Tuesday, May 11, 2021
A Florida trial court has denied a defendant’s Daubert motion to strike the plaintiff’s expert’s testimony regarding qEEG testing. In Snyder v. ESURANCE Property and Casualty Insurance Company, Case No. 01-2018-CA-2651 (8th Judicial Circ. Ala. Chua. Cty., FL), the defendant sought to bar the testimony of Dr. Lisa Avery, an eligible board neurologist, from testifying regarding her interpretation of a quantitative electroencephalogram (qEEG). To support its motion, the defendant submitted “only” three articles and argued at a hearing that using qEEG for diagnosing mild traumatic brain injury had been prohibited by the American Academy of Neurology (AAN) for over 20 years. Noteworthy in the court’s opinion was that the AAN guideline relied upon by the defense was “retired” in January 2020 and was no longer the official position of the Academy.
The defendant presented two expert witnesses: Dr. Mary Schriver, a board- certified neurologist with a sub-specialty in neurophysiology, and Dr. Jason Demery, a board-certified neuropsychologist. While Dr. Schriver testified that she did not believe qEEG was a valid test for the diagnosis of traumatic brain injury, she did acknowledge that other doctors did use the test for that purpose. During the cross-examination, the plaintiff demonstrated that Dr. Schriver was unfamiliar with the software utilized by Dr. Avery, who was not an expert in interpreting it, and did not examine the raw data generated by the qEEG.
Dr. Demery also admitted that he was not qualified to administer or utilize a qEEG, nor was he an expert in qEEG in general. Dr. Demery disputed some findings in the numerous peer reviewed articles submitted by the plaintiff and raised false positives due to sleep apnea or medication, but did not produce, cite or reference any additional peer reviewed articles to support his position.
Contrasting the defendant’s presentation, the plaintiff submitted numerous peer-reviewed articles comprising over 140 pages, including book chapters and scientific journals supporting the use of qEEG in TBI diagnosis. The peer-review literature produced by the plaintiff denied the error rate argument supported by the defendant and established the wide-spread use of qEEG in diagnosing traumatic brain injury throughout the VA Hospital system. The plaintiff’s experts, Dr. Avery and Dr. Richard Boehme, M.D., testified that they used qEEG in their everyday practices and were familiar with the literature and its use. Due to their clinical experience, the court found the plaintiff’s witnesses to be persuasive.
After the court conducted a Daubert analysis, they found Dr. Avery was qualified, her testimony was based upon sufficient facts and data, and that utilizing qEEG as a tool to help diagnose traumatic brain injury was sufficiently reliable, scientific, and valid. The court also found that Dr. Avery reliably applied the qEEG to the specific case before it.
The court found that the case law presented by the defendant was not controlling as the cases cited were decided before the retirement of the AAN position and most were decided under a Frye standard. Based on the evidence offered at two hearings, the court concluded that qEEG testing related to traumatic brain injury was reliable and scientific when used with other tests or data, rejecting and denying defendant’s motion to strike.
Hard to imagine how anyone who understands what it must've been like to be working at Ground Zero on and after 9/11 could think there weren't going to be physical and mental consequences for the workers and survivors of that tragedy. No one should forget the chaos that followed in terms of people struggling to find survivors and the horror that they all endured in the process. It should not then surprise anyone that 20 years later we are witnessing the mental and emotional devastation that typically appears when people are in their 70s and 80s now is clearly evident in these folks in their 50s. The level of toxicity they were exposed to in a matter of days or weeks, most people never come close to in a lifetime.
Our work with people strugging with memory loss has taught us to look to the lifestyle and levels of exposure to black mold and other neurotoxins as well as being infected with spirochetes from tick bites. We also looked to the trauma that they endured in their lives from sexual and physical abuse, chronic pain and respiratory challenges as well as addiction to substances or disordered eating. The mismanagement of emotional stress challenges our immune system along with every other functional system in our body. How would that not add to the degrading our capacity to maintain a healthy internal biological and psychological ecosystem?
The report now about first responders developing early onset dementia comes as no surprise to me or anyone in my professional circle and it offers cold comfort to see these things coming and know there's very little attention being given let alone resources put toward mitigation of the downside risk and the inevitable disaster facing these brave souls who put their lives on the line for us every day. Grief over the enormity of the loss we suffered and that which was yet to come turned to anger shortly after the towers fell and it was clear that precious little attention being paid to the long term impact of being on the pile. The shocking enormity of the moment constrained most of our thinking to short term problem solving, coping with the next moment and the next. The axiom of those in recovery from addiction became the mantra for the country... 'one day at a time.'
There are tools available to these people to help them deal with their symptoms and possibly reverse their conditions or at least change the slope of decline. We've shown this to be true in our research on the use of self-administered transcranial infrared photobiomodulation (light therapy) and brainwave biofeedback. We are ready to help these heros first by letting them know that there is hope for recovery and the truth that time is the enemy in this situation. The sooner you start treatment the greater the chances are for improvement. Put the resources behind noninvasive technologies that have been proven effective in gold standard clinical trirals, that have no side effects, are easily deployed and would cost a fraction of what has been spent on the 500+ failed pharmaceutical trials in the vain search for a single molecule solution to a systemic disease. Researchers like Tom Lewis PhD (healthrevivalpartners.com) and Dale Bredesen (apollohealthco.com) foundational work has shown us there are alternatives to treating dementia, let's put them to work now for these brave souls who deserve nothing less than our absolute best.
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