injuries.

You know, fortunately they do not involve the spine, the disks, the nerve roots. These are things that resolve.

Q. Did you have a chance to read Dr. Kand's, review Dr. Kandel's medical records?

A.Yes, I did.

Q. Do you have an opinion, Doctor, based upon a reasonable degree of medical certainty as to whether or not the treatment that Dr. Kandel rendered to Mr. Gustafson was reasonable?

A. I do have an opinion.

Q. And what is that, Doctor?

A. Well, I think obviously it was reasonable for him to see Dr. Kandel in July of 1996.

He saw him on July 5th so that's three months, four months, excuse me, after the accident. I think that was fine.

I think an initial evaluation and one followup visit would have been reasonable, and I certainly have no quarrel with the ordering of the MRI of the spine or with the EMG, the electrical study of the nerves and the muscles. So I think those were all fine.

Q. Doctor, did you have the opportunity to review the recent records and reports of Dr. Brayton?

A. Yes, I did.

Q. And do you have an opinion, Doctor, based upon a reasonable degree of medical certainty as to whether or not the treatment rendered by Dr. Brayton last year was reasonable?

A. I do.

Q. And what is that opinion, Doctor?

A. I don't think that it was reasonable in terms of this accident. I don't think it was necessitated by the accident because it took place over four years after the accident.

This gentleman had had MRI studies of his lower back already. He had had an EMG already.

Dr. Kandel had examined him, and I don't think it was necessary to repeat all of these tests again and to be seen again four years after the accident.

Q. Would it be reasonable, Doctor, to expect that if there was a condition in Mr. Gustafson's back that that condition and it was related to the accident would have appeared in the MRI that was taken back in 1996?

A. Yes. Because that MRI was taken on July 26th of 1996 and the accident was on March 16th, so??at certainly there's?nty of time for something to develop and to be seen on the MRI study.

Q. As a matter of fact, the MRI that was taken in 1996 by Dr. Brayton or at Dr. Brayton's request in the year 2000 came up with the same results of normal, correct?

A. Correct. The first MRI did report that there was a disk protrusion at L4-L5 but also added that there was no pressure on any nerve roots, no narrowing of the spinal canal which is important.

And the 6-26-2000 followup MRI indicated no pressure on anything. It was again a normal study in terms of looking for an explanation of why this gentleman had pain.

There were not explanations on those studies of his complaints of pain.

Q. Soft tissue and nerve root problems are two separate issues, correct?

A. Correct.

Q. Mr. Gustafson had soft tissue, a soft tissue condition, correct?

A. Exactly, right.

Q. Mr. Gustafson did not have any nerve root pro, ems?

A. Right, he didn't. He didn't have any compression on X-rays of nerve roots and he had no evidence on physical examination of findings indicating a nerve root problem.

Q. Doctor, how long have you been a neurologist?

A. 1974, so 27 years.

Q. Thank you. For 27 years - in the 27 years, Doctor, that you've been practicing neurology, have you ever treated a patient with a soft tissue injury that has displayed the tremor that Mr. Gustafson had on January 17, 2001?

A. No.

Q. In the 27 years, Doctor, that you have been practicing neurology, have you ever treated a patient who had the gait or the walk that Mr. Gustafson had on January 17, 2001 from a soft tissue injury?

A. No.

Q. Doctor, based upon a reasonable degree of medical certainty, do you have an opinion as to whether or not the tremor that you observed on Mr. Gustafson on January 17th of 2001 is related to his back ondition?

A. I do have an opinion.

Q. And what is that opinion?

A. It's not related.

Q. And the basis for that, please?

A. Well, first of all, this tremor is not based on a physical condition. There is no physical abnormality in Mr. Gustafson's body that would explain this tremor.

And one of the ways we look at tremor to see if the tremor is occurring because of a real physical problem as opposed to a psychological problem, et cetera, is the very nature of the tremor.

So tremors, if they're real, are created by some portion of the brain that we would call the generator.

Just like we have generators that make electricity in our lives, there are generators, brain cells, that generate a tremor, and the characteristic of those tremors is that they do not change frequency. They're always the same frequency.

In other words, they don't slow down and hen speed up. And his??d slow down and speed up, which indicates that, in fact, it is not a real tremor; in other words, a tremor based on something physically wrong.

In addition, the pattern of the tremor does not fit in with any of the disease states that we know about. It's not something based on a specific disease of the nervous system so it doesn't make sense in that regard.

Q. And when you say that there's no physical reason, what you're talking about again hypothetically is that there's no bone that's broken that is pressing on his leg that is causing that tremor, correct?

A. Correct.

Q. That type of thing. There's no nerve that's causing that tremor; is that correct?

A. Correct.

Q. Doctor, do you have an opinion based upon a reasonable degree of medical certainty as to whether or not the gait or walk which you've previously described is related to the soft tissue injury to Mr. Gustafson's back?

A. I do have an opinion.

Q And what is that opinion, please?

A. That it is not.

Q. And what is the basis for that opinion?

A. Because as I indicated earlier, to alter someone's gait or walk, you would have to damage certain parts of the nervous system, whether it's spinal cord or nerves in a leg or part of your brain, and all of those have certain characteristic walks.

He does not have any of those characteristics, and there's nothing on the remainder of the physical examination when you test strength, when you check sensation, when you check reflexes that indicates some underlying physical abnormality.

We do those things because we're looking for a location of abnormality. That's what we do is try to find a focus of abnormality in the nervous system.

So we check reflexes, we check sensation, we check how they walk, et cetera. He had no abnormalities in any of those areas that could explain the way he walked on a physical basis.

Q. In all of the records, Doctor, that you reviewed id you find any indication of any abnormalities in the nerve?

A. No. In fact, we know that he had a very specific test for nerve function and that's called an EMG, an electromyogram, and that was done in July of 1996 when he had seen Dr. Kandel.

And what you do is you stimulate the nerves electrically and you put a needle into the various muscles.

So if nerves are damaged, the speed at which the current is conducted when you stimulate the nerve is changed; it's slowed. That was not seen.

If you put a needle into the muscles and the muscles aren't working, what you see on the screen is electrical changes in the muscle and you can hear them.

I direct an EMG laboratory. I'm used to doing this. It's very obvious he had no abnormalities on this test.

And neither did I find any abnormalities on my physical exam.

MR. LYMAN: Thank you very much, Doctor.

THE WITNESS: You're welcome.

THE COURT: Mr. Garrow, do you have some questions?

MR. GARROW: Yes, sir.


by Mr. Garrow

Q. Good morning, Dr. Shenker.

A. Good morning.

Q. Isn't it true that it would be possible to have some type of a neurological injury or neurological insult that would manifest itself perhaps in some peculiar behavior or in a psychotic way?

A. Well, there's no question that you can have diseases of the brain that present with the appearance of a psychiatric abnormality, but in actuality it's physically based.

For example, Lupus, which is an inflaminatory disease of the brain often presents with psychosis, but in reality it's not a pure psychiatric problem.

It's something driven by an inflammation of the brain so yes, that can happen. Q. And conversely, isn't it true that you may have physical manifestation of a psychological problem?

A. That is true. Yes, that is true.

Q. Isn't it true that a conversion disorder is predicated on some type of a psychological problem?

A. Exactly.

Q. Isn't it true that a conversion disorder is called a somatoform disorder?

A. It is one of the somatoform disorders meaning, you know, you're making physical complaints, but there's no actual physical basis for those complaints.

Q. Which makes it psychological?

A. Correct.

Q. So a conversion disorder results in a physical manifestation of a psychological problem; isn't that correct?

A. Exactly.

Q. And the physical manifestation from a conversion disorder can result in a truly disabling condition; isn't that correct?

A. Yes.

Q. Isn't it true, Dr. Shenker, that you've testified as an expert witness m?? times in the past?

A. Many times, that is true.

Q. And, in fact, as you say, you've given hundreds of depositions since you've given one for the first time in 1975?

A. Yes. That's also true.

Q. And you've been in court in Cook County and elsewhere anywhere from 90 to 100 times testifying -

A. Yes.

Q. - in matters such as this?

A. Yes. That is true.

Q. And isn't it true, Dr. Shenker, 95 percent of the time you've testified, you've testified on behalf of the defense?

A. Yes, that's also true.

Q. Doctor, what does it mean when you say medical/legal?

A. Meaning expert work as an expert in neurology.

Q. Okay. And isn't it true that 20 percent of what you do, 20 percent of your practice is medical/legal constituting consultation with legal de??nse?

A. Yes. Exactly right.

Q. Dr. Shenker, you testified that you reviewed Dr. Brayton's report; is that correct?

A. Yes, sir.

Q. And isn't it true, Dr. Shenker, that Dr. Brayton found a diminished range of motion when he did range of motion testing on Mark Gustafson?

A. Yes, that's correct.

Q. Isn't it true, Dr. Shenker, that Mark Gustafson was on Paxil when you were doing the straight leg raising range of motion test on him?

A. Yes.

Q. And, in fact, Paxil is used by some people to treat headaches and other pain conditions; isn't that correct?

A. Yes, it is.

Q. And isn't it true, Dr. Shenker, being on Paxil could affect pain response from a straight leg raising test?

A. Theoretically possible, sure.

Q. And isn't it also true, Dr. Shenker, suffering from a conversion disorder could cause a diminish?? range of motion?

A. Theoretically possible also.

Q. And, in fact, Dr. Honker, Mark Gustafson's tremor is caused by a conversion disorder, is it not?

A. His tremors are caused by a conversion disorder, that is correct.

Q. And, in fact, you have considerable experience in diagnosing those; isn't that correct?

A. Yes. Like most general neurologists, I see a lot of people with conversion disorders.

Q. You testified you've treated conversion disorders many times over the last 27 years; is that correct?

A. I have indeed.

Q. Isn't it true, Dr. Shenker, that you did not review the reports from Dr. Hull and Dr. Kessler?

A. Correct.

Q. Isn't it true, Dr. Shenker, that a person can suffer from a condition known as post-traumatic stress disorder sometime after a traumatic event?

MR. LYMAN: Objection. Foundation.

MR. GARROW: I'll bake: up.

THE COURT: I don't have any problem with that as long as you qualify the doctor to say that he knows what that condition is and has some experience and training.

MR. GARROW: I'll withdraw that.

THE COURT: Get some foundational questions.


Q. Are you familiar with a condition known as post-traumatic stress disorder?

A. Yes, I am.

Q. When you said 25 percent of your board in neuropsychology deals with psychology, you would have studied conversion disorders and post-traumatic stress disorders as part of that board; isn't that correct?

A. Correct. My board wasn't in psychology. It was in neurology. 25 percent is in psychiatry. That's right, I'm familiar with both of those, of course.

Q. So isn't it true that a person can suffer from post-traumatic stress disorder sometime after the accident or the traumatic event?

A. Yes, sir.

Q. So there would be this delayed onset; isn't that correct?

A. That can happen.

Q. That delay could be several months; isn't that correct?

A. Yes, that can be.

Q. It could even be a year or more; isn't that correct?

A. Theoretically, true, yes.

Q. And isn't it true, Dr. Shenker, an automobile accident can cause the condition known as post-traumatic stress disorder?

A. Yes, it can.

Q. Isn't it true, Dr. Shenker, that watching a vehicle bear down on you could be a sufficient traumatic event to cause post-traumatic stress disorder?

MR. LYMAN: I'm going to object, your Honor, as to foundation.

THE COURT: Sustained. Sustained.


Q. Doctor, do you - are you - do you have any experience in determining whether or not a traumatic event would be sufficie?? enough to cause post-traumatic stress disorder?

A. I don't think I have enough experience with post-traumatic stress disorder to state that.

Q. Isn't it true, Doctor, that post-traumatic stress disorder can lead to a conversion disorder?

MR. LYMAN: Objection, your Honor. This is all outside the scope of direct and disclosures.

THE COURT: Hang on a second. Let me hear the question, Miss Reporter.

(Whereupon, the record was read as requested.)

MR. GARROW: May I respond?

THE COURT: Hang on a second.

THE COURT: I don't have anything in my notes nor in the documents that were filed to indicate the doctor's ever been asked whether he has an opinion in respect to the issue you've just presented.

MR. GARROW: May I approach?

THE COURT: It's in the dep?

MR. GARROW: It's in the dep.

THE COURT: Give me?? page number.

MR. GARROW: Page 49, your Honor, Line 19 through 22.

THE COURT: Hang on. Okay. I'll overrule the objection.


Q. Isn't it true, Dr. Shenker, that post-traumatic stress disorder can lead to a conversion disorder?

A. Theoretically that's true.

Q. Doctor, do you recall the question I asked about the vehicle bearing down on you and whether or not that could be a traumatic event?

MR. LYMAN: Same objection, your Honor. (Whereupon, the following proceedings were held outside the hearing of the jury.)

THE COURT: The Doctor said just a minute or two ago that he didn't have sufficient experience to opine on that, on that issue.

MR. GARROW: Page 48, Lines 4 through 17.

THE COURT: It would only be for the purposes of confronting the witness with a prior inconsistent statement, not for purposes of substantive proof.


THE COURT: The jury will be so instructed. Let me make reference to the deposition. Why don't you tell the Doctor so he can look at that page.

MR. LYMAN: He's attempting to impeach.

THE COURT: That's all he's going to do.

MR. LYMAN: What's he impeaching? The Doctor didn't answer the question before. The question was sustained.

THE COURT: But he went on to say theoretically he has sufficient background and experience and knowledge to do it.

MR. LYMAN: Actually, he's raised the objection because of the nature of the question.

THE COURT: That's the way we're going to do it. If you want, on redirect, if you want to approach it, I'll certainly give you a? hance to do it.

MR. GARROW: On the record should I reflect I'm showing the witness the deposition?

THE COURT: Hang on a second. Let me see you folks for a second.

(Whereupon, the following proceedings were held outside the presence and hearing of the jury.)

THE COURT: This happens so frequently in medical testimony. The witness presented is a qualified expert in a certain field and then on cross-examination invariably the cross-examiners try to elicit from that doctor an opinion that might be consistent with testimony that they've presented with another witness in an effort to enhance it.

Dr. Shenker is a neurologist and he said he's generally familiar with CD and post-traumatic stress disorder.

You asked him a specific question about whether or not the car bearing down would be a traumatic event, and I sustained the objection.

Then the next question you asked him was not enough experience with PTSD to discuss the causes thereof, okay.

On Page 47 of his deposition he was asked that specific question. “Do you have an opinion as to whether or not the automobile accident involved in this case was severe enough to - I don't have an opinion one way or the other.”

Then you go on to the next page. You push it a little bit and you say,

“Q. Is it possible that somebody watching a vehicle bearing down on you when you're sitting there helpless - could be perceived to be helpless?

A. Are you saying theoretically? Yes.”

I mean where are we going with that? He's a neurologist. You're asking him a question about whether somebody would be psychologically anxious if they saw a car coming down on them.

I mean, you know, you presented t?? psychologists who test Tied that that type of traumatic event could be the cause of the CD and the post-traumatic stress syndrome.

This witness has already said he doesn't have enough experience to discuss the cause thereof, but then you go on to say how about theoretically.

What does theoretically - what does that mean theoretically? It could mean anything.

MR. GARROW: 25 percent of his boards is psychiatry, and he was all over this in the dep and he talked about it.

He also indicates in his dep - I'm looking for it now - where he says he's treated hundreds of patients with conversion disorders.

THE COURT: Yes, he has, right.

MR. GARROW: He certainly should be able to render an opinion as to the cause of the psychological conditions. Whether he's treated -

THE COURT: If you want to ask him say, Doctor, based upon your testimony, you've treated hundreds of people with CD.

MR. LYMAN: No. With conversion disorder. That's why I didn't object. I put that in my 213.

THE COURT: Tell us what are the causes and reasons for that typically and let him say what he says.

But as far as PTSD is concerned, I don't have enough experience to do that.

MR. GARROW: He does say - can I get something off my desk? I'll be right back.

THE COURT: This witness was presented primarily to discuss whether or not there was any neurological, anatomical or other physical condition that accounts for his complaints of low back pain.

And the doctor said based upon his examination he eliminated all causes involving the nervous system and believes that this man's condition is the result of - that this man's condition is a soft tissue injury.

He said it was the ligaments, me cles, perhaps the skin, didn't involve the nerves, the bones or anything else, okay.

Then Mr. Lyman went into further questions of is there any kind of neurological reason which would account for the tremor. He said no.

Then he said is there any neurological reason which would account for the gait. He said no. Okay.

Now, I gave you some pretty wide latitude in the cross-examination because my notes indicate in the direct Mr. Lyman never touched upon CD or PTSD.

MR. LYMAN: And the only reason -

THE COURT: Except when he talked about the tremor and the gait so I was going to give some broad range to ask you some questions.

That's why I sustained - overruled the objection when you started asking about CD and PTSD.

Now you're going way beyond what was brought out in direct examination, and I don't think that would be proper.

I think I can?? let you go that far for one reason, that it's a very liberal permission - very liberal cross-examination and No. 2, he's already said to you I don't know enough about the causes of PTSD to give you additional opinions.

MR. GARROW: In his dep he said it.

THE COURT: Look how he says it, theoretically. Theoretically is it possible. The world could end tomorrow. It's so speculative.

Now, if you want to go - he said he's treated hundreds of people with CD. If you want to get into the question of what are some of the causes he's determined or you want to talk about that more extensively, I'll let you do that even though it's not or hasn't been covered indirectly in the cross-examination in the spirit of allowing you wide latitude to confront an opinion given, but as far as the PTSD is concerned, I think he's closed the door on it.

MR. LYMAN: Your Honor, I need to make a record here. I have never disclosed one opinion or basis that involved post-traumatic stress disorder. Never. I did not ask him on direct examination about PTSD.

THE COURT: I told you that. I told you that I was going to give counsel and I have given him wide latitude on cross-examination because you touched on it peripherally when you were asking the doctor at the end whether or not the tremor or the gait was accountable by any neurological damage.

In effect that kind of suggests there's got to be some other reason for it, and the jury heard that reason could be psychological.

I was going to let him get into it. I can't let you go as far as -

MR. GARROW: I'll stop.

THE COURT: - as far as the PTSD. As far as the CD is concerned, he's opened the door, if you want to get into that.

MR. LYMAN: Yes. And understand - well, whatever, that's fine.



THE COURT: As far as PTSD with this doctor, I think the door is closed. If you want to go into CD, based upon the questions I think what you have to do - what I'd like is foundational questions, you know, what are some of the recognized in your mind reasons for this or that kind of thing and then you can get into the specifics, all right?


THE COURT: As far as CD is concerned. (Whereupon, further proceedings were held in open court.)

THE COURT: I guess we should all be used to that in life too, counsel, right?


THE COURT: Let's proceed with your examination of the doctor in accordance with our discussion we had.

And ladies and gentlemen of the jury, please don't speculate about anything that may have occurred outside your presence.

You will hear from the instructions that my obligation is to make rulings in regard to what line of questioning or what evidence is proper for the jury to hear.

And the instruction you're going to get is you should not concern yourself as to why I ruled one way or the other. It shouldn't enter into your consideration. You should only consider evidence that I ruled proper and properly received by you.

So from time to time you heard me say objection sustained, jury is to disregard, whether it's for one or both the parties.

Your obligation is not to let that particular item of evidence to be part of the ingredients that lead up to your decision.

And sometimes the jurors will stop afterwards and say I'm fascinated. I'd like to know, Judge, the reason why you did or didn't do certain things. I'd be more than glad to answer that for you after you make your decision. Okay. Go ahead.


Q. Isn't it true, Dr. Shenker, that an automobile accident can cause a conversion disorder?

MR. LYMAN: Objection. Asked and answered.

THE COURT: Overruled.


A. Yes, that's theoretically true.


Q. Isn't it true, Dr. Shenker, that you were retained to evaluate Mark Gustafson for the defense?

A. Yes, sir.

Q. And isn't it true, Dr. Shenker, that you only spent somewhere between 30 minutes and an hour examining Mark Gustafson?

A. I spent under an hour, that is correct.

Q. Isn't it true, Dr. Shenker, that your hourly rate for testifying is $400 per hour?

A. Yes, it is.

Q. And your hourly rate for reviewing the medical records for the defense is $300 an hour; isn't that correct?

A. Yes, it is.

Q. Isn't it true, Dr. Shenker, that Mark Gustafson cannot control his tremor?

A. It's probably true. He may have some control over it, but I can't tell you that for sure. It's probably true that he can't.

Q. Do you believe the tremor is based on something that's on a subconscious level?

MR. LYMAN: Objection, your Honor. This is outside the scope of direct and outside - there's been no foundation.

THE COURT: Rephrase your question and say to a reasonable degree of medical certainty do you have an opinion.

That's the format in which we present the issues to medical doctors who are testifying.


Q. Doctor -

THE COURT: His answer is going to be not - is it theoretically possible or is it possible. The world could end tomorrow. No. The question is to a reasonable degree of medical experience and teaching in neurology, do you have an opinion and we'11 go from there. The objection is overruled.


Q. Do you have an opinion based upon a reasonable degree of medical certainty as to whether or not Mark Gustafson can control the tremor?

A. I just told you my opinion that he probably cannot.

Q. Isn't it true, Dr. Shenker, that Mark Gustafson has back injuries due to the automobile accident of March 16, 1996?

A. Yes. He had low back soft tissue injuries.

Q. And that those injuries caused him pain; isn't that correct?

A. Yes, that is correct.

Q. Isn't it true, Dr. Shenker, that your opinions were formed without the benefit of having reviewed the psychological evaluations performed by Dr. Hull or Dr. Kessler?

A. Correct.

Q. And isn't it also true that, in fact, the review of such evaluations may have affected your opinion?

A. Potentially that's t??e, of course.

Q. Doctor, isn't it true that in order to confirm a diagnosis for a somatoform disorder such as a conversion or somatoform disorders like conversion disorder - strike that.

Isn't it true, Doctor, to confirm a diagnosis of a conversion disorder one needs to rule out a physiological cause?

A. Right. You want to rule out a physiological or physical reason for the symptoms.

Q. Okay. And isn't it true, Dr. Shenker, that Mark Gustafson's tremor developed after the first MRI was conducted in July of 1996?

A. Well, it developed 15 months after the accident so it didn't develop to well into 1997.

Q. Okay. And isn't it true, Dr. Shenker, that Dr. Brayton first saw Mr. Mark Gustafson after his tremors began?

A. Right. Well, Dr. Brayton saw him in June of - June of 2000, so - excuse me. Saw him, yes, in June of 2000, that's correct.

Q. All right. So his first visit would have been after the first MRI; isn't that correct?

A. Correct.

Q The tremor manifeste itself after the first MRI, correct?

A. Well, more than a year after.

Q. Okay. And, in fact, the second MRI was used by Dr. Brayton to rule out any physiological cause for the tremor; isn't that correct?

A. Well, his stated purpose was - depends where you're looking at. He wanted to look at his back again so he reordered an MRI of his back and so forth.

So he was interested in trying to rule out further in addition to the prior workup that had been done the gentleman's complaints in terms of them being physically based.

MR. GARROW: Thank you, Dr. Shenker. THE WITNESS: You're welcome. THE COURT: Mr. Lyman, do you have any questions on redirect.

MR. LYMAN: Just a couple. Thank you.

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