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Deposition Essay

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July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards

IN ARBITRATION * * * TRAVIS CARD, Plaintiff, v. AMERICAN NATIONAL PROPERTY AND CASUALTY, Defendant. ) ) ) ) ) ) ) ) ) ) Deposition of: SPENCER E. RICHARDS

* * *

July 3, 2014 10:00 a.m.

CHRISTENSEN & HYMAS 11693 South 700 East, Suite 100 Draper, Utah

* * *

Wade J. Van Tassell - Certified Realtime Reporter Registered Merit Reporter DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 2
APPEARANCES For the Plaintiff: Kenneth L. Christensen Matthew Hansen Jake Lee CHRISTENSEN & HYMAS 11693 South 700 East, Suite 100 Draper, Utah 84020 For the Defendant: Sade A. Turner STRONG & HANNI 102 South 200 East, Suite 800 Salt Lake City, Utah 84111 Also Present: (Via Telephone) Dorothy Clay Sims Oregon Hunter

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*** INDEX EXAMINATION By Mr. Christensen By Ms. Turner By Mr. Christensen PAGE 3 132 157

EXHIBITS No. 1 No. 2 3-19-14 Ltr, Turner to Richards 11-14-13 Deposition Transcript Excerpt 86 86

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Uh-huh. MS. TURNER: Mr. Christensen, these are the medical records because we didn't print them all out. MR. CHRISTENSEN: I figured. And you had sent me those, but I appreciate you bringing them. We might open them up and refer to them, actually. Q. Did you happen to have in your file your billing for your services at all? A. No. Q. And why is that? A. My wife takes care of that so I don't keep a record with me of billing. Q. How does she typically do that? MS. TURNER: Objection. Foundation. Answer it if you know. A. I give her the hours that I spent working on the case and then she sends an invoice. Q. And where is the documentation for your hours? Is it on your handwritten notes? A. So up at the top I keep track of hours right up there at the top of the sheet. Q. Okay. And can you explain these numbers to me? A. You have a copy of this in there, by the
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A.

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PROCEEDINGS SPENCER E. RICHARDS, called as a witness by and on behalf of the plaintiff, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. CHRISTENSEN: Q. Dr. Richards, thanks for coming in. I just want to start by introducing a few people. Our new associates just want to sit in. They heard great things about you. They just wanted to meet you and listen to the deposition. Also, I'm going to have via the Internet and telephone a board-certified physical medicine doctor that's been practicing for 30 years, his name's Dr. Oregon Hunter, he'll be listening in, and another attorney, Dorothy Sims, that will be assisting me today, just so you're aware of that. A. Okay. Q. Did you bring your file with you? A. Yep. Q. Can I look through that. (Discussion off the record.) A. There's a copy of that in there. Q. Are these your handwritten notes?

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way. Q. Okay. I see it. Thank you. A. So on the column there, the date 3-29 would be March 29th, and then the amount of spent right next to it. Q. So on the 3-29 it says 15 minutes; is that correct? A. Correct. Q. On the 30th, it says 48 to 50 minutes? A. Uh-huh. Yes. Q. 3-21, it says two hours and 12 minutes? A. That's 3-31, but, yes, two hours and 12 minutes. Q. Okay. April 3rd is 15 minutes for an IME? A. Correct. Q. And April 6th is an hour 50 minutes for the report? A. Yes. Q. Okay. And do you have any type of letter of engagement setting forth the terms of your representation? A. That's what you have in your hand there. Q. This letter from Strong & Hanni? A. Correct.

2 (Pages 2 to 5) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 6 Page 8

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Q. Okay. A. Is that what you're referring to? Q. I'm wondering if you lay out your fees and terms in any type of letter to them? A. Yes, we do, but I don't have a copy of that. Q. Okay. Can you tell me what your fees are? A. $500 an hour. Q. And is that for everything? A. Correct. Q. Even if you testify in court? A. Correct. Q. Okay. A. I believe. Q. Are there any e-mails that have gone back and forth between you and counsel? A. Not that I'm aware of. Q. Okay. And the letters that have gone forth between you and the counsel that hired you, is it only the letter of March 19th that you attached to your file? A. I believe so, because I do keep them, the best of my ability. There's this letter that came just about the deposition, but I believe that was
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to answer the question. You can object to the request later. MS. TURNER: I'm instructing him not to answer. MR. CHRISTENSEN: Are you familiar with the rules on instructing someone not to answer? MS. TURNER: Don't patronize me. I have already responded to it. I will get you the invoices, but you cannot communicate directly with my expert. Q. What else does she do besides the billing? A. For me? Q. For your business. A. That's all she does. Q. Is it a separate business than what you do for your practice? A. Correct. We run it independently, yes. Q. And does it have a different name? A. No. Q. Entity? A. No. Q. You've never created a business for it? A. No. Q. There's no tax ID number for it?
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from you. Q. Okay. A. And that's all I have. Q. Okay. The notice, court notice? A. Correct. Q. You mention that your wife keeps track of the billing. How can we obtain those documents? A. We can send those via e-mail or fax. MS. TURNER: You can do a request to my office. MR. CHRISTENSEN: Okay. Q. Can you give me her e-mail address? MS. TURNER: No. I don't want you communicating with my expert directly. You can do a request to my office. MR. CHRISTENSEN: I'm not. Okay. I'm requesting it from his office. MS. TURNER: I'm objecting to that. He's a retained expert. MR. CHRISTENSEN: That's all right. You can object. Q. But can you still give me her information? MS. TURNER: No. MR. CHRISTENSEN: You can't prohibit him

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A. No. Q. Do you declare taxes? A. Correct, through Social Security number. Q. Okay. And who pays your wife? A. Nobody. Q. She just does it for free? A. Yep. Q. Okay. When she does do the billing, does she fill out a HIPAA form? In what format does she send a bill? A. I believe she just sends an invoice. Q. Okay. So how is it a different business than your normal practice if there isn't a different tax ID or . . . A. Sorry. Help me understand that a little bit more. I work in my practice, in a medical practice with Intermountain Medical Group and then this is just run independently as a -Q. I guess my question is: Does the money that you receive from forensic cases, does that go to your business with IHC or does it go to your home? A. Just to our home. Q. Let me just take a minute and read through this letter from your client.

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July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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(Discussion off the record.) Q. I'm noticing in this letter that Ms. Turner sent you that she opines that there may be excessive rhizotomy treatment. Do you start with a presumption when you do an IME? A. No. Q. She also gave you a summary of the accident. Do you rely upon her summary? A. No. Q. Did you print out all documents, digital or otherwise, that exist besides the ones on that disc that just included the medical records? A. I didn't print out any documents. Q. Okay. This is everything besides what's on the disc of medical records? A. Correct. Yes. Q. Was there a draft report that you discussed with Ms. Turner before finalizing it? A. I don't believe so. Q. If there was, would you keep a copy of a draft? A. No. Q. How does that letter from Ms. Turner compare to the ones you typically get when you're retained by a law firm?
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information from doctors saying that. Q. And where did you get that information that you relied upon? A. Just the medical records that were sent to me. Is that what you're asking? Q. No. I'm sorry. The information that she stated was excessive, that came from this letter only, right, of March 19, 2014? A. Asking about her opinion, yes, that's the only information I have. Q. Okay. And she did not accurately restate the medical records, did she, when she stated that? A. She didn't refer to a medical record, I don't believe. Q. Well, her statement about the excessive rhizotomy treatment, that was not in accordance with the medical records that you reviewed? A. No, again, not that I reviewed. Q. Okay. What were you hired to do in this case, Dr. Richards? A. Provide my opinion on whether the injuries reported by Mr. Card were related to the accident and to give any further opinion on the care that he received. Q. You provided us with a case list, or
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MS. TURNER: Objection. Vague and ambiguous. Q. You can answer. A. Typically, they just ask me to review the records and give my opinion. Sometimes they'll ask specific questions like she's asked. Sometimes it's more just an opinion on injuries and care, appropriateness of care. Q. How often do they insert the attorneys' opinions and their own summaries of the treatment and accident like Ms. Turner did? MS. TURNER: Objection as to characterization of what's in the letter. You're not reading what's actually in there. You're giving your own testimony as to what you think it says. Q. Go ahead. MS. TURNER: You can answer. A. I think most often they don't give as much detail or information. Q. Other than her opinion saying that they were excessive, the rhizotomies and treatments, would you agree that there was nothing from any doctor saying that the injections were excessive? A. Yes. I don't recall any medical

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Ms. Turner provided it to us possibly, but it lists two cases on here, November 14, 2013, and January 30, 2014. Will you review those for me. A. "Review" them as in tell you whether I did -Q. Just look over it. A. Yes. Q. Tell me the two cases that you handled. A. Nielsen versus Olsen and then the second was Smith versus Hansen. Q. Okay. And are those the only two that you've ever done? A. That I've either had deposition or trial testimony. Q. Okay. A. Correct, yes. Q. And so that's a current list at this time? A. Yes. Q. And besides the ones that you've provided deposition or trial testimony for, how many other examinations do you believe that you've done? A. Including this one, nine others. Q. And how many of those would be for a plaintiff's side?

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July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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A. None. Q. None. They were all defense? A. Correct. Q. And the Nielsen versus Olsen one was actually taken by my business partner, Russ Hymas. Do you recall that? A. Yeah, I do. I didn't realize -- I didn't put it together, but, yes, I remember that. Q. Were you given photographs of the collision in this case? A. Not that I recall. Q. I'd like to show those to you. A. No, I was not. Q. Do you think it's important to review photographs when forming your opinions and reviewing documents? A. In past cases it hasn't made a significant difference. Q. Have you ever been given photographs of low-impact cases? A. Yes. Q. I show you those photographs. In this case, he actually had five impacts, didn't he? A. I'd have to think through that. Q. I'll walk you through it.
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pain immediately after the crash? A. Per his report to me, he doesn't remember having pain immediately after the crash. Q. Do you have a specific note of that in your file? A. I believe it was on my handwritten notes at the time of the IME. I can check that. Q. If you'd like to point that out to me. And did you review his deposition? A. I don't believe I -MS. TURNER: You may need the letter from me back. It lists out all the documents. MR. CHRISTENSEN: I'm just asking what he reviewed. A. I don't remember reading it. Q. Reading a deposition? A. His deposition. Q. Okay. A. I can't say I didn't. I just don't remember. Q. Do you have your report in front of you? A. I do. Q. On page 1 of your report you indicated that he was stiff -A. Correct.
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A. Thank you. Q. Let's do it together. He was T-boned on the driver's side and then there was an impact on the rear side, rear driver's side. Do you see that? A. Yes. Q. Then he crashed into a telephone pole? A. Yes, I remember that. Q. Crashed into a ditch and the air bags deployed driving his face into the headrest; is that correct? A. Yes. Q. And he was going 55 miles an hour when the crash occurred; is that right? A. That's what he told me, yes. Q. Have you researched the impact of air bag deployment on neck injuries? A. No. Q. Okay. Would you deny that an air bag can exacerbate or even cause a neck injury? A. No. Q. Will you be denying in this case that a crash occurred? A. No. Q. Okay. Do you deny that he experienced

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Q. -- all over his body immediately after the accident. A. Correct. Q. So he did have some pain, correct? A. Not necessarily pain isn't always categorized as stiffness and vice versa. Q. But it is subjective? A. Correct. Q. And that was on Friday that he was stiff, correct? A. If that was the day of the injury, yes. Q. And he saw a doctor on Monday, the first business day after -A. He specifically told me as well that he can't give an exact time of the onset of pain symptoms, but thinks by Monday after the accident he was having pain. And that was specifically from him. Q. And what are you referring to when you state that? A. My report. Q. Not your notes? A. I don't have that written in my notes, that I see. Q. So he had stiffness on Friday and he saw

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July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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a doctor on Monday. You would agree that he obviously could have had pain that progressed causing him to make an appointment on Monday? MS. TURNER: Objection. Calls for speculation. A. He could have. Q. It's common with your experience with your patients? A. Yeah. Pain delay onset can certainly happen. Q. And you agree that he ended up on Monday at the doctor's office with neck and low back pain? A. That's what he reported. Q. And would you -A. And the InstaCare record corroborated that. Q. Okay. Would you deny that the pain he experienced the day of the crash was caused by the crash or the stiffness? A. No. The stiffness, yeah. Q. And the pain the day after or three days after that was also caused by the crash; is that correct? A. That's what he reported, yeah. Q. Do you deny that?
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A. Yeah. I have no record to support otherwise. Q. So you agree with me that there were no prior injuries or symptoms that you're aware of? A. Correct. Q. He had no symptoms before the crash, correct? A. Correct. Q. I just want to clarify between injuries and symptoms. A. Yeah. Q. So you would agree that he had immediate stiffness, pain symptoms, and I'm talking within three days, that have continued all the way up until when you saw him? A. Correct. Q. And will you be saying now or have you ever said that there is any -- that there's another more likely trauma that he experienced which causes his current pain? A. There's not another more likely -- I'm sorry. Say that again. Q. Are you saying now or will you be saying that there was any other trauma that likely caused his current symptoms?
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A. I have no reason to deny that. Q. Okay. And even a week after you have no reason to deny that either? A. No reason to deny that, no. Q. How about a month after, the pain that he was experiencing a month after was caused by the accident? A. I don't have any reason to deny that. Q. Okay. Do you deny that he experienced symptoms through the date of your exam secondary to the crash? A. So the date of my IME exam? Q. Correct. A. I'd have to qualify that and say I think there are other factors that would contribute to his ongoing -Q. I'm not asking about the cause. I'm asking whether you deny that he actually had symptoms all the way up and to the day of your examination? MS. TURNER: Objection. Asked and answered. A. No. He reported he had symptoms. Q. Okay. And you agree with me that he had no prior injuries before this crash?

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No. MS. TURNER: What do you mean "trauma"? What's the definition of "trauma"? It's ambiguous. MR. CHRISTENSEN: He answered. Q. Is that a "no"? A. Yeah. There's no other trauma other than the potential trauma from sports or repetitive lifting or work. Q. Okay. And you're not aware of any of those that you're claiming in this case as a cause of his pain? A. Correct. Q. Okay. And will you be saying that he needs no current treatment for the crash? A. For the crash? Q. Uh-huh. A. Correct. Q. Okay. Would you agree some of his ongoing current treatment and need for treatment is related to the crash? A. No. Q. Even though he was asymptomatic before the crash, the five crashes? A. Correct. Q. And even though he became symptomatic

A.

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July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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after the five crashes and continues to be symptomatic? A. Correct. Q. What is the day the treatment was no longer due to the crash? A. It's obviously almost impossible to point a day, right, but according to the record, you know, after he had had that first round of chiropractic care and physical therapy, you know -most of these injuries that are associated with an accident such as his cause a strain in the thoracic or cervical spine and would resolve within three to six months. So if we put a six-month time frame on that, I don't have a day, but it would be in the summer or fall. Q. Okay. And you're talking about generalities. I want to talk specifically about this case. Specifically what became the new cause of his pain that continued? If all of a sudden it wasn't accident or crash related, what was the new cause and on what day? A. There's not a specific day, but it's the repetition of his daily tasks with his work and lifting loads as well as some of the sports activities that he's involved with.
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Q. Do you do any work comp cases? A. Yes. Q. Can you tell me about that part of your practice. A. In what respect? Q. What percentage of your practice involves -- of your patients that you see involves workers' compensation cases? A. Probably I'm guessing 5 percent. Q. And can you break down your percentage of practice? If that's 5 percent, what's the other 95 percent? A. Just nonworkers' comp cases of various musculoskeletal pains, injuries, problems. Q. Okay. Have you or your partners ever written a report denying frequent lifting -denying that frequent lifting causes permanent problems? A. So let me restate that. Have I ever written a report saying that what? Q. That frequent lifting does not cause permanent problems. A. I don't know what my partners have written, but for me I don't recall ever writing a report saying frequent lifting does not cause pain
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Q. Even though there was no event, you believe that his pain was caused by daily activities; is that your opinion? A. Correct. Q. And you understand and agree with me that he did not have any pain from daily activities before this crash? A. Correct. Q. Do you deny that he experienced facet pain due to the crash? A. No. Q. And why is lifting more likely to cause a pain versus five crashes being hit by a 2,000-plus-pound car? A. Because it's repetitive. Q. Okay. Even though he was hit five times? MS. TURNER: Let him answer. Let me finish the answer. A. Yeah, I don't deny that that caused pain, but I believe that would have resolved had he not continued the daily repetitive movements associated with his job and recreations. Q. And you agree that he lifted boxes and did his job for three years without pain? A. Yeah.

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or problems. Q. Walk me through physiologically of how proper lifting is more likely to cause a permanent problem versus five crashes from a car, pole, and ditch. MS. TURNER: I'll object to the characterization of "proper lifting." A. Yeah, I mean, that's -Q. Lifting in general. A. Okay. So say the question again so I'm clear. Q. So help me understand. I want you to explain the anatomy of how the very same pain he experienced from the crash became later caused by his repetitive lifting and twisting. A. The anatomy? Q. Yeah, in this case specifically. A. Okay. Well, you know, the facet joint is a small joint in the spine connecting two subsequent vertebrae and then there's ligaments that hold the vertebrae together and muscles that attach to and move the vertebrae inducing motion at the facet joints. So the repetitive moving or bending or lifting can cause muscles to contract moving the

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Card v. American National Property and Casualty

Spencer E. Richards
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vertebrae potentially inducing shear or inflammatory changes in the facet joints, which could perpetuate or cause pain. Is that what you're looking for? Q. Well, I want to know how it happened specifically in my client, how he went from having pain associated with five crashes to all of a sudden having pain that's not associated to the five crashes and now it's -MS. TURNER: I'm going to object to the extent you've said there were five crashes. There was one crash with five different impacts as represented by counsel. I'll also object to the remainder of the question as compound and vague. Go ahead and answer to the best of your ability. A. Can you restate that. Q. In this case, you indicated that at some point his pain and symptoms, which were caused by five impacts, transitioned and moved over to repetitive lifting. I want to know specifically medically what caused it to switch in this specific case for Mr. Card. MS. TURNER: I'll also object to the characterization of having it switch. Go ahead and answer.
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neck, right? A. Of course, you're using neck muscles when you lift even if you're using your arms. You have to use your arms which engages the axial muscles around the spine including the cervical spine. Q. Doctor, is it your opinion that a five-impact injury causing immediate pain somehow is due to lifting which has never been a problem before? Is that logical? A. Say that again. Sorry. Q. If lifting causes his injury, why didn't it injure his low back? A. He did complain of low back pain when he went to the chiropractor, but I'm not saying that lifting caused his pain. I think we established that he had pain after the accident. I'm saying that perpetuates any problem or it becomes a causative factor when it perpetuates over time. Q. So then can you tell me what the exact cause of his current pain is? A. I believe it's ongoing daily activities with lifting as well as some of the sports/recreation activities that he engages in. Q. Don't you believe he'd be more likely to have lumbar -- more serious lumbar injury than neck
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A. Yeah. I think with anybody, and this is, again, based on my clinical experience, that anybody in a repetitive lifting work setting has a risk for developing axial or spinal pain. And in this case specifically, obviously, we can't tie it back to one specific instance because there's no reported incident in repetitive lifting, but that job and the associated stresses for Mr. Card, in my opinion, had to have contributed to his ongoing symptoms. Q. Is the reason that you cannot identify a day the pain no longer became due to the impacts is because it would cause you to speculate? A. Absolutely. Of course, there would have to be speculation. Q. And that's why you're unable to give me a specific date? A. Correct. Q. Do you have literature articles indicating proper lifting done throughout the day is more likely to cause facet injuries versus five impacts and a multiton-vehicle collision? A. No. Q. And you agree that he's not -- Mr. Card, when he lifts boxes, he's not lifting with his

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injuries if it's for repetitive lifting? A. Not necessarily. I see all types of patterns. Certainly lumbar pain is more common in general population, particularly in labor work where there's repetitive lifting, but it certainly doesn't mean in this specific case that it would be more likely. Q. Do you agree that with some people spraining can become permanent? A. Yeah. Q. In fact, you have testified in other cases that if someone's having symptoms for more than two years, it's likely chronic? A. I've testified that? Q. Correct. A. In what case? Q. Do you agree with that statement? A. So the statement that if it goes more than two years? Q. After two years, it's likely to continue -MS. TURNER: Objection. Foundation. Q. If the pain continues for beyond two years, it's likely chronic? MS. TURNER: Same objection. Go ahead.

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Card v. American National Property and Casualty

Spencer E. Richards
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A. By definition, chronic is more than two years, of course. It's even shorter than that. Q. It's less likely to resolve after two years? A. Yes. Q. Okay. Are you of the opinion that in all persons, sprains are never permanent? A. No. Q. Okay. So in this case, do you agree that he could have -- Mr. Card could have a permanent condition due to the strain that he initially received? A. As I said, it's always possible. Q. And I'm asking: Since he still has the symptoms today, do you believe that he could have a permanent condition? A. Could. Q. Are you a member of the AMA? A. No. Q. Do you agree that doctors are bound by codes of ethics? A. Yeah. Q. And do you agree that a doctor should not give medical advice on a topic in which he's not specifically trained or has experience in?
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A. Correct. Q. Do you agree with that? A. So say that again. Q. It does say in that opinion that the doctor does have a patient/physician relationship with the person that you're examining even though you were hired to perform a defense medical examination. MS. TURNER: Hold on. Objection. The document speaks for itself. Q. You have the document in front of you. Do you agree with that? MS. TURNER: Do you want him to read it? Q. If you need to. MS. TURNER: And tell you what it says? MR. CHRISTENSEN: I will ask him. Q. You said you were familiar with the AMA and so that's why I asked you in general. If you need to review it to answer that question, please do. MS. TURNER: I'd also object because AMA opinion 10.03 actually is titled "Patient/Physician Relationship in the Context of Work-Related and Independent Medical Examinations." It doesn't say anything with respect to DMEs as represented by
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A. Yes. Q. Do you agree that if a doctor gives a recommendation on a subject in which he is not competent, it can cause harm? MS. TURNER: Objection. Vague and ambiguous. A. Say that again. Q. If a doctor gives an opinion or recommendation on a subject that he's not trained in, it can cause harm? A. Yeah. MS. TURNER: I'll also add foundation. Q. And you agree that a doctor should stay within his bounds of competency? A. Correct. Q. Are you familiar with the AMA codes of ethics? A. I don't have them memorized, but I am familiar generally. Q. I'm going to refer specifically to opinion 10.03, which indicates that a doctor does have a patient/physician relationship even though somewhat limited in the context of a DME. Do you know what a defense medical examination is like you were hired to do in this case?

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opposing counsel. MR. CHRISTENSEN: Okay. Q. You've referred to your examinations at times, Dr. Richards, as "IMEs"; is that correct? A. Correct. Q. Okay. So my simple question is: Do you agree that a patient/physician relationship does exist in these type of examinations? A. Yes. Q. Okay. And you would agree with me that you should be objective when performing these examinations and in forming your opinions? A. Yes. Q. And you should not reach opinions that could subject the patient to unnecessary danger or harm? A. Correct. Q. Do you agree that you should disclose fully potential or perceived conflicts of interests? A. Yes. Q. And that the physician should inform the patient about the terms of the agreement between himself or herself and the third party as well as the fact that he or she is acting as an agent for

9 (Pages 30 to 33) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 34 Page 36

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that entity? A. I wasn't aware that we disclose the terms, but I do make clear who I'm representing and why. Q. Okay. When you say "why," what do you explain? A. Just that I was hired by the defense counsel to provide an independent exam and that I take that responsibility very seriously to try to maintain objectivity and be independent. It's a typical introduction for when I do these examinations. Q. And when you do these examinations, you agree that you should not give sworn testimony outside the bounds of your training or competence? A. Correct. Q. And when you're not an expert in a field, you should admit this when questioned -- when questioned about something beyond your expertise? A. Correct. Q. And if you give an opinion in areas in which you are not an expert, it can expose the patient to danger, correct? A. Not in an independent case like this. They still are free to make their medical
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Q. And keeping the patient from deteriorating physically and emotionally? A. Yes. Q. Would you agree if a doctor makes an incorrect treatment recommendation, it can cause harm to the patient? A. Correct. Q. It can increase pain? A. Uh-huh. Yes. Q. It can increase suffering? A. Yes. Q. Decrease sleep? A. Yes. Q. Decrease ability -MS. TURNER: I'm going to object to this whole line of questioning as speculative and lacking foundation. Please continue answering. A. Yes. Q. It can decrease someone's ability to work? A. Yes. Q. Decrease function? A. Yes. Q. It can decrease quality of life? A. Yes.
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decisions. I'm not evaluating whether they can or can't. I don't see how that would cause danger. Q. Well, it goes back to possibly, don't you agree, this physician/patient relationship if you're giving opinions? A. I don't give my opinion directly to him. I give my opinion on whether the accident caused his reported injuries so it doesn't change his decisions on care. Q. Okay. In general, if someone relies on opinion from a doctor who testifies outside of his competence, it can cause danger, correct? A. Correct. MS. TURNER: Objection. Speculation. A. If the patient, like you said, relies on that opinion, yes. Q. And would you agree that doctors should attempt to alleviate pain when possible and appropriate? A. Yes. Q. And if someone is injured, some of the doctor's goals should include increasing function, assisting the patient if there are sleep problems? Do you agree with those two? A. Yes.

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Q. Would you agree that pain can decrease quality of life? A. Yes. Q. And someone's ability to function? A. Yes. Q. And sleep? A. Yes. Q. It can even affect concentration and memory? A. Concentration, yes. I'm not sure the link to memory. Q. Pain can negatively affect family relationships, in your experience? A. Yes. Q. Do you agree that chronic pain can be alleviated using methods that do not cause harm to the patient -- sorry. Do you agree that if chronic pain can by alleviated using methods that do not cause harm to the patient, the doctor should do so? A. Yes. Q. Do you agree that cutting off medical care to an individual who is in chronic pain and has benefitted from treatment may cause harm? A. Yes. Q. And if an individual has chronic pain and

10 (Pages 34 to 37) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 38 Page 40

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sleep difficulties, those problems can be even worse? A. Sorry. Say that again. Q. If an individual has chronic pain and sleep difficulties, their problems can become even worse, the combination of those two can exacerbate all the other problems? A. Pain and sleep difficulties, correct. Q. Let me ask you about reflexes. What do you test reflexes for? A. Nerve function. Q. And what does absent 1 plus, 2 plus, 3 plus, 4 plus mean in terms of reflexes? A. Just describes the degree of reflex activity. Q. And you would agree that plus 1 is hypoactive? A. That's obviously somewhat of a subjective measure doctor to doctor. 1 to 2 plus is, in my opinion, a normal range. Q. And what do you base that opinion on? A. Experience -Q. So then what is 2 plus? A. -- training. Q. 1 and 2 are the same to you?
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A. Yeah. Q. What degree? A. A lesser degree of movement. Q. What degree before you get to 2? A. "What degree," I'm not sure how to answer "what degree." Are you talking -Q. You're testing the leg moving up, right? A. Uh-huh. Q. And so if it moved up 20 degrees, 40 degrees, 60 degrees, do you have any -A. It's more of a subjective feel than an absolute measurement of the arc in motion. Q. In your experience, then, what number, what level is hypoactive? A. Absent or trace. Q. Can you give me an example? A. If it doesn't move or only just a minor flicker even with unmasking techniques. Q. What number is trace? A. Trace is just a flicker. It's less than 1. Q. Wouldn't zero be absent? A. Yeah. Q. Okay. A. I didn't say they were the same thing.
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A. No. I didn't say they're the same. I said it's a normal range. Q. Okay. Your training and education, though, you've been told that plus 1 is hypoactive, correct? A. No. I didn't say that. Q. Have you ever been told that? A. No. Q. Have you ever read that? A. Not that I'm aware of. Q. So help me understand the difference, then, between 1 and 2. A. It's just a measure of how brisk the reflex response is. Q. And can you give me an example? A. I'm not sure I know how to give you an example of the difference between 1 plus and 2 plus. Is that what you're asking? Q. Yeah. You said it's a difference in the reactive level. Are you testing the knee? What part of the body are you typically testing? A. Typically test the knee, the ankle, the elbow, forearm. Q. Is there a degree of reflex that makes you choose category 1 instead of 2?

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I'm saying so absent or zero and then I use a description "trace" if there's a small, you know, barely noticeable movement. Q. So trace is plus 1, isn't it? A. No. Q. Why not? A. Because it's less than plus 1. Q. Zero is absent? A. Right. Q. So if you have something, wouldn't that make it plus 1? A. No. Q. Okay. A. For some doctors, they may describe it that way, but that's not how I -Q. That's not what you were taught in medical school, was it? A. No, or in medical school or residency or fellowship. Q. This is just your own interpretation in the way you use the scale from 1 to 6? A. No. Multiple doctors use the same relative scales. Q. All right. I'm just going to lay a foundation for another line of questioning. So

11 (Pages 38 to 41) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 42 Page 44

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you'll agree with me that Mr. Card was completely asymptomatic prior to these impacts, correct? A. Yes. I have no reason to think otherwise. Q. And he had no significant trauma prior to these crashes? A. Not that I have any reason to suspect or believe. Q. And he went back to a doctor and got a release to go back to work soon after the crash? A. I believe the first record that I have of a release to work was a Work Care record on September 16, 2010, so it was quite some time past the accident. If there were others, I'm not aware. Q. He never claimed that he was totally disabled, did he? A. Not to me. Q. He didn't apply for Social Security disability, did he? A. Not that I'm aware of. Q. He didn't ever demand stronger narcotics, did he? A. Not that I'm aware of. Q. He didn't demand additional narcotics, did he?
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pain. In this case, it was positive, wasn't it? A. Positive as in it relieved his pain, yes. Q. Okay. What is an objective test, Doctor? A. A test that is measurable by a second person. Q. Was this an objective test administered by the doctor? A. It's subjective because it's dependent on his report of pain. Q. Will you agree with me that it's not uncommon for doctors to use this as a diagnose -use this to diagnose a condition? A. No, it's not uncommon generally. Q. On page 3 of your note -A. Can I ask you a question on that, though? Q. Sure. A. Are you speaking specifically about the facet injections -Q. Yes. A. -- or just a diagnostic injection? Q. I'm talking about specifically the facet injection. A. And are you talking specifically about cervical, thoracic, or lumbar or just generally? Q. Generally. Has your opinion changed?
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A. No, not that I'm aware of. Q. He cooperated with his doctors, didn't he? A. Yes, I think he did. Q. And he cooperated with you, too? A. Yes. Q. Even though the defense hired you, didn't he? A. Oh, yes. Q. Page 4 of your report you say "On April 3, 2014, Mr. Card saw me for an IME. He was friendly and cooperative and a good historian." Is that correct? A. Correct. Q. You did not diagnose him as malingering, did you? A. No. Q. Or lying? A. No. Q. Nothing should be taken as a negative content about his -- taken negatively about his credibility? A. No. Q. You suggest on page 9 that a branch block can be the standard for diagnosing facetogenic

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A. Well, generally I think it's quite accepted in the cervical and lumbar spine amongst physicians, but thoracic spines not as generally accepted or performed. Q. Okay. Can you give me your opinion, then, specifically as it pertains to cervical facet injection? A. I think the same opinion as I stated before, that it is done diagnostically. Q. On page 3 of your notes it indicates on 6-15-2010, his medial branch resulted in zero out of 10 pain; is that correct? A. Correct. Q. This means it gave him relief from pain, correct? A. Correct. Q. Okay. And the patient did not ask -- did not claim that the injection didn't work, correct? A. Not that I'm aware of, no. Q. He didn't ask for stronger narcotics, did he? A. Not that I recall. Q. Instead, he stated that it gave him complete relief, correct? A. That's what was reported, yes.

12 (Pages 42 to 45) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 46 Page 48

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Q. On page 8 you gave an impression of neck pain at C7. What does the "C7" refer to? A. The 7th cervical vertebra. Q. And the injection relief indicates nerve involvement, correct? When it talks about the relief after the injection, it talks about nerve involvement? A. It talks about -- what do you mean? What are you referring to, the "it"? Q. The records that you reviewed, I believe. A. The injections generally are done -well, yeah, it can involve nerve. It can also involve the facet joint itself, but all pain is mediated by nerves, so, yes. Q. The relief that they typically get from an injection is from nerve involvement, not soft tissue? A. Correct. Q. Okay. Sorry. I should have clarified that better. A. That's okay. I think we're on the same page. Q. And you agree that trauma can cause nerve damage, can't it? A. Correct.
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pain, then, in this case? A. In Mr. Card's case, again, I believe the facet joints were strained and/or the soft tissues connecting the vertebrae, including potentially ligaments or tendons, muscles. Q. And the nerves were thereby communicating pain to the brain, correct? A. Yes. Q. So what is a sprain? And I'm going to ask specifically does it include soft tissue, facet, disc, ligament, and nerve? A. Yes. Sprain is an injury to a tissue that, then, leads to an inflammatory response and, yes, it can include those tissues you mentioned. Q. And if facet joints are injured, is this consistent with a strain or is it worse than a strain? A. It's consistent with a strain. Q. Okay. Is there a difference in a soft tissue strain and a facet strain that affects the nerves, in your opinion? A. You know, in the general level, no. I mean, the pathophysiology is if the tissue is injured, then it creates the similar inflammatory response, whether it's coming from a joint or the
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Q. And it can be secondary to a facet injury? A. Yes. Q. And a facet or nerve injury is not a simple strain injury, correct? A. No. It doesn't necessarily mean something simple. Q. Not focusing on the word "simple" more than the word "strain," it's not a strain injury? A. A facet can be strained, yeah. Q. Inflamed, is there a difference between "inflamed" and "strained"? A. Inflammation is a result of a strain. Q. Doctor, can you give me your opinion on why the branch block worked in this case? A. Because the pain was coming from that location. Q. And you agree that blocking the nerve is blocking the transmission of pain to the brain? A. Yes. Q. And you said pain coming from that location. Which location are you referring to specifically? A. Where the injection was given. Q. Can you tell me what was causing the

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capsular ligaments that connect the joint or the soft tissues around the joint. Q. You would agree with me that you can have a sprain injury and a nerve injury, right? A. Yes. Q. How can a diagnosis of facet joint involvement from injury be diagnosed and treated? A. Diagnosed either with clinical exam, although that's very difficult, MRI, and in some cases with a diagnostic injection. Q. What type of nerve fibers richly innervate the facet joint capsules? A. What type of nerve fibers? I don't know the type. Q. Do you know how the nerve fibers are activated? A. Either mechanical stretch, compression, or inflammatory chemical. Q. What inflammatory chemicals are released in the body when the facet joints are stimulated? A. Arachidonic acid can be one of them. Q. Are you aware of any others? A. I'm not off the top of my head. Q. That's the only one? A. Yeah.

13 (Pages 46 to 49) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 50 Page 52

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Q. You agree that branch blocks can also be diagnostic for a facet injury, correct? A. Correct. Q. Do you agree that Mr. Card had a facet injury? A. Yes. Q. And is that in light of the branch block results? A. Yes. That's the only way we have any evidence that there was a facet injury. Q. And do you deny that the crash and the five impacts is the most likely cause of that injury? A. No. Q. That was a "no," correct? A. Correct. Q. I'll just ask it in a different way. You believe that the car collision and the five impacts caused the facet injury for Mr. Card, correct? A. Yes. Q. Okay. In your experience as a doctor, what is more traumatic to the facet joint: Sudden acceleration, deceleration, and five impacts versus proper lifting of boxes? A. What is more likely to cause an injury,
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called it a residential route that doesn't require him to lift that much that often. Q. Okay. So you have no information about what weight he typically lifts on a daily basis? A. Correct. Q. Or how often? You have no idea how many deliveries he performs where he has to lift something more than 10 pounds? A. It runs in my mind that we did talk about that, but I don't remember taking notes on that so I can't comment. Q. Do you know if his job duties were modified after the crash? A. I believe he told me they were not. Q. Do you have that in your notes? A. Let me look. Q. Just like you said, you should not speculate in your report -A. Yes, I have that in my notes that he reported no change since the accident in his work. Sorry, what did you say about speculation? Q. That's okay. Go ahead. Did you rely on any medical journals or articles in forming your opinions in this case? A. No.
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is that what you asked? Q. Yes. What is more traumatic? A. More traumatic would be the acceleration/deceleration. Q. From an impact -A. From an impact, correct. Q. -- trauma? And you agree that facet joint damage increases with trauma -- the risk of facet joint damage increases with trauma? A. It can, yeah. Q. More so than proper lifting? A. I mean, that's relative to what type of lifting, how much they're lifting, what was the damage. So if you're talking generally, it's hard to say. Q. Do you know what Mr. Card was lifting in this case, how much, how often? A. He told me that his job requires him to lift I think it was up to 150 pounds is what he told me. Q. Did you ask him specifically how often he lifts that high amount or what weight he typically lifts on average? A. I didn't ask him that specifically. He did report though that he, you know, has I think he

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Q. Do you ever -A. In a case -Q. -- in performing your nine IMEs that you've done in forming your opinions? A. Yeah, I believe -- yeah, there have been a couple of instances where I have looked at articles to help. Q. In this case, you did not? A. I'm trying to remember. Q. Because I specifically asked for all articles that you relied upon and I was given a letter stating that you relied upon no articles. A. Yeah, I don't remember looking at any articles specifically. Q. You didn't rely on any books either? A. No. Q. Can you tell me who the leaders in the field of sports medicine are? A. Who the -- excuse me? Q. Leaders in the field of sports medicine are? MS. TURNER: Objectively? Subjectively? What? A. Names of doctors? Q. Yes.

14 (Pages 50 to 53) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 54 Page 56

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A. No. Q. No. Can you tell me some authoritative books in the field of sports medicine? A. No. Q. Okay. Do you consider yourself an expert in sports medicine? A. Yes. Q. How about rhizotomies, are you familiar with any leading experts in the specific medical treatment using rhizotomies? A. No. Q. Can you give me any articles or journals that are authoritative on rhizotomies? A. No. Q. How about facet blocks? A. No. Q. Branch blocks? A. No. Q. Okay. Isn't it true that you've suggested in facet cases in the past that both the injection and the patient can be of assistance in treating the condition? A. Yes. Q. Sorry. Injections and physical therapy can be of assistance in treating a condition?
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correct? A. Yes. Q. And so how did the crash cause facet pain in this case? A. I believe I just answered that. Q. Specifically -A. What else? Q. It seems general. I want to know specifically in this case how the facet -- the crash caused Mr. Card's facet pain in your medical opinion? A. Just like -MS. TURNER: Objection. Asked and answered. I followed it. Q. If you can restate that, I must have missed it. A. Just like we established and you said in a previous question, just the rapid accelerations, decelerations, and rotations of the spine at impact can, I think, lead to facet injuries. Q. What about the acceleration/deceleration causes that? How does that injure the specific facet? A. If it applies an abnormal or unusual stress to the joint that leads to shifting or a
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A. Yes, but that's been specific to cervical and lumbar cases that I've been involved with. Q. Okay. And you've also stated that chiropractic care can be beneficial as well? A. Correct. Q. And you've testified that joint-mediated pain can be caused by trauma, haven't you? A. Yes. Q. There's no indication that my client's current condition and symptoms are the result of degenerative changes, correct? A. Correct. Q. You admitted that my client's collision, the crash, was a contributing factor in causing his pain? A. Yes. Q. Can you please explain how that is. A. How it contributed to his injury? Q. Uh-huh. A. I think we've established that, that just like you said in a previous question that acceleration, deceleration, and impact can cause increased force through the spine or facet joint specifically. Q. So his pain is currently in the facet,

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strain like we've established on the soft tissues that support or connect at the facet joints. Q. As part of your one-year training in sports medicine, would your transcript reveal that you were instructed and actually performed rhizotomies? A. No. Q. No. You do not do these injections yourself, correct? A. No. Q. Is that a "no"? A. Yeah. Q. As to the rhizotomies, walk me through how the doctor usually finds the nerve ending to apply the chemicals to. A. I don't do that so I'm not going to speculate. Q. Okay. Do you know what the exact chemicals are that are used in a rhizotomy? A. There's a local anesthetic and then it depends on the doctor's preference. Q. Do you know what devices are used in a rhizotomy? A. No. Q. What comes out of the radiofrequency

15 (Pages 54 to 57) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 58 Page 60

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probe? A. Like in terms of heat? Is that what you're talking about? Q. Yeah. What's the probe -- the doctor uses a probe, something comes out of it to perform the procedure. What comes out of it? A. Again, I'm not going to speculate. I don't do that procedure. Q. Do you have any idea, Doctor, how long the heat is used on or near the nerve when performing a rhizotomy? A. No. Q. Okay. And so we can agree, can't we, that you're not an expert on how to perform these procedures? A. Yes. Q. Okay. And if you had a client who needed the procedure, you would have to refer him out, correct? A. Correct. Q. Does your organization, your office, do these injections? A. My office, no. Q. Where do you refer them to? A. Most to the Salt Lake Clinic.
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Q. Okay. Did you confer with one in this case? A. No. Q. So if someone needed a rhizotomy or a facet injection and you sent them to an expert, then that person, not you, should decide if it should be done and whether it was necessary, correct? A. Yes. Q. Mr. Card told you on page 7 of your report, two paragraphs up from the physical exam, that he can do everything "because of the nerve fryings." That means that the radiofrequency injection gave him full function; is that correct? A. That's what he reported. Q. And that's what we want when we perform those procedures, correct? A. Yeah. Q. Do you deny that the procedure provided relief in this case? A. No. Q. And page 7 of your report, number 1 reveals "He reports the physical therapy never helped because any relief he got wouldn't last and the pain would just come back." Is that correct?
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Q. Who specifically? Which doctor? A. There's a group of four physiatrists that work there. I think Dr. Michael Jaffe is the one that does most the cervical and then Dr. Graham Hill in addition does lumbar. I'm not aware of any of them that do thoracic nor have I in my clinical practice ever had a patient need or proceed to thoracic rhizotomy. Q. Okay. So you're not claiming to be an expert on rhizotomies, correct? A. Correct. Q. But in terms of whether someone needs them, you are claiming you are an expert in making this determination, correct? A. No. I'm claiming to be an expert in managing and evaluating spine care and then if someone were not improving, I would consult with a physiatrist to discuss the necessity of such a procedure. Q. So even though you are not familiar with rhizotomy and how they're performed, you would not defer to an expert on whether a rhizotomy is necessary or warranted? A. No, I just said that I would in consultation defer to that expert.

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A. Yes. Q. And isn't it true that the benefits of these injections that Mr. Card has received can last up to one year? A. Correct. Q. And isn't it true that you've testified that you are not aware of risks continuing to do those injections over time? A. No. I think I put in my report that I'm aware in talking to physiatrists, I can think of three instances where I've had discussions with the physiatrists and they have talked about some reports that talk about denervation of the muscles of the thoracic spine and potential instability or ongoing problems. Q. I'm going to show you a deposition -your deposition that was taken in the Olsen versus Nielsen case. A. Okay. Q. I'll have you specifically look at -- let me make sure -- page 26. Sorry, there's four pages. So the top left, line 8, can you read that question for me, Doctor. A. "Is there an extent to which those can be repeated in that time frame?"

16 (Pages 58 to 61) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 62 Page 64

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Q. We're talking about rhizotomies, correct? A. Yes. Q. Okay. And the answer, your answer? A. "I'm not aware of what the potential risks are for continuing to do those over time. The more that my opinion is based on, you know, my experience has been there's other less invasive treatments, less -- that are as effective in the long term." Q. Okay. Keep reading. A. Question: "Would you agree that if a radiofrequency ablation provided excellent relief to a patient, that it could be repeated on an annual basis?" Answer: "Again, unless -- and I'm not aware of contraindications or long-term risks to the nerve, nerve function. So if there were no additional risks from doing that procedure and they had good results and they were utilizing other less invasive, maximizing other less invasive treatments, then potentially, yes." Q. Okay. So after reading that, I'm going to go back to my last question. You agree that you testified you're not aware of risks of continuing repeating these injections?
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Let me just clarify. You asked me before, but this is not discussions with them specifically about this case. It was just in general or about other similar conditions. Q. What was your reason for asking them? A. We were in discussion with -- Dr. Johnson and Dr. Fyans, we were at a sports medicine conference in May and we were talking about -Dr. Fyans actually did a presentation about rhizotomies and radiofrequency ablations and medial branch blocks. It was a short case-based presentation. And so we talked about the differences in cervical, thoracic, and lumbar and the utility. And I don't remember the circumstances with Dr. Hill, but I believe there was a similar case that I had asked him about someone who had ongoing thoracic pain and -Q. One of your patients or an IME? A. No, one of my patients. Q. Okay. But you agree with me in this case there's been no ill effects of the injections, correct? A. No. Correct, yes. Q. In fact, he's had great relief from the
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A. At that time, I was not aware. Q. And you've since become aware? A. Yeah. Again, I've had some discussions with -Q. Can I see that? A. Yeah. Q. Go ahead. Sorry. A. -- with some physiatrists who have talked about the risks. Q. Did you do any independent research? A. No. Q. What physiatrists did you speak to? A. Dr. Graham Hill, Dr. Joseph Fyans, and Dr. Scott Johnson. Q. How long has Dr. Fyans been practicing? A. I don't know. Q. And does he perform those? A. I don't know. Q. And does the other two doctors that you discussed this with, do they perform those injections? A. Dr. Johnson does not anymore. I believe he did when he was first in practice. And Dr. Graham Hill does and I believe he told me he only does them in the lumbar spine.

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procedures that have been performed? A. Yes. That's what's reported and apparent. Q. You agree that physical therapists do not specialize in these procedures, rhizotomies? A. Correct. Q. Okay. And you agree that Mr. Card told you that physical therapy did not work for him? A. Correct. Q. But the rhizotomies did, correct? A. Correct. Q. And he had no side effects from them? A. Yeah, not that I'm aware of. Q. They gave him complete relief, correct? A. I think most times. Sometimes I believe from the record there were -- there was one I think I remember that he went from 4 out of 10 to only 3 out of 10 pain or something, but I think for the most part he had good relief. Q. And he had physical therapy and the physical therapy did not provide him the relief that the rhizotomies provided? A. Well, he had the short-term relief, but he said it wasn't lasting. Q. In your opinion, you'd agree with me that

17 (Pages 62 to 65) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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the rhizotomies provided him more long-term relief -A. Yes. Q. -- good relief than physical therapy? A. Yes. Q. And in spite of the fact that the rhizotomies gave him relief, you suggest that they should be taken away from him? A. No. Like I said in my report, I don't think they -- he's certainly getting relief and so -- what did I say in my report? If he wants to continue doing those, I would certainly have no problem with him doing that, but as it relates to this specific accident, I believe there are other factors as to why he's having ongoing pain. Q. So it's your opinion today, then, that if he wants to continue and receives ongoing relief from these repeat rhizotomies, he should do so? A. Yeah, absolutely, if he chooses to do so. Q. And that will increase his quality of life? A. Yeah. Like we've established, if someone has less pain, if they're functioning better, typically that relates to a higher quality of life, yes.
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A. Yes. Q. Did you put that in your report? A. Yes, I believe so. Yep, he specifically told me it was a noncontact hockey league as I stated, yeah. Q. Does bending at the waist cause a need for rhizotomies in the neck? A. No. Q. And do you know how far he bends on a regular basis? A. No. Q. So, Doctor, why, then, if the work caused his need for injections, why was he completely asymptomatic before the five crashes? A. Because at that point -MS. TURNER: Object. It wasn't five crashes. It was one crash. MR. CHRISTENSEN: Objection. Counsel testifying. MS. TURNER: Same objection. A. Sorry. Say that one more time. Q. Tell me why, then, if the work caused his need for injections, why was he completely asymptomatic before the five crashes? MS. TURNER: Same objection.
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Q. Can you give me, then, all -- and I want to make sure we're covering everything, Doctor. And I know we've discussed some, but I just want to put them all together. Please give me all the causes for the need for injections other than the five crashes -- the five impacts that happened in the crash. A. For Mr. Card specifically, I assume, we're talking about? Q. Uh-huh. A. So one would just be his work and the repetitive bending, lifting, twisting, maneuvering that's required of someone with a labor-intensive job such as his. And then also the sports and recreation activities that he's involved with. I believe it specifically was basketball, hockey, and I believe he mentioned bowling at one point. Q. And you understand that none of those are contact sports, correct? A. Yeah. Well, I would certainly say that there's plenty of contact in hockey and basketball. Q. Did you ask him about hockey? It's a noncontact league. A. Yes. Q. Did he tell you that?

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MR. CHRISTENSEN: Objection noted for the rest of the deposition. I'm going to keep referring to it as "five crashes." A. Well, obviously it takes time. Whether it's cumulative degenerative changes or whether it's repetitive motion, it takes time for pain to present. If there had been an injury, as in this case I think we've established there was with the accident, those repetitive motions can certainly perpetuate the problem or any underlying injury that was sustained. Q. Okay. And can we agree, then, that the time that he was not working after the collision, after the crash, then, his work obviously did not cause his need for the injections during that time period? A. Sorry. Help me understand. So you're saying during the time he didn't work? Q. Yeah, and the need for injections were not caused by his work during that time period. A. Was there a time period that he wasn't working? Q. You indicated in your report that there was a time he went back to work. MS. TURNER: Objection. Misstates prior

18 (Pages 66 to 69) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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testimony. What he said is that he reviewed a work release for a specific time. I don't know that the doctor has any information concerning when Mr. Card was off work. MR. CHRISTENSEN: If you could just state your objection and not have a speaking objection, that would be helpful. MS. TURNER: It would be helpful if you would restate the testimony accurately. MR. CHRISTENSEN: Okay. MS. TURNER: Go ahead and take your time looking through that. Q. Is it your understanding, Doctor, that it took him four months to be cleared back to work? A. I believe, and I'm looking in my notes, I believe that he returned to work immediately, but I don't have a record of that so I can't comment specifically on that. I think what I stated was the first time I saw that there was any record in the medical record involving any work recommendations was on September 16, 2010. Work Care documented a Department of Transportation, or DOT, physical in which the medical examiner noted that he had a motor vehicle accident in November 2009, but that he was, then,
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restrictions. So I don't have a date on that, but, again, it was my understanding that he went right back to work. Q. Okay. Doctor, can you explain for me what the shear compression and rotational force to the facet joint is from the crash versus daily and infrequent work lifting activities? A. I think like we've said before, so shear force is acceleration forces, rotational forces would be higher, certainly more acute in a crash versus a repetitive work environment or repetitive lifting. Q. And have you had any formal courses on injury causation and reconstruction -- accident reconstruction? A. No. Q. And isn't it true that repetitive movement of the spine such as work is good for the spine? A. Movement generally, yeah, it's good for all parts of our body. Q. Exercise is good? A. Yeah. Q. Lifting is good? A. Yes. But that obviously doesn't mean -Page 73

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cleared for work. Typically, these DOT physicals are required annually so I don't have any knowledge from the notes whether that was he'd been off work and he was being cleared at that time or whether this was just his routine annual DOT physical. Q. Okay. So on page 4 of your report you state that he was cleared for work on September 16, 2010. You don't know what that means? A. Well, obviously it means he was cleared for work, but that doesn't -- again, I don't know whether that means he had been off work and he was now cleared to go back or whether he was cleared to continue working because that's what DOT physicals do. They have to have those regularly to continue driving those vehicles. Q. Let's turn to page 6 of your report. Isn't it true on page 6 of your report under "Work History" that you said that he typically does not do heavy lifting? A. Yeah. He reported to me that he doesn't typically -- he's not typically required to do much heavy lifting. It also says here that he continued to work since the subject accident without

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that's why I'm in business is because people can get injured and sometimes it's because of excessive movement or lifting, of course, but generally, yes, movement is good. Q. And they only come to you when they're actually injured? A. Most the time, yes. Q. Do they come to you when they're not injured? A. Yeah. I do a lot of preventative care particularly with sports, of course. Q. So that's exactly what you recommend at times is activity and movement, correct? A. Yes. Q. Do you recommend physical therapy at times? A. Frequently. Q. Do you recommend exercise? A. Yes. Q. Okay. You recommended physical therapy in this case, correct? A. I recommended? I would have. I didn't make any recommendations to him in this case. Q. Okay. But physical therapy involves lifting, doesn't it?

19 (Pages 70 to 73) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

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Card v. American National Property and Casualty

Spencer E. Richards
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A. Yeah. Q. Can you tell us with specificity the difference between the physical therapy done in this case and his actual work? A. Oh, I'd have to go back and review the record. I don't know that I made specific note in my report. Yeah, I didn't make specific notes on what he actually did in physical therapy. Q. Okay. Did you review the physical therapy records? A. I did. Q. So you cannot tell me today with specificity the difference between the physical therapy and his daily work activities? A. No. Q. Can you explain for me how an overload injury due to a motor vehicle collision to the muscle tendon unit produces cervical strain because of excessive force on the cervical spine when the injury is accompanied by elongated and tearing of muscles and ligaments, secondary edema, hemhorraging, and inflammation? A. It's a really long question. Q. Yes. Do you understand? A. Well, let's go back through that again.
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hit by a several-thousand pound vehicle and then having -- and having five impacts? A. No. Q. Okay. Let me just review my notes real quick. Do I still have your file? A. Yes. Q. Let's mark this one as an exhibit, the letter from your counsel. (Discussion off the record.) Q. You also have here a Travis Card medical expense summary. Is that prepared by you? A. No. Q. Did you review it? A. Yes. Q. What was the purpose in reviewing it? A. They sent it. I reviewed it. Q. Did it affect your opinions in any way? A. Can I look at it again? No. The only additional information I gleaned from this was just there were some additional physical therapy visits that were billed that I hadn't had records for. Q. But you were given medical billing, correct, individual billing for every treatment that was provided? A. I don't specifically recall.
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Q. Yeah. Tell me how an overload injury due to a motor vehicle collision, the overload injury and the muscle tendon unit produces cervical strain because of the excessive force on the cervical spine when the injury is accompanied by elongation and tearing of muscles and ligaments, that kind of stuff, edema, hemorrhaging. A. How it happened? The question kind of answers itself. You know, when there's excessive acceleration or deceleration forces, the musculotendinous junction can be strained or pulled above a force that it's trained to handle and can cause tearing, micro tearing, macro tearing, partial tearing, full-thickness tearing, that will, then, lead to an inflammatory response. Q. Okay. Can you give me the exact difference in g forces in lifting a hundred pounds versus being hit by a several-thousand pound vehicle five different times? A. No. Q. Okay. Sorry. A thousand-pound vehicle and having five different impacts? A. So say the whole question again. Q. Can you tell me the exact difference in g forces in lifting a hundred pounds versus being

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Q. You don't recall. Otherwise, you just referred to this instead of referring to each medical bill? A. Correct. Q. And this summary was provided by the attorney that hired you? A. Correct. Q. Okay. Doctor, have you read about the scientific studies that show facet capsular ligaments have been shown to contain free nociceptors nerve endings and distending these ligaments by administering facet joint injections has produced whiplash-like pain patterns in healthy individuals? A. No. Q. Is that a "no"? A. Yes. Q. Have you read any articles showing how facet injuries -- excuse me, showing how crashes injure facet joints? A. No. Q. Do you think you might want to research this before you conclude that the crash did not cause the need for future facet injections and rhizotomies?

20 (Pages 74 to 77) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

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Card v. American National Property and Casualty

Spencer E. Richards
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MS. TURNER: I'll object. Argumentative. Q. I want to make sure I have your full opinions in this case. A. Yes. Say that again. Q. Do you think you might want to research the cause of car accidents causing facet injuries before concluding that the crash did not cause his need for ongoing care? MS. TURNER: Same objection. It's also compound. A. No. Q. No. Do you know how many articles there are showing how crashes injure facets? A. No. Q. When you typically look up something on a subject, where do you go to search for it? A. PubMed. Q. Do you have a subscription? A. Yeah. Q. Do you ever just Google it? A. Not routinely, no. Q. If you had a family member who had a facet injury, would you want him to go to a doctor who concluded that the crash didn't cause the facet injury and did no research in crashes and facet
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A. -- facet injury. Q. -- we're talking about the cause of the ongoing care and the ongoing symptoms. Do you think you'd be in a better position if you actually researched causation before forming your -A. Possible, yeah. Q. So are you really still taking the position, Doctor, is it your opinion that the -and taking the position that the crash, five impacts within the crash, did not cause the facet injury in spite of the fact that he was asymptomatic before this? MS. TURNER: Objection. Misstates testimony. A. I've never said that. MS. TURNER: I think he said it a million times. Q. You never said that? A. No. Q. What about is it your opinion, then, are you still stating that the symptoms that he has today are not the cause -- are not caused -- excuse me. Let me review my notes. So let me rephrase that, then. Are you really taking the position that the crash and the
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injuries? A. That's speculative. Q. I'm asking your opinion. A. No. I'd want to involve someone that -I'm sorry. Say it again. Q. Had expertise, is that your answer? A. No. Say the whole question again. Q. If you had someone that was injured in an accident and had a facet injury, would you want that family member to go to someone and receive -go to a doctor who concluded that the crash didn't cause the facet injury and did no research on crashes and facet injuries before making that opinion? A. No. Q. You would not want them to go to a doctor like that, correct? A. Correct, that concluded that the accident did not cause the injury. Q. Wouldn't you agree with me that you'd be more informed on this subject if you researched causation? A. You know, I don't think we've disputed that there was causation -Q. Well, in this case --

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five impacts within the crash is not the cause of the ongoing facet pain and need for ongoing injections that you said he would benefit from? MS. TURNER: Objection. Asked and answered. He already said that what was going on is that Mr. Card's -MR. CHRISTENSEN: That's a speaking objection. Can you please stop? MS. TURNER: -- current activities -MR. CHRISTENSEN: Stop. MS. TURNER: No. I'm making the objection because you keep asking him the question. MR. CHRISTENSEN: And asked and answered is a proper objection. MS. TURNER: Yes. MR. CHRISTENSEN: It's noted. MS. TURNER: Yes. Q. Can you please answer the question? A. Can you say it one more time? Q. Yes. Is it your opinion, then, today right now after all the questions that we've asked that the car accident and the five impacts did not cause the current symptoms today, or the symptoms that he had at your examination, even though he was asymptomatic before the crash?

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Card v. American National Property and Casualty

Spencer E. Richards
Page 82
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Page 84

MS. TURNER: Objection. Asked and answered. A. Yes. Again, I still believe that the other factors in his life are contributing to his ongoing pain and need for treatment. Q. So is your opinion logical that a previously asymptomatic condition on some unknown date in the future became the new cause? MS. TURNER: Objection. Argumentative. A. I believe it's logical or I wouldn't have it. It's based on my clinical experience, nine years of clinical experience and seeing injuries as well as ongoing or repetitive movement-based pain. Q. So you believe it's logical and it's based on your experience? A. Correct. Q. It's not based on any research that you're aware of? A. No. Q. So I want to know your specific opinion on this question: Which is more likely to cause a facet injury of the neck; proper lifting or a crash with five separate impacts at 55 miles per hour? MS. TURNER: Objection. Asked and answered.
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all of this? Q. Yes. A. Again, my opinion is what it is. I believe that it's the other factors that are more likely contributing to his ongoing pain. Q. In your experience, is it your opinion that clinical experience trumps published science and guidelines based on consensus of experts? A. No, I wouldn't categorically say that for sure. Q. Okay. A. But the trouble with scientific research is that there's almost always the counterpoint, I guess, you know, or conflicting evidence; whereas there's published research that says one thing, there's almost always published research that states otherwise. So at some point we have to rely on our clinical experience and so I think they work hand in hand. Q. Working hand in hand requires you to actually do the research, know the studies, doesn't it? MS. TURNER: Objection. Argumentative. Q. You'd agree with me? A. Yes.
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A. The latter. Q. The impact? A. Correct. Q. The collision? A. Yeah. Q. Okay. Let me ask it this way: What is more likely to cause ongoing -- a facet injury with ongoing symptoms two, three years after a trauma? Is it the trauma or repetitive lifting? A. Again, I believe the injury is more likely to be caused by the impact or trauma, but those resolve in most cases and so it's the ongoing repetitive movement that perpetuates symptoms. Q. And you said "in most cases." They do not resolve in all cases, correct? A. Correct. Q. And you have no research or articles to support your opinion, correct? A. Correct. Q. And in this case, isn't it possible -isn't it true, in fact, that Mr. Card is the exception to the rule? A. It's possible. Q. It's more likely than not? A. That it's the trauma that's resulting in

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Q. break.

Okay. MR. CHRISTENSEN: Let's take a quick

(Recess.) Q. All right. We took a short break. I understand you had a discussion with your attorney. Can you tell me what was discussed? A. She -Q. Can you speak up? A. Yeah. She just wanted to clarify that she was going to ask me some questions. Q. Did she tell you what those questions were? A. Not specifically, no. Q. Did you discuss what answers should be given? A. No. Q. Doctor, in your opinion, what is more scientific: Anecdotal information from your own practice or research published in peer-reviewed medical journals? A. Depends on the subject or the topic. Q. Do you have an opinion on facet and rhizotomy injections specifically? A. Well, you asked if I have specific

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Card v. American National Property and Casualty

Spencer E. Richards
Page 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 88

studies in the past and I can't give you specific studies, but it doesn't mean I haven't done research in the past. I mean, I've been in practice now for eight and a half, almost nine years plus the residency and fellowship training. So I'm aware with facet injections and rhizotomies of, you know, controversies that exist in terms of efficacy and I think it's pretty well established in the cervical and lumbar spine to be effective treatment, but it's more controversial in the thoracic spine. Q. Okay. But that's the extent of your understanding today as you sit here based on research? A. Yes. Q. Okay. And in this case, there's no controversy on whether the treatment helped because it did, correct? A. Correct. Q. All right. (Exhibit Nos. 1 & 2 were marked.) Q. On page 9 of your report you suggest that he may need acupuncture traction or trigger point injections. Do you perform these procedures? A. I didn't say he specifically needed them.
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A. No. There's not a placebo injection for a trigger point. Trigger point injections can be done with any substance, whether it's sterile saline or an anesthetic or some doctors even use cortisone and some literature suggests that they're equivalent in efficacy. Q. Are you suggesting in this case that Mr. Card should have had a placebo injection? A. I think there's a recommendation with the facet injections. Q. A recommendation from you? A. No. I'm aware of some discussion stemming my discussion with these other physiatrists that placebo injections can help rule out false-positives. Q. You've never done any research on the subject, correct? A. No. Q. Why are you suggesting using a placebo injection to trick the injured patient? MS. TURNER: Objection. Argumentative and also misstates testimony. I don't think the doctor ever said he was trying to trick patients. A. Yeah, that's certainly not the point of a placebo injection. It's to rule out a
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I said sometimes those are used as complementary treatments. And, sorry, the latter part of the question was what? Q. Sorry. He may need acupuncture, traction, or trigger point injections, I'm asking if you perform those procedures? A. I do perform trigger point injections, but not the others. Q. You suggest stopping those procedures that he may need after six to 12 weeks. Would you suggest stopping those if he's still having pain and the injections alleviate pain? A. No. But, of course, with any treatment it would depend on -- in this case, no. Q. Okay. Are you suggesting a placebo injection in this case? A. With placebo injections I'm aware of with the bundle branch blocks -- or, excuse me, the facet joint injections that there are some recommendations on doing a placebo injection to rule out or eliminate the possibility of false-positive tests, but I didn't specifically make a recommendation on -Q. Do you do placebo injections for your trigger point injections that you perform?

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false-positive. Q. Okay. A placebo involves injecting saline into the spine. Saline is a foreign substance the body does not need, correct? A. Correct. Q. And doing an injection of a placebo injection, even saline, a foreign substance, it carries a risk, correct? A. Yes. Q. Placebo is actually an injection substance right into the patient's spine that the body does not need to heal, correct? A. Correct. Q. Would you suggest that the patient be told he is being given saline if he doesn't need it? A. No. That would be counterproductive to the purpose of the test. Q. Okay. Where is the literature saying that he should have an injection of a substance that's not needed to improve his pain or function? A. I don't have the specific references. Q. And you've never actually done any specific research on the subject? A. Not that I can recall, but I have had

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Card v. American National Property and Casualty

Spencer E. Richards
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discussions with physiatrists. Q. Okay. Do you believe a patient should sign a release before receiving a placebo injection? A. There's always a release or a consent for having an injection or procedure. Q. And in that release should they be told what's in the injection; saline specifically? A. Yes. Q. That's a "yes"? A. Yes. Q. You agree that the patient has the right to know what the doctor's doing, correct? A. Yes. Q. Okay. So the patient can refuse to have the injection that's not going to help them with pain? A. They can, sure. Q. And they can only do that if they're given all the facts? A. Correct. Q. And if you knew that you were getting the placebo injection that wasn't going to help your pain, you would refuse, wouldn't you, Doctor? A. No, not necessarily. If I felt like it
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performed a placebo? A. Correct. Q. Okay. And whether there's any benefit of a placebo? A. Well, they reported that there had been some research saying that there was benefit, again, to rule out false-positives. Q. So your opinion is that you think it's okay to tell them that it's saline and a placebo -it's saline, but not a placebo, correct? A. Yeah. You could tell them. You don't have to use the word "placebo." It doesn't affect the safety of the injection. Q. And do you feel like it's important to tell them at that point that the saline does not improve their pain? A. Certainly could. It depends on the patient, the circumstance in terms of what you're looking for. I think it would be appropriate to tell them that this is an injection to help determine whether the pain really is coming from that site or not. Specifically in Mr. Card's case we didn't know whether the pain was coming from there. He had normal studies, normal MRI. There was no
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was going to help determine the cause or the site of pain or what the response was going to be, I wouldn't necessarily refuse that. Q. In this case or in any placebo injection situation, are you suggesting that you hide and not tell the patient that saline is actually being injected? A. No. Q. Because you said it could ruin the purpose of the placebo, so . . . A. You can give them the information on what's being injected. It doesn't necessarily mean you have to tell them that, "This, you know, is not supposed to treat your pain." We want to see what the body's response is to that. Q. And, again, you've never given a placebo injection? A. Not in the spine. Q. Did you ask any of the doctors that gave you this information whether they've performed placebos? A. No. Q. Sorry. What was the answer? A. No. Q. So you have no idea if they've ever

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evidence that said the pain was coming from his facet joint. So I think it would be appropriate to say, "Hey, we're injecting saline to see if your body has pain relief or not." You don't have to -Q. But now that we know and you've had the benefit of reviewing all the medical records and seeing him after he's had those procedures and you know specifically what was causing his pain and that the rhizotomy was effective, wouldn't you agree, then, in this case that there was no need for a placebo? A. Yes. Q. Okay. Can you cite practice guidelines based on evidence-based practice that supports using a placebo in clinical practice? A. I don't have a citation. Q. You state in your report that the MRI was normal, but it wasn't, was it? A. Do you have the report with you? Q. It showed an abnormal curve, didn't it? A. Yes, I believe there was a report of a curvature in the spine. Q. Did you actually pull the images up on the CD and review them? A. I don't believe I had the actual images,

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Card v. American National Property and Casualty

Spencer E. Richards
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no. Q.

Okay. You did not have the images. And you agree that trauma and spasms can cause a curve in the spine? A. Yeah, they can affect the curvature of the spine. Q. Can cause an abnormal curve, correct? A. Yeah. Q. And there's no evidence that he had this curve before the collision, correct? A. Correct. Q. And before the collision, he was able to engage in lifting at work with no limitations? A. As far as I'm aware. Q. Do you have any other cause for the curve in the neck that's found on the MRI other than the crash with the five impacts? A. Just the idiopathic scoliosis. Q. Is it your opinion that he has scoliosis? A. I would have to see the actual images or, you know, look and see if there had ever been previous x-rays done -Q. Okay. So it's your opinion today -A. -- or even x-rays now. Q. Is it fair to say your opinion today and
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A. No. Q. Do you know what the activator adjusting instrument is? A. No. Q. Do you know what the Carver technique is? A. No. Q. Do you have any experience or training in chiropractic care? A. No. Q. In terms of the standards for chiropractic treatment, may I presume that you are not a trained chiropractor? A. Yes. Q. You do not have a license as a chiropractor? A. Correct. Q. You do not have a degree as a chiropractic physician? A. Correct. Q. You're not board certified in chiropractic medicine? A. Correct. Q. You're not an expert at chiropractic treatment administered by those professionals and specific maneuvers, for example?
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when you prepared your report that he does not have scoliosis, correct? A. I have no reason to suspect that he has scoliosis. Q. Okay. And your opinions are based on what you have done, not what you're going to do, correct? A. Done with -- yeah. Yes. Q. Okay. So assuming that there is a curvature of the spine, which was found on the MRI, can you say the trauma from the crash did not cause it? A. I can't say that. Q. Okay. Your answer is you cannot say that? A. Correct. Q. Doctor, do you know what the ASC is, an Atlas subluxation complex? A. No. Q. Your answer is "no"? A. No. Q. Can you speak up a little? A. Yeah. Sorry. Q. All right. How about a barge analysis, do you know what that is?

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A. Correct. Q. You're not an expert in the Mercy guidelines? A. Correct. Q. Do you know what the Mercy guidelines are? A. No. Q. Are you familiar with the Croft guidelines? A. No. Q. Ever heard of them? A. No. Q. Ever reviewed the Mercy guidelines before? A. No. Q. In reaching your conclusions that Mr. Card needs no chiropractic care, have you considered the fact that chiropractic care assisted him in his pain? A. I didn't say he doesn't need chiropractic care. Q. You did not say that he -A. You mean ongoing or future chiropractic care? Q. Correct. Are you saying that the past

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Spencer E. Richards
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chiropractic care was reasonable and necessary? A. I believe some of it was, but I thought it was excessive. Q. Okay. So you're saying that some of it was not necessary? A. Correct. Q. And that he should not have received it? A. Correct. Q. And can you tell me what date that was and what happened that caused him to stop needing chiropractic care even though it benefitted him? A. Well, he consistently reported that it didn't provide more than just short-term relief. So the record that he went back from August 2010 to April 2011 seemed excessive if it wasn't providing him long-term relief. Q. And in reaching your conclusions on the amount of chiropractic care that he needs, have you considered any of the published guidelines which set forth the recommended chiropractic treatment and frequency? A. No. Q. That's a "no"? A. Correct. Q. Since you're not an expert in
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applied that logic to anything, we could almost justify anything in medical care. Q. How long do trigger point injections provide relief? A. It's very variable. Q. Sometimes it's short term, correct? A. Correct. Q. And you repeat those when it's short term? A. No. Q. Never? A. Oh, I'm sure I have at times, but after two or three if it's only provided short-term relief, we're going to look for an alternative treatment that provides better long-term care. Q. So in the case of spinal injury, something like a rhizotomy that provides long-term relief, correct? A. Potentially that, yeah. Q. So in reaching your conclusion that his chiropractic care was excessive, you reached those conclusions by having no training in the field of chiropractic care, correct? A. Correct. Q. And not being an expert in the kind of
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chiropractic medicine and treatment, can we agree that you are not trained to determine frequency and type of chiropractic needs that someone needs after a collision? A. Correct. Q. Can you tell me what exact visit was excessive with the chiropractor? A. No. Q. Is there a reason why you would deny him short-term relief? A. I don't understand. Q. You said that he does not need chiropractic care after a certain point because it provided him short-term relief. Is there a reason why you would deny him short-term relief? MS. TURNER: Objection. Misstates his testimony. A. Yeah, just because it -- so let me just make sure I understand. You're asking why I would deny him ongoing chiropractic care because it provides short-term relief? Q. If it provides some short-term relief, why would you cut him off? A. Well, at some point you have to have accountability to your care. And, you know, if we

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care he was or may -- that he was receiving or may be rendered in the future? A. Correct. Q. You reached those opinions having no literature to support your conclusions? A. Correct. Q. And also you reached those opinions not being aware of the literature that does exist setting forth the suggested treatment guidelines for chiropractic care? A. Correct. Q. So if you do not know the chiropractic terms that we discussed earlier for treatment, you can't say which treatment was excessive, correct? MS. TURNER: Objection. Argumentative. A. Correct. Q. You don't know which procedures were excessive, what treatment was rendered was excessive, correct? A. Correct. Q. If there were a family member asking you for advice regarding future chiropractic care and they were telling you the care was a benefit, would you tell them to stop it without at least researching what the care was?

26 (Pages 98 to 101) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 102 Page 104

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MS. TURNER: Objection. Incomplete hypothetical. A. Say it again, please. Q. If you had a family member asking your advice for future chiropractic care and they were telling you that the care was beneficial, would you tell them to stop the chiropractic care without first at least researching what the care was? MS. TURNER: Same objection. Also speculative and compound. A. Yeah, I would certainly talk to them about what they were receiving. And it would obviously depend, too, on what the relief was and how many times, how long they had been receiving that same kind of care. Q. But you would give advice without knowing exactly specifically what the treatment was? A. No. Again, I just said I would ask them what care they were receiving. Q. Would you want to know specifically from the records and a doctor what the care was or would you only rely on the family member? A. I would rely on the family member. Q. And would you make that same suggestion without knowing what the standard of care were for
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financial burden. And so, you know, whether it's the responsibility to the patient or responsibility to our health care system in general, I'm cognizant of decisions that I make and what impacts they have. And most the time my decisions involving patient care involve -- involve including the patient in those decisions so I want to lay out implications to what -- you know, what decisions that they have in front of them, how it affects them medically, quality of life, financially, et cetera. Q. So if someone has insurance to pay for the care or they pay cash to pay for the chiropractic care and it helped, would you still tell them to stop if it was helping them? MS. TURNER: I'll object to the hypothetical. A. Yeah. And, again, I don't necessarily tell people to stop when there's ongoing relief, but I'm going to make sure that they understand the difference between short-term and long-term relief. And, again, if something's only providing short-term relief, a day -- hours, a day, I think most cases there's going to be a better long-term
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that treatment? A. Yes. Q. And without knowing why something was working? A. I think in conversation with the family member I think we could determine what was working and what may not be working. Q. Well, I'm saying if it does work, would you still tell them to stop chiropractic care? A. I didn't say I would tell them to stop chiropractic care. We would talk about it. But I think at some point there would be a point at which, again, if it weren't providing long-term care and they were having to keep going back, that I would start to explore alternative treatments, that's for sure. Q. You said at some point there has to be some accountability. What did you mean by that? A. Well, I mean partly medically, partly financial even, who's covering, who's paying for that care. Q. Why does that concern you as a medical provider? A. Because I'm part of the health care system and I contribute to the overall health care

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management option and I certainly would prefer exploring that. Q. Okay. Have you ever considered the physical and emotional costs of denying care to someone where there's a benefit? A. I think that's what I just answered in terms of accountability. I want to look at all the possible costs, whether they're emotional, physical, financial, et cetera, to any decision of care. Q. If you look at the costs, Doctor, in determining your opinions, do you ever consider how your negative comments on causation in an IME report could cause someone to not receive the insurance benefits that would allow them to receive the ongoing care? MS. TURNER: Objection. I'm not going -don't answer that. MR. CHRISTENSEN: You cannot instruct him to answer -MS. TURNER: I just did. MR. CHRISTENSEN: You can't. MS. TURNER: I already did. Q. So please answer and we can strike it later.

27 (Pages 102 to 105) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 108

MS. TURNER: Nope. MR. CHRISTENSEN: Follow the rules. If you're going to do it, be legit. MS. TURNER: He's not going to answer that type of an argumentative -- it's ridiculous, speculative. MR. CHRISTENSEN: It's not. MS. TURNER: That's a statement for you to make during your opening or your closing or wherever you want to grandstand. MR. CHRISTENSEN: No, it's not. You're not in charge. MS. TURNER: It's not to be asked to my expert. Q. Do you ever consider the negative impact that your opinions can form on the costs and payment of treatment? A. Yes, I do. Q. And in this case, you agree that you've made no recommendations in this case for something that is -- for treatment that is working better than what he's currently receiving, correct? A. Yeah, I made no recommendations on treatment. Q. Well, you did make recommendations on
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Q. How did you measure those? A. I asked him to flex his neck and observe how far he can move, and same with the extension, side bend, and rotation. Q. Do you use a tool in measuring the degree? A. No. Q. Do you know what normal was? A. Like a normal number? Q. Well, do you know if the right was worse than the left? A. No, they were symmetric. Q. Based on measurement or based on observation? A. Not a number, but observation, watching him do that. So I was measuring it, but not with a goniometer. Is that what you're referring to? Q. Correct. Have you seen the records of this chiropractor? A. Yes. Q. Did you see the notes indicating the patient's weight? A. I didn't make specific note of his weight, no. Q. His height, did you see anything about
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what you feel is -A. So, yes, to answer your question. Q. Now, the chiropractor, unlike you, in this case did document the actual range of motion that he measured, didn't he? MS. TURNER: Objection. Argumentative. A. I'd have to look at the record in terms of what he did document, but -Q. Well, let's break it down. You did not document any type of range of motion? A. In my exam? Q. Correct. A. I didn't give a number, but I believe I did talk about his range of motion. Q. Did you measure it? A. With a number? Q. Did you test it physically or did you just eye it when he was talking to you? A. Oh, no, let me see. I'm almost positive that I tested it. Let me just double-check it. Yeah, I did test it. Q. He measured flexion. Did you measure flexion? A. I do flexion, extension, side bend, and rotation.

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the height? A. Not that I recall. Q. Blood pressure? A. Not that I recall. Q. Body mass index? A. Again, not that I recall. Q. Lower extremity function? A. I don't remember specifically. It's something I would have been looking for, but I don't remember. Q. The chiropractor referenced and reported all of those in his report. You agree with me that you did not put any of those in the report? A. I didn't put any of those in my report, yes. Q. And, in fact, you didn't measure any of those, correct? A. That is correct. Let me just check my notes here, but, no, I did not measure any of those. Q. What is the 7 cranial nerve? A. The 7th cranial serve? Q. Sorry. A. Facial sensation. Q. Facial sensation, correct?

28 (Pages 106 to 109) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 110 Page 112

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A. Uh-huh. Q. Okay. What is the 6th? A. You're asking me to recall. I don't remember the specific number. Q. Okay. You don't recall what the 6th is? A. No, not off the top of my head. Q. Okay. Your report indicates that you evaluated the cranial nerves. How do you do that? A. I go through a routine of evaluating eye movement, strength of the eye, eye muscle in terms of resistance against closing the eyes, facial sensation, hearing, the orbital muscles, mouth muscles, neck rotation, shoulder shrug, the uvula midline, tongue protrusion, strength of tongue into the cheek against resistance. Q. Do you know which one of those go to the 6th cranial nerve? A. Again, I don't remember specifically. Q. How do you know when you're doing the examination which one goes to which nerve? A. If any of them were abnormal, I would look at that and determine. Q. Do you know if you're missing any of the tests? A. I didn't test smell.
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A. Well, I just start with an introductory sentence about the history and then go through the medical visits, through the medical record, and I try to do that chronologically. Q. Okay. A. And then proceed into the IME itself and that involves a history, including past medical, psychiatric, surgical, family, medications, allergies, as you see here, outline work history, education history, trauma history, and then a history of the accident so I make sure I get that from the patient. Q. Where do you save your template? MS. TURNER: Hold on. Let him finish. Were you done? A. Well, then go through the actual physical exam and then I do -Q. Well, I'm not asking what you do. I'm asking about your template. What's in it? MS. TURNER: He's telling you that all these areas are in it. He's trying to answer you. Q. The subjects are in it? Is there text in it that you're typing over? Are you using a template -- I just want to make sure I understand. Are you using a Word document with headings and
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Q. And you'd agree that you didn't examine any of the lower extremities? A. Correct. Q. So if you don't know what the 6th cranial nerve is, how do you know if you tested it? A. From a pattern of testing the nerves over these years. And, again, if I found an abnormality, I would reference either a text or article that would help me determine exactly what I was testing. Q. But if you missed one of the tests, you wouldn't know if you were missing an abnormality, correct? A. That's possible. Q. Have you ever gone back to ensure that you're performing all the tests for all these nerves? A. Periodically I would check that. Q. Okay. When preparing your report for an IME, do you use a template? A. Yes. Q. Do you copy over a previous one? A. Just the template. Q. What is the template? Can you explain that for me?

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that's it or are you using an older IME report and deleting and inserting? A. Yeah, I think it's the older one, but it has the same kind of outline and I just delete whatever text was there and add new text. Q. And occasionally do you leave the text in there and have the same text in some of your reports? A. Only when it's nonspecific to the patient. Like in the introductory paragraph, I sort of have a standard statement about, you know, how I make my opinions. Q. Okay. Where do you save your templates? A. Just on my computer. Q. Can I get a copy of that? A. Sure. Q. Okay. Is this computer at the home or at the office? A. At home. Q. When you prepare your reports, do you do them at the home or at the office? A. Home. Q. You mentioned earlier that you do not have a separate tax ID or business for your IMEs. Do you share your wages that you earn doing these

29 (Pages 110 to 113) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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forensic examinations with your partners? A. No. Q. Do your partners know that you're doing these examinations? A. Yeah. I just have one partner, but he's aware. Q. Do you do them at your office that your partner's at? A. Yes. Q. Does your partner do the examinations -A. No. Q. -- as well? When you were trained in sports medicine, isn't it true that you were trained that if someone complained of spinal pain, that you should evaluate the lumbar spine as well? A. If that's part of their complaint. Q. When someone has spinal pain, should you examine their entire spine? A. Not necessarily. Q. Is there a reason why you did not examine the lumbar in this case? A. Because he didn't report that to me as an injury or problem area. Q. And so you'd just rely on the patient, then, for that?
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A. Correct. Wait. I'm not sure actually that it's schedule 3. I don't remember specifically the schedule breakdown. Q. Do you prescribe Percocet? A. Yes. Q. Do you prescribe Lortab? A. Yes. Q. Do you prescribe muscle relaxers? A. Yes. Q. What type of muscle relaxers do you typically prescribe? A. I think most commonly it's cyclobenzaprine. Q. What about Flexeril? Is that the same? A. It's the same thing, yes. Q. Okay. Do you currently prescribe Percocet? A. Yes. Q. So in this case, if Mr. Card goes off medication and his symptoms get worse, would you recommend that he resume taking the medication? A. No. I never make a recommendation for long-term narcotic management. Q. I'm not saying long term. If he goes off and has a lot of pain, would you recommend that he
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A. Correct. Q. Okay. You said that your exam was 15 minutes? A. I believe so. Q. How long were you actually doing the physical hand-on examination? A. I don't specifically recall in this case. Q. Can you give me an estimate? A. I'd estimate about 15 minutes. Q. Fifteen minutes. So what were you doing the rest of the time, the other 35 minutes? A. Going through his history. Q. His medical records or the verbal history with the patient? A. Verbal history with him. Q. On the last page of your report you say his medications are unwarranted and excessive. You agree that Lortab -- is it Lortab? A. Percocet. Q. Percocet, is that a schedule 3 drug? A. Yes. Q. It's not as strong as schedule 2? A. What's that? Q. It's not as strong of a narcotic as a schedule 2?

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get back on or that he live with his pain? A. No. I mean, obviously if that's the only thing that will resolve his pain, then I would recommend he get back on, but I'd for sure want to make sure we exhausted other options. Q. Okay. A. In this case, I think the difficulty is that if he's truly having zero out of 10 pain after a rhizotomy, why is he on Percocet? That's why I'm basing that opinion -Q. Did you ask him in your history on when he takes the Percocet? A. Yes. Q. And the reason for taking it? A. Yes. Q. What did he tell you? A. He takes it every day and he told me he takes it for pain. Q. Did you ask him what causes the pain that he's taking that for? A. I don't specifically remember if I asked that question. I don't think I have a note on that. Q. When determining if someone -MS. TURNER: He's reviewing his notes to

30 (Pages 114 to 117) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 118 Page 120

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see if he can get you an answer. MR. CHRISTENSEN: That's fine. The question is asked and answered. Q. When you're determining whether someone should continue with pain medications, wouldn't it be important to know what's actually causing the pain and the need for the medications? A. Yeah. So I didn't specifically ask him that, but I did ask him, you know, why he was taking the pain and partly it was for -- or why he was taking the medications and he said he couldn't sleep if he didn't take the medications and he also took it for low-grade or constant pain. When I asked him, though, when was the last time he'd tried not taking the medication to see if he still needed it, he couldn't remember when he had not -- the last time he didn't take the medication. Q. Now, isn't Percocet actually Darvocet? A. No. Q. It's not the same? A. No. Q. Can you tell me the difference between Percocet and Darvocet? A. Percocet at its base medication is an
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A. Correct. Q. And physical therapy involved lifting like you said was responsible for his facet pain, correct? A. It can involve lifting, yeah. Q. It involves bending as well? A. It can. It just depends on what the problem is and what they're using physical therapy for. So if he tried physical therapy and it wasn't based on bending or lifting modalities, then other methodologies could be used, isometric contractions and strengthening, better lumbopelvic or core stabilization exercises as a baseline, et cetera. Q. Did you reference and refer to the physical therapy records and the specific activities that were performed when writing your report? A. I did, and we already kind of talked about this idea. I don't remember nor did I document in my report all the specifics that were done. Q. And you agree, then, in the one time that you saw him that there was no evidence of the patient diverting or selling drugs? A. Correct.
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oxycodone. The medication in Darvocet is Darvon. It's a different compound. Q. If Mr. Card stopped the medication and he can't sleep or he can't work, fights with his wife or he becomes depressed, has trouble at work, and he goes back on the medications and that helps with those symptoms, would you still be of the opinion that he should be taken off of them? A. No. Again, not necessarily, but I'd want to make sure that we exhausted other treatments that, in my opinion, are safer. Q. And what would that be in this case? A. I think physical therapy to me still is one of the mainstays of management. You know, obviously he reports it didn't provide long-term relief, but there are different methodologies in physical therapy that can be employed to try to help manage ongoing or chronic issues like this. Or potentially the rhizotomies, if they're providing him long-term relief and a zero out of 10 like he's reporting, then hopefully use those. Q. Okay. And you understand that he did do physical therapy and it did not work for him, correct?

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Q. Not following doctor's advice on how to take them? A. Correct. Q. There's no evidence of him asking for more pills or stronger doses? A. Correct. Q. You currently have no idea what his current function is? A. He reports that his function is normal. Q. As he is today, you have no idea? You only saw him one time, correct? A. Yeah. Q. Okay. Do you believe you're in a better position to determine whether he needs medication than a treating doctor as seeing his condition and evaluated him multiple times over years? A. No. Q. You would defer to the treating doctor for that? A. Yes. Q. Where on his body did he have cuts and abrasions due to the crashes? A. I'd have to check my notes. I don't have any record of cuts and abrasions and I don't recall specifically.

31 (Pages 118 to 121) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

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Card v. American National Property and Casualty

Spencer E. Richards
Page 122 Page 124

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Q. Were you aware that he had a bruise on his shoulder? A. No. Q. Do you know how he got it? A. No. Q. You were not given any photographs of a bruise on his shoulder? A. No. Q. Cuts on his hips, are you aware that he had cuts on his hips? A. No. Q. Why did you leave those out of his report if they're in the medical records? A. I didn't have -- I asked him what his injuries were, so if he didn't report it, then I didn't include it on my IME report nor did I remember reading those or have access to any record that talked about abrasions or bruises. Q. And you agree that trauma can cause spasms? A. Yes. Q. And you're aware of other doctors that found spasms? A. Yeah, there were spasms reported that I read about, yes.
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A. Correct. Q. Was not taking muscle relaxants? A. Yes. Q. Was not seeing a chiropractor for pain? A. Not that I'm aware of. Q. Not seeing any doctors for pain? A. Correct. Q. After being T-boned, hit again, then driven into a telephone pole and having his air bags deployed after hitting a ditch, you agree that he needed medications, correct, for pain? That he was on medications for pain? A. Yeah, he was on medications, yes. Q. And that he was on muscle relaxants? A. At some point, yes. I don't remember exactly when that was started, but, yes. Q. And he was seeing a chiropractor for pain relief? A. Correct. Q. He was seeing a medical doctor for injections for pain relief? A. Yes. Q. And that he has difficulties with his function secondary to pain? A. Yes.
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Q. Okay. And you billed your time for reading the records, correct? A. Yes. Q. But you didn't reference all of them in your report, correct? A. I did reference everything that I had, although, you know, as I've established, I didn't put every detail in there. I tried to put what I thought was pertinent. So if I -- but I did reference all the records in the report that I had reviewed. Q. Okay. I just want to summarize things. Before the accident, you agree that he was on no medications for pain? A. Yes. Q. Had never had facet blocks? A. Yes. Q. Had never had a radiofrequency? A. Correct. Q. Had no limits in function? A. Yes. Q. Had no missed time from work due to pain? A. Correct. Q. Did not have problems sleeping due to pain?

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Q. He has problems sleeping due to pain? A. I believe that was in the record, wasn't it not? Yes. Q. Have you been formally trained on injury causation in your one-year training for sports medicine? A. Yes. Q. What injury causation training did you receive? A. Part of just the practical experience. Like a specific course or conference? Q. Yes. A. No, but during the experience with the fellowship directors in clinic we evaluate and talk about causation of injury. Q. Just clinical causation training? A. Correct. Q. You do not have a three-year residency on treatment of pain, correct? A. Correct. Q. Or sports medicine, correct? A. Correct. Q. Are you a board-certified orthopedist? A. No. Q. Nor are you board certified in pain

32 (Pages 122 to 125) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 126 Page 128

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management? A. No. Q. In fact, Doctor, you're only board certified in family medicine, correct? A. Correct. Q. Your sports medicine certification is a subspecialty of family medicine? A. Correct. Q. Not a unique board certification, correct? A. Yes. Q. Is there any type of transcript that would reveal the course that you received on causation in -A. No. Q. No. No formal training in which you'd get a grade or -A. No. Q. Okay. You're not a neurologist? A. No. Q. You're not an expert in conducting nerve conduction studies? A. No. Q. Or EMGs? A. No.
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A. No. Q. Have you ever been sued for anything? A. No. Q. Ever had testimony limited or stricken? A. No. Q. Not that you're aware of? A. Yeah, not that I'm aware of. Q. Your CV says "Physician Lead." What does that mean? A. Medical director. Q. How long have you been the physician lead? A. We're at three, four years -- three years. Q. And is that just between you and your partner? A. No. It's for the Intermountain Medical Group sports medicine physicians. Q. Why isn't it listed as "Physician Lead" on your Web site? A. You know, I don't know who manages or puts up that Web site. I don't really have any -Q. It's just managed by IHC in general? A. Yeah. Yeah. I have a pat -Q. Do they ever ask you for information to
Page 129 put on the site? A. I believe when they first developed it, but none since then. Q. Okay. A. I haven't been on the Web site in probably a couple years. Q. Did you author sponsoring organization ACSM's Primary Care Sports Medicine second edition? A. I had a role in a chapter in that. Q. You wrote one chapter? A. Part of it, yeah. Q. Okay. I believe your CV only lists you as the only author. Is there a reason why you didn't list the other authors? A. No. I'm not sure how I listed that in the CV. Q. Do you have a CV with you? A. No, I did not bring one. Q. How many chapters are in that book? A. I don't know. Q. Can you give me an idea? A. I'm guessing. It would be a total guess. Maybe 40. Q. Forty chapters and you wrote one of them? A. Assisted with one of them.

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Q. You're not a surgeon? A. No. Q. What percent of your income comes from these forensic examinations? A. Probably 5 to 7 percent -- 5 percent. Q. Have you ever sent out a letter to any type of lawyers to get business in this area? A. Yeah. My wife sent a letter to I'm not sure which firms just to let them know that I was available for this type of work. Q. Only the defense firms? A. I'm not aware of who she sent it to. Q. Do you know how she got the list? A. I think she got it through her father, who's a physician, that does independent medical evaluations. Q. You never sent one to my firm, right? A. I don't know. Q. Have you ever given free speeches to the defense or insurance bar? A. No. Q. Have you ever been grieved or had any complaints to the board of medicine? A. No. Q. Sued for malpractice?

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33 (Pages 126 to 129) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

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Card v. American National Property and Casualty

Spencer E. Richards
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Q. You assisted? A. Yeah. Q. So how many people wrote the one chapter? A. Three. Q. So it just lists the publication in your CV. You don't mention that it's other -- that it's one chapter with multiple authors. Do you think you should change that? A. Yes. Q. Do you agree that's misleading as it currently states? A. Sure, it can be, absolutely. Q. Is there a reason for wording it that way? A. No. I don't even remember when I did that, so it's just an oversight. Q. Okay. Now, as I understand it, your testimony, you agree that a crash can cause facet injury, correct? A. Yes. Q. You agree that my client has a facet injury? A. Yes. Q. You agree that he's not malingering? A. Yes.
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that the pain may just at least partially be related to the crash, correct? A. Yes. MR. CHRISTENSEN: That's all I have. MS. TURNER: Okay. I have some questions. MR. CHRISTENSEN: Can you speak up? MS. TURNER: Don't worry. I'm loud enough for you to hear. MR. CHRISTENSEN: All right. EXAMINATION BY MS. TURNER: Q. Dr. Richards, what's the name of your practice? A. Intermountain Sports Medicine Specialists. Q. What does Sports Medicine Specialists do? A. Evaluate, manage, treat musculoskeletal primarily. Primarily musculoskeletal injuries, pain, problems, conditions. Q. So give us some examples of the types of patients that you treat. A. It's all ages. We manage infants to our oldest, senior citizens, but most of them have, like I said, a musculoskeletal condition, whether
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Q. You agree that he does not need a placebo? A. Yes. Q. You defer to the treating providers on treatment? A. Yes. Q. You agree that a facet could be injured in an accident? A. Yes. Q. That the block diagnostic was positive -A. Correct. Q. -- for a facet injury? You agree that he had no prior problems? A. Correct. Q. That he continues to have pain? A. Yes. Q. And that the chiro care, injections, and medications do help his pain? A. Yeah, but the chiropractic care didn't seem to help any more than the physical therapy. Just the short-term relief. Q. Okay. But you've recommended physical therapy anyways? A. Correct. Q. But it's your opinion after all that,

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it's injury based or degenerative based, whether it's ankle, knee, hip, spine, shoulder, elbow, wrist, manage the whole gamut of musculoskeletal injuries. Q. Do you treat athletes? A. Yes. Q. At what levels? A. In my current practice it's, you know, anything from a competitive team in the junior or high school, even collegiate athlete, up through "weekend warriors" type is what we refer to them, people that are generally active, but not necessarily involved on a specific team. Q. Okay. So in the course of your treatment of people who are athletes, who are competitive athletes, what's your goal when they come into you for treatment? A. Obviously, get the correct underlying diagnosis and then create a treatment plan that will get them free from their injury and back to full function. Q. Okay. Is the plan to get them so that they're back to full functioning without coming back to you or other doctors for treatment? A. Yes.

34 (Pages 130 to 133) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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MR. CHRISTENSEN: Objection. Leading. Q. Okay. And what do you do to make sure that that's what ultimately occurs? A. Again, the key is trying to get to the root diagnosis, the real root problem, so that involves detailed history, physical examination, sometimes diagnostic testing such as imaging. And once we have the root problem or the correct diagnosis, then we can create a treatment plan that will help accomplish the goals. Q. I think I know what you mean by "weekend warrior types." Are you talking about people who run marathons or do triathlons, things like that? A. That's certainly a big part of our practice, but it's also people who are in a softball league or, you know, play sports, whether it's kind of recreation or a county league or something. They're not being paid certainly or on scholarship or necessarily part of a formal team even. Q. So someone like Mr. Card who plays hockey on a league and plays basketball with his friends? MR. CHRISTENSEN: Objection. Foundation -A. Certainly -Page 135

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questioning? A. Yes. Q. Okay. Was there any issue that you reviewed that showed that Mr. Card had any issues with herniation? A. No, there was no evidence of herniation. Q. Okay. Was there evidence of any type of nerve impingement? A. Not from the tests that I reviewed. Q. Okay. Is that significant? A. Generally, yes. For spine care, you know, particularly with an acute injury, you may see inflammation, you may see things particularly on an MRI, for instance, where there's evidence of inflammation in the facet joint or edema or "T2 signal," as we refer to it, in the soft tissues or surrounding the nerve. But as we've kind of established previously, it's not always the case with the facet joints. There are, you know, documented cases where sometimes there's no findings on imaging. Q. Okay. In the course of conducting the IME, the physical examination, and also in authoring the report, what's the standard that you used in doing that?
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MR. CHRISTENSEN: -- form of the question. A. Certainly would see that type of person a lot. Q. Okay. So when you have treated patients, you've treated them for issues relating to facet injuries, correct? A. Correct. Q. Okay. And what type of an injury is a facet injury? Is it classified as a structural injury? Is it classified as a soft tissue injury? How do you classify it? A. It's classified more as a spine injury. It involves the joint between two subsequent vertebrae or bones, but oftentimes there are associated soft tissue strains kind of as we've talked about with Mr. Card. Q. Okay. And the associated soft tissue strains, I want to talk about the diagnostic tests that you reviewed that were sent to you. I don't know if it was the actual images or I'm not sure if you reviewed just the readings, but Mr. Christensen spent some time discussing them wherein he stated that his client had a loss of curvature in his cervical spine. Do you recall that line of

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A. Help me understand what you mean by "the standard." Q. Reasonable degree of medical probability, did you use any type of a standard in coming to your conclusions and in examining Mr. Card? A. I don't know how to formally, you know, give a name to the standard that I try to apply, but I try to apply the same standard in an IME that I would in any patient that comes through my door in terms of trying to determine, you know, what is the underlying cause and then working back to determine what are the most likely root causes of that underlying problem. Q. Okay. And let's talk specifically about Mr. Card. So there was a lot of discussion concerning giving a what counsel called a "placebo injection" and that that may or may not be harmful. In your opinion, what would be the merit in going back and doing a second test to determine whether or not the pain that Mr. Card was claiming was actually symptomatic? A. Well, I mean, the merit would be to try to eliminate the possibility of false-positive. So if the injection were given with a numbing agent and the patient reported pain relief, I think we

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Card v. American National Property and Casualty

Spencer E. Richards
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kind of established here that that's subjective, that's based on the patient's report of pain. And so in the case of facet injections, if a second injection is done without the numbing medicine and the patient reports the same amount of pain relief, then that could suggest that there's, you know, another reason or cause for the pain. Obviously, there's a possibility that it's more of a regional rather than a local effect, so not necessarily a facet joint injection, for instance, more just soft tissues that's relieving pain. There's also the possibility that the patient -- there's other secondary gain issues and the patient's looking for other reasons to report pain in that area, but the advantage of the placebo injection is to help corroborate the subjective report given on the original diagnostic injection. Q. Would a lawsuit be a type of a secondary gain potentially? A. Yeah, potentially. MR. CHRISTENSEN: Objection. Foundation. Q. What about an attempt to get $250,000, would that be potentially a type of a secondary gain?
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of hit and miss, so I'm going to try to streamline it through. We've clearly established there was no record of preexisting neck or thoracic back pain problems before, right? A. Correct. Q. Okay. We talked about the radiographs and the MRIs not showing anything, but that there can be facet joint inflammation even in the absence of any type of degenerative changes on an MRI or diagnostic test, right? A. Correct. Q. Okay. Here I want to focus you in on the last sentence of that paragraph. "In pain management literature, some authors go so far as to say that the medial branch block or facet joint injection is the standard for diagnosing facetogenic pain." Okay. What I want to ask about that is: Why do you say some authors go as far as to say? A. Again, and I don't have the citation for that, this is based on discussions with the physiatrists that I've referenced earlier, but if there are cases where MRI or x-rays aren't diagnostic in showing facetogenic pain, then, you know, these doctors are suggesting that that
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MR. CHRISTENSEN: Objection. Foundation. A. Of course. Q. Okay. I want to look first at your report. Let's start on page 9, please. I'm looking at the second full paragraph or the third paragraph on page 9 from the top. You've been asked a lot of questions that are really general and I want to start asking some more specific questions relating to Mr. Card. Do you see the paragraph that says "In Mr. Card's case"? A. Yes. Q. Okay. I'm going to read this. "In Mr. Card's case, the persistence of pain and diagnosis of" -- how do you say this word? A. "Fa-set-o-jen-ic." Q. -- "facetogenic pain is difficult to reconcile fully in the context of causality, causation." Why do you say that? A. Again, it kind of relates to did the injury solely cause his pain and then ongoing pain or are there other factors that can contribute to or cause, for that matter, facetogenic or facet-based pain. Q. Okay. So what I'm doing is I know that you answered these questions, but there was a lot

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diagnostic injection is the most reliable way to determine if that's the site of pain. Q. Uh-huh. And so he had a diagnostic injection, correct? A. Yeah. Q. But what he didn't have is he didn't have a follow-up injection to determine whether or not there was potentially a false-positive, correct? A. Correct. Q. Okay. And where is he getting the facet joint injections? A. He had them in multiple areas. I would have to check the notes, but I believe C7, T1, T3, T4, T5, 6, and 7. Q. So there's quite a few in the thoracic spine? A. Correct. Q. And during your examination by Mr. Christensen, you had discussed that I think the person you consulted with, the physician you consulted with have done -MR. CHRISTENSEN: Objection. Leading. If you'd like to rephrase your questions. MS. TURNER: No, I wouldn't. MR. CHRISTENSEN: Follow the rules.

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Card v. American National Property and Casualty

Spencer E. Richards
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Q. In your examination from Mr. Christensen, you discussed issues relating to discussions with doctors who actually do the injections, correct? A. Well, either these doctors -- he asked about whether they do the injections and I don't think any of these do thoracic facet injections, but we were discussing that topic. Q. Right. And I recalled that Mr. Card had a lot of injections to his thoracic spine. So did you talk to the doctors about why they don't do injections to the thoracic spine? A. Yes. And, again, not specifically about Mr. Card, but that's where the -MR. CHRISTENSEN: Objection. Foundation. Hearsay. A. -- the information was discussed that it can lead to denervation of the thoracic musculature and potentially cause instability in the spine. What that would mean would be if the muscles aren't activated or firing correctly, it could potentially lead to excessive motion of the facet joint, which in theory could either perpetuate pain or cause degeneration of the joint, you know, or -- and this is kind of my own independent assessment, that if the patient's not
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radiofrequency ablations, nerve ablations, same thing as rhizotomies, could be performed on an annual basis, right? A. That was the specific question that I see here, yeah. Q. You weren't asked about it more frequently than that, were you? A. I'd have to review this, but, no, not that -Q. At least not on the parts that counsel questioned you on and used this? A. Correct. Q. Okay. You were also asked about Mr. Card's work and we've been talking about Mr. Card's work, but I want to establish what it is he does. So he is a delivery truck driver for UPS, correct? A. Correct. Q. And he told you that he -MR. CHRISTENSEN: Objection. Leading. Q. -- he has to be able to lift between zero and 150 pounds? A. That is what he told me, yes. Q. And he said that there had not been any modifications?
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feeling the pain, it may give a false sense of security that, "Hey, I'm fine. I may go," for instance, in this case, "play hockey." Even though it's noncontact, there's still obviously a lot of change of position and rotational and acceleration, deceleration, may have a false sense of security suggesting, "Hey, I can go do this," but that may perpetuate the symptoms of pain that he's having. Q. Okay. In your review of the medical records, do you recall the frequency with which Mr. Card was having these injections? A. I'd have to check the dates, but roughly it was every six to eight months, maybe nine months from my memory recall. Q. It was more frequent than an annual basis; is that correct? MR. CHRISTENSEN: Objection. Hearsay. A. Yes. And we could review that, of course, but I do believe it was shorter than a year. Q. Right. And then so this deposition that you provided on November 14, 2013, that counsel referred to in the Olsen versus Nielsen case, you were asked questions about whether or not

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A. That is what he told me. Q. Okay. And then you said that you didn't believe that you had reviewed the deposition so I want to hand you a copy of Mr. Card's deposition. And I'm looking at -MR. CHRISTENSEN: Let the record note that she handed him one page of the deposition. MS. TURNER: Yes, I did hand him one page of the deposition. We're looking specifically at page 11 and I'm going to hand it to counsel first so he can review page 11. MR. CHRISTENSEN: Which line? MS. TURNER: I believe it's 15. Q. So actually, it's down from there. So I'm talking about -- I'm asking Mr. Card about the accident that occurred November 27, 2009, and then I ask him starting on line 20 how much time he took off of work. So his response is that he took the next Monday off of work and then he went to work after that point, correct? MR. CHRISTENSEN: Objection. Counsel testifying. A. That's what I'm reading here, he took the very next Monday off and then December -- and he says "First day -- no. Never mind. Sorry. I went

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July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 148

to -- I went to work after I saw him." Q. Okay. I want to ask you about Mr. Card's hockey playing. What did Mr. Card tell you about the contact level of the hockey? A. He told me it was a noncontact league. Q. Did he say specifically what that meant? A. I don't remember that we went into specifics about that, no. Q. Okay. Did you make any inferences about whether or not there were other players that would ever come in contact with him? A. Well, I have seen patients who play in noncontact hockey leagues and despite best efforts, I'm sure -MR. CHRISTENSEN: Objection. Hearsay. A. -- there's contact, but most noncontact leagues involve no floor checking or no checking in the boards. Q. Okay. So "floor checking" means where you go up to someone and you put your shoulder into them? MR. CHRISTENSEN: Objection. Foundation. A. Or any body part. Q. Or if you check somebody into the board, you're meaning you push them into the sides?
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A. Correct. Q. Okay. Do you see the sentence that starts with "I cannot"? A. Yes. Q. Okay. Can you read that out loud. A. "I cannot imagine a scenario in which someone with true facetogenic pain would be able to participate even intermittently, let alone regularly, in these sports without prolonging recovery and/or worsening symptoms." Q. Why do you say that? A. Just, again, the same -- the forces of movement that I've described here, if there were true facetogenic pain or pain derived from the facet joint, these movements would mechanically, you know, lead to irritation, if not, you know -at minimum irritation or inflammation or potentially even, you know, more strain or even anatomic degeneration, so to speak. You know, that certainly doesn't happen often, but if someone already has pain in that joint, I would expect it -- no different than if someone had a strain in their knee and were having knee pain, to go out and play basketball it's almost impossible to imagine that that couldn't -Page 149

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A. Correct. Q. Okay. So noncontact league doesn't necessarily mean that there's no physical contact between a player and someone else? MR. CHRISTENSEN: Objection. Foundation. A. Generally not. Q. And this is based on your experience being a sports medicine doctor and treating patients who play noncontact hockey, correct? A. Correct. Q. Okay. You said that hockey also presents an issue of acceleration/deceleration injury; is that correct? A. Well, of course. Most sports, and hockey included, have frequent accelerations, decelerations as you're skating, moving forward, backward. There's also rotating, change of positions and even bending, get a stick to the ice there's going to be flexion and then extension movements. Q. Okay. On page 10 of your report, and I'd like to direct your attention to the second paragraph. So in looking at this paragraph, you're talking about Mr. Card's involvement in hockey and also with basketball, correct?

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wouldn't irritate the knee. Q. Okay. I'd like you to read the next sentence. A. "In his deposition, Mr. Card reported that he didn't resume playing hockey" -- so I did review his deposition. Obviously, I reference it here. But, anyway, "Mr. Card reported that he didn't resume playing hockey until after he'd started the rhizotomy treatments, but to me during the IME he reported he resumed play about a month after the subject accident." Q. Okay. What's the significance of that to you? A. I don't know that it means much in terms of -- I don't think he was trying to be deceptive. There was no point, and we established this with counsel, that he was trying to deceive me or whatnot, but I do think in terms of within a month while he's still actively seeking care with the chiropractor and that if he's resuming exercise like this, that it wouldn't contribute to perpetuating his symptoms. Q. Okay. And also that he hadn't, to your knowledge, he hadn't started rhizotomy treatments yet at the point that he would have started back

38 (Pages 146 to 149) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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with hockey, correct? A. Correct. Q. Okay. I'm going to direct your attention now to the last paragraph on page 10. I'd like you to read that first sentence out loud. A. "My opinion is that Mr. Card's primary soft tissue strains and subsequent facetogenic pain should have resolved within the first three to six months after the subject accident and, in a worst-case scenario, after the first round of radiofrequency rhizotomies, which was seven to eight months after the subject accident." Q. Okay. So this opinion, how did you form this opinion? A. As I say in the next statement, it's based on the treatment that he was receiving, my exam, and the radiograph and MRI findings. And it's also, you know, as I discussed with counsel, it's based on clinical experience. You know, I've, again, been in practice nine years. I've seen a lot of facetogenic pain or back strains, whether it's sports or other causes, and I have not once had a patient, you know, even have to have a thoracic rhizotomy. And, you know, we see these resolve. We
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2010, correct? A. Yes. Q. Okay. And he performed these rhizotomies more frequently than even every year, correct? A. Yes. Again, I believe so. I'd have to look at all the dates, but that's my memory. Q. At multiple areas in Mr. Card's spine, correct? A. Correct. Q. Including multiple areas in his thoracic spine? A. Correct. Q. Okay. So your opinion, it says "Based on this opinion, I do not agree with Dr. Raj that Mr. Card will need radiofrequency rhizotomies indefinitely, resulting in more than $250,000 in lifetime care." Is that still your opinion? A. Yes. And, again, I think we established this with counsel, that opinion doesn't mean that he doesn't need these for his pain relief as I think we've established that these do relieve his pain, but whether he needs them solely based on the subject accident and that's where I'm basing my opinion. I think he should have reached MMI solely from the accident by that August date.
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see these resolve with appropriate short-term management. Whether it's physical therapy, chiropractic, or short-term medication use, you know, these resolve unless there is some other reason that continue to perpetuate the symptoms. Q. Okay. And then you place a worst-case time frame for Mr. Card reaching MMI to August of 2010, correct? A. Yes. Q. That's on page 11. Is that your opinion? A. Yes. Q. Okay. And so based on that -- well, Mr. Card continued getting rhizotomies or nerve ablations from Dr. Raj after August of 2010? MR. CHRISTENSEN: Objection. Foundation as to his ability to testify as to the benefits and need and necessity for injections -MS. TURNER: That's not what I'm asking about. MR. CHRISTENSEN: -- and foundation, speculation. Q. You reviewed Dr. Raj's records, correct? A. Yes. Q. Okay. So what I'm asking you is: Dr. Raj, he performed rhizotomies after August of

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Q. Okay. And I think that, you know, you say that later on in the paragraph where you say "He may wish to have these treatments to decrease his pain and support his current lifestyle, but I do not agree that any future treatment is medically necessary or causally related to the subject accident." Still your opinion, correct? A. Yes. Q. Okay. And then you've also made the opinion that Mr. Card does not need any future medical treatment? A. Well, again, and I want to clarify, that that's related to the accident. Q. To the accident, correct. Okay. And then I want to talk about you were asked extensively about chiropractics and whatnot. So we all know you're not a chiropractor, but you do at times -- your patients do get chiropractor care and treatment to help with their pain, correct? A. Yes, frequently. Q. Including facet pain? A. Yes. Q. Okay. And who was it that said that -didn't Mr. Card tell you that he --

39 (Pages 150 to 153) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
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MR. CHRISTENSEN: Objection. Leading. Q. -- he was not receiving any type of a benefit from chiropractic -- or not any type, but not any long-term benefit from chiropractor care and treatment? A. Yeah. And I'd have to review my notes, but that's -- I don't remember whether that came from Mr. Card directly or from Dr. Raj's notes, but that relief was only short term. Q. What does "short term" mean? A. It depends. In some cases it can mean just day of treatment or for a day or two after. And short term can also, I guess, but up to a few weeks, several weeks. Q. Okay. And you've testified that your goal as a sports medicine physician is to help people find long-term solutions, correct? A. Correct. Q. Okay. That result in them not coming back and getting expensive treatments every so often, maybe -MR. CHRISTENSEN: Objection. Leading. Q. -- every few months, right? A. Correct. That's the goal. MR. CHRISTENSEN: Please stop leading.
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that MMI period, there's no reason to continue using those medications. Or if there's an alternative that manages his pain better and more safely, then you would use those. Q. Well, then there was discussion regarding Mr. Card taking the narcotics to help him sleep? A. I'm not sure if the narcotic was specifically for sleep. I believe that was more the Flexeril or the muscle relaxant for sleep. Q. Okay. A. I believe that he was taking the Flexeril to help him sleep at night for muscle spasms and the Percocet or the narcotic more for pain. Q. Okay. Are either of those sleep aids? A. They're not technically sleep aids. The Flexeril, though, one of the recognized side effects of that is fatigue, sleepiness. Q. Okay. Does it have a potential for abuse if people are using it as a sleep aid? A. The Flexeril? Q. Either of them. A. No, not abuse. There's always an issue of potential dependency. So if your body becomes dependent on that to initiate or maintain sleep, you kind of get used to that, so to speak. But as
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Q. Okay. So then the last paragraph on page 11, I'd like you to read that first sentence. A. The "Additionally"? Q. Yes. A. Okay. "Additionally, the ongoing use of narcotic pain medications is excessive and unwarranted." Q. Why do you say that? A. Well, narcotic pain medications obviously have significant baggage, so to speak, whether it's dependency or even potentially addiction. And counsel talked about whether I would deny using medications like this if it were helping. That's a difficult place to be and I've stated several times that I would always look for alternative safer treatments to manage long-term care. But, again, this is just a point that I want to emphasize is that, you know, even Dr. Raj in his notes said that they do not recommend long-term opioid treatment, you know. That's a standard that we all try to apply and adhere to. But my opinion that it's excessive and unwarranted goes back to specifically just the accident, you know. He may have needed medications in that short term, but once he, you know, reaches

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far as the Percocet, of course, there's a concern for abuse, whether it's taken for sleep or pain or whatever else. That's true for all narcotics. Q. There's also a potential for liver damage, correct? MR. CHRISTENSEN: Objection. Leading. A. Yeah. There is always potential for side effects, including potentially liver damage. Q. Okay. MS. TURNER: I don't have any other questions for you. FURTHER EXAMINATION BY MR. CHRISTENSEN: Q. Again, in this case, no indication that he's addicted to the pain medications, correct? A. No indications. Q. Or the muscle relaxers, right? A. Correct. Q. And the prescription he has is a low dose, correct? A. No. So I think is it 7.5 milligrams that he's on? Q. Do you have it in your records? A. I believe I do. Q. It's low strength, though, you'd agree?

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Card v. American National Property and Casualty

Spencer E. Richards
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MS. TURNER: Hold on. He's looking at it. A. No. So Percocet 7.5/500 and he told me he's taking that twice a day. 7.5 is a moderate, not a low dose. A lower does would be 2.5 or 5 milligrams of the -Q. There's no evidence that it hurts him or he's abusing it, correct? A. None that I have. Q. And you indicated that Dr. Raj would be the best -- the treating provider would be the best person to control his medication and have opinions on the necessity of his ongoing medications, correct? A. Correct. Q. And Dr. Raj said he did not recommend long term, but after treating him he still has to prescribe it, so he may have new information that you do not have from your one visit, correct? A. Correct. And if there were, that -yeah, correct. Q. He certainly has more experience with this patient than you do? A. Yes. Q. And you agree that pain can keep a person
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life and function and lifestyle are all important. Q. If the hockey has no increase -- has not increased his pain, he has the same amount of pain during hockey season that he has when he's not playing hockey, is it still your opinion that hockey is irritating him? A. Yeah, I do feel like -- again, to me I can't imagine that that doesn't contribute. And whether it's hockey or basketball or bowling or other activities -Q. You'd agree, Doctor, that you're purely speculating, correct? A. Yes. Q. Okay. A. But it's based on -Q. It's pure speculation, correct? A. Yeah. Q. Thank you. Isn't it true that a facet injury can cause symptoms different than a herniated disc? A. Yes. Q. And you'd agree with me and already stated that he's not a malingerer? A. Yes. Q. There's no actual secondary gain problems
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awake? A. Yes. Q. And if narcotics alleviate the pain, then the person can sleep, correct? A. Sure, potentially. Q. So it can actually be a sleep aid? A. Yeah. Q. You agree that there's no evidence that Travis Card has any injury secondary to acceleration or deceleration at hockey? A. Injury in terms of structural injury, no. Same as with the car accident. Q. No complaints of symptoms anywhere from hockey? A. Correct. Q. Are you suggesting -A. Except that he said he can't do those things without getting the treatments. Does that make sense? Q. And you agree that a doctor's -- one of their main goals is to help them maintain their lifestyle as much as possible? A. Yeah. Yeah. I think we've established that in terms of whether we say the words "restoring function," but, yes, I think quality of

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here that you noticed? A. Not that I can determine. Q. You don't have a background in testing any of that psychologically? A. Not a training background, no, of course. Q. And you said that you talked to doctors about injections, correct? A. Yes. Q. And some of them don't even perform injections, correct? A. Correct. Q. You don't know actually if they've performed any injections in the last six months? A. So one of them doesn't perform injections anymore, but the other two do perform injections. Q. Do you know if they do rhizotomies? A. Yes. I know one of them specifically does and I believe the other one does, but -Q. Dr. Fyans, do you know if he does? A. I don't know if Dr. Fyans does, but I know Dr. Hill does. And I said this earlier, I believe Dr. Hill only does rhizotomies in the lumbar spine. Q. And you did not talk to them specifically about this case, correct?

41 (Pages 158 to 161) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 162 Page 164

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A. No. I had information on a similar case, but it was not -- I mean, there were enough differences that I think the information applied, but it wasn't specifically about this. Q. And the discussions, was it before or after you formed your report in this case? A. I don't remember timing, but -Q. In the other case, did you mention -MS. TURNER: Hold on. You can finish what you were saying. A. Yeah. I believe it was after, but that's -Q. In the other case that you were discussing, did you specifically put in your report that you were basing your opinions on conversations with doctors? A. Sorry. Say that again. Q. Did you specifically reference that you were forming your opinions based on conversations with doctors in the hall at a conference? A. In this report? Q. In the other report that you were specifically -A. It wasn't for an IME. There wasn't a report.
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were discussing, correct? A. Correct. Q. You didn't have the file in front of you when you questioned them? A. No. Q. The patient's chart? A. No. Q. Okay. Isn't it true that peer-reviewed medical journals are more scientific than hallway conversations with doctors? A. Yes. Q. Do you have any idea if the training of the doctors that you talked to in the hallway are any way better than the doctors' training in this case this Mr. Card received? A. I have no way of knowing whether it's better, no. Q. And you have no evidence in this specific case that the injections that Mr. Card has been receiving have or are doing any harm? A. Correct. Q. And, in fact, when you said earlier that injections can be repeated annually, that was for each level, correct? A. Yes.
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Q. Okay. Doctor, do you typically form opinions based on conversations with doctors in hallways? A. Typically? Q. Yeah. A. No. I mean, but those are important ways that we share information with each other. We certainly can't know everything and so we share information with each other and those are important. Q. Don't you think it's important as a doctor when someone asks you a question to get all the facts before performing an opinion? A. Yeah. The more facts you have, the better off you're able to make an opinion, of course. Q. And the doctors you asked for opinions, you did not give them all the facts in this case, correct? A. Correct. Q. In fact, you gave them no facts in this case? A. On this specific case, correct. Q. Okay. And there's no way to verify what facts you actually gave them for the case that you

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Q. And you agree that trauma like this collision can cause facet injuries? A. Yes. Q. You agree he has a facet injury? A. Yes. Q. You agree that there were multiple impacts? A. Yes. Q. You agree that the branch block he received was diagnostic for those injuries? A. Yes. Q. You agree that a symptomatic facet injury should be treated? A. Yes. Q. You agree that rhizotomies have been helpful in treating him? A. Yes. Q. You agree that chiropractic care provided him some relief, correct? A. Yeah, short term. Q. You agree, then, the medication does help manage his pain at night? A. Yes. That's what he reported. Q. You have no report that his hockey has caused him any problems whatsoever?

42 (Pages 162 to 165) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 166 Page 168

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A. Correct. Q. And as to the chiropractic care, you're not trained or qualified to comment on those treatments, correct? A. Correct. Q. Same thing with physical therapy? A. I'm not trained in physical therapy. Is that what you're asking? Q. Correct. You said that you based some of your opinions on the review of the imaging and MR studies, but you told me earlier you did not actually review those. A. I reviewed the reports. Q. Just the reports, not the images? You never looked at the images? A. Not that I recall. Q. Okay. You never looked at the films yourself to determine the extent of the curvature in the neck? A. Correct. Q. But you agree that trauma can cause a curve in the neck? A. Yes. Q. You said that you never read his deposition, but you did?
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likely the cause of his injury than this high-speed trauma that he incurred? A. Correct. MS. TURNER: Asked and answered. Q. And you agree that the pain he sustained in the subject collision and five impacts never went away, correct? A. Went away with his -Q. So the same symptoms from the very beginning that they are today, correct? A. You know, I'd have to review all the specifics again because I think at one point he complained about low back pain -Q. Okay. MS. TURNER: Hold on. Let him answer. A. -- but the neck and the thoracic spine. Q. In general -A. In general. Q. -- the facetogenic pain? A. Yeah. Q. It's your opinion that those ongoing problems were initially caused by the accident and continue today? A. Yeah, same symptoms. Q. And there's no, in your opinion, Doctor,
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A. Yeah. So I obviously referred to it in that paragraph that I read. I didn't recall specifically reviewing it, but obviously I did. Q. And you listed yourself as the only author of a publication when you were not, correct? A. Correct. Q. And you agree that the crash was at least partially responsible for his ongoing pain since he was asymptomatic before the accident? A. Well, yeah. For his pain, yes. Q. And he's had no other injuries since the crash? A. None reported or that I read of. Q. And it's only your opinion that they should have resolved, not that they did resolve, correct? A. Correct. Q. And when you stated that he resumed hockey a month after, you don't know to what duration, whether it was one game or whether it was even a quarter and he had to leave early, correct? A. Correct. Q. You agree, Doctor, you're not stating that it is more likely that playing basketball and hockey are the exact cause of his injury -- or more

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no more likely cause for the pain within a reasonable degree of medical certainty as he has it today? A. Yeah. I can't be a hundred percent certain, of course, but . . . MR. CHRISTENSEN: That's all I have. MS. TURNER: That's all I have. We'd like to read and sign, Dr. Richards would. You can send it to his -- would you like it at your home address or your business address? THE WITNESS: Home. MS. TURNER: Okay. MR. CHRISTENSEN: Are you familiar with read and sign? THE WITNESS: Yeah. MR. CHRISTENSEN: So you can read and make any changes, but if you do, obviously, I can comment. THE WITNESS: Yeah. MR. CHRISTENSEN: And we might have to take your deposition again. THE WITNESS: That would be fun. (Signature requested by Ms. Turner.) (Whereupon the taking of this deposition was concluded at 1:15 p.m.)

43 (Pages 166 to 169) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell

July 3, 2014

Card v. American National Property and Casualty

Spencer E. Richards
Page 170 Page 172

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

*** Original reading transcript submitted to the witness at: 4533 Summerwood Drive Bountiful, Utah 84010

CERTIFICATE STATE OF UTAH ) COUNTY OF SALT LAKE ) THIS IS TO CERTIFY that the deposition of SPENCER E. RICHARDS was taken before me, Wade J. Van Tassell, a Registered Merit Reporter and Notary Public in and for the State of Utah. That the said witness was by me, before examination, duly sworn to testify the truth, the whole truth, and nothing but the truth in said cause. That the testimony was reported by me in Stenotype, and thereafter transcribed by computer under my supervision, and that a full, true, and correct transcription is set forth in the foregoing pages, numbered 3 through 170 inclusive. I further certify that I am not of kin or otherwise associated with any of the parties to said cause of action and that I am not interested in the event thereof. WITNESS MY HAND and official seal at Salt Lake City, Utah, this 15th day of July, 2014. Wade J. Van Tassell, RPR/RMR/CRR My commission expires: June 7, 2016

Page 171
CERTIFICATE STATE OF UTAH ) COUNTY OF __________ ) I HEREBY CERTIFY that I have read the foregoing testimony consisting of 168 pages, numbered from 3 through 170 inclusive, and the same is a true and correct transcription of said testimony except as I have corrected Original transcript in ink, initialed same, and indicated said changes on enclosed errata sheet.

SPENCER E. RICHARDS

this

Subscribed and sworn to at day of 2014. Notary Public

My commission expires: ***

44 (Pages 170 to 172) DepomaxMerit Litigation 801-328-1188 Wade J. Van Tassell…...

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