Terence Lenamon's Trial Documents: Examination of Dr. Robert Wayne Thatcher in State of Florida v...

7/31/2019 Terence Lenamon's Trial Documents: Examination of Dr. Robert Wayne Thatcher in State of Florida v Grady Nelso

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1 IN THE CIRCUIT COURT OF THE11TH JUDICIAL CIRCUIT, IN AND

2 FOR MIAMI-DADE COUNTY, FLORIDA

3 CASE NO. F05-00846

4

5 STATE OF FLORIDA,

6 Plaintiff,

7 vs. REDACTED TESTIMONY

8 ROBERT WAYNE THATCHER, PhD

9 GRADY NELSON,

10 Defendant.

11 ------------------------------------/

12 Gerstein Justice BuildingMiami, Florida

13 November 18, 2010

14

15 The above-entitled case came on for hearing before theHonorable JACQUELINE HOGAN-SCOLA, as Judge of the Circuit

16 Court, in court pursuant to notice.

17

18 ---------------------

19

20 APPEARANCES:

21 OFFICE OF THE STATE ATTORNEYKATHERINE FERNANDEZ-RUNDLE

22 BY: ABBE RIFKIN, ASA-AND- HILLAH MENDEZ, ASA

23 -AND- JOEL ROSENBLATT, ASA

24 FOR THE DEFENDANT: TERENCE LENAMON, ESQUIRE-AND-DAVID MARKUS, ESQUIRE

25


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1 THURSDAY, NOVEMBER 18, 2010, 10:22 A.M.

2 (The following proceedings are a redacted version

3 of the testimony of Robert Wayne Thatcher, PhD, omitting

4 objections, rulings and sidebars at the request of the

5 ordering party).

6 ROBERT WAYNE THATCHER, PhD,

7 called as a witness on behalf of the Defense having been

8 duly sworn by the Cler , was examined and testified as

9 follows:

10 THE WITNESS: Yes, I do.

11 THE COURT: O ay. Please eep your voice up,

12 address your comments to the ladies and gentlemen of the

13 jury. And before you begin, state and spell your full name.

14 THE WITNESS: My name is Robert Wayne Thatcher.

15 R-O-B-E-R-T, W-A-Y-N-E, and Thatcher is spelled,

16 T-H-A-T-C-H-E-R.

17 THE COURT: Than you. You may proceed.

18 DIRECT EXAMINATION

19 BY MR. LENAMON:

20 Q Good morning, Doctor.

21 A Good morning.

22 Q How are you?

23 A Good.

24 Q Can you tell -- can you introduce yourself to the

25 jury for me?


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1 A Well, I'm a neuroscientist who's wor ed for about

2 40 years in the field of quantitative EEG. Do you want me

3 to give my educational bac ground?

4 Q Yeah. Let's start with your educational

5 bac ground, Doctor. Where did you attend undergraduate

6 school? Let's start from there.

7 A I went to the University of Oregon, graduated with

8 a chemistry major. I then went to a -- to get a Ph.D.

9 degree in psychology with a major in biobehavior, its

10 relationship of the brain to behavior.

11 I then became a postdoctoral fellow at Albert

12 Einstein College of Medicine. That was in 1971 through '73.

13 I taught medical students neuroanatomy, I taught them about

14 the brain.

15 Then I went to New Yor Medical College as an assistant

16 professor in the Department of Psychiatry where we were

17 first developing computer uses or applying computers to the

18 EEG.

19 Your brain weighs three pounds. It consumes 40 to 60

20 percent --

21 (Omission).

22 Q We'll get to that a little later. Let's tal

23 about your continuing education and where you wor ed and

24 your research.

25 A Well, I was a postdoctoral fellow, and then I was


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1 an assistant professor and I taught medical students about

2 the brain, which includes how much energy it consumes.

3 That's how you start the lectures, and then that energy

4 gives rise to electricity, so we mention the electricity of

5 the brain. There's three pounds --

6 (Omission).

7 Q What did you do after you taught the students?

8 We'll get bac to that.

9 A Then we developed the technology that's called

10 quantitative EEG. That's where you use a computer to

11 measure the electrical energies of your brain.

12 Q What year was that, Doctor?

13 A That was 1973 through -- New Yor Medical College

14 until 1977.

15 Q What did you do at New Yor Medical College?

16 A I was an assistant professor in the Department of

17 Psychiatry and the Department of Neurophysiology. So I

18 taught medical students and I did research at the medical

19 school.

20 Q And how long did you do that?

21 A From 1973 until 1977.

22 Q In 1977, what did you do at that point?

23 A I then got a job at New Yor University School of

24 Medicine, NYU School of Medicine in New Yor , and I was -- I

25 got a position as an associate professor; that's the next


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1 step above an assistant professor, and I continued to do

2 what I was doing at New Yor Medical College, which is to do

3 research on computerized EEG and teach medical students.

4 Q You wor ed with the Department of Psychiatry at

5 that university?

6 A That's correct.

7 Q And in 1979 what did you do at that point?

8 A I left NYU School of Medicine. I became a full

9 professor at the University of Maryland in Baltimore, and

10 also a joint appointment on the Eastern Shore campus.

11 I was in the Department of Psychiatry and I was also

12 part of what's called Shoc Trauma. This is a facility in

13 Baltimore that has four or five helicopters that go out

14 about 50 miles to people in who have been in automobile

15 accidents or off of trees or out of buildings, all inds of

16 serious injuries, and I was the director of the computerized

17 EEG program.

18 We would measure EEG and anybody, about 70 percent of

19 the patients admitted to Shoc Trauma had traumatic brain

20 injury. We had to measure the EEG for all of those

21 patients.

22 Many of them were in a coma. Many of them had

23 mild head injuries also, and then we would follow-up with

24 repeated tests to see whether they were available for

25 rehabilitation of various types.


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1 Some would have to go to a chronic coma center because

2 they were in a coma for a long period of time, and we did

3 that assessment until roughly 1989 when I went to -- then to

4 the National Institute of Health. I left the University of

5 Maryland.

6 Q Can you describe to the jury what the National

7 Institute of Health is and what it consists of, Doctor?

8 A The National institutes of Health is a large

9 facility in Bethesda, Maryland. It's near Washington, D.C.

10 They employ over 20,000 people. It's dedicated to doing

11 science of various types.

12 I wor ed in what's called the neurological -- the

13 National Institute of Neurological Diseases and Stro e.

14 It's part of the National Institutes of Health, it's just

15 dedicated to the brain, and I was in charge of developing

16 what's called a 128 channel EEG.

17 It's many, many electrodes are placed on the little

18 dis s that are placed on the scalp, and I also did what's

19 called neuroimaging.

20 We created three-dimensional images of the brain both

21 by using electricity and then we can loo inside the brain

22 mathematically to see where the EEG is coming from and

23 combine that with the MRI, and they also had these large

24 SPEC and PET Scans that would loo at the metabolism of the

25 brain, and we would integrate all that information into one


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1 giant image with pictures so you could see what is going on

2 inside people's brains when they would move or they would

3 thin or when you -- when stimulation comes into your eyes

4 or your ears or your s in.

5 And then your intent to move, we could see the pathways

6 and the fine time details between different parts of the

7 brain that are involved.

8 And this all happens very quic ly, li e a hundred

9 milliseconds. And we would trac that out in three

10 dimensions is what I did at the National Institutes of

11 Health.

12 Q How long did you do that, Doctor?

13 A Did that until 1993 when the Department of Defense

14 and the Veteran's Administration as ed me to -- and

15 recruited me to go to Florida - that's where I am now - to

16 the Bay Pines VA Medical Center and the University of South

17 Florida to do computerized EEG analysis of veterans and

18 active duty military personnel.

19 These are people from Walter Reed who are in the Army,

20 people from San Diego who are in the Navy active duty and

21 then Air Force from San Antonio, Texas.

22 And we would -- there was four VA hospitals in the

23 United States that would send us EEG data, and then these

24 three active duty military personnel locations that would

25 send us computerized EEG data and MRI data.


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1 And so I was in Florida at Bay Pines Medical Center. I

2 had a large staff that would analyze that data and then --

3 and these were all people who had traumatic brain injury of

4 one type or another.

5 And then we would write reports and this would be part

6 of the patient's medical records. We would be involved in

7 trying to decide whether a pilot, for example, should get

8 bac into an airplane.

9 We have a 2 or 3 million-dollar jet, and we would

10 evaluate the -- trying to see what reaction times were, how

11 fast things were wor ing, how cogent and competent the

12 person is, and that would be a decision that would be made

13 then, the EEG, the brain was only a part of that decision

14 that was made as to whether this Navy pilot should go bac

15 flying his jet airplane.

16 Q And during this period beginning in 1993, while

17 you continued to do that, did you use the quantified method

18 to analyze these injuries?

19 A Yes. That was the main method. It's the

20 computerized analysis of the electrical energies generated

21 by the small amount of tissue inside our s ulls is what we

22 measure electrically.

23 It's very sensitive. You can measure the millisecond

24 by millisecond time delay from one part of your brain to the

25 other.


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1 When there's traumatic brain injury, the cables or the

2 connections that -- fibers that connect one part of the

3 brain to the other get stretched and then they swell.

4 When they swell, they don't conduct very fast, they

5 slow down. That reduces the speed and efficiency of

6 thin ing, the ability to remember is affected.

7 And so we can measure that and relate that to the

8 neuropsychological tests. All the patients were given

9 extensive tests of how well they could remember, how well

10 they could ma e judgments, how well they would be able to

11 compare things.

12 We would compare that to their EEG, the computerized

13 EEG, and that's the basically what I did since 1973.

14 Q So as early as 1993, what I'm hearing is that the

15 United States Department of Defense used the QEEG to analyze

16 members of the military who were active -- actively on duty?

17 (Omission).

18 THE WITNESS: Yes, that's correct. Today there's

19 over 90,000 peer-reviewed journal articles on this

20 well-established science. And that's the science --

21 (Omission).

22 Q Go ahead, Doctor.

23 A And that science was applied to evaluate veterans

24 who have traumatic brain injury and active duty military

25 personnel.


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1 The brain is a very, very important part of our body

2 and so having good evaluation of it and trying to get people

3 to -- to rehabilitate people who have had traumatic brain

4 injury was our goal.

5 The EEG -- computerized EEG was a central part of that

6 endeavor.

7 Q And how long did you continue to wor with

8 the Department of Defense and the Veteran's Administration?

9 A I stayed at the VA Medical Center until 2006. We

10 had funding up until 2001 and the budget was cut, and after

11 2001 we submitted a lot of grants. I stayed it VA Medical

12 Center until 2006.

13 Q At some point during that tenure while you were

14 continuing to wor with the Veteran's Administration, did

15 you begin to become involved in the formation of your own

16 program?

17 A Yes. When our budget was cut, we decided to -- or

18 I did to try to create a company since we had so much

19 expertise in doing this, and I could see all the existing

20 companies and I believed that we could create a product that

21 was cheaper and better than any competitor out there.

22 So, I did begin to create a company, which I did,

23 called Applied Neuroscience in 2001, and it still is in

24 operation today, and it provides software to do

25 three-dimensional imaging of the brain using computerized


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1 EEG. It's just one company among many companies that do

2 this.

3 Q Doctor, when did you leave the Department of

4 Defense and the Veteran's Administration?

5 A It was 2006.

6 Q Since then what have you been?

7 A I am the president of the company called

8 Applied Neuroscience, Incorporated.

9 Q What does Applied Neuroscience do?

10 A It develops software that's on the Internet that

11 people can download from the Internet that's dedicated to

12 measuring the electrical energies of the brain.

13 It's dedicated to allowing a competent psychiatrist or

14 neurologist or psychologist or neuroscientist, whoever wants

15 to use this software to zoom in on different parts of the

16 electrical energies and then to loo at it in three

17 dimensions, register the electrical energies to an MRI.

18 Q Doctor, before we get into a little more detail

19 about that, let's tal about your certificates. Can you

20 tell the jury what certificates you hold?

21 A I would have to loo at my curriculum vitae.

22 MR. LENAMON: May I approach the witness?

23 THE COURT: Sure.

24 MR. LENAMON: Do I need to have it mar ed?

25 THE COURT: It's an exhibit for identification.


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1 BY MR. LENAMON:

2 Q Doctor, I'm showing you what's been mar ed as

3 Exhibit A-48. Would you ta e a moment to refresh your

4 recollection?

5 A Yes.

6 Q Can you explain to the jury what certificates you

7 currently hold or have held?

8 A Well, I was initially certified as an expert

9 in clinical electroencephalography, electrophysiology and

10 what's called neurometrics, that is computerized EEG in 1978

11 at the New Yor University School of Medicine.

12 I then got a certificate at the National Institutes of

13 Health to be the project manager for the 128 channel EEG.

14 I'm certified as a neurotherapist by the Academy of

15 Certified Neurotherapists, that's helping to deliver therapy

16 for people who have traumatic brain injury.

17 I am certified in EEG by the American Board of

18 Certification of Quantitative Electroencephalography, that's

19 in 1998.

20 I have a certificate from the Biofeedbac Institute of

21 America. I am also certified in EEG and neurophysiology by

22 the EEG and Clinical Neuroscience -- I'm sorry, American

23 Board of Electroencephalography and Clinical Neurophysiology

24 in the year 2000.

25 Q If I could ta e that bac for a moment, Doctor.


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1 A Sure.

2 Q Can you describe -- and I'll hand you bac this

3 curriculum vitae.

4 Can you describe your professional affiliations

5 beginning in 1992 to the current date?

6 A Well, I was the special expert and contract

7 officer for Multi Modle Imaging at the National Institutes

8 of Neurological Disorders and Stro e in Bethesda, Maryland.

9 That's '91 to '93.

10 1994 to 2006 I was adjunct professor of neurology at

11 the University of South Florida College of Medicine, and

12 then from 1992 to 2006 I was the director of the neuro

13 imaging lab and director of the EEG and MRI defense and

14 veterans head injury program at Bay Pines Veteran's

15 Administration Hospital in Bay Pines, Florida.

16 And then 2006 I'm the director the neural imaging at

17 the Applied Neuroscience Laboratories as part of the Applied

18 Neuroscience, Incorporated, the company that I mentioned

19 earlier.

20 Q I heard you mention earlier peer-review articles.

21 Can you describe what peer-review articles are and what

22 importance they pay in your particular field?

23 A Well, the peer-review process, if you are a

24 scientist, or primarily involved in science, you do a

25 particular research study, something you are interested in,


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1 and you conduct a study and then you complete the study,

2 you'll write that study up and then you'll submit it to a

3 journal to be published.

4 But before it's published, the editor of the journal

5 will send your manuscript out to three or four people that

6 you don't now.

7 They are anonymous. And these are the experts in their

8 field, and their job is to be very critical, to loo at what

9 you wrote, to find out that what you said is correct in the

10 introduction.

11 What you said is correct in the methods, that the

12 graphs and figures are correct, the numbers are correct,

13 that your discussion of the study is correct.

14 And so they thoroughly go through your paper. And then

15 you receive anonymous reviews from the editor from the three

16 or four reviews that you then have to reply to.

17 You have to answer every one of the reviewers'

18 criticisms, and then you'll submit your reply to the editor

19 of the journal, and if the reviewers are not happy with what

20 your apply is, then they send it bac to you and then you

21 have to do it again.

22 Sometimes it ta es a year or so to get your paper

23 published because of going bac and forth with reviewers.

24 It's a very healthy positive thing because the

25 reviewers are very pic y, they loo at everything that is


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1 said.

2 (Omission).

3 THE WITNESS: At the end of the day, your wor is

4 much better because of that, because you get this feedbac .

5 And, basically that's what it is.

6 It's an independent process of anonymous people

7 who are -- you don't now who they are, but they generally

8 are very competent. Sometimes you get people who don't

9 care, so they just say this is good, publish it.

10 But mostly you'll get critical reply or critical

11 evaluations of what you wrote.

12 BY MR. LENAMON:

13 Q In what areas have you written peer-review

14 articles on?

15 A Well, I have published overall about 200 papers,

16 six boo s and about 50, 60 or 70 peer-review journal

17 articles that cover developmental processes from birth to

18 adulthood.

19 How does the brain grow when it grows in different

20 growth spurts at different ages. I have published studies

21 on memory and learning.

22 How does the brain acquire new information? How do we

23 retrieve that information? I have published papers on

24 volitional movement.

25 How is it that we decide to move, and we measure the


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1 activity of the brain before you actually move, before you

2 are aware that you move.

3 Your brain already nows what you are going to do, so

4 we measure how that happens.

5 I've published papers on traumatic brain injury. I've

6 published papers on the MRI and the relationship of the MRI

7 to the computerized EEG, and then I have published papers on

8 autism.

9 For example, you can see how different parts of the

10 brain of an autistic child are just not grabbing very much

11 information and you can see why it's not grabbing that

12 information.

13 And I've published papers on mathematics, the specific

14 methods of being able to measure very small time differences

15 between different parts of the brain.

16 Q Doctor, have you been part of the study section or

17 reviewer process, and can you explain what that is to the

18 jury?

19 A Well, I too have been one of those reviewers,

20 anonymous reviewers, and editors of various journals will

21 send me a paper, and I would play the role of carefully

22 reading the paper.

23 You spend hours doing this, and critiquing the author

24 and trying to ma e their wor better. I have done that on

25 hundreds of papers.


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1 I have also been invited to be on what's called study

2 sections at the National Institutes of Health. If you are a

3 scientist and you want to get money from the government to

4 support your research, you would write up a proposal and you

5 would submit it to the Natural Institutes of Health and then

6 that would come before what's called a study section, so

7 about eight or nine people sitting around a table.

8 And each of us would have to read four or five studies,

9 and then we critique them and decide whether or not

10 these studies should be funded or not. That's what the role

11 of the study section is.

12 And there's a primary reviewer and then there's two

13 secondary reviewers, and if the primary reviewer doesn't

14 li e what you submitted, it's pretty unli ely you'll get

15 funded.

16 If the primary reviewer li es it and the secondary and

17 the third reviewer don't, usually they argue among each

18 other and then the group will vote on whether or not the

19 paper should be funded by the federal government.

20 So, there's millions and millions of dollars of funding

21 that goes out to a variety of different science projects

22 across the United States, and it's all done this way, by a

23 study section of independent people that are brought in from

24 different part of the country to evaluate your proposal.

25 There's criteria you follow. What's the li elihood of


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1 this proposal really being any good? How qualified are the

2 people that are proposing it? What's the scientific value

3 of it?

4 Q Doctor, have you yourself proposed and been funded

5 on research projects?

6 A Yes, I have.

7 Q Can you tell the jury approximately how many

8 research projects and the approximate amount you

9 were funded?

10 A I'd have to see my curriculum vitae.

11 MR. LENAMON: May I approach the witness?

12 THE COURT: Sure.

13 BY MR. LENAMON:

14 Q I'm showing you A-48.

15 A There's over $4 million of funding from 13

16 different grants that I wrote, submitted and received

17 funding from that did go through this type of rigorous study

18 section before they would fund my research.

19 Q Can you describe generally what that money was

20 spent on and what the information was used for?

21 A Well, the money is generally spent on salaries, on

22 the computer programmers, technicians, scientists that you

23 recruit and interview and hire.

24 And then there's money spent to buy computers and paper

25 and things li e that. But most of it is you have to get a


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1 team of really competent people together to do science.

2 This is complicated type of science. You need to be

3 able to train people. You need to be able to wor together

4 to do different aspects of the science.

5 Q And over your career, have you received numerous

6 certificates, Doctor?

7 A Yes.

8 Q Can you describe what a certificate is?

9 A Are you referring to the certificates that I just

10 mentioned earlier?

11 Q Yes. We covered that. I apologize.

12 Do you have memberships or have you had memberships in

13 scientific societies over your career?

14 A Yes, I have.

15 Q Would you li e this to refresh your memory?

16 A Yes.

17 Q Could you describe to the jury your memberships

18 over the years in the scientific organizations?

19 A I was a member of the American Psychological

20 Association and the American Association for the Advancement

21 of Science. The Society for Neuroscience. The New Yor

22 Academy of Science. The International Society of

23 Neuropsychology. Society of Magnetic Resonants in Medicine.

24 The Human Brain Mapping Society. The Society for Neuro and

25 Regulation Research. The EEG and Clinical Neuroscience


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1 Society. The International Society for Neurofeedbac and

2 Research. The Association for Applied Psychophysiology and

3 Biofeedbac .

4 Q Doctor, have you received various

5 professional awards and honors throughout your career?

6 A Yes, I have.

7 Q Can you describe those for the jury?

8 A I received an award for being the Outstanding

9 Scientist of the Year Award from Science Digest Magazine in

10 1981.

11 Third prize for scientific exhibit in neurological

12 surgery, that had to deal with the traumatic brain injury

13 patients at the University of Maryland.

14 I received a Chancellor's Award for outstanding

15 research at the University of Maryland. I received an IBM

16 Fulcrum Award for advanced education.

17 I was awarded a fellowship in the Center for Advance

18 the Study at Stanford University in California. I got a

19 lifetime achievement award for wor in the scientific

20 speciality of quantitative EEG.

21 I received the Hans Berger Award of Merit from the

22 Association for Applied Psychophysiology and Biofeedbac .

23 Hans Berger is the one who discovered EEG in 1928.

24 And I also received a lifetime achievement award in EEG

25 and quantitative EEG from the International Society for


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1 Neurofeedbac and Research.

2 Q Doctor, have you ever been recognized is an expert

3 in a court of law?

4 A Yes, I have.

5 Q And could you explain to the jury, what percentage

6 of your everyday practice is derived from you testifying in

7 court?

8 A It's a very small percentage. I estimate roughly

9 1 percent or maybe less of my income comes from wor ing in a

10 court.

11 For example, this is the only case that I've actually

12 gone to court this year, and I don't thin I did any last

13 year. It isn't something that I spend a lot of time doing.

14 Q Have you taught presentations and seminars dealing

15 with the area of EEG and QEEG?

16 A Yes, I have.

17 Q Approximately how many?

18 A Seminars, over 30, 40 years it's been hundreds.

19 Q O ay. Doctor, let's go bac to what you started

20 to tal about at some point about what you are doing

21 currently and the program that is created by NeuroGuide.

22 Can you describe that to the jury in detail?

23 A I can show the jury.

24 (Omission).

25 BY MR. LENAMON:


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1 Q O ay. Doctor, you started -- before Ms. Mendez

2 did her questioning, you were starting to tal about

3 NeuroGuide and the NeuroGuide program. Let's start from the

4 beginning.

5 Explain to the jury -- you created -- what program you

6 created and why, and what it is used for?

7 A The jury can see the EEG traces on the screen on

8 the TV there.

9 What that is, is the EEG or the electrical energies of

10 the brain, this is recorded from a patient with traumatic

11 brain injury. He was struc with a bat in the right

12 parietal lobe.

13 He was noc ed unconscious -- well, actually he was

14 made dizzy and nauseous. He was not noc ed unconscious

15 initially. He went to sleep, he was tired or sleepy then,

16 which often happens with traumatic brain injury because your

17 brain starts to swell.

18 They found him in the morning unresponsive in

19 a semicomatose condition. And he had bleeding outside of

20 his brain that poc eted in the right side.

21 But he was able to function well enough to come to the

22 VA where we did an evaluation of him, including

23 neuropsychological evaluation and clinical histories and all

24 the things you are supposed to do, you are hired to do.

25 And this is the software that we developed, which


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1 allows one to easily move through this record. You may not

2 be able to see that, but I'm moving all the way through the

3 record, and I can move very quic ly.

4 Basically, what you do is you scan these traces and

5 they go home. Right here, I'm going to move my mouse cursor

6 around.

7 You can see this wave right here (indicating). It's

8 much larger. That's from the right central region.

9 Here (indicating) it's much larger than the other side,

10 which is on the left.

11 Q Doctor, before we get into that, the jury had an

12 opportunity to hear some information from Dr. Gluc about

13 how the information is entered into the program. I would

14 li e to ta e a step bac and start from the beginning of an

15 EEG. Explain what an EEG is, how it wor s and what it

16 measures.

17 A What the EEG, as I was saying before, your brain

18 weighs three pounds and consumes 40 to 60 percent of your

19 glucose.

20 And that's small -- which means 2 percent of the body

21 weight for somebody that weighs 200 pounds, for example.

22 Runs everything.

23 It gives rise to your feelings, your movements, your

24 memories, your consciousness.

25 And so, we can measure that, and that energy, that 40


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1 to 60 percent of your glucose goes into creating

2 electricity, so we measure that.

3 We loo at it in fine detail, because different neurons

4 in your cortex are generating these rhythms. Oscillatory

5 activity in your brain.

6 The way you measure that is by placing little dis

7 electrodes on your scalp, a whole series of them with a

8 little paste.

9 So, it ma es contact with your s in on your scalp or

10 you place a cap that has electrodes located at different

11 points in the cap.

12 The wires from those electrodes then go into what is

13 called an amplifier and it's just li e on your stereo,

14 except it's a high fidelity, a very, very expensive

15 amplifier.

16 That amplifies these brains waves which are in

17 millionths of a volt so that now they're around one or

18 two volts. And then the computer would sample the

19 brainwaves from each of the channels.

20 In this case on this screen there you see 19 channels

21 from the front of the head to the bac , and it digitizes the

22 electrical energy and stores them in the memory of the

23 computer.

24 It does this very fast. About every seven milliseconds

25 it's ta ing a sample. So that you need to sample at a high


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1 rate, so you can loo at very high frequencies of

2 oscillation that happen in the brains.

3 So the EEG itself is the electrical energy of the brain

4 that's amplified many times, and then the quantitative --

5 and then it's put onto a paper that you can read by eye.

6 That's what neurologists typically do, and then people

7 use quantitative EEG also to loo at the traces to ma e sure

8 there's no artifact, no movement of the eyes, which is a

9 potential that does not come from the brain or movement of

10 the head or gritting of the teeth.

11 The software you're loo ing at here ma es it easy for

12 a professional to exclude artifact to ma e sure that the

13 waves are correct.

14 Q Doc, before you go on, I want to ta e a step bac

15 for a moment. Historically, describe to the jury when EEG

16 started and when did it become useable and the evolution of

17 the EEG into quantification using a program -- programming

18 that you just tal ed about.

19 A Well, the EEG was first recorded in 1928 by Hans

20 Berger, who was a German. In those days there was no

21 distinction between psychiatry and neurology, people just

22 studied the brain.

23 And he measured the EEG and he found what are called

24 alpha rhythms in the bac of your head that come out when

25 you close your eyes.


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1 The neurons are not getting visual information, so they

2 relax. When they relax they create these big waves and Hans

3 Berger noticed that, and we called them, because it's the

4 first thing he saw, he said I'm going to call them alpha

5 waves.

6 So you may have seen on TV or someplace people tal

7 about alpha rhythms or alpha waves, weights that comes from

8 Hans Berger.

9 The second wave he saw was at a higher frequency and

10 because it's the second wave he saw at a higher frequency,

11 he called it a beta wave. And today we retain that same

12 nomenclature.

13 So he quic ly -- he thought this was fascinating and

14 people -- it was a new discovery, that the human brain is

15 creating these squiggles, these waves.

16 And he wanted to understand more, and Hans Berger

17 wor ed with people, had tremendous advantage. He new that

18 visual examination of the traces, even with 20/20 vision, is

19 not very good because it's too complicated.

20 When you loo at all these squiggles, it's very hard to

21 figure out what is going on. So Hans Berger decided to use

22 a computer in 1934 to analyze the EEG. In those days --

23 Q Most of if us don't believe that in 1934 there was

24 a computer in existence. Can you explain that to the jury?

25 A In those days there was no digital computer. It


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1 was what was called an analog computer.

2 Q We're going to stop there, Doctor, for a second.

3 (Omission).

4 Q Doctor, we had left off tal ing about you trying

5 to explain how in 1934 there was a computer that was being

6 used. Can you start with that?

7 A Well, in those days, there was no digital

8 computer. They had what's called analog computers,

9 and actually what they were is they had big gears that you

10 rotated and there was a giant platform with a whole lot of

11 gears.

12 So, Hans Berger too the data to, I thin , Berlin,

13 where the computer was located and they were able to

14 quantify the EEG for the first time.

15 Rather than just have subjective visual examination or

16 eyeball examination of all the squiggles, you could use a

17 computer to determine how much energy there was at different

18 frequencies.

19 How much energy is there at a low frequency and how

20 much energy is there at a high frequency, and then that

21 became the quantitative measure.

22 And Hans Berger recognized at that time that subjective

23 visual examination of just of the traces is too insensitive.

24 You need to be able to probe deeper using a computer.

25 However, because the computer is really too primitive


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1 and too difficult to use, it wasn't until the 1950s with

2 digital computers, particularly at UCLA with the space

3 program, the first normative database was calculated at UCLA

4 to evaluate astronauts.

5 In those days, the IBM digital computers first came on

6 the scene in 1950.

7 So they immediately began to quantify the electrical

8 energies of the brain. The computer allows you to loo at

9 the very -- the sub millisecond or millisecond time delays

10 between one part of the brain and the other that are just

11 impossible to see by eye because they are just too fast.

12 It also allows one to measure how much cooperation is

13 there between one part of the brain and another part of the

14 brain.

15 For example, as you are loo ing out, your eyes are

16 scanning and moving, but visual information is coming into

17 the bac of your head.

18 The part of your brain that controls your eyes is in

19 the front. So the bac of your visual cortex where the

20 movie screen is, sort of, what you are seeing has got to

21 coordinate with eyes.

22 And all of that is subconscious to you, but you can

23 measure the amount of time it ta es to ma e -- you may will

24 yourself to loo left and you can see how much time it ta es

25 to move your eyes to the left and then the neurons are


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1 involved in moving the eyes, they become active, and then

2 there's a shift and change in the visual cortex. So you can

3 see all of that in great detail with the computer, you

4 simply cannot see in visible by visual eyeball examination

5 at the traces.

6 Q I want to ta e a step bac for a second and ind

7 of tal about a little side issue regarding a comment you

8 made about bac then, there wasn't a division between

9 psychiatry and neurology.

10 Can you explain that a little bit and how that

11 developed into becoming something that's very significant in

12 regards to QEEG today?

13 A Well, a bit of an irony and that is bac in the

14 1930s there was no distinction between neurology and

15 psychiatry, as I mentioned, but the computer industry began

16 to develop with new ways to amplify the EEG in the late

17 1930s, particularly in Germany, where they did multiple

18 recording not just from one or two channels, but from ten or

19 20 channels of little electrodes put on the scalp in 1939

20 and early 1940s.

21 And more and more medical doctors became interested in

22 the EEG, and psychiatrists were -- at that time Freud was

23 pretty big in trying to help behavioral problems.

24 And so there was a group of medical doctors ind of

25 gravitated towards Freud in dealing with behavior and as ing


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1 people how they feel and what they are thin ing versus a

2 group of medical doctors who were enticed by the EEG.

3 They didn't have a quantitative measure, they just had

4 visual examination, but they were interested in the

5 conduction velocity, the time it ta es to touch your s in,

6 the time it ta es to get up to your elbows, to your

7 shoulders and to your brain.

8 And in the 1940s then as the EEG machines began to

9 become better, the group of doctors that were using the EEG

10 machine were measuring the conduction velocity called

11 themselves neurologists; that's how they came into being.

12 And the psychiatrists sort of divided up the turf in a

13 way in terms of medical interest and medical diagnosis to

14 evaluating personality and evaluating feelings and what your

15 history is by verbal and then psychotherapy, too, whereas a

16 neurologist wasn't interested in psychotherapy, they're

17 interested in more rigorous physiological measures.

18 So by the earlier 1950s then neurology came into being

19 largely supported by the use of EEG machines that were then

20 certified.

21 In order for hospitals throughout the United States to

22 become certified, they had to have an EEG machine based

23 on state regulations, primarily.

24 Q Stop there for a second, Doc. Let's tal a little

25 bit about what neurology is defined as?


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1 A Well, it's the study of the nervous system. So,

2 allegedly, which anything to do with the nervous system,

3 which is the peripheral nerves involved in touch and also

4 the nerves that enervate your fingers or your muscles, and

5 then the various relay nuclei in your brain stem.

6 That is, if you get touched on your hand, there is an

7 actual potential, there is an actual impulse that goes from

8 the point where you are touched and goes up through the

9 nerves in your arm, goes up to a plexus here in your chest

10 and your shoulder and goes into your spinal cord.

11 So, you can measure the time it ta es to do that. When

12 you have carpal tunnel or some type of a swelling or problem

13 with your finger or it's hurting, when you move, well, you

14 can be see that the conduction velocity is slowed down. So

15 neurology in general is the study of the nervous system.

16 Psychiatry is more of the study of the psyche, which at

17 that time it was believed to be separate from the nervous

18 system almost.

19 We now today that there's now a confluence

20 between psychiatry and neurology. It's not li e the

21 separation it was in the 1950s.

22 Neurologists today use EEG, for example, and they use

23 computerized EEG. And neurologists don't use computerized

24 EEG. They -- neurologists continue to use the visual

25 examination of the traces.


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1 Q Let's stop there for a second, Doctor. A few

2 moments ago Ms. Mendez was questioning you about your

3 credentials and she as ed you whether you were a

4 neurologist.

5 What is a neurologist defined as within the scientific

6 field in which you wor at?

7 A Well, as I said, a neurologist is trained to study

8 the nervous system, but mostly the peripheral nervous

9 system, the part of the nervous system that is dealing with

10 movement and touch and pain in your peripheries.

11 So, if you had pain in your nees or a problem with

12 your bac and your spinal cord, the neurologists are

13 interested in that.

14 The neurologists do study the nec up to some extent,

15 but psychiatrists study that just as much as neurologists

16 do.

17 And neurologists, because they do loo at the EEG

18 traces, the purpose of the EEG traces, the reason they loo

19 at them is to loo for epilepsy.

20 So neurologists are very interested in epilepsy. I

21 don't now how familiar you are with epilepsy, but that's

22 where neurons have a runaway type of a process where they

23 are in your brain, there's two inds of neurons.

24 The excitatory neurons are about 80 percent of your

25 cortex and then 20 percent are inhibitory neurons, they are


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1 little ones. The excitatory neurons are big neurons. The

2 small ones, the inhibitory neurons will control and regulate

3 the big ones.

4 If there's a lac of inhibition, the small ones are

5 inhibiting the excitatory neurons, if they fail to inhibit

6 the excitatory neurons, then the excitatory neuron just

7 starts oscillating all by itself. It excites itself, and it

8 gets carried away.

9 It will suddenly burst a whole bunch of electrical

10 energy, then it gets exhausted, then it gets quiet and

11 recovers and then it bursts, it gets exhausted, it gets

12 quiet, it recovers, it bursts, and that's what epilepsy is.

13 It happens about three times a second because the

14 neuron is not inhibited, and it's called deregulation in the

15 nervous events, severe deregulation.

16 So neurologists are interested in visual examination of

17 events in the brain that are related to epilepsy. A more

18 subtle form of deregulation of the neurons, where you don't

19 actually have full-blown epilepsy is more of interest to

20 clinical psychology and psychiatry and neuropsychiatry,

21 because when a certain part of your brain is misbehaving or

22 neurons in a part of your brain are not regulated right,

23 then you can have psychological problems.

24 You could have problems with memory, for example, or

25 concentration or attention or you may have difficulty with


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1 impulse control or you may have depression, for example.

2 Depression is where there's deregulation of

3 particular parts of the brain that are related to mood, and

4 psychiatry -- and neurology is not -- they don't really deal

5 with people who have depression.

6 They'll refer you to a psychiatrist or a person that

7 has obsessive compulsive disorder or an attention deficit

8 problem.

9 A neurologist pretty much will refer you to a

10 psychiatrist or a clinical psychologist who then will

11 measure your EEG to see if there's deregulation of the part

12 of your brain that's involved in your mood.

13 Q Doctor, before we get into that, I'd li e to as

14 you a couple of questions. We are going to ta e an aside

15 for a second so we can ind of cue into the jury why this is

16 going to become important in this case. You are aware that

17 the State of Florida hired an neurologist from Emery

18 University --

19 (Omission).

20 Q -- by the name of Dr. Epstein, are you not?

21 A Yes.

22 Q And you were involved in a number of pretrial

23 matters where you had an opportunity to review his wor and

24 at some point during your testimony, you are going to

25 critique his wor , are you not?


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1 (Omission).

2 Q You started to tal about historically how there

3 was an evolution where there was a distinction between

4 neurology and psychiatry. I want to ta e a step forward to

5 2010.

6 What is the primary function of a neurologist in a

7 hospital setting?

8 (Omission).

9 Q Doctor, let's tal a little bit about the EEG.

10 The tests that you did in this case involves quantitative

11 EEG; is that right?

12 A That's correct.

13 Q Let's tal about the EEG itself. What is the EEG

14 used for separate and apart from the quantitative reading

15 and evaluation?

16 A Primarily to detect epilepsy.

17 Q And you had testified that this, what we are

18 seeing on the screen, would be printed out on paper and that

19 would consist with what an EEG is?

20 A Yes, eyeball EEG.

21 Q Let's tal about eyeball EEG. What is eyeball

22 EEG?

23 A That is visual examination of the traces, a whole

24 stac of paper, for example, of those squiggles and you go

25 through that by eye to try to detect epilepsy or something


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1 really gross. Maybe somebody has a stro e, you'll see a big

2 swell there. But for the most the part it's to try to see

3 if there's an epileptic discharge in the patient.

4 Q How is that eyeball EEG done?

5 A It's usually done by a neurologist who is loo ing,

6 who is trained to loo for epilepsy in the traces.

7 Q Now, a neurologist is what?

8 A An individual that's been trained in the field of

9 neurology which is the nervous system, having to do

10 primarily with the peripheral nervous system.

11 Q Is a neurologist a medical doctor?

12 A Yes, he is.

13 Q How do neurologists ma e their living?

14 (Omission).

15 Q How do neurologists who do the eyeball reading

16 conduct their practice?

17 A Well, they get paid for loo ing at large stac s of

18 paper and they go through the stac of paper and they'll

19 dictate about the patient and then he'll get paid money for

20 each of the papers that they read.

21 Q Has there evolved a division between the

22 neurologist or some neurologists and people who practice the

23 QEEG in your field?

24 (Omission).

25 THE WITNESS: Yes, there has.


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1 BY MR. LENAMON:

2 Q Can you explain that to the jury?

3 A Well, in the 1950s and '60s when visual

4 examination of the traces where EEG was discovered, the

5 neurology field came into being and somehow they are able to

6 require all hospitals in order to be accredited, they have

7 to have an EEG machine that a neurologist will read.

8 And if you loo at the number of EEGs that are done

9 every wee and there are estimates, and the amount of money

10 charged, it's in the billions of dollars for a neurologist

11 to read the EEG.

12 So this was a very lucrative form of income for

13 neurologists until computers came on the scene.

14 In the 1970s computers became more and more prominent.

15 By 1975 it wasn't even possible to publish a paper in a

16 peer-reviewed journal if you had just visual examination

17 because that's subjective.

18 The reviewers would reject the paper. So 90,000

19 peer-reviewed journal articles now exist on computerized

20 EEG, not visual examination EEG, because it's not objective.

21 That started to threaten -- well, I shouldn't say

22 threaten, it gave concern to the neurology community.

23 A small group of neurologists got together as the

24 leaders of the American Academy of Neurology and they came

25 out with a position paper in 1997 that essentially condemns


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1 the use of a computer to analyze the EEG, except for a very

2 limited area which is epilepsy and interoperative monitoring

3 and stro es.

4 Anything else, li e attention deficit you can't do

5 that, traumatic brain injury you are not supposed to use a

6 computer.

7 Schizophrenia you're not supposed to use a computer.

8 Obsessive compulsive disorders, no computer. Depression,

9 you can't use a computer. Asperger syndrome, there's many

10 problems people have that according to the American Academy

11 of Neurology you are not supposed to use a computer.

12 That essentially stopped all third-party reimbursement,

13 all insurance reimbursement since 1997.

14 (Omission).

15 Q For the time being, Doctor, let's tal about the

16 positive influence of QEEG and the user community in dealing

17 with QEEG, and we'll get bac to neurologists maybe at a

18 later time.

19 Can you describe the community of users that use QEEG

20 on a regular basis and what they use it for?

21 A Primarily clinical psychologists, clinical

22 neuroscientists, psychiatrists, neuropsychologist and

23 neuropsychiatrists. Those are the main users of

24 quantitative EEG.

25 Q Are there actually neurologists who use QEEG also?


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1 A Yes, there's a few that do.

2 Q What do they use it for, Doctor?

3 A The neurologists or the --

4 Q The users that you just described.

5 A Primarily to loo in greater detail, to try to

6 relate a patient's symptoms and complaints to functional

7 vocalization of the brain. Different parts of the brain do

8 different things.

9 Let's say you have a person who is depressed, very,

10 very depressed. There's a particular part of the brain,

11 which are the frontal lobes and another part that's called

12 the singular gyrus, that's been nown by not just the EEG

13 but by PET Scans and functional MRI and Spec Scans where the

14 neurons are not generating enough electricity.

15 They are not operating correctly. The less function

16 that comes out of that part of the brain the more depressed

17 the patient gets.

18 So, in that case you use a computer. You cannot -- the

19 eyeball examination of the traces will not be able to see

20 what is going on in the frontal lobes in the detail they

21 need to be. You need to have a computer. Otherwise you

22 will not be able to diagnose it or understand it. That's an

23 example.

24 Another would be attention deficit. Attention requires

25 memory and there's a part of the brain called the


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1 hippocampus that's involved in memory, and it also requires

2 your ability to sustain your attention and then to be able

3 to shift your attention.

4 You can't be shifting your attention all the time. You

5 have to be able to hold it. And there's a part of the brain

6 that's the singular gyrus, again, that's involved in

7 shifting attention.

8 So if you don't get enough memory activated for a given

9 input, you are going to be shifting your attention all the

10 time.

11 Q Before you go on with that, I just want --

12 approximately how many users would you estimate use QEEG or

13 QEEG related computer data material, in the United States at

14 this point?

15 A There's over 50 companies that compete that

16 develop the software. Somewhere between 12,000 and 15,000

17 or 18,000 users.

18 Q When you say 50 companies, are those companies

19 that ma e the EEG product and the QEEG software?

20 A They ma e the EEG amplifiers and all of those

21 companies bundle QEEG software when they sell their

22 amplifier.

23 Q Let's tal about a little bit about something that

24 the prosecutor tal ed to you about. And that would be

25 biofeedbac . We have heard that term a lot in our


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1 community.

2 Can you explain to the jury what biofeedbac is and how

3 it is used by QEEG users when you're doing a QEEG?

4 A Let me give an example with attention deficit.

5 Say, you do a QEEG and you want see the problem is the

6 hippocampus.

7 The hippocampus is not generating enough energy to

8 create new memories. And you can see the energy or the lac

9 of energy in the quantitative EEG.

10 So, what you do is you wire the subject up with the

11 electrodes just li e you would a regular EEG, and the

12 computer is going to loo for a particular amplitude coming

13 out of the hippocampus or the temporal lobes that has the

14 right amount of energy.

15 And whenever that occurs, and it occurs by chance,

16 anyway. Then the person is considered to be ordered. It

17 could be a light or maybe you're loo ing at a computer

18 screen with a helicopter and your job is to get the

19 helicopter to hover.

20 Well, you can get the helicopter to hover with your own

21 brainwaves when they reach the right criteria, when the

22 hippocampus fires hard, the helicopter starts hovering and

23 it will go bac down and pretty soon the brain will fire off

24 hard again from the hippocampus, the helicopter hovers some

25 more and pretty soon with some training, it ta es days of


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1 training, you can get the helicopter to hover by using your

2 brainwaves. Your brain itself, you train it, becomes aware

3 of itself. Usually your brain is not aware of itself at

4 all.

5 If you give the brain information about things it is

6 doing, the brain li es this. It wants to learn about

7 itself.

8 You can shape and change pathways in the brain,

9 excitability of the brain by doing what's called biofeedbac

10 giving feedbac to the brain about its own state so when the

11 brain reaches a certain state that's good, that you want it

12 to reach, now memories improve or if it's depression,

13 depression goes down.

14 Q Now, you are referring to this biofeedbac

15 treatment. It's actually referred to as training?

16 A It's training, yes.

17 Q And the 12 to 15,000 individuals around the

18 country that use this, use it on different groups of people,

19 including children who are suffering from attention deficit

20 disorder?

21 (Omission).

22 Q Is that one of the things that you are aware that

23 Dr. Gluc --

24 (Omission).

25 Q Did you create software as part of the NeuroGuide


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1 for this?

2 A We include some software that is capable of doing

3 this. There's two categories. There's assessment and then

4 there's training or treatment. The most use of the

5 quantitative EEG is assessment.

6 They want to see -- a patient comes into their office

7 that has a set of symptoms. Let's say that they have what's

8 called dyslexia. Can't read very well. Can't see letters

9 very well.

10 Well, we now from neuroscience that the left parietal

11 lobe, right over here on the left side, is involved in that

12 process of perception of letters and shapes and forms.

13 So the clinical psychologist or the neuropsychiatrist

14 or psychiatrist will measure the EEG and loo at the left

15 parietal lobe, see how well is it wor ing to help evaluate

16 what's the nature of the patient's problem.

17 Now, it could be medication is prescribed, other than

18 biofeedbac or some type of actual behavioral training. You

19 can train the brain li e a muscle.

20 If you use it right, you can change the connections and

21 the synchrony of the brain to improve communication. Parts

22 of the brain are -- just haven't tal ed to the long-distance

23 cousin for a long time.

24 They are ind of doing their own thing and if you train

25 the brain up right, similarly that part of the brain starts


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1 to tal to its long-distance cousin and the brain literally

2 improves, symptoms go down.

3 And so that's the area of both assessment and then

4 there's a variety of different types of treatments you

5 should use, one of which is EEG biofeedbac .

6 Q O ay. When you created the NeuroGuide software,

7 can you describe what you created, and what you provide

8 through your company to users of QEEG? Can you describe

9 that to the jury?

10 A The software that we developed is -- one, it's

11 less expensive than our competitors and it's high quality.

12 It allows a trained person, a psychiatrist, a

13 neuropsychologist, clinical psychologist, for example, to

14 either acquire the data using our software, they've got

15 their own amplifiers or to another clinic somewhere else in

16 the country, maybe, they will send data to the clinician who

17 will then put that data into the computer and use our

18 software li e a zoom lens to zoom in on different parts of

19 the brain, and to ma e that lin age between the patient's

20 symptoms and functional vocalization of the brain. Li e I

21 said, different parts of the brain do different things.

22 So, the clinician loo s, the lin goes up. The

23 hippocampus is not generating memory, is the person

24 depressed because the neurons in the singular are not firing

25 right?


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1 So, our software allows the clinician to do that fairly

2 easily and inexpensively and at the same time has measures

3 of reliability and then these methods that we use to get rid

4 of artifact so that you are able to do tests for reliability

5 and be confident that the measures you are ta ing are

6 accurate and that helps you then evaluate your patient.

7 Q Now, generally spea ing how are you able to do

8 that, Doctor? How are you able to ta e information and

9 quantify it in the computer and allow it to then be able to

10 review or evaluate the other information that is being fed

11 into the computer? Can you describe that process to the

12 jury?

13 A Well, the data is in a digital form and it's a

14 file, li e you see something that files. And it has

15 particular format and our software allows that data to be

16 imported by a dis or memory card or the Internet.

17 Q When you say import the software sector, what you

18 are referring to is when the EEG is done and the process

19 that Dr. Gluc conducted on Mr. Nelson gathering that

20 information?

21 (Omission).

22 Q Can you describe that process of gathering the

23 data so you input that to the jury, generally?

24 A Yeah. The process is, is that the patient comes

25 into the office or the clinician goes to the client and does


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1 a medical or history, a wor up on the clinical history, what

2 is their problems.

3 Then they apply electrodes, these little electrodes

4 with paste onto the different locations, and then they

5 connect the wires to an amplifier that amplifies the

6 electrical energy and digitizes the electrical energies, and

7 while the clinician is recording, the clinician or

8 technician loo s at the traces to ma e sure there's no

9 movement and there's no artifact and as s the client to

10 relax, et cetera, and monitors it so you get your quality

11 data. And then the data is saved in the memory of the

12 computer.

13 And once it's saved there, then you can use our

14 software, the NeuroGuide software, li e a lens, li e a

15 Hubble telescope to zoom in on different parts of the EEG to

16 lin the patient's symptoms and complaints to parts of the

17 brain that are not wor ing right.

18 Q Before we get to that detail, is there a process

19 that the collector goes through to gather data, a step

20 process with their eyes or eyes open, eyes closed, can you

21 explain that to the jury?

22 A Yes. The process primarily is to have the person

23 relax and rest, close their eyes for three to five minutes

24 and then rest, open their eyes for three to five minutes,

25 and then sometimes they do tas s.


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1 In the case of Mr. Nelson, there was also what we call

2 hyperventilation. As him to breathe rapidly because that

3 shifts your carbon dioxide level and it can cause epilepsy

4 to come out for some people, so that was done.

5 One of the amazing things about the brain is part of

6 the brain is called the default networ which consumes more

7 energy but which is active when you are not doing anything.

8 When you do a tas , that part of the brain gets turned

9 off, and that part of the brain is consuming most of the

10 energy.

11 It's called a default networ and it was amazing when

12 people used PET Scans they found that when you gave somebody

13 a tas , the brain used less energy.

14 (Omission).

15 Q Getting bac to the QEEG -- we may tal about PET

16 Scans a little later. The process is when you are gathering

17 this data you have them go through the tests and then you

18 collect this data and then it's inputted into the actual

19 computer program?

20 A That's right. The reason why you do the resting

21 eyes closed is because that's when the default memory is

22 wor ing.

23 The reason why you do it also when you get a tas li e

24 reading, that's when it turns the default networ off. But

25 you want to see that. You want to see if there's too much


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1 energy being consumed by the default memory.

2 Q Before we get into the details of Mr. Nelson's

3 evaluation process, let's spea a little generally about

4 what the computer is doing and the person who is doing the

5 evaluations, such as yourself, loo ing for it.

6 Can you describe that process?

7 A Well, the first process is to loo through the

8 record to see if there's any epilepsy, anything obvious.

9 Q Let's ta e a moment. You had started to do an

10 example using a brain injury that occurred while you were

11 wor ing for Veteran's Administration. Would that assist you

12 in explaining the --

13 A Let me just quic ly show what is done. This is an

14 example of the traces from a patient struc by a bat in the

15 right parietal lobe.

16 I'm not going to spend a lot of time here, but this was

17 the reliability test that is being done. The average is .98

18 and .97, so you now that you have very reliable data. You

19 can see --

20 (Omission).

21 Q Doctor, for the purpose of this demonstration,

22 would you mind choosing a piece of data from Mr. Nelson's --

23 A Sure.

24 Q And then I'll as you a bunch of questions.

25 A O ay.


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1 Q O ay. Doctor, first of all let's tal about the

2 general process that you had tal ed about during the input

3 process.

4 The person who is actually ta ing this information in,

5 what are they loo ing for while they are conducting these

6 eyes open and eyes closed driven tas s? Can you explain

7 that?

8 A Well, the first thing is with the eyes closed and

9 they are resting, they want to see if the parts of your

10 brain that should be turned off are turned off, which is the

11 bac of your head because that's where your vision is and

12 your eyes are closed, you are not using that part of your

13 brain.

14 Then when you open your eyes and when a clinician wants

15 to see if those neurons now become active, you start

16 processing color and shape and form li e you should.

17 Q Now, Doctor, before you get into what the

18 clinician wants to see, let's tal about -- because we now

19 that Dr. Gluc does both clinical wor , analyzing wor and

20 actually collection data.

21 Let's use him as a person who is just collecting the

22 data here and inputting it into the program.

23 What is he loo ing for to ma e sure that the

24 information that is being gathered from these 19 leads that

25 is being driven into the EEG machine and ultimately into the


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1 quantitative computer program is being gathered correctly

2 and what is the process he is doing. If you can explain

3 that?

4 A Sure. When you apply the electrodes what

5 clinicians do, they ma e sure that the electrodes have good

6 contact with the scalp, and you do that by measuring what's

7 called impedance.

8 It's the same thing as resistance, and the computer

9 screen typically, not all of them, but usually, will provide

10 that information to the clinician so he can see that the

11 electrodes have good contact. They as --

12 Q Does your program do that? Are you able to see

13 that?

14 A No. Ours does not.

15 Q Why not?

16 A Because we don't usually acquire the data. That's

17 something that the manufacturer of the EEG amplifier does.

18 Q O ay.

19 A So, the amplifier will provide that information to

20 the clinician and then the clinician will watch the traces

21 and watch the patient and ma e sure the patient isn't moving

22 or gritting their teeth or frowning and we'll instruct them

23 to relax.

24 But it's very easy to see if the EEG is real versus

25 artifact. Artifact is usually many times larger than the


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1 EEG.

2 Q Doctor, stop there for a second. You are using

3 the word artifact. What is artifact?

4 A Artifact is any electrical activity that does not

5 come from the brain. It comes from the lights, for example,

6 that's artifact.

7 It comes from blin ing, that's artifact. It comes from

8 frowning your forehead, that's your muscles up here, that's

9 artifact.

10 Q How are you able to tell something is artifact?

11 A There's a very distinct set of patterns related to

12 the various artifacts.

13 It's easy to see. It's easy to train somebody to see

14 it. The important thing is that the EEG is very small.

15 It's in microvolts.

16 So, then there's artifact, it is usually many times

17 larger than the EEG. It's real big, so it's pretty obvious.

18 Q Now, is your computer program set up that you can

19 pull up artifact very quic ly from his data?

20 A Yes.

21 Q Can you show us how you do that?

22 A Let's see if we can find some artifact. This is

23 an example of an eye movement artifact.

24 Q Can you step down for a second? Oh, you have the

25 pointer.


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1 A Yeah, I have a pointer. So we can hopefully see

2 the -- this is where the eye moved. It's much, much larger.

3 This is the EEG here (indicating), and this area here is

4 very small.

5 This is probably ten times larger and the EEG. It's

6 very obvious. You don't want to collect that data. You

7 don't want to do analyses on it. Our software will

8 automatically not select that data.

9 It's very easy for a computer not to select that data,

10 too. The computer will help the clinician. And the

11 clinician who's trained will ma e sure that they don't

12 select a big artifact li e this.

13 Q Is there any other explanation that would explain

14 something li e that?

15 A No. The reason why we now that's

16 eye movement artifact is because these are coming from

17 electrodes right here (indicating). It's coming right here

18 (indicating). Your eyes are right here (indicating).

19 So, when your eyes move, you have very large potentials

20 on your forehead, and then as you go away from the forehead

21 bac , the potential gets smaller and smaller because the

22 source is our eyes. And that's exactly what you see here.

23 There's only one way for that to happen. The source

24 has to be the eyes.

25 There's potential difference between the cornea and


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1 your retina, so when you move your eyes left or right and

2 the potential is hundred times larger than the EEG,

3 generally, ten to a hundred times larger, and that's why you

4 see this pattern.

5 Q So the technician is loo ing for that visually and

6 monitoring the computer and the subject while this is going

7 on and collecting the data?

8 A That's correct. As well as what's referred to as

9 muscle artifact. That occurs if somebody grits their teeth,

10 for example, you have big muscles attached to your temporal

11 region, your ears that control your jaws.

12 And so you can see the artifact in the electrodes that

13 are here (indicating), they get smaller as you get away from

14 where your jaws are. Or frowning it gets smaller as you get

15 farther away.

16 It's very easy to detect muscle artifact and it's easy

17 to see that there's a gradient. There are no muscles, for

18 example, in the top of your scalp, up here (indicating).

19 You cannot just move this part of your scalp (indicating),

20 if you want to try.

21 But if you see a large electrical potential coming out

22 of the top of the head, that cannot come from artifact.

23 That has to be coming from the brain.

24 Q What about someone who has dentures, how are you

25 able to --


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1 (Omission).

2 Q How are you able to determine if any artifact is

3 coming from anything to do with the dentures?

4 A The dentures themselves do not generate any

5 electricity.

6 What happens is if the dentures don't fit well,

7 somebody may move their jaw. And as I was saying, when the

8 jaw moves, that generates large potentials right here

9 (indicating).

10 They get smaller as a function of distance from the

11 source, which is the jaw muscle. You can immediately see

12 that. That's very easy to see.

13 Q So you would be able to see that without any

14 question?

15 A Yes.

16 Q You indicated that somewhere you have collected

17 three to five minutes of data.

18 Dr. Gluc indicated he collected ten minutes of --

19 (Omission).

20 Q Is there a difference between collecting three to

21 five minutes versus ten minutes? Can you explain that?

22 A Well, the purpose of collecting -- in general

23 there isn't. If you collect 20 seconds of EEG you

24 can predict another 20 seconds of EEG at about

25 .85 reliability. At 40 seconds it's .90 and at 60 seconds


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1 it's one minute, it's .95 to .98.

2 If you just get one minute of data from the brain, you

3 can predict ten minutes later what you are going to find.

4 So you don't have to have ten minutes.

5 But what's good about ten minutes is if there is

6 epilepsy in that period of time, you want to at least see it

7 because epilepsy often does not occur all the time.

8 It may occur just once in a wee or something li e that

9 for a patient.

10 So if you can collect ten minutes or 20 minutes of

11 data, then the probability of actually seeing an epileptic

12 discharge goes up because you've got more data.

13 Q That's in the circumstances that you are loo ing

14 for epilepsy?

15 A That's correct.

16 Q But the data that is actually analyzed within the

17 confidence integral, I thin you said 90 --

18 A 60 seconds is .95.

19 Q 95 percent is one minute?

20 A A minimum of one minute, yes.

21 Q And if Dr. Gluc collected ten minutes of data,

22 all you need is one to get to that 95 percent?

23 (Omission).

24 Q Does it get any higher than 95 percent?

25 A No, it doesn't. The three to five minutes is


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1 sufficient, but with ten minutes you can go through the

2 record and prove that that one minute is the same, no matter

3 if you loo at nine minutes or between seven and seven and a

4 half minutes you -- it will be the same as loo ing at the

5 first minute and the first minute and a half.

6 It's always the same. That's what the statistics are

7 over here on the left side. This is a split half

8 reliability test. Test -- we test for reliability.

9 So, it ta es the first part of your recording that you

10 selected data and it predicts the last part and it's

11 predicting at a .94.

12 Q Now, Doctor, once the information is gathered

13 and inputted into the QEEG, does the actual -- the recording

14 of information end and the leads are then removed from the

15 patient?

16 A Usually after you do ten minutes in this case of

17 eyes closed, you then do ten minutes of eyes open, and then

18 you may do five or ten minutes of hyperventilation. That's

19 pretty long for hyperventilation. You get dizzy if you

20 hyperventilate too long.

21 Then you may do an active tas li e as ing somebody to

22 read or to listen to something. But those are subsequent

23 recordings, so overall it could be an hour long with

24 multiple recordings or longer.

25 Q So then you have an hour of this information


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1 that's divided into five different tas s. What happens with

2 the patient after that information is gathered?

3 A You remove the electrodes, clean the scalp up and

4 try to ma e them loo presentable. Their hair will be

5 mussed up, and that is about it.

6 Q Let's tal about what happens with the process of

7 evaluating that data. Describe from the very beginning what

8 steps that the person who is conducting the evaluation would

9 do.

10 A The first thing you do, this is an example that

11 you can see here of the data that had been recorded. It is

12 a total of -- I'm going to go to the end -- of ten minutes.

13 And that data now has been put into this program.

14 The first thing you do is you scan through the data to

15 loo for artifact and epilepsy. Here's another example of

16 artifact. You don't select that.

17 Q How do you deselect it?

18 A You just don't select it.

19 Q So what you're doing is you're actually selecting

20 data?

21 A You're selecting data -- this program has, if you

22 loo down here there's a red line. That means that data was

23 selected to do an analysis on. The blac line, it was

24 rejected.

25 Q And who put those mar s there?


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1 A The computer did that.

2 Q O ay.

3 A It's possible to do it manually. I thin

4 Dr. Gluc may have selected these manually. But it's

5 possible to use automatic artifact rejection routines in the

6 program that gets rid of drowsiness, for example and -- or

7 it gets rid of eye movement.

8 Q Let's tal about drowsiness for a second. Why is

9 that important and what are you doing in relation to the

10 artifact around that issue?

11 A Drowsiness is a form of artifact that is a rare

12 occurrence. Usually people don't get drowsy when they sit

13 down in a strange doctor's office and they put strange wires

14 on your scalp.

15 You can imagine yourself sitting in a strange place,

16 you are not going to get sleepy and just fall over.

17 (Omission).

18 THE COURT: One is not going to, not necessarily

19 any particular person.

20 THE WITNESS: No. Well, it's extremely rare to

21 find somebody -- in fact, I have loo ed at over 10,000 EEGs.

22 It's very difficult to find people get drowsy.

23 Just that it's not safe to start to go to sleep in

24 strange places, because drowsiness is the beginning of

25 sleep.


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1 If you start to get more and more drowsy, before

2 you now it, you're going to go to sleep.

3 BY MR. LENAMON:

4 Q Of those 10,000 EEGs, how many you QEEGs have you

5 participated in?

6 A About that many.

7 Q 10,000?

8 A Yes.

9 Q Quantitative EEGs?

10 A Over my 40 years, I've analyzed more than that by

11 myself. It's a very, very large number.

12 Q O ay. Going bac to the drowsiness.

13 A So we -- just in case, we do have automatic

14 routines. Drowsiness is a very specific signature. It

15 happens because part of your brain gets turned off.

16 Q Let me just interrupt for a second, Doctor. Who

17 is the one who created this software? Who came up with

18 these ideas and how was that created?

19 A I did.

20 Q So you're the one who -- did you write the

21 software?

22 A No. I designed it. I wrote the first -- I now

23 how to program, so I wrote the first program for this. But

24 I hired a person who is an excellent programmer, then I do

25 the designing and I tell Carl, Dr. Byver (phonetic). You


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1 have to give programmers very specific instructions and then

2 the programmer starts writing the code.

3 Q How did you come up with the ideas to write this

4 program?

5 (Omission).

6 Q One of the things that you incorporate into your

7 program was the automatic drowsiness alert?

8 A Detection.

9 Q How does that wor ?

10 A That is based upon the scientific literature of

11 drowsiness that is well studied and well nown. And

12 essentially there's a part of your brain that gives rise

13 when you start to feel drowsy, what's happened is a part of

14 your brain that's in the hypothalamus, it's call the

15 preoptic nucleus, the neurons in there start bursting. They

16 get disinhibited.

17 Normally, when you're awa e, those neurons are

18

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