Opinion
Index No. 50958/18
02-22-2022
Tracy LEE and Jeremiah Lee, Plaintiffs, v. Ian Douglas TROGE and Daniel Troge, Defendant.
Goldblatt & Associates, P.C., 1846 East Main Street (Route 6), Mohegan Lake, NY 10547 Collins, Fitzpatrick & Schoene, LLP, 34 South Broadway, Suite 407, White Plains, NY 10601
Goldblatt & Associates, P.C., 1846 East Main Street (Route 6), Mohegan Lake, NY 10547
Collins, Fitzpatrick & Schoene, LLP, 34 South Broadway, Suite 407, White Plains, NY 10601
Maria G. Rosa, J.
On January 31, 2022 and February 2, 2022 this court held a hearing pursuant to Frye v. United States , 293 F.1013 (D.C. Cir. 1923) in order to determine whether or not to grant Defendant's motion to preclude Plaintiff's expert from testifying about difusion tensor imaging ("DTI"). Plaintiff sought to establish that magnetic resonance imaging ("MRI") with DTI is generally accepted in the medical community as a reliable tool for diagnosing head injury in individual patients. The court agrees that as a result of this hearing Plaintiffs have met their burden as a matter of law.
The first witness to testify was Dr. Brian Greenwald, M.D. His curriculum vitae is on file with the court and he has been qualified as an expert. Dr. Greenwald is dual certified in physical rehabilitation and brain injury in New York and New Jersey. Dr. Greenwald testified to his qualifications and his experience and education in these fields. This includes his publication of over forty peer reviewed articles in brain injury medicine. Dr. Greenwald testified as to how a concussion or mild traumatic brain injury ("TBI") is diagnosed including the diagnostic tools used with respect to the general consensus in the medical community. Dr. Greenwald provided testimony as to the physiology of the brain including what we refer to as the outer portion or gray matter versus the cell bodies and the center of the brain, the "wiring" or the white matter explaining that gray matter and white matter have different densities and that where they meet is particularly susceptible to injury. Dr. Greenwald testified with respect to acceleration to deceleration in causing tearing of the axons in the brain, a structural injury also known as difused axonal injury also known as traumatic axonal injury. Dr. Greenwald testified in detail as to diagnostic tools such as a CT scan which he referred to as "a start" and that although it is limited it is appropriate in the emergency room to see if there is any emergent issue like a skull fracture or a large hemorrhage. Dr. Greenwald testified that a CT scan is not sensitive enough to identify white matter injury. He testified that an MRI is helpful but is also limited. A standard MRI, he said, will give the same resolution as if we were looking with the naked eye but will not tell us about the brain function or look microscopically and cannot rule out a traumatic brain injury. Often a negative MRI does not rule out damage to the white matter, according to Dr. Greenwald. DTI is used to detect white matter injury. It is a way of looking at the axons to determine how normal the water movement in the white matter bundles is to determine whether there is a TBI. According to Dr. Greenwald, this is why DTI is a reliable imaging technique used to assess and identify the white matter and assess injury. Dr. Greenwald discussed some of the symptoms associated with TBI and recognized that DTI is for people who meet the criteria for a TBI but that DTI could be too sensitive, for example sometimes finding white matter injury which is not related to trauma but is related to other factors such as age. He underscored that when using DTI those other factors must all so be considered in reaching a diagnosis. He testified that most people recover from a concussive injury within a year or much less but what is referred to as the "miserable minority", approximately fifteen percent, do not fully recover and that MRI with a DTI sequence is appropriate for some of those individuals. He explained that this is why it was appropriate for Plaintiff to have an MRI with a DTI sequence approximately three years after her accident when she was still experiencing symptoms.
The next witness to testify was Dr. Jennifer van Velkinburgh, a biophysicist who owns a company that specializes in peer reviewed publications. Dr. van Velkinburgh testified as to her education and experience in her field including obtaining a Ph.D in molecular physiology and biophysics, the field in which she currently works. Dr. van Velkinburgh discussed what makes a publication scientific which is the peer review process including certain prerequisites such as giving an unbiased documentation of what the writer did, including the details of the methodology the doctors used, that all got the same results referring to the term "replicability", that all of the literature from all sides was discussed, considered and cited and that any conflicts of interest were addressed. She also testified as to the criteria to qualify someone as an author and that each author is responsible for every part of the paper being presented. She referred to a twenty-seven item checklist.
In referencing Exhibit 24, the paper entitled "Imaging Evidence and Recommendations for Traumatic Brian Injury: Advanced Neuro- and Neurovascular Imaging Techniques" written by M. Wintermark, P.C. Sanelli, Y. Anzai, A.J. Tsiouris, and C.T. Whitlow, on behalf of the American College of Radiology Head Injury Institute, referred to in the testimony and hereinafter referred to as "the White Paper", which defense counsel has relied upon in attempting to discredit the use of MRI with DTI, Dr. van Velkinburgh stated that White Paper is not peer reviewed, and has only met two of the twenty-seven items on the requisite checklist. One of the reasons she gave was that the White Paper failed to mention at least thirty other papers which should have been considered and discussed as they were the opposite of what the "White Paper" said. When it was pointed out on cross-examination that the American College of Radiology and the American Society of Neuroradiologists "endorsed" the White Paper, Dr. van Velkinburgh underscored that "endorsed" does not mean peer reviewed. In addition, she testified that these very groups list DTI as an accepted method of diagnosis. Plaintiffs’ counsel pointed to Exhibit 30 (another article from the American College of Radiology) in support of that testimony. The doctor's conclusion was simply that the "White Paper" is not a scientific paper and that "endorsement" is something that is not used for peer review but rather is used for marketing.
The third witness was Dr. Michael Lipton, one of Plaintiff's expert witnesses. Dr. Lipton is a diagnostic radiologist. He testified as to his education and experience including board certification in neuroradiology and diagnostic radiology and a Ph.D. in neuroscience. He is the Medical Director for MRI services at the Montefiore Medical Center and professor in departments of radiology and psychiatry at the Albert Einstein College of Medicine. He has published research in peer reviewed journals mostly focused on radiology, imaging, neuroscience and brain imaging and has over eighty publications and a textbook. Dr. Lipton testified as to the use of a CT scan as an acute screening test, used upon immediate arrival to an emergency room referencing it as a "crude springing tool". Dr. Lipton testified that a CT scan is limited in showing abnormalities in brain tissue. He described the use of the MRI in the field of brain injury for patients with persistent symptoms. He testified that MRI is also limited because most TBIs would not be visible on a standard MRI. He testified that when axons are damaged it would not be seen on a standard MRI. He testified regarding DTI referencing "diffusion" specifically and giving the example of how one drop of blue ink will turn a glass of water blue because the water and ink particles are moving around and bumping into each other, and that the movement of water is diffusion. An MRI shows what is happening with the water. Diffusion tells us how much that water is moving. Similar to Dr. Greenwald's testimony, Dr. Lipton testified how white matter has axons sometimes referred to as tubes that prohibit water molecules from moving freely. Dr. Lipton gave the example of picturing a bundle of straws in a glass and how water could move but would bump into that bundle and move along the straws. With DTI there is a bunch of MRI images that compute the direction and speed of water movement in the tissue. Dr. Lipton discussed different ways of performing MRI with DTI in order to quantify what is happening with respect to direction, speed and uniformity of movement of the water molecules. He testified that he uses DTI in the diagnostic process but not as a standalone diagnostic tool. Similarly he uses MRI in the diagnostic process but not by itself. He testified that both are used to aid in diagnosis but that the clinicians are the ones that make the ultimate diagnosis with respect to a particular patient and the plan for that patient's care and treatment.
Dr. Lipton testified that he is a peer reviewer and his work is always peer reviewed. He discussed the origins of the White Paper written by a group of neuroradiologists but having not been peer reviewed. He testified that although he participated in the discussion, he did not sign on to the White Paper because there is a "complete lack of scientific content" and that it was mostly not about DTI. Most was a recognition of background information. He testified that the paper did not lay out any methodology, that the conclusions were stated before any search criteria or methods were laid out, and that there was no display or quantification of the results. He also testified that the White Paper used out-dated information and cited methods focused on therapeutic not diagnostic techniques. In discussing the plaintiff in this case, Dr. Lipton testified that it was appropriate for the plaintiff to have had the MRI with DTI several years after her accident where there were ongoing symptoms. Similar to Dr. Greenwald's testimony, Dr. Lipton testified that most concussions will resolve within hours to months and that others are the "miserable minority". He testified as to the interpretation process from DTI. He specifically referenced fractional anisotropy, as a value between zero and one that describes the degree of the diffusion process. Zero means all are moving in their own direction because there is no structure in the way. A number close to one will be the result in healthy white matter as movement is much more uniform. He testified that .7 could be a great result in one part of the brain but bad in another part and that the highest it could ever be would be .9, again depending on the part of the brain. Both he and Dr. Greenwald addressed the importance of comparing a specific patient's result to a group of "normal" results. Dr. Lipton also discussed how adjustments must be made to the control group for such factors as age, gender, smoker v. non-smoker, high blood pressure, etc.
Dr. Lipton testified how there is not one test alone that can show all abnormalities as a result of a TBI. He testified that different tests and results reflect different abnormalities in different location in the brain, and that the further out you go in the brain the less likely you are to find abnormalities with DTI. Dr. Lipton testified that certain hospitals don't use DTI because they don't have the physical resources to do it. While he acknowledged that the Radiology Society of North America said that there was insufficient evidence supporting routine use of DTI that this was a statement lifted from the White Paper but was used on the press web page and is nothing akin to a scientific peer reviewed paper (emphasis added).
The fourth and final witness to testify was Dr. Marc Katzman. Dr. Katzman is board certified in diagnostic radiology and neuroradiology. He discussed his education and experience. He is currently in practice and on weekends works at a level one trauma center. He is familiar with DTI but it was not part of his formal curriculum. He did research with Dr. Lipton including about DTI in about 2004. He testified that none of his training to become board certified in diagnostic radiology or neuroradiology included DTI. He acknowledged that he has no publications regarding brain imaging and is not an expert in DTI imaging. He testified that DTI is a "brand new method". He testified that slight movement during an MRI with DTI could change the fractional anisotropy or "FI" value. He testified that Dr. Lipton assumed that the plaintiff never hit her head before the subject accident and that her high blood pressure had nothing to do with the "abnormal" result. However, the question of causation is not currently before this court. What is before this court is whether or not Plaintiffs’ expert may be permitted to testify about MRI with DTI, that is, whether or not it is a useful tool in the diagnostic process of a TBI. Dr. Katzman did acknowledge that DTI is used in neurosurgery, that it is used in a region of interest analysis, that it is highly sensitive to observe and assess white matter and that there is a difference between sensitivity and specificity and that DTI is sensitive to identify white matter. As discussed by Dr. van Velkinburgh sensitivity means an abnormality can be seen which according to her is what the DTI does. Specificity refers to what the abnormality is or what caused it. This is not the purpose of DTI. Dr. Katzman objects to the use of DTI in a clinical setting although he acknowledged that the clinics he works for take referrals from treating physicians including for MRI, CT scan, and would not do those without a referral either. He testified that a prescription would be issued by a clinician just as the plaintiff got a prescription for an MRI with DTI in this case. Dr. Katzman acknowledged that DTI is sensitive to white matter damage in that certain imaging sequences have different sensitivities and agreed that DTI is not specific as to causation.
Dr. Katzman testified that he is a member of the American Society of Neuroradiology, a member of the American College of Radiology, but was not aware that they list DTI as one of the diagnostic tools. (Exhibit 21 contains evidence of this listing).
Dr. Katzman objected to Dr. Lipton's method of interpreting a DTI study. Again, Dr. Lipton's opinion as to the plaintiff's injury is not what is currently before this court. Dr. Katzman acknowledged that a differential diagnosis is a list of possibilities for a nonspecific finding. He testified that in order to do a differential diagnosis regarding brain abnormality he looks at it and rules in and rules out from a list of possibilities and that with any imaging all a doctor can do is identify any abnormality (not the cause).
On the basis of all of the foregoing, this court finds that Defendants’ motion to preclude Plaintiffs’ expert from testifying about MRI with DTI is denied. The court finds that diffusion tensor imaging is a reliable and accepted diagnostic tool within the scientific medical community. MRI with DTI is one appropriate test that can be used in identifying abnormality in the brain for the purpose of conducting a differential diagnosis of a traumatic brain injury.
The foregoing constitutes the decision and order of the Court.
Scanned to the E-File System only
Pursuant to CPLR § 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.