As trial lawyers, we have all been faced with the challenge of convincing a jury of the extent of our clients' injuries and with the problems of persuading those jurors about the pain our clients have suffered. The task becomes more arduous when our clients have underappreciated pain syndromes such as Complex Regional Pain Syndrome (also known as Reflex Sympathetic Dystrophy), myofacial pain, fibromyalgia, whiplash, temporal mandible joint pain syndrome, and so on. Contesting these pain syndromes has become a "defense du jour" as the insurance lawyers try to undermine our clients' damages. The physical aspects of myofacial pain and fibromyalgia have been prepared by other speakers in this program, therefore, this writer will illustrate the preparation of an underappreciated pain syndrome by spotlighting Reflex Sympathetic Dystrophy. Similar methods of presenting your damage case can be tailored to the individual pain syndrome of your case.
II. Reflex Sympathetic Dystrophy (Complex Regional Pain Syndrome)
The unique challenge
Why is the presentation of the case to a jury unique and challenging when it involves Reflex Sympathetic Dystrophy (RSD)? This injury is now called Complex Regional Pain Syndrome or CRPS, but most treating doctors and experts continue to use RSD as the acronym. The credibility problems in this type of injury case are similar to the minor brain damage or even whiplash case. With an RSD patient, as in a minor brain injury or whiplash injury, the jury usually views a plaintiff who does not seem injured. The injury is often not visible and there are few objective medical tests to use for proof of the existence of the injury. The trial lawyer also uses many "before" and "after" witnesses, friends and family to reveal the changes in the plaintiff's daily life.
However, the expert you present in order to convince the jury of the existence of an RSD injury is extremely important. The chosen doctor must be able to educate your jury. Your selection and preparation of an expert in this case is paramount. The defense lawyer will try to convince the jury that RSD is a controversial diagnosis with only subjective complaints and is motivated by a secondary gain syndrome. In other words, the plaintiff is a malingerer who is pretending in order to get money. You must destroy those allegations.
History of RSD
Make sure you and your expert have a working knowledge of the history of RSD. This is one of the primary building blocks of your expert's testimony. Your knowledge of the history of RSD can be used to discredit your opponent's expert. If you are using a treating doctor as your expert, have some medical research hand-delivered to his or her office. The credibility of your medical evidence, as to the extent of this injury caused by the accident, is the essence of your damage case. Your expert can explain the development of the diagnosis and treatment of RSD. The history is very convincing.
By having your expert review the development of RSD you can dispel the defensive theory that this is a "newfangled" or imaginary injury fabricated by the plaintiffs' doctors. Lead with your strongest story. Wave the flag with the study performed on World War II veterans injured in the war. J. Doupe and his colleagues studied and treated injured servicemen in 1944, which was a real value to the advancement of the diagnosis and treatment of RSD.1 They used regional anesthesia as an aid to the diagnosis and that approach has been developed by modern doctors and is still being used to treat RSD patients. The gem of these studies to the plaintiff's lawyer is that all of the injuries suffered by the soldiers were trauma-induced, just like our accident victims. Besides, who could dispute the credibility of these patients, who fought for our country and were disabled by their war injuries? Secondary gain obviously was not a motive in 1944.
Have your expert trace the origins of RSD. Over a hundred years ago, these injuries and complaints were referred to as causalgia by medical scholars. In an introduction to an article, Dr. Gabor Racz, head of the Anesthesiology Department of Texas Tech University School of Medicine, and his colleagues Dr. Michael Stanton-Hicks of the Pain Management Center of the Cleveland Clinic Foundation and Dr. P. Prithvi Raj of the Pain Medicine Center of Los Angeles, have briefly outlined the development of RSD as a diagnosis.2 The authors cite Claude Bernard, "a great physiologist" doing prolific research in the mid-1800s, as the first scientist to emphasize the importance of experimental techniques in obtaining valid clinical observations in reference to the sympathetic nervous system in association with sensibility and motor function.3 "In an experiment, he removed the superior cervical ganglion in the cat and described the effects on skin sensation and blood flow in the affected organ."4 The authors discuss contemporaries Kwan (1935), Ross (1932), and Livingston (1943) as instrumental to the development of the diagnosis in that they contributed to the idea that the relief of pain following sympatholysis is fundamental to a diagnosis of causalgia and reflex sympathetic dystrophy."5
Picking your expert
Hopefully, your testifying expert can state that he or she was initially consulted concerning the patient by the patient's treating physician. We all know how much better that sounds to a jury than "referred by a lawyer." Your expert should have strong credentials in this field, and hopefully still has an active clinical practice. For example, a professor at a school of medicine usually has great credentials and credibility. Look for a strong curriculum vitae, which includes lectures at national and international medical seminars and recognition as an expert in the field. Usually, the expert is an anesthesiologist. It is helpful if he or she sees patients every day. If your expert is a medical professor, he or she is accustomed to explaining the nature and treatment of the injury, so the lawyer can use him or her to teach the jury about RSD.
Let the expert teach
In the 1980s, Dr. Gabor Racz, a leading national expert in this field, explained the way to look at your patient's hands and feet. He explained that if one has a bluish or pallid look, that it is a symptom of RSD. If the limb felt waxy and has hair loss, that is another symptom. If the extremity was cool or cold to the touch, the patient had another symptom. The chief complaint is incapacitating, burning, and constant pain. He explained the causation factors and various stages of the injury.6 He discussed treatments, including the various pain blocks that can be administered, to help the patient remain ambulatory. Then he gave his opinion that most cases are never resolved and the patients face a lifetime of pain. The frustration of chronic pain must be conveyed to people who have never experienced it. A strong expert can help your jury understand it more easily.
Generally speaking, a direct examination should not interfere with your expert's story. He or she has probably told it many times in various situations, so do not step on it. As Thomas A. Mauet wrote on the topic of direct examination, "After all, a witness will be believed and remembered because of the manner and content of his or her testimony, not because the questions asked were so brilliant."7 The lawyer's job is to listen intently and keep the expert on track. Encourage your expert to talk to the jury when explaining the issues. Using only an outline helps resist the temptation to be too organized. You must be ready to follow up on a point that is compelling to the jury. The outline is primarily to make sure you do not leave something unproven, such as a predicate or element. You might have those questions written out to be sure you lay your predicate properly. Some great direct examination lawyers, such as Nick Simkins, advise writing every question out. Herbert J. Stern, in his book Trying Cases to Win-Direct Examination,8 recommends against using pre-written questions. Seek your comfort level and use whatever works for you.
Generally, there are two schools of thought concerning whether to cover the controversial issues in direct or to let the defense bring them up in cross-examination. If you have a strong, teaching expert as described above, then let the insurance lawyer be drawn into his or her lair. But if you have doubts as to the agility of your expert, then you may want to approach the problematic aspects of your case during direct. Your discovery should have given you an idea of the areas of your medical evidence the defense is going to attack.
Your direct should clearly and logically present the facts of your case. The use of exhibits and short videos can help the jury absorb the logic of the diagnosis and treatment. Often a videotape of a stellate ganglion block is quite effective. Have him or her describe the possible side effects of the block. The doctor can tell the jury about the long needle that has to be stuck in the neck in order to administer medication that can help the patient work for a few weeks. Have the expert describe a Horner's syndrome and how when the anesthesiologist sees the patient's eye droop he or she knows it is a good block. Have the spouse or friend, who is picking the patient up, describe the patient's demeanor and appearance.
III. Their Expert
Your role in the cross-examination of the defense's expert is to discredit or impeach the witness. After you receive your answers to discovery concerning this expert, investigate those answers and documents produced. In the discovery, find out what other trials he or she has given testimony in and then get your hands on the transcripts. Examine the expert's curriculum vitae and go over it with your expert. If you are lucky you can find that the expert lied in previous testimony.
A prudent discovery deposition would include a voluminous subpoena duces tecum to gather all the information you need. Get all documents which indicate any relationship with this defense firm, including the billing statements and other depositions. Make him or her produce all the articles he or she has ever written. Confirm the number of times he or she has been named as having a medical opinion for any defendants and plaintiffs, in court, depositions, or merely reports. Search these documents to identify any admissions the expert can make supporting your theories of the case. Know the weaknesses of your case and think of propositions that you can get the expert to agree with that will shore up those problems. Identify all scientific literature that the expert believes is authoritative in the field. Learn everything you can concerning his or her opinions in this case.
Listen carefully on direct. Watch the jurors to see what affects them. Make any adjustments to your questions that are necessitated from the direct. As you know, every question should be a leading question. Listen to his or her answers. Be ready to follow up when necessary. Object to nonresponsiveness and narratives to keep the expert in line. Control the witness. If the witness is unruly, get the judge to admonish him or her. Make the discrepancies you have found very obvious to the jury. Repeat those discrepancies often.
You might try organizing your cross-examination by topics in order to maintain a controlled flow, but do not be afraid to deviate from your script if you have the expert on shaky ground. If you plan to impeach, lay the groundwork carefully. Get the expert out on that limb and be dramatic when you saw it off. Make sure the jury realizes the importance of what the expert just said and how it discredits anything he or she said in direct examination.
What not to do
Avoid being repetitious, except in pointing out the discrepancies. Do not ask a question you do not know the answer to, no matter how tempting. Do not let the witness explain. Do not ask the one question too many, save it for closing argument. Do not open the door to areas you have already been able to exclude by a motion in limine. Avoid open-ended questions. Know when to stop. Your cross-examination should be organized well enough to have three or four good points. When you have made those points-stop. Try to stop on a strong note. Save your best question for last.
Talk to the jurors in a way they can understand. Do not talk to them as though they are lawyers. Our role is to help the jury understand, and to accept, our theory of the case. In order to do that, the theory must be clearly and logically presented. Professor Irving Younger, one of the most respected lecturers on the art of advocacy, suggested that it takes a minimum of 25 trials to really learn the art of examining witnesses. Even after 46 trials, I am still learning. Hopefully, this paper has helped you learn something that will help you in your trial practice.
Stages of RSD 9
Burning pain in dermatome distribution of arterial blood pattern of circulation of the skin, rather than nerve root distribution
Spasm and tendency for immobilization
Vasoconstriction, cold extremity
Tendency for weakness, fatigue, tremor, and spasticity (flexed arm and hand, extended leg)
Over 7 months
Smooth glossy edematous skin
Pale or cyanotic skin
Atrophy of distal muscles
Spasm, dystonia, tremor, osteoporosis fracture, and spasticity
Several months to years
Loss of job
Orthostatic hypotension, hypertension
Skin changes, abnormal hair growth, neurodermatitis, angiectasis, morphea, elephantiasis
Death due to suicide, heart attack, and disturbance of immune system function in the form of repetitive infections
Mary Alice McLarty is an attorney practicing in Dallas Texas. She can be reached by mail at North Dallas Bank Tower, Suite 803, 12900 Preston Road, L.B. 39, Dallas, Texas 75230-1324 or by telephone at (972) 774-9883. Her website is http://www.maryalice.com and her e-mail address is email@example.com.
1M. STANTON-HICKS ET AL., Use of Regional Anesthetics for Diagnosis of Reflex Sympathetic Dystrophy and Sympathetically Maintained Pain: A Critical Evaluation, in 6 PROGRESS IN PAIN RESEARCH AND MANAGEMENT ch. 12; W. JANIG & M. STANTON-HICKS, REFLEX SYMPATHETIC DYSTROPHY: A REAPPRAISAL (IASP Press 1996) (referring to J. Doupe et al., Post-Traumatic Pain and the Causalgia Syndrome, 7 J. NEUROL. PSYCHIATRY 33-48 (1944)).
3C.L. Bernard, Influence du Grand Sympahique Sur La Sensitibilité et Sur La Calorification, 3 R. SOC. BIOL. (Paris) 163-64 (1851), cited in STANTON-HICKS, supra note 1, at 217.
4Stanton-Hicks, supra note 1, at 217 (referring to C.L. Bernard, Sur Les Nerfs Vasculaires et Caloriques du Grand Sympathique, III C.R. Acad. Sci. XXXIV (1852)).
5STANTON-HICKS, supra note 1, at 217 (referring to S.T. Kwan, The Treatment of Causalgia by Thoracic Sympathetic Gaglionectomy, 101 ANN. SURG. 222-27 (1935); J.P. Ross, Causalgia, 65 ST. BARTHOLOMEW HOSP. REP. 103 (1932); W.K. LIVINGSTON, PAIN MECHANISMS: A PHYSIOLOGIC INTERPRETATION OF CAUSALGIA AND ITS RELATED STATES (MacMillan 1943)).
6See Attachment for the four stages of RSD from an article by H. Hooshmand of Neurological Associates, Vero Beach, Florida, entitled, "What is RSD? (Reflex Sympathetic Dystrophy)."
7T. MAUET, Direct Examination, in FUNDAMENTALS OF TRIAL TECHNIQUES 85-86 (1980).
8Quoted in Charles "Nick" Simkins, Direct Examination, Reference Materials (ATLA Winter Convention 1997).
9H.H. Hooshmand, What is RSD? (Reflex Sympathetic Dystrophy) (Vero Beach, Fla.).