[Mead] v. Paul Revere Life Ins. Co., CV-S-00731-JCM-RJJ, U.S. District Court, District of Nevada, Dec. 10, 2004.
(Note that the plaintiff’s name in this case is changed to protect privacy.)
One important tactic for cross-examining an implacable foe is to push the witness to the extreme boundaries of his position. Rick Friedman calls this “polarizing” the case and/or the witness. He wrote a book on “polarizing” as a means to confront so-called independent medical examiners, who posture themselves as objective and fair-minded but in actuality are advocates through and through. Here is an excerpt from a successful cross-examination Friedman conducted that shows the polarizing method at work.
This witness was the defense star in an insurance bad faith trial. Rick Friedman represented the plaintiff, a venture capitalist who claimed his career was ruined by chronic fatigue syndrome and who tried unsuccessfully to collect on a disability insurance policy. For four hours, as the final defense witness, the forensic psychiatrist raked through the plaintiff’s life and wove a story that boldly accused the plaintiff of being a malingering fake.
Friedman’s game plan was to accuse the doctor straight up of being a hired gun advocate and then, when the doctor predictably denied it, show that he nonetheless could not bring himself to consider facts that might favor the legitimacy of the plaintiff’s medical condition. The cross-examiner forced the witness to the extreme view that everyone who thought the plaintiff was a person of integrity who had a genuine debilitating medical condition was either wrong or were lying themselves. He also showed that the witness had not considered a host of relevant evidence from treating doctors and bystanders. Note the frequent “violation” by Friedman of the old Commandments of cross-examination, as the attorney invited the witness to use his own words to show how extreme his opinions really were.
(The names of the plaintiff and associated bystanders were changed to protect privacy.)
[Patrick Malone’s comments are in bracketed red.]
Q. Dr. Rosenberg, my name is Rick Friedman, and I represent Mr. Mead. Now, the fact that you’re a forensic psychiatrist means that you basically offer your services to lawyers and insurance companies, is that right?
A. Well, I’m not only a forensic psychiatrist. I have also — I am also a clinical psychiatrist. As a forensic psychiatrist, part of what I do is serve as an expert to attorneys or insurance companies. There are also other elements to what I do.
Q. All right, but essentially — and we’ll get into the facts and figures later — but the majority of your professional life is spent working for lawyers or insurance companies, is that fair to say?
A. Lawyers, insurance companies or administrative agencies, that would be fair to say.
Q. All right, and what that means is when you’re in a forensic context, you’re not treating anyone, is that right?
A. At the present time that would be true. There have been times where I worked in a prison treating people.
Q. But at this point in time your forensic work does not involve helping people to get better in any way?
A. That’s correct.
Q. All right, and it’s the forensic psychiatrist’s responsibility to highlight and emphasize facts favorable to the side that hired them and to de-emphasize or ignore facts that don’t help the side that hired them, is that fair to say?
A. No, I would say that’s a gross mischaracterization.
[The statement actually comes from a treatise which the witness had already cited to the court for a defense motion. The witness had written another unrelated chapter in the same book. One effective way to use treatises is to first put the statement forward that the attorney wants to use, elicit the witness’s comment, then reveal the source of the statement. That’s an especially good way to see if a witness will disagree with something the witness has written or is closely associated with, as this treatise is.]
Q. Isn’t that what most forensic psychiatrists believe?
A. Your assertion is what most of them believe?
Q. Yes, yes.
A. I wouldn’t say so, no.
Q. You filed an affidavit for the judge in this case, do you recall that, actually, a declaration?
Q. All right, and a declaration is a statement under oath upon which a party offers and asks the Court to rely upon, is that right?
A. I’m not an attorney, but that sounds about right.
Q. Yes, and you’re very familiar with declarations and how the court systems work, aren’t you?
Q. All right, and in your declaration you cited to Judge Mahan a book called Principles and Practices — Principles and Practice of Forensic Psychiatry, Second Edition, are you familiar with that book?
A. I’m familiar with the book. I don’t recall whether or not I had cited that in my declaration.
Q. If you’d turn to page five, lines seven and eight.
Q. Did you cite that text to the judge?
A. (Reading.) Yes.
Q. And you cited it to the judge because you considered it a reliable resource regarding forensic psychiatry, is that right?
A. No, I cited it as a one reasonable basis for this particular assertion about malingering, not as a blanket reliable source in forensic psychiatry.
[Here the seasoned witness begins to fence with the lawyer over whether the text he has cited meets the magic-word criteria of “reliable authority” so the lawyer can quote from it to the witness.]
Q. Well, you wouldn’t be citing the Court to an unreliable source in forensic psychiatry, would you?
A. Well, certainly I didn’t pick out something that I thought was unreliable, but again the premise that I, therefore, accept the entire text or chapter as necessarily reliable or authoritative doesn’t follow in my mind.
[This is a common expert dodge for a treatise. The expert mixes two different concepts: the publication’s overall reliability and authoritativeness versus whether the witness agrees with the treatise’s entire contents. If agreement with a particular statement was the foundation requirement for using a treatise on cross, then no cross-examiner could ask a witness about any statement in a publication with which the witness disagreed. See Fed. R. Evid. 803(18), section (B), which requires that “the publication” not necessarily the statement inside the publication, be established as a reliable authority. See margin for the rule’s full text. ]
Q. So you’re kind of picking and choosing amongst the portions of the book that will support your case and the portions that don’t?
A. No, it’s that I’m not willing to fall into agreeing that everything in the chapter or the book that you could find is necessarily authoritative. I gave what is a scholarly and appropriate quote in support of my declaration.
Q. I wasn’t asking you to admit it was authoritative, but you thought the book was a reliable resource, didn’t you, that’s why you own it, that’s why you cited it to the judge?
A. I wrote one of the chapters on PTSD in the book, so I certainly think it’s a good book, but again I’m not willing to accept that the entire book or even the entire chapter is reliable. Things change over time, things — those are all summary chapters. Yeah, things change over time, evaluations are more sophisticated, so I don’t know how else to put it.
Q. All right. Well, let me ask you about a section in your book –
MR. FRIEDMAN: Your Honor, may I show this to the witness on the screen?
THE COURT: Yes, sir.
[The witness has come close to acknowledging the reliability of the treatise, but to make sure, the lawyer asks the judge for permission to display it.]
BY MR. FRIEDMAN:
Q. This is from page 11 in the book, Dr. Rosenberg, and it reads, both attorneys and forensic psychiatrists —
Q. Most attorneys and forensic psychiatrists consider it the responsibility of the forensic psychiatrist to put a spin on the data and highlight and emphasize facts favorable to their side and de-emphasize or even ignore data that are not. Do you agree with that statement?
A. No, I don’t. For attorneys, yes, not psychiatrists.
[Now the lawyer links the treatise to his theme, which he announces directly to the witness.]
Q. Well, that’s what you did in this case, isn’t it, Dr. Rosenberg, you highlighted the facts that support your malingering theory and deemphasized or ignored the facts that don’t support that theory?
A. Again I would grossly disagree with that. I wrote a thirty-plus page report and reviewed hundreds of pages of documents. I think I did a very reasonable and balanced evaluation.
[The witness has just established the criteria by which he should be judged: “very reasonable and balanced.”]
Q. Tell us the facts that appear in your report that support the theory that Mr. Mead is genuinely disabled.
[The question directly follows the witness’s declaration that he did a “very reasonable and balanced” job. The lawyer promptly challenges the witness to prove he’s balanced. The question as posed is narrower than first glance might indicate. The key words are “facts that appear in your report,” which of course Friedman has read closely.]
A. Well, there are his — I give a detailed account in my interview section as well in the review of records — his subjective claims that he’s disabled and the nature of his symptoms, et cetera. It would be tough for me to give a reason in the opinion section in support since the facts are so overwhelming that it’s a faked CFS claim.
Q. That’s it? Those are the only facts you came up with in your entire evaluation that support Mr. Mead’s claim of disability, is that right?
A. Well, in addition I’ve mentioned in my depositions, and I’d have to look and see if I mentioned it in my report as well, I phrased things that there are no significant findings in support of his CFS claim. You can always find in this amount of information some little suggestion, some slight oddity, in the neuropsychological testing, and again in all of his subjective claims, but there’s no significant information that would support a genuine claim.
Q. One of the things that forensic psychiatrists do is evaluate the credibility of sources, is that right, sources of information?
A. Well, of relevant sources of information, yes.
Q. All right, and you found Gena Mead to be a relative [relevant] source of information, is that right?
[This is the plaintiff’s ex-wife.]
Q. So did you consider that her reports about Mr. Mead and his disabilities were credible?
[The cross-examiner confronts the witness with the expert’s credibility judgments.]
A. Well, I certainly always take that into account, and particularly since she would be entitled it’s my understanding to some of his money from a case like this, I’d certainly take into account what she says that she might intentionally distort some of it as well, but it certainly was of significance what she reported. In the same deposition that she reported the things that I’ve relied on and mentioned today, she also described in detail her own subjective statements in support of his CFS, so it certainly runs both ways.
Q. Well, is it a subjective statement if she reports what she observed from living with him for twenty-eight years? Is that — do you consider that subjective?
A. Yes, I would consider it subjective. First of all, it’s her personal interpretation colored by many factors, and it’s also the fact again that she also has her own personal secondary gain at stake in a case such as this.
Q. And both of those things are true of you, aren’t they, Doctor? What you’ve given us is your personal interpretation of the facts, just like Gena Mead did, and you yourself have an economic motive, don’t you?
[A “sauce for the goose, sauce for the gander” question intended to highlight the expert’s own financial bias.]
A. Well, again I would disagree strongly with both. I’ve tried to lay out painstakingly the scientific basis for the extraordinary number of reasons in support using what are generally accepted ways of making these analyses, and I get paid the same whatever the outcome, so I don’t have the same kind of financial stake.
Q. Aren’t you supposed to weigh the evidence in favor of your hypothesis as well as the evidence against your hypothesis?
A. Absolutely, you’re supposed to weigh the evidence.
[The expert agrees he is supposed to weigh both sides, and the cross-examiner immediately confronts his failure to weigh the other side here.]
Q. All right, and where on your report did you weigh the evidence of Gena Mead’s reports of Cliff Mead’s physical degeneration over a period of years?
A. Well, it would be tough because I didn’t review that material until after my reports were done, but in recently reading her deposition, I highlighted the facts that were relevant when I was talking about the reasons in support of malingering.
Q. But not the facts that would be relevant in support of the theory that Mr. Mead is disabled, is that right?
A. Not her subjective statements in support of that, that’s correct.
Q. What you’re doing is you’re picking and choosing from Ms. Mead’s deposition taking the portions that support your theory and ignoring or de-emphasizing the rest, isn’t that right?
A. Again I would disagree. I started out with a particular opinion that the evidence scientifically supports malingering. I was giving reasons to support that opinion, and as I’ve just mentioned, there certainly is plenty of subjective information from her describing his CFS symptoms.
Q. Did you just say that you started out with the opinion he was malingering, and then you were supplied with reasons to support it?
[The witness has just slipped up and made an apparent admission that he started with the opinion first, then fit the facts to it. This is a good instance of the payoff from listening closely to the witness’s responses and moving to immediately challenge them.]
A. I think that — I apologize if I didn’t state myself in what I said clearly.
Q. I’m sorry, is that what you psychiatrists call a Freudian slip?
A. I don’t know if that’s a joke or if you wanted me to give you an expert opinion, but in any case, if I could finish my answer what I was saying then when I started to testify today with regard to the opinions — the opinion of malingering and then the reasons in support of it from a scientific basis, I was laying them out, and I integrated my recent review of her deposition.
Q. Did I understand from your testimony that you wrote a chapter or article in a book called Comprehensive Textbook on Psychiatry, a chapter on ethics?
Q. Would you show me where in the book that chapter is?
A. The one in that edition is written by Lipian and Mills (phonetic). I wrote it for the previous edition.
Q. Oh, so you don’t have a current edition of this book with your article in it?
A. That’s correct.
Q. You weren’t trying to mislead anybody by implying — well, you weren’t trying to mislead anybody by saying that you had a chapter on ethics in the Comprehensive Textbook of Psychiatry, were you?
A. No, since I do have a chapter on ethics in the Comprehensive Textbook of Psychiatry, and you have my curriculum vitae with the dates of my publications.
Q. So as I understand it, you spend one day a week with patients?
A. Yes, I see about thirty patients one day a week.
Q. How many minutes is that per patient?
A. It varies, usually an hour for an intake for a new patient, and then fifteen to thirty minutes for follow-up patients.
Q. Fifteen to thirty minutes times thirty patients, and what do you do for patients in fifteen to thirty minutes?
[Echoing the witness’s arithmetic often works. If any jurors do math in their heads, they will see that to see 30 patients in a single day would require no more than 15 minutes apiece for an ordinary 8-hour day.]
A. I conduct a psychiatric follow-up visit reviewing their current emotional complaints, signs, and symptoms of emotional problems, review their current physical complaints, their psychiatric and nonpsychiatric medications, if there’s any issue of substance use, try to provide a little bit of support as appropriate, and then it’s primarily geared to their — the medical evaluation and use of psychiatric medication.
Q. Out of these thirty patients you see a day, approximately how many are you prescribing medications for?
A. All of them.
Q. So basically they come in to you to get their medications, and you make sure it’s appropriate to keep giving them their medications, is that fair to say?
A. Well, I already described to you how I would characterize what I do for each of them, so I don’t know how to rephrase it for you.
Q. Ninety percent of your income comes from forensic work?
A. That’s correct.
Q. You’ve spoken to insurance company trade groups on occasion?
A. Once in Florida I spoke to a large — I don’t know what you’d call it — convention group.
Q. And in that talk you addressed the subject of objectifying subjective complaints?
A. I don’t recall, I may very well have.
Q. Do you recall testifying in a case called Abner versus Paul Revere Insurance Company?
Q. Let me just show you page 93 from your deposition in that case. [Pause for sidebar conference.] All I wanted to ask, Doctor, is whether this refreshes your recollection about talking about teaching the insurance people about objectifying subjective complaints?
Q. Now, as I understand it, you do — well, I should just ask you — I think you told us you’ve done thirty to thirty-five IME’s for Unum Provident?
A. For Unum Provident and subsidiaries, I would say that’s about right.
Q. All right, that includes Paul Revere, and Provident, and Unum?
A. Right, companies like that.
Q. All right, and when they hired — let’s make a distinction between cases in litigation and cases that are not in litigation. That thirty to thirty-five for Unum Provident related companies is for cases not in litigation, is that correct?
A. That’s correct.
Q. All right, and when they hire you to do these IME’s, you give them a reduced rate, don’t you?
A. No, I don’t give them a reduced rate, but I try to keep the evaluation to roughly $4,000.00 to $5,000.00 unless it’s an exceptional circumstance.
Q. In fact, didn’t you testify in the Abner trial that you put a cap on your evaluation charges to them which effectively gives them a reduced rate?
A. I don’t recall saying that it effectively gives them a reduced rate, but with insurance carriers, with these IME’s across the board as well as other types of evaluations that I do for the medical board, other agencies, I often will give them a cap even though I charge $300.00 an hour, my usual rate.
Q. I am going to show you page 14 of the transcript of the trial . I think it’s of your transcript in the trial. You were asked by Mr. Quigley (phonetic), I believe, well, you’ve got a reduced rate with the insurance companies for doing evaluations and writing reports, so even if you spend a lot of hours over that $4,000.00, you don’t charge them for that, right? And you answered, that’s correct. Does that sound about right?
A. Well, in the previous two lines it’s clear that I was saying that the way I look at it I charge $300.00 an hour, and I give them a cap. The second part of that question pertains not to a reduced rate, but the cap, and I agreed to that.
Q. How many of these evaluations do you do each month?
A. Well, I see — like I said, I see about thirty patients a week, I do about three or four evaluations for Unum Provident a year on average, I would say.
Q. I’m asking how many forensic evaluations do you do a month?
A. I would say three to four.
Q. Does three to eight sound a little more accurate?
A. No, at the present time I’d say it’s more like three to four. There’s certainly times it could go up to a range of eight.
Q. You’ve also been hired by Barger and Wolen which is Mr. McKennon and Mr. Hess’s firm on occasion, haven’t you?
Q. Approximately how many times?
[Here is a narrow factual question, asked non-leadingly, which pays off for the cross-examiner because the witness gives a number trying to downplay his experience with the defense law firm.]
A. I would say roughly five times or so.
Q. Do you recall testifying in Abner that Barger and Wolen had hired you between five and ten times to work on Unum Provident cases?
A. I don’t recall it being that many. It’s certainly possible, but I would say it’s more in the range of five. It could be as high as ten.
Q. In fact, at page 16 Mr. Quigley asked you, is it true that there have been five cases that you’ve been asked to be an expert on in litigation for Paul Revere or Provident that you have been retained by the Barger and Wolen firm? And you answered, actually, I think in my deposition I had said over a period of years, it has been more like five to ten. Does that sound about right?
A. Again I would say from what I recall, it’s more like five but it might be five to ten. I’d be happy to look at anything that reviews that.
Q. And that’s just talking about the time Barger and Wolen hired you for Unum Provident cases, is that right?
A. Right, those are cases that I had previously evaluated for Unum Provident, and some of them are cases that are in litigation where I hadn’t seen the person before.
Q. And in those cases there’s no cap like there is in the prelitigation cases, correct?
A. That’s true.
Q. And you told us you’ve spent — or you’ve charged $20,000.00 in this case up until recently when you began to prepare for it again. Roughly how much time do you have in it since you completed your report?
A. Well, over the last few months it would be hard for me to say. I would say probably in the neighborhood of thirty hours maybe.
Q. At $300.00 an hour?
Q. So another $9,000.00.
A. Yes, that would be a rough estimate.
Q. All right. Now, at the time you testified in Abner, in every case you could remember being hired by Barger and Wolen to defend Unum Provident, you had concluded that the plaintiff was a malingerer, is that right?
A. I don’t recall. I don’t consider myself hired to defend Unum Provident, but I was hired as a consultant on several cases for Unum Provident through Barger and Wolen. I don’t recall if I said that or not.
Q. By the way, these inconsistencies in your testimony today versus your testimony before, does that raise in your mind a credibility issue similar to what you’ve told us about Mr. Mead?
[Nice question! Of course the witness will say no, but the issue is raised for the jury.]
A. No, I wouldn’t say so.
Q. In each of the cases in which you were hired by Barger and Wolen, you disagreed with the treating doctors, isn’t that right?
A. I don’t recall if that’s the case or not.
Q. How many people have had their claims denied because of your reports or testimony?
A. Well, I don’t think anybody — first of all, I wouldn’t know what Unum Provident is doing after they get my report, but the determination of disability in my understanding has many parts to it according to their policy. My report is just one part of that.
Q. How many times have you given reports — well, let me ask it this way. Of the times you’ve expressed the opinion that in a forensic setting — you say you’ve done roughly a thousand?
A. I would say so.
[The cross-examiner now starts a line of questions about the expert’s “error rate.”]
Q. All right, let me start over. So out of the roughly a thousand times you’ve expressed an opinion in a forensic setting, how many times were you right and how many times were you wrong?
A. Well, I would say in the vast majority of cases in my opinion, and the way it was laid out in court if it got to court, it would be that my opinion seemed to stand the test of scrutiny. Many of the cases I’ve done never end up getting to the point of court, and so it would be hard to say if objectively somebody would say it’s correct or not. I don’t know how else to ascertain that.
Q. Well, let me ask a more pointed question. There is no way to quantify your error rate, is there?
[This question about an unknowable error rate for the expert only works as long as the cross-examiner’s side does not have a similarly credentialed expert subject to the same criticism.]
A. Well, I think based on the — when I do an examination in the type of methods that I’ve use today based on the available information, I don’t think that there is much of an error rate in terms of what the reasonable conclusions are from the information that I’ve reviewed. If there were additional information that contradicted my conclusions, then appropriately I should consider that information and consider revising my opinions, but given that my — the way I do things is I try to lay out the logical reasoning for my conclusions, and then present it to the jury or whoever the trier of fact is. I don’t think that has much of a significant error rate to it.
Q. Is there any way to tell scientifically?
A. Well, the best I can do is that the methods that I use are of the highest scientific level that I can for the kind of work that I do, and it’s based on adequate information to conduct my analysis, and that’s the best I can do.
Q. And the methods that you use are the methods of forensic psychiatry, is that right?
A. Well, I don’t know if we could say they’re the method of forensic psychiatry in general, but they are the most in my opinion appropriate in scientific methods for doing these kind of evaluations that you could find in forensic psychiatry.
[This line of questions might have benefited from more expansion aimed at showing that the work of forensic psychiatrists in assessing a patient’s alleged malingering is quite subjective and lacks standards that could then be used to measure an error rate. The cross-examiner now shifts to the related topic of biased sources of information, here, another expert whom the plaintiff alleges is notoriously biased in favor of the insurance industry.]
Q. Now, I think you told us earlier that the job of a forensic psychiatrist is to evaluate the credibility of information — not the only job but one of the jobs — is to evaluate the credibility of information sources?
A. Yes, of relevant information sources, I think that’s true.
Q. And one of the relevant information sources you’ve talked about today is Dr. Lees-Haley, is that correct?
Q. And you’ve described him as a world authority?
Q. Is it your view that Dr. Haley is an unbiased information source?
A. Well, with regard to the evaluations that I’ve seen just based on the work — I don’t know him personally — that’s my impression.
Q. If he were a biased information source, would that alter the way he influences your opinions?
A. If that were the case, it would alter them if it affected the evaluations of his that I’ve considered. For example, in this case if that’s some general issue, but it doesn’t affect his particular reports that I have to review, then it wouldn’t necessarily.
Q. Well, you’re dependent upon him, for example, let’s take this report, if he said Mr. Mead was fatigued, or Mr. Mead was energized, you have no way of knowing either way, right, in terms of what he observed in the session?
A. That’s correct.
Q. So, you’re dependent upon his credibility to the extent you’re relying upon his use of that information, is that fair to say?
A. Yes, that’s fair to say.
Q. All right. Now, were you given Dr. Lees-Haley’s deposition in this case?
Q. And are you aware of Dr. Lees-Haley’s efforts to market himself to the insurance industry?
MR. HESS: Your Honor, may I just object? Dr. Lees-Haley was not deposed in this case. It was the concurrent case.
MR. FRIEDMAN: Oh, I’m sorry. That is correct.
BY MR. FRIEDMAN:
Q. Were you given his deposition in the Northwestern case?
Q. Okay, and in that deposition , or we’ve got the report, he did one examination of Mr. Mead, is that correct?
A. That’s my understanding, yes.
Q. For this case and the Northwestern case, is that correct?
A. I don’t — I didn’t really recall one way or the other if his evaluation was also for the Northwestern case.
Q. All right, and if you were to become aware that Dr. Lees-Haley had addressed insurance agents and adjusters and told them not to bother calling — I’m sorry — not to call him until they’re ready to deny the claim, and basically told them he was on their side and was there to help them deny the claim, would that influence your view of his credibility?
A. Well, I think that certainly would be a significant thing to consider, but if it doesn’t affect the neuropsychological testing that he does in the report, then I wouldn’t let that affect my opinion in a particular case. If it was obvious that he either slanted the results of the testing, or slanted his opinions in some other way, then I would certainly consider that. But, you know, the testing is kind of like mathematics, there is a correct way to do it, and a correct statistical way to interpret it. As long as that’s done appropriately and someone with his expertise, I would still accept that work unless there was evidence of distortion.
Q. All right. We’ll get to evidence of distortion later. For now, have you ever met Dr. Lees-Haley?
MR. FRIEDMAN: What I’d like to do — Your Honor, I’ve marked — I guess I should ask the clerk, what’s the next exhibit in line?
THE CLERK: 219.
MR. FRIEDMAN: Your Honor, Exhibit 219 is a divisional claim superintendent’s conference at State Farm corporate headquarters, Bloomington, Illinois. What I have is a transcript as well as a tape of Dr. Lees-Haley addressing the claims superintendents, and what I’d like to do is play a portion of that tape for Dr. Rosenberg and ask him if that influences his views of Dr. Haley and the conclusions that he came to.
[Sidebar omitted. The impeachment of the other defense expert becomes relevant to this expert because the cross-examiner set up the foundation that this expert had relied on a report by the other expert.]
BY MR. FRIEDMAN:
Q. Is it the proper role of a medical person or a scientist to become an advocate in order to help insurance companies deny claims?
A. Well, I have a different interpretation of Dr. Lees-Haley’s tape, but certainly to make it your role to help insurance companies deny claims across the board would be inappropriate. To be a consultant to an insurance company, while I’ve never done that, I don’t think that, per se, would be considered inappropriate.
Q. Are you aware that Dr. Lees-Haley was a contributing editor to Claims Magazine for a number of years?
A. I didn’t even know there was something called Claims Magazine. So, no, I wasn’t aware of that.
Q. What percentage of the time is Dr. Haley — or Lees-Haley retained by insurance companies or the defense?
A. I have no idea.
Q. I am going to hand you the deposition of Dr. Haley. Page 42, line 16, do you see where Dr. Lees-Haley is testifying that for the last several years between ninety-five and ninety-nine percent of the cases for which he’s been retained as a forensic expert has been for defense cases?
Q. Does that suggest to you any kind of bias?
A. It certainly suggests a concern for a potential bias. Again you’d have to look at not just what percentage he’s retained on, but then what he does with those cases. Is he willing to, you know, appropriately and fairly evaluate those cases? If not, then it certainly is a considerable concern, but again it’s also a separate issue if in this case he did his work appropriately or not or somehow distorted it.
Q. Distorting facts would be highly inappropriate for a forensic expert, wouldn’t it?
A. If it was done intentionally, it certainly would.
Q. All right, and just if you’d take a look at page 47, do you see that Mr. Lees — Dr. Lees-Haley’s work basically over ninety-five percent of his income comes from forensic work?
A. Yes, I see that.
Q. And on page 39 that he co-edited a handbook on psychological claims for insurance companies?
Q. Coauthored another book that a surveillance expert markets to insurance companies? Page 40.
Q. Does any of that suggest any issues with regard to Dr. Haley’s credibility or lack of bias?
A. Again I would say it does raise a significant concern, and it’s an appropriate thing to be concerned about, but he has tremendous qualifications on what he does, and you still have to look at with this particular evaluation is it expertly and properly done or not.
[The expert has handled this exchange pretty well, sounding reasonably open to the possibility of the other expert being biased. The cross-examiner proceeds to ask a “polarizing” question. Since the witness has already accused the plaintiff of faking his chronic fatigue syndrome, the expert does not flinch from the characterization.]
Q. Now, when you write a report calling somebody a malingerer, basically you’re calling them a liar and a fraud, is that right?
A. With regard to their claim of a psychiatric injury or disability, that’s correct.
Q. And so before you do something like that, you want to be really sure you’ve got it right, isn’t that correct?
A. Yes, I can never be one hundred percent sure, but I want to be, you know, as sure as I possibly can within reason that that’s correct.
Q. You know that if you — well, it would be a horrible thing, wouldn’t it, if you accused somebody of being a liar and a fraud and they lost their disability benefits and you were wrong?
A. Yes, that is certainly something I would feel bad about.
Q. And you want to make sure you look at all of the available evidence before you form an opinion like that, don’t you?
A. Not necessarily all of the available information, I want to look at all the pertinent information, all of the information that’s reasonably available and decide if I have sufficient information to form my opinions. It’s not realistic that I need to see all of the possible information, but I have to understand what is sufficient information to form my opinions.
Q. Well, how do you decide what’s sufficient?
A. Well, again it’s based on I lay out in a logical fashion what the reasons are that support my opinion and see if they are sufficient to warrant an opinion, for example, of malingering, and if there’s other information that comes to light to the contrary, I’m always happy to reconsider those opinions.
Q. You wouldn’t base an opinion of malingering on speculation, would you?
Q. And if you discovered that there was important evidence, you had not been given, you wouldn’t be reluctant to change your mind, would you?
A. Well, if that important information was significant in changing my impression of the case, then I certainly would change my opinions. It needs to be relevant and significant first, but then I certainly would.
Q. Do you think it’s relevant and significant that Gena Mead thinks and observed Cliff Mead’s health deteriorating over a period of years, is that significant in your mind?
A. Well, as I mentioned earlier, that is certainly potentially significant, but the two problems are, one, you weigh it against all the other information we’ve discussed, which is overwhelming. And, secondly, that she has the same vested interest as Mr. Mead in getting money from a successful suit in this case.
Q. So you rely upon some of the things she says but not others, is that right?
A. Well, again I take these things into consideration and I weigh them, but her report that Mr. Mead was having an affair and was, you know, active with this other woman when he’s supposed to be worn out and unable to move, you know, I consider that as potentially relevant to my opinions. Again if there is something contrary that shows she was lying about that, I would be happy to consider that.
Q. Is there something that shows she’s lying when she describes his deterioration over a period of years?
A. There is important information that suggests that she’s potentially distorting that information for financial gain with Mr. Mead because obviously even if they’re divorced, she’s financially interested.
Q. All right, and that financial interest — well, let me ask you this, how did you weigh in the fact that Mr. Mead and Gena Mead had a divorce case going at the time she testified about the affair?
A. Well, again it’s a matter of — well, I’m not sure how to put it — it’s a matter of, you know, if you have a wife, or ex-wife, who is bringing up information that she’s finding out about him having an affair with somebody else, there are other sources of information as well, including, from what I understand from the testimony in this case, that supports that Mr. Mead was having an affair behind her back that that information is supported. If you look, for example, at some of the letters that were written to try to refute the neuropsychological evaluations, the former Mrs. Mead participates in that process of trying to refute some of the expert’s work without having the expertise to do so, and then there’s also a letter that apparently says it’s from Gena Mead that was actually written by Mr. Mead. There’s again a lot of tainted information related to Mrs. Mead trying to assist Mr. Mead with the case, but the information regarding his infidelity seems to be a reasonable thing to consider.
Q. So is Gena Mead lying when she tells us about what she observed with regard to Cliff Mead’s health over the years?
[This is an important question. The expert who accuses the plaintiff of being a fraud necessarily must view the plaintiff’s long-time wife as either a fraud herself or as badly duped by her former husband.]
A. She may or may not be, or maybe to some degree, but it’s sufficiently suspicious that it needs to be taken skeptically.
Q. All right, so you’re basically saying, yes, you believe that information is not worth weighing in the balance as you decide — as you try to decide whether Mr. Mead’s telling the truth or not.
A. Well, actually I weighed it in the way I just described to you.
Q. You weighed it and then threw it out?
A. Well, as I was saying I weigh it just as I weighed Mr. Mead’s subjective complaints over time. All of these things are weighed, but the information is still overwhelming for a faked a claim for CFS.
Q. Who else can you tell us is lying, Dr. Rosenberg?
[Another polarizing question that seeks to clarify the exact numbers of witnesses whom the expert accuses of giving false observations.]
A. Besides Mr. Mead?
Q. And Mrs. Mead, Gena Mead, who else?
[The expert now tries to back away from accusing the former wife of lying. The point of the question is to force clarity and not let the expert get away with an ambiguous “skepticism” about the ex-wife.]
A. Well, again I have to take exception to that because I think it’s a misstatement of my testimony. I didn’t say she was lying. I said there is sufficient evidence that you need to be very skeptical about her information and her vested financial interests in the outcome.
Q. You don’t believe her, do you?
A. It’s not that I don’t believe her, it’s that I’m sufficiently skeptical of it that I have to weigh that and all the other information that I considered because there’s other evidence of, first, her financial interest and, second, her assisting Mr. Mead in the past with trying to twist the outcome.
Q. A good lawyer or forensic psychiatrist could come up with reasons to disbelieve just about anyone, couldn’t they?
A. Well, I’m sure a good lawyer could do that. I would hope a forensic psychiatric who is competent and ethical wouldn’t do that without adequate basis.
Q. What reasons are there to disbelieve Mr. Mead’s partners when they testify?
A. Well, again in Mrs. Mead’s case, the former Mrs. Mead, there is her financial interest in the outcome of this case while at the same time it’s my impression that she did discuss the issues of the infidelity. In the case of the current Mrs. Mead, I don’t know if he she goes by that last name —
Q. I think you misunderstood my question. I’m talking about his business partners, what reasons are there to be skeptical of their testimony? This is an easy one.
A. Well, you know, certainly if they end up — any time people in business together end up having a falling out or disagreement, you always have to consider whether there is some difference of opinion of what really happened or somebody potentially altering the facts of what really happened. I hope I got it right.
Q. This skepticism you’re describing, did you feel skeptical about what the partners were saying?
A. Every item of information that I review, I always treat initially with skepticism.
Q. Were you aware that the partners and Mr. Mead had a lawsuit against each other?
Q. That would be a reason to be skeptical, wouldn’t it?
A. That certainly would be an additional reason to be skeptical, but I always treat things skeptically in these cases.
Q. Dr. Rosenberg, I want to make sure that my notes are correct. Did you testify that one of the more significant pieces of evidence was how Mr. Mead had rated his levels of distress with Dr. Lees-Haley?
A. I don’t think if I said it was one of the more significant pieces of information with regard to his CFS claim, but it was certainly significant and seemed to also go to how goal driven Mr. Mead is to support his CFS claim that he would put that ahead of these other tragedies in his life.
Q. So the fact that he put CFS as a more severe distress than, say, the death of his son, to you means he’s malingering and trying to push his CFS claim inappropriately?
A. No, I don’t think that would be a reasonable characterization.
Q. What would be a reasonable characterization?
A. That while certainly you couldn’t make any conclusion that he was malingering based on something like that, when you take all the information together it is one additional item to consider with regard to his credibility in light of the other sources of information we’ve discussed that he is pushing his CFS claim so hard that he would elevate it unreasonably or inappropriately above these other things that have gone on in his life, and again it is something that is characteristically seen in individuals who malinger where they over advocate for themselves or over push their particular problems as the only thing going on in their lives.
[The cross-examiner has now committed the witness to saying that the plaintiff had elevated the significance of his chronic fatigue beyond other tragedies in his life. He now shows the witness the contradiction.]
Q. Didn’t Mr. Mead say to Dr. Lees-Haley that the most emotionally distressing experience of his entire life was the death of his son in 1996?
A. Well, I don’t recall specifically if he said that. If he did, I would wonder if that was with regard to his emotional reaction around the time of his son’s death, and that this was pertaining to his current emotional distress.
Q. Do you have a copy of Dr. Lees-Haley’s report with you?
Q. Would you turn to page 5, please. Do you have it on your computer?
A. Yes. (Reading.)
Q. What Mr. Mead told Dr. Lees-Haley was that the most emotionally distressing experience of his entire life was the death of his son in 1996, wasn’t it?
A. Yes, that’s correct.
Q. He said the second most emotionally distressing experience was the death of his mother in December of 2000 from breast cancer, and the death of his younger brother by heart attack in March of 2001, isn’t that right?
Q. You weren’t trying to leave the jury with the impression that Mr. Mead had said that having CFS was more emotionally distressing than the death of people in his family, were you, Dr. Rosenberg?
A. Well, actually with all due respect it’s my impression that you’re the one who is attempting to mischaracterize it because you left out the second paragraph which is what you described was his initial emotional reactions. The second paragraph which you deleted or didn’t mention was Dr. Lees-Haley’s interview of his level of emotional distress in the last twelve months. So with all due respect, I think you’re the one who has misled the jury.
Q. All right, and what he was asked about was several dozen psychosocial stressors and asked to talk about them with regard to the past twelve months, is that right?
A. Well, they then zero in on exactly the same ones that you just talked about. That’s correct that that’s the initial sentence of the paragraph.
Q. And at this point it’s what? Five years after his son has died?
A. That’s correct.
Q. It’s kind of hard to see here, Dr. Rosenberg, but can you tell us what the trails making Test is?
A. Trails — there are trails A and B. These are time tests in trails A where you’re connecting the numbers together in order like you were counting. In trails B there is an alternate pattern, a distraction pattern, that you have to avoid in connecting them together. So trails A is a simple test of attention. Trails B is a test not only of attention but of mental flexibility and sustained attention.
Q. And basically the trails making test, test A tests visual scanning and attention, is that right, visual scanning and attention?
A. I’m sorry? Can you repeat that?
Q. Yes. What the trails making A is concerned with is visual scanning and attention, is that correct?
A. Yes, that would be correct.
Q. All right, and on this test administered by Dr. Lees-Haley, Mr. Mead did worse than 99 percent of the population, is that right?
A. Excuse me one second. (Reading.) Yes, that’s correct.
Q. Am I pronouncing it right, Stroup (phonetic) Color Word Test, is that the way to pronounce it?
Q. All right, that deals with problems with attention and how vulnerable someone is to distraction, is that right?
A. Right, so it pertains to not just attention but likewise sustained attention and frontal lobe tasks.
Q. And there again he does worse than ninety-nine percent of the population?
A. Yes, that’s correct.
Q. And on the second Stroup test, the interference test, that also tests how distractible he is?
A. Right, that’s more a frontal lobe measure.
Q. And on this frontal lobe measure, again he does worse than ninety-nine percent of the population?
A. Yes, that’s correct.
Q. And according to Dr. Lees-Haley, the scores indicate that Mr. Mead’s overall ability to pay attention and concentrate is seemingly quite variable, is that right? I know there’s more to it, but that’s the first sentence, is that right?
A. Yes, I agree with you that’s the first sentence.
Q. All right, and that’s actually consistent with what Mr. Mead had been reporting to his doctors for years, isn’t it, that sometimes he was able to concentrate and other times he had real troubles?
A. No, actually I would say that that really isn’t consistent at all for a couple of reasons. First, this actually — the trails is actually additional evidence of faked cognitive impairment because Mr. Mead did poorly on trails A, which is very simple, and did much better on trails B. There are several explanations for that, but one is that you’d have to be concerned about his level of intentional effort and also performing in the one percentile in trails A, simple attention. And the one percentile in these Stroup tests suggests somebody who is so impaired that it really doesn’t fit Mr. Mead’s day-to-day function, and again you wonder about his actual level of motivation, and also variability in test performance from one test to another in the same period of time is a very different thing than Mr. Mead’s description of variability in how well he was able to pay attention, function, let’s say, from one day to another.
[The witness has perhaps made the cross-examiner wish he hadn’t raised the topic of the “trails” tests, since he has a persuasive reason for why he sees the variable performance of the plaintiff as evidence of intentionally poor performance, and the cross-examiner has no good rejoinder to the point. But rather than wilt in the face of this strong blowback, the cross-examiner calmly moves to another area.]
Q. What’s your understanding as to the exercise — you’ve read his deposition, what exercise does Mr. Mead do at present or at the time of his deposition?
A. Well, in my interview with him, he said he did, you know, up to an hour of exercise a day, I believe walking and some light weights a few times a week. I apologize I don’t recall specifically what he said in his deposition, but it’s my understanding other information has come out that he doesn’t actually exercise beyond going shopping at the mall.
Q. Well, hasn’t he testified that he also uses light weights occasionally and does stretching exercises as well?
A. I apologize, he may very well have. I was speaking more of the cardio exercise in terms of recent testimony, but I apologize. That might be the case as well.
Q. All right, and what’s your understanding of what his doctors have recommended to him?
A. Well, which doctors are we discussing?
Q. Well, right, let me just ask some leading questions to move us through this. You understand that Dr. Cheney was not only diagnosing Mr. Mead but also treating him, right?
Q. And you’ve had Dr. Cheney’s deposition, haven’t you?
Q. And do you agree that Dr. Cheney testified that he put Mr. Mead on an exercise regime that involved mild weight lifting, stretching, isometrics?
A. I apologize. I don’t recall one way or the other.
Q. Let me hand you page 491.
A. Thank you. (Reading.)
Q. That’s what Dr. Cheney said for him to do, isn’t it?
A. If this is Dr. Cheney’s deposition, then, yes, it does say that on page 491.
Q. So Mr. Mead is doing exactly what Dr. Cheney told him to do, isn’t he?
THE WITNESS: Well, according to this it tells you what Dr. Cheney recommended. It doesn’t tell you what doctor — what Mr. Mead actually did.
BY MR. FRIEDMAN:
Q. But you’ve told us what your understanding is of what he’s doing, weight lifting, the stretching, so on, and that’s exactly what’s on the deposition, isn’t it?
A. Well, you told me that the recent testimony is that he was weight lifting and stretching. I don’t have that information one way or the other, but the key thing is the cardio exercise, and it’s my understanding that the recent testimony was that he wasn’t doing that beyond going to the mall or the market.
Q. And what Dr. Cheney said is that they, meaning chronic fatigue syndrome patients, should play to their strength which is anaerobic — is their anaerobic system so mild weight lifting, stretching, isometrics, is generally well tolerated as they give ten seconds — excuse me, sixty seconds between reps. So he’s recommending anaerobic exercise of the sort we just described, isn’t that right?
A. With the understanding that Dr. Cheney’s treatment regimen in general is not considered — evaluation or treatment — are not considered scientifically valid. That certainly looks like what he says in his deposition.
Q. So we know that one basis for your opinion that Mr. Mead is not following the directions of his doctors isn’t true, do you agree with that?
A. No, I wouldn’t agree with that.
Q. I didn’t think so. Would you agree that Mr. Mead had a good work ethic in college?
A. I have no idea what his work ethic was. I’m certainly impressed that he went to Stanford and got a MBA, but I don’t know enough about his work ethic in college.
Q. Wouldn’t that be something worth knowing if you are going to evaluate whether he’s malingering or not?
A. Well, not necessarily. I do recall one quote from Dr. Etcoff that in college he was interested in something like girls, cars, and passing. So I guess I do have that information, but his work ethic in college isn’t necessarily required given the other information about malingering.
Q. All right. Well, I guess what I’m asking you is — well, why don’t I just ask it this way. When did the malingering start?
[Another polarizing tactic seeks to pin down the witness on details that the witness would rather leave vague, such as when the malingering began.]
A. Well, it would be I think difficult for me to pinpoint, but as we discussed earlier, there is significant information that in the ’94, ’95 time period after Mr. Mead was pushed out of VCP as of June 30th of ’94, that he got the idea to switch from a claim for depression to chronic fatigue syndrome, and that he had to then try to get rid of information from Dr. Frohwirth, for example, that he already had prior problems with fatigue. So I think we could say that at least around then it had already come to mind, it might have been before that.
Q. And what is his motive for malingering?
A. Well, I think there are several easily understandable motives I mentioned earlier. One is, although it’s my impression that he’s very well off financially, there’s certainly the additional financial benefits. There’s not having to worry about working again. His job was very stressful with long hours. There is having the additional free time to spend with his new wife and in personal pursuits. You know, there are several reasons, and also for someone like Mr. Mead, while I admit that this is more speculative, you know, he’s somebody who has always been a winner and a competitor, and I can understand him once he decides he’s going to win this claim, that he’s going to see it through to the end, no matter how absurd it might become.
Q. So he’s a winner and a competitor in 1989, would you agree?
A. Well, I would say that in general is true for him. I assume it is for 1989.
A. It would be the same answer.
Q. When did he decide to be a health ridden malingerer as opposed to a winner?
A. Well, as I mentioned, although it might very well have been earlier, ’94, ’95, there is considerable evidence that that’s when he decided to switch over and try the fake CFS claim, but even at that point he’s still a competitor and trying to be a winner. He wants to win the game of successfully faking a CFS claim.
Q. So when he’s talking to his doctors and reporting symptoms in 1990, ‘ 91, ’92, is he malingering?
A. Well, I think we have to look at what doctors — for example, Dr. Anderson, his general physician, who saw him those years, said there is absolutely no evidence or complaint whatsoever of CFS.
Q. All right. I’m just asking you, when he went to his doctors, and he said, I have these symptoms, was he malingering?
A. Well, I apologize, we’d have to look at what symptoms, what doctor, what time period for me to answer that.
Q. Well, you’ve done that, haven’t you, you’ve looked at all of those medical records?
A. I have looked at all those medical records that I’ve discussed. But I apologize, to answer your question, I would need the parameters I just mentioned.
Q. Well, for example, when he goes to Dr. Epstein in ’92 and ’93, and he says he’s feeling depressed and fatigued, is he making that up? Is he lying?
[Further questions seek to clarify exactly what the witness is testifying about the plaintiff’s alleged malingering and, as part of that, lying to his own doctors.]
A. Well, I think the overwhelming evidence is that he probably is because again we have the — for example, the depositions of his partners that there is no evidence whatsoever of those problems, including they would travel with him across time zones, they were working with him intensely, no evidence of excessive fatigue, no evidence of depression. And as I mentioned earlier, in the 1995 letter Dr. Epstein said that the fatigue didn’t even start until ’94 as opposed to all of these other claims that started in ’91 when he was supposed to have known Mr. Mead so well.
Q. What’s his easily understood motive in 1992 for going into Dr. Epstein and talking of depression and fatigue, what’s his easily understood motive?
A. Well, I think there’s at least a couple potentially. One is it’s my understanding that by that point —
Q. Just to be clear, are you speculating about motives at this time, or do you have a scientific basis for telling us what his motive is in 1992?
THE WITNESS: The reasonable from a scientific standpoint, a reasonable estimate would be that around that time, given Mr. Mead’s history, it would be by ’92. The most likely reason would be he’d already been told by his partners he was going to be pushed out of VCP and not included in VCP Three, and so he’s now having to look for what he’s going to do for money, career, et cetera. So the timing is actually very eloquent, and also his job it stressful, long hours, there’s some evidence hours that he had an earlier affair around that time. He might also be wanting to spend more time with that person. There are certainly several possibilities that are reasonable to consider.
Q. Let’s go back then to ’91 before his partners ever say a word to him about any kind of trouble, and you’re aware that his partners told him they wanted him to leave in August of ’96 — or I’m sorry, August of — I better look that up — the middle of ’92, is that right?
A. Well, it’s my understanding that it was roughly in the middle of ’92, although that doesn’t mean that there weren’t earlier discussions about how his companies were failing and perhaps about the fact that he was withholding information from them, that was just when it reached its flash point.
Q. And, in fact, Mr. Kitchen testified, didn’t he, that the first time they raised concerns with Mr. Mead about his performance was late 1991 or early ’92, correct?
A. That certainly sounds about right, so that does include some of ’91.
Q. Late ’91?
A. Yes, that still is part of ’91, but, yes, late.
Q. So why is he going to doctors starting in late ’90 all the way through ’91 complaining of fatigue, congestion, pain in the muscles, why is he doing all of that in ’90 and ’91?
[Asking a “why” question on cross can be an effective way to confront the witness with contradictions. The witness dodges the question.]
A. Well, to properly answer that I would need to know what doctors’ records we’re talking about.
Q. All right. Well, let me ask the question this way then because we don’t have much time as you know. What is the easily understood motive that Mr. Mead would have for lying to his doctors in 1990 and 1991?
A. Well, with the caveat that again without looking at the records I can’t — I’m not accepting your premise as necessarily true that there is evidence that he did in the way you’re characterizing in ’91. It’s my understanding that, for example, the companies that he was responsible for were already failing by then. There is also his — apparently there is an affair around ’91. He also again had a very stressful job with long hours. There are still reasonably understandable incentives, although again I don’t necessarily accept that the circumstances were as you say in ’90 and ’91.
Q. All right. Well, you read Mr. Kitchen’s deposition, didn’t you?
Q. And you would accept his description of the timing of when they told Mr. Mead certain things, wouldn’t you?
Q. You talked about the stressors that he had, which stressors did he have in ’91? We talked about the death of his son, the death of his mother, none of those stressors existed in ’91, did they?
A. None of those, no.
Q. All right, and so you’re back to the business stressors, is that right?
A. Well, as I mentioned, he identified his work as extremely stressful, long hours, he’d often be — you know, he would sleep a few hours during the week and have to make up for it on the weekends, that it was very hard, high pressure work, and again also it’s my understanding that there was potentially an extramarital affair around ’91. So that also could have led to desiring a life-style change.
Q. And he’d always had high pressure stressful jobs, hadn’t he?
A. Well, I would need to know more about his other jobs. I mean, for example, being a CEO of this Miller Pasta, or some of the other things he did, they’re certainly very impressive jobs. I don’t know if those necessarily are as stressful as having to fly around the country trying to help these fledgling companies make good on the millions that were invested, and again there is also the issue potentially by ’90, certainly by ’91, that the companies were failing even if his partners hadn’t found out about it.
Q. In your malingering analysis, you have to evaluate what somebody has to gain by their behavior against what they have to lose, correct?
Q. All right, and what he had to gain, if I understand what you’re telling us, is the money from the policy approximately — the two policies, Northwestern and Paul Revere — of about $180,000.00 a year, is that right?
Q. And lots of free time, is that right?
A. Well, those are two of the things I mentioned, there were others as well.
Q. What else did he have to gain?
A. Well, reduced stress, not having to worry about launching another career after getting pushed out of VCP. I think those would be the primary ones.
Q. You said he wanted to pursue nonwork interests, what were those?
A. Well, one of them would be a girlfriend, another would be his things that he liked to do with his free time, for example, cultural activities potentially.
Q. What did he lose when he stopped working?
A. Well, it depends how you look at it. He was pushed out of VCP, so it’s not like he just voluntarily stopped working, but then he gained not having to try to start all over again with his own venture capital company or another business, but, you know, if you think about the kind of things that he potentially lost, it would be the prestige of a job like that. It would be, although it’s a gamble and a lot of work, potentially doing very well with it, although perhaps not. The excitement and satisfaction of the type of work he likes to do as a businessman being successful. Those are all possibilities.
Q. Yeah, he lost his career, correct?
A. Yes, that’s true.
Q. What was his earning capacity in that career, do you know?
A. I believe he earned about $600,000.00 a year plus he had a financial interest in at least some of those companies.
Q. How much — let’s talk first about how hard would it have been for him to get another job in the corporate world?
A. I think it would be extremely easy for Mr. Mead.
Q. And how much would that job that it would be easy for him to get pay?
A. Well, that’s not really my expertise, but I’m sure he would be able to get a very good corporate job, you know, certainly paying somewhere in at least a couple hundred thousand dollars, I would imagine.
Q. Maybe even more?
A. That’s why I said at least, it could be a lot more.
Q. All right. Now, by losing his job, he also lost his house, is that right?
A. I don’t recall him losing his house because of —
Q. I don’t mean losing as in foreclosed on, but he couldn’t support a $2.5 million house on $180,000.00 a year, could he?
A. Well, again I think we would need more information because my impression is that he has tremendous financial resources, and he also has testified that he has a significant income from stock investments.
Q. And you don’t know the particulars of that, do you?
Q. You didn’t ask about the particulars of that, did you?
Q. But if you’re doing this evaluation of gain versus loss, that’s an important thing to know, isn’t it?
A. Well, it could potentially be useful, but again while there are always additional things that could be picked out and focused on, there was more than sufficient information, overwhelming information, of the type I’ve already discussed.
[The answer shows the witness’s reluctance to make a gracious concession. Instead he reverts to his theme.]
Q. Gena Mead testified that as a result of their reduction in income, they lost their house, their children were taken out of private schools, they lost their ski house, he lost his business friends and associates, and he lost his social standing, do you have any reason to disagree with any of that?
A. Well, I think that would require further analysis because it turned out that he had, at least at some point, he had a girlfriend and had separate bank accounts and lots of finances related to her that he apparently was hiding from his wife, so I think that requires more information to really analyze.
Q. You don’t have that information, do you?
A. Beyond what I’ve described, no, I don’t.
Q. All right. Mr. Cummings and Mr. Kitchen each testified that Mr. Mead tried hard to stay in the partnership to keep his job, is that right?
Q. Is that what malingerers do, they try hard to keep their job?
A. Well, given that I — despite the discussion we’re having, I haven’t actually testified that he was malingering as far back as ’93 or earlier. I would agree that that’s not generally what malingerers do, but if the malingerer or the person has an extremely stressful job with long hours, if the person’s companies are failing that he’s responsible for, the person looks like he’s going to be pushed out, that things are heading in a disastrous direction, there’s more to it than just him losing his job.
Q. So the malingering began after he was pushed out of his job, is that what you are telling us?
A. Well, I think it’s hard to pinpoint really when it began beyond what I’ve testified that clearly that period ’94, ’95, the evidence is quite strong that he decided to switch to a CFS claim and that there was clearly a malingering claim by then.
Q. One of the reasons supporting your position is that his partners saw no evidence of sickness or illness, is that correct?
[The cross-examiner now asks the witness a series of facts from the depositions of the plaintiff’s business partners, all of which the witness does not recall. This feeds into the cross-examiner’s argument that the witness cannot even remember facts that don’t support his opinion.]
Q. And do you recall reading Mr. Kitchen’s deposition in which he said that after 1991, Mr. Mead appeared withdrawn, when a person is defeated, your posture is not quite the same, he was a little beaten, do you remember that?
A. I do remember that, but it’s not — it’s my understanding that that was not described as a persistent or ongoing feature.
Q. It was described as his change in personality after 1991, wasn’t it?
A. Again I would apologize, I’d have to look at that and view it in context. I don’t recall that as being a persistent feature of Mr. Mead from that point on.
Q. Do you remember Mr. Kitchen saying that there was a possible change in his personality, Mr. Kitchen wasn’t sure, it might have always been there, but he started to notice that there was not a good two-way communication, it was difficult to communicate with Mr. Mead, do you recall that?
A. Again in the context of them telling him that they’re going to get rid of him, that’s understandable, but I really don’t recall that one way or the other.
Q. And do you recall Mr. Kitchen saying that he appeared depressed?
A. Again I recall that at a particular point in time, but not as an ongoing change or feature of Mr. Mead.
Q. Do you remember the partners and employees all saying that they would not be surprised if Mr. Mead had health problems and didn’t show or tell them about them?
A. I’d be glad to look at that, but I don’t recall that.
Q. Do you remember them saying he was a private person and that in this type of industry this is not the first thing you’d necessarily want out?
A. Again, I apologize. I don’t recall, but I’d be happy to look at it.
Q. Were you given Nancy McGinty’s deposition?
[It’s a profitable line of questions to pursue all the evidence that had been withheld by opposing counsel from this expert.]
Q. So you haven’t heard that she knew him for ten years and always knew him to be a person of integrity, credibility, and honesty, is that right?
A. Actually, I did — I was told that she had testified that there was no evidence whatsoever he had any health problems or anything suggestive of CFS.
Q. That wasn’t my question. My question is, were you aware that she had testified that she knew him for ten years and always knew him to be a person of integrity, credibility, and honesty?
A. No, I hadn’t heard that.
Q. You’re dependent on all the information, and the only information you get is what the defense attorneys give you, is that right?
A. Well, in terms of the records and then, you know, it’s obviously — there’s an interplay because I require a certain number of appropriate records for me to do my work, and then there’s my own personal examination of Mr. Mead.
Q. In terms of information beyond your examination of Mr. Mead, you’re dependent upon the defense lawyers, aren’t you?
A. Again, as I say, I’m dependent on them providing it to me, but I’m also going to insist on a certain amount of information.
[The cross-examiner now echoes the witness’s language – “insist.” ]
Q. Did you insist on getting the depositions of the other employees who worked with Mr. Mead?
A. No, I didn’t.
Q. Okay, and in your opinion knowing that the jury has heard that she knew him for ten years and always knew him to be a person of integrity, credibility, and honesty, do you think that Nancy McGinty is lying about that?
A. If that’s what she said, I don’t have any reason to think that she’s lying about that.
Q. Do you think knowing him for ten years, she might know more about him than you do?
A. Given that his wife who lived with him didn’t know he was having an affair for years, I don’t think that’s necessarily the case. I think you have to look at all of the available information.
Q. Is this information that would be important to you —
A. Well —
Q. — what Nancy McGinty testified to?
A. It potentially could be, and again I’m always happy to consider it, but there’s always additional things that we can find, but again there’s overwhelming information for the position that supports my opinion.
Q. Nancy Buckley, were you given her deposition?
Q. I’m sorry, Susan Buckley. And if she testified that in all of the years she’d known Mr. Mead from working with him at the partnership and knew him to be a person of integrity and an honest person, would that be important information?
A. Yes, I’d certainly consider that.
Q. You weren’t given that either, were you?
Q. In fact, Mr. Kitchen testified that he thought the mistakes that — or the misjudgments — that Mr. Mead was making were honestly made and were not intentionally misleading, isn’t that right?
Q. You’ve — by the way, you formed your opinion and wrote your report without ever having seen the deposition of Gena Mead, isn’t that right?
A. Yes, that’s correct.
Q. That’s not something you insisted on seeing before deciding that Mr. Mead was a liar and a malingerer?
A. Well, as I discussed with your associate in my deposition, I wasn’t even aware she had a deposition taken by then.
Q. What did Mrs. Mead say about his health and activities? Oh, have you been provided her deposition?
Q. So you don’t know what she has to say about that?
A. With the exception of what I’ve heard about —
Q. From the defense lawyers?
A. — in her testimony here in trial, that’s correct.
Q. From the defense lawyers?
Q. All right. Do you consider that an unbiased source of information?
[The lawyer continually gets interesting answers directly pushing the witness on bias issues.]
A. I would imagine what they were telling me about somebody — what somebody would say here in court, I would expect them to be honest and forthcoming about that.
Q. If Mrs. Mead testified to a deteriorating and difficult health condition, is she lying?
A. In her case I think there is a very strong possibility she is because it’s my understanding that she said what were bordered on ridiculous things when she testified about trying to justify their relationship or hide the relationship, so I would take that with a rather large grain of salt.
Q. Did they show you the claim file?
A. Well, I mean I certainly have some of my records which are listed in my report include what my understanding would be in a claim file. I don’t know if there are other things in the claim file.
Q. You have the records where Mr. Mead is saying to Paul Revere tell me what test to take and I’ll go take it?
A. I don’t know if I have that or not.
Q. Is that the sort of position you would expect a malingerer to take?
A. In somebody who does the kind of research that Mr. Mead does, I think that still would be very reasonable.
Q. By the way, since we’re on the subject of research, did you read his letters regarding Dr. Etcoff’s report?
Q. Do you agree with his analysis?
A. No, I don’t in the most part, but I’m certainly impressed with him.
Q. He got it wrong, didn’t he?
A. Well, when you say “it,” I think we’d have to look at the available information, but in general it’s my understanding that they don’t properly understand what something like Dr. Etcoff’s testing involves.
Q. So Mr. Mead as he did this detailed sophisticated analysis that you were so impressed with actually was wrong, the analysis was flawed, wasn’t it?
A. That’s correct.
Q. Dr. Lees-Haley says that the MMPI testing is the gold standard for malingering, would you agree with that?
A. In terms of psychological tests, I would certainly agree with that.
Q. Well, I guess we’ve covered — you weren’t given Dr. Lees-Haley’s deposition, were you?
A. No, I wasn’t.
Q. In fact, Dr. Lees-Haley testified that Mr. Mead’s MMPI results showed the opposite of malingering, didn’t he?
A. Well, it’s my understanding that it showed another type of intentional distortion but in the opposite direction of exaggeration.
Q. What did Dr. Lees-Haley say? Turn to page 184 of his deposition, please. Didn’t he say at page — beginning of page 183 that the MMPI results of Mr. Mead were the opposite of malingering? .
A. Just give me one second. (Reading.) Yes, that he was distorting but in the opposite direction.
Q. Page 184, line 15, there’s nothing in your report of February 26, 2002, that states based on the MMPI-2 that I administered to Mr. Mead, I do not find that he was a malingerer, there is nothing here that states that, is there? Answer, yes, there is. I said he did just the opposite of that. He under reported. I just didn’t use the words you’re using. I made a very clear statement that he was doing just the opposite. Do you agree with that?
A. Yes, just as I said, that he was making an opposite type of distortion.
Q. And the MMPI is the most validated test, psychometric test, for the detection of malingering, isn’t it?
A. In terms of psychological tests, that’s correct, it is the gold standard.
Q. In fact, Dr. Reznick, the person you said is probably the foremost expert in psychiatric assessment specifically says that the MMPI-2 is the most validated psychometric test for evaluating suspected malingering, doesn’t he?
A. Yes, and I would certainly agree with that.
Q. All right, so the most validated psychometric test says not only is he not malingering, he’s doing the opposite of it, isn’t that right?
A. Well, again that is still an intentional distortion, but it’s in the other direction, that’s correct.
Q. One of the reasons you give for believing that Mr. Mead is a malingerer is that he refused to let you tape, isn’t that right?
Q. And you wrote that in your report?
Q. And you gave it to the defense lawyers?
Q. And you told them you thought this was powerful evidence that he was malingering?
A. No, I don’t think that’s a fair characterization. Again I think it’s important to consider. It’s not powerful as though it’s going to make a decision one way or the other, but it’s important to consider.
Q. Didn’t you tell us today that it was powerful evidence in support of your opinion that he is malingering?
A. I would certainly agree that that as well as refusing to let me even use my laptop, the first in a thousand cases, I would say that is powerful, but it’s not like a diagnosis of malingering would hinge just on that.
Q. Did the defense lawyers then after receiving your report and hearing your opinions tell you that they were the ones who says there was not to be recordings of this session?
THE WITNESS: I never heard that.
Q. All right. Did they ever tell you that when these appointments were scheduled, Mr. Mead wanted to bring a witness because he was afraid of attending an IME, and he was told he could not bring a witness?
A. No, I didn’t hear that.
Q. Did they ever tell you that when they told him he couldn’t bring a witness, they also told him he couldn’t videotape the session?
Q. Would that be important in interpreting his attitude when he shows up at his office having been told he can’t have a witness to see what you’re doing and he can’t record what you’re doing?
A. No, I wouldn’t think so because he could still audiotape it which is appropriate, and I also made it clear to him that he would certainly be entitled to a copy of the audiotape. I go through the same thing with all of the people I interview. They usually bring their own taping equipment or overwhelmingly agree to taping.
Q. Let me hand you what’s been marked as Exhibit 222. They never showed you this letter they wrote to Mr. Mead’s attorneys in which they said, finally it is our understanding that Mr. Mead does not intend to and will not videotape either evaluation and will not attempt to bring any witnesses to observe either evaluation. Is that right?
A. No, I don’t believe I’ve seen this.
Q. All right. Would you have allowed him to videotape the deposition?
A. No, I would have objected to that, but I certainly would have encouraged him to audiotape the evaluation.
Q. Do you know why they didn’t want anybody to see what you were going to do in that evaluation?
A. Well, I’m not a lawyer, but from doing this so many times, I know that legally he’s not entitled to have somebody in the room, and the only benefit to it is that that person can cue him or coach him. So audio taping is the standard, and in California he legally cannot audiotape — I mean he legally cannot have somebody present.
Q. And you’re not privy to the conversations that took place between the lawyers what Mr. Mead’s lawyer may have instructed him after receiving this letter, are you?
A. No, and he certainly mentioned nothing about it at all while we went around and around about this.
Q. Actually, Dr. Rosenberg, didn’t he tell you that he had been told he couldn’t tape and, therefore, he didn’t want you to be taping, isn’t that what he told you?
A. He certainly did not say he’d been told he couldn’t audiotape. I don’t recall if he was told he couldn’t videotape.
Q. Well, Mr. McKennon or the defense lawyers gave you Dr. Cusher’s deposition, correct? Here’s what I’d like to do, if we can, because we’re running out of time. I would like to go through quickly what you were given and what you weren’t given, all right?
Q. You have your report there, so you have a list of what you were given?
Q. You were given Dr. Cusher’s deposition, correct, he is the in-house doctor for Paul Revere?
A. Yes, I was.
Q. You were given Dr. Anderson’s deposition, is that correct?
A. I believe at some point after I furnished my report, I believe I did.
Q. Were you given the Connecticut Licensing Board’s sanction of Dr. Anderson for writing himself narcotic prescriptions?
A. I was aware that he had a problem with the licensing board. I don’t — I wasn’t given anything in writing I don’t believe.
Q. Did they give you Dr. Goldstein’s, he’s the in-house doctor, a review of Dr. Donaldson?
A. I apologize. I don’t recall.
Q. Did they give you Dr. Rapoport’s deposition?
Q. Dr. Silber’s deposition?
Q. Any of the Mayo Clinic depositions?
Q. Your opinion is only as good as the information you’re given, isn’t that right?
A. Well, as good as the information given and as good as my expertise and how I apply it.
Q. Exactly. Did they give you Dr. Epstein’s deposition?
Q. Dr. Epstein — I’m sorry, Dr. Iznik’s deposition?
Q. Dr. Squires deposition?
Q. Dr. Sandman’s deposition?
Q. We already discussed Mrs. Mead’s deposition, they didn’t give you that, they didn’t give you the two employees’ depositions, is that right?
A. That’s all correct.
Q. Did they give you Dr. Seggev’s records at all?
A. Doctor who?
Q. Did they give you Dr. Conley’s records?
A. His records?
A. Well, I mentioned earlier a letter by Dr. Conley, I don’t recall if I have other records or not.
Q. All right. That’s what is called cherry picking, isn’t it, when you take some things out of the records, but don’t give the rest, you’ve heard that term before?
A. Well, I don’t know if that necessarily applies in this case. I certainly have heard the term.
Q. Do malingers ordinarily hide the problems they’re trying to malinger from the people around them?
A. Well, it depends on what type of problems you’re talking about and what type of malingering you’re talking about.
Q. I’m talking about health problems, malingering health problems, do people who are trying to malinger health problems normally try to keep those secret from the people around them?
A. Well, in Mr. Mead’s case there would be a reasonable explanation for that.
Q. Yes, there would. Do people who are malingering health problems ordinarily put forth great effort and do well on physical testing?
A. Again it would depend on the type of malingering and the type of health problem we’re talking about.
Q. Well, you know what we’re talking about, don’t you? You know that the medical records show that every time he was given a physical test, he worked hard and did well on it, you know that, don’t you?
A. With the exception of Dr. Cheney’s fourth bike ergometry, that is my understanding.
Q. All right, and is that what you’d expect to see with a malingerer who is trying to malinger fatigue, muscle soreness?
A. Potentially given the other aspects of his claim, that doesn’t negate the CFS claim he was putting together.
Q. And so he’s claiming fatigue and muscle soreness and he’s doing well on physical tests, couldn’t that suggest to you, Dr. Rosenberg, that he’s a sick man who is also very proud and competitive, and he is working hard on these physical tests?
A. Well, given all the other distortions around the same time, I think the fact that he did well on a test that’s not central to the diagnosis of CFS really wouldn’t change my opinion.
Q. I think you testified, or maybe it’s in your report, that he showed remarkable stamina in his meetings with you and Dr. Lees-Haley, is that right?
Q. And is that what somebody does when they’re malingering?
A. It certainly can be what somebody does. Oftentimes the individual won’t realize that he or she is putting together a faked claim and that something like that would be detected just like Mr. Mead’s depositions. You know, he does very well in his depositions and doesn’t realize that they show very strong cognitive functioning.
Q. So he’s smart enough to study up on these tests, he’s smart enough to write sophisticated letters, but he’s not smart enough to know that when he goes to an IME exam that he should try to look tired?
A. I think that’s certainly possible. He would say at times he’s tired, but he also wanted to get through it and would refuse breaks.
Q. In fact, didn’t Dr. Lees-Haley find — didn’t Dr. Lees-Haley find that he was fatigued during his meeting, or didn’t Dr. Lees-Haley say he appeared fatigued during his meeting with Dr. Lees-Haley?
A. Yes, I believe he did.
Q. So why did you tell us this morning that he attended both yours and Dr. Lees-Haley’s sessions and showed no sign of fatigue?
A. Well, because again what I said stands exactly as I put it. There was no sign of problems with fatigue. Signs referred to observable evidence, and it is unusual for somebody even without CFS or the average person to go that many hours and not ask for a break or several breaks, and so he can say he’s tired just like he can say he has this or that problem, but his observable stamina is that he went through both examinations refusing breaks repeatedly.
Q. Well, Dr. Lees-Haley specifically said that he appeared — Mr. Mead appeared fatigued, do you recall — well, you’ve already said you recall that. Let me move on. Do you recall that Dr. Gardner testified that he did not doubt Mr. Mead’s credibility with regard to his symptoms?
A. I don’t. I don’t recall one way or the other.
Q. Let me just show you this on the screen. It’s from page 87 of Dr. Gardner’s deposition. He’s asked, did your impression that he didn’t open up, did that cause you to question his credibility regarding his objective complaints at all? No. Question, do you have any reason to question his credibility with regard to his subjective complaints? No. Is that what Dr. Gardner testified to?
A. I don’t recall if he did or not. I’ll certainly accept it if that’s your representation.
Q. Is there anything, Dr. Rosenberg, that anybody could say that would cause you to change your opinion that Mr. Mead is a liar and a fraud?
A. Sure, there would be a variety of things. If there were, for example, evidence from a — you know, it’s tough now because he’s taken it so many times. He’s done so much research. For example, if there was neuropsychological testing that showed in an incredible way the types of deficits we’re talking about, that would be one thing, although again it has to be weighed against all of these other things. You know, if we could turn back the clock, and there was evidence of it actually affecting his function, if he didn’t go to all that length to analyze the neuropsych testing in a sophisticated way, there are lots of things that if we turn back the clock and he did differently or the results came out differently, I would have a completely different opinion.
Q. It’s not unusual for patients to read up on whatever condition they have, is it?
A. Well, that’s very different from what he did, but certainly patients do that.
Q. And there’s nothing sinister about that, is there?
A. What patients normally do? No.
Q. Dr. Rosenberg, just to be clear, your opinion is that all the treating doctors got it wrong, is that correct?
A. Well, I don’t think we make that broad of a statement, but any treating doctor who asserts that Mr. Mead does have chronic fatigue syndrome and it impairs his ability to function, with all due respect I think that’s incorrect.
Q. He fooled them all?
A. Well, in the manner I just described it to you, that would be correct.
MR. FRIEDMAN: Thank you, Dr. Rosenberg.
[The cross-examination ends strongly, with the witness polarized to an extreme view that every treating doctor got it wrong. The wrapup questions also made good use of the witness not having seen a number of relevant records, supporting the cherry-picking theme.]