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NOTICE: Contains Sensitive Data 8/24/2015 5:29:04 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-14-000959 D-1-GN-14-000959
Jessica Arzola
FRANCES LOPEZ, INDIVIDUALLY § IN THE DISTRICT COURT OF
AND AS PERSONAL REPRESENTATIVE §
OF THE ESTATES OF JOSE ANTONIO §
SALAS-CASTRO, JAYDEN JOSHUA SALAS, §
AND JOE ANTHONY SALAS, AND AS §
NEXT FRIEND OF JAZLYNN NICOLE SALAS §
Plaintiffs §
§
v. § TRAVIS COUNTY, TEXAS
§
FEDEX GROUND PACKAGE SYSTEM, INC., §
E&S TRANSFER, INC., AND §
ENRIQUE ALVAREZ, §
Defendants § 2007" JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE TO PLAINTIFFS’
MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D.
Defendants FedEx Ground Package System, Inc. (“FedEx Ground”), E&S Transfer, Inc.
(E&S”), and Enrique Alvarez (“Alvarez”) file this Defendants’ Response to Plaintiffs’ Motion to
Exclude Edwin E. Johnstone, M.D. Authorities presented in this Response establish that Edwin
E. Johnstone, M.D. should be allowed to testify as an expert witness in this case because:
e Edwin E. Johnstone, M.D. is qualified to testify as an expert in the field of
psychiatry; indeed, Plaintiffs do not challenge his qualifications.
e Dr. Johnstone’s opinion that Mr. Alvarez’s memory loss is consistent with
circumscribed amnesia is relevant and is further supported by the diagnosis of
Plaintiffs’ own psychiatric expert that Mr. Alvarez suffers from localized
dissociative amnesia.
e Dr. Johnstone’s opinion that Jazlynn Nicole Salas is highly unlikely to remember
the accident due to “infantile amnesia” is relevant because it affects the damages to
be awarded to her for future mental anguish.
e« Dr. Johnstone’s opinion that Dr. Slaughter improperly interpreted Mr. Alvarez’s
medical history to diagnose his sleep apnea is well-reasoned and logical.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E, JOHNSTONE, M.D. -Page iINTRODUCTION
This case arises from a two vehicle collision which occurred at the very dangerous
intersection of FM 1185 and Highway 183 in Caldwell County. One of the vehicles involved in
the collision was a 2008 Dodge Sprinter delivery van owned by E&S, leased to FedEx Ground,
and driven by E&S driver Alvarez. Alvarez, who was wearing a seat belt, survived the accident
with relatively minor injuries. The other vehicle was a 1997 GMC Jimmy sports utility vehicle
bearing a paper dealer’s temporary tag reflecting that the vehicle was owned by Last Chance
Auto Sales. Jose Antonio Salas-Castro (“Salas-Castro”) was the only adult occupant of the 1997
GMC Jimmy, but Salas-Castro did not have, and apparently has never had, a valid driver’s
license. Because they were not properly restrained by legally mandated safety belts or an age-
appropriate child passenger safety seat belt system, two of Salas-Castro’s children in the 1997
GMC Jimmy were killed. Two-year old Jazlynn Salas, who was in a car seat, was the only
occupant of the 1997 GMC Jimmy to survive the collision. Plaintiffs seek actual and exemplary
damages in excess of $1,000,000 and up to $100,000,000.
Following the accident, Alvarez developed a circumscribed period of memory loss
relating to events on the day of the accident from when he purchased gasoline prior to the
collision to when blood was being drawn from him at the hospital after the accident. Plaintiffs
have persistently accused Alvarez of feigning or malingering his memory loss to somehow avoid
legal liability for the collision. Following a compelled forensic psychiatric examination of
Alvarez, even Plaintiffs’ own psychiatric expert, Dr. Brian Falls, M.D., has concluded that
Alvarez is not feigning or malingering his memory loss and genuinely suffers from localized
dissociative amnesia.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 2SUPPORTING EVIDENCE
In support of this Response, Defendants rely upon the following evidence:
1, The Affidavit of Edwin E. Johnstone, M.D. (Ex. A).
2. The curriculum vitae of Edwin E. Johnstone, M.D. (Ex. B)
3. The expert report of Edwin E. Johnstone, M.D. (Ex. C).
4. Excerpts from the Diagnostic and Statistics Manual (Ex. D).
5. The deposition of Edwin E. Johnstone, M.D. taken May 6, 2015 (Ex. E).
6. The deposition of Edwin E. Johnstone, M.D. taken August 13, 2015 (Ex. F).
7. Psychiatric and medical literature supporting Dr. Johnstone’s opinions. (Ex. G.)
8. Excerpts from the deposition of Brian Falls, M.D, (Ex. H).
These items are attached as an Appendix to this Response.
ARGUMENT AND AUTHORITIES
Rule 702 provides that a witness who qualifies as an expert because of knowledge, skill,
experience, training, or education may testify as an expert if scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or resolve an issue
of fact. Tex. R. Evip. 702, To be admissible, expert testimony must be (1) uttered by a qualified
expert; (2) relevant; and (3) based on a reliable foundation. E.g., Helena Chem. Co. v. Wilkins,
47 S.W.3d 486, 499 (Tex. 2001); Taylor v. Texas Dept. of Protective & Regulatory Servs., 160
8.W.3d 641, 650 (Tex. App—Austin 2005, pet. denied).
A. Plaintiffs Do Not Challenge Dr. Johnstone’s Qualifications as an Expert
Psychiatrist.
In his affidavit, Dr. Johnstone details his substantial education, training, and experience
in psychiatry. Dr. Johnstone received his medical license in 1964, He was board certified in the
field of psychiatry in 1970, He was previously in charge of the Division of Outpatient Clinics at
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. ~-Page 3the Houston State Psychiatric Institute, which subsequently became the Texas Research Institute
of Mental Sciences during his tenure there. In 1984, he became the medical director of a
separate entity established by the institute named Clinical Research Associates, Inc., to conduct
clinical drug trials. In 1986, he went into a solo office practice, and has been engaged in the
private practice of psychiatry since then. He continues to see private patients and is frequently
called upon to perform independent medical evaluations, peer reviews, and to offer descriptive
testimony concerning psychiatric terms and diagnoses. He has previously testified as an expert
witness in the field of psychiatry on numerous occasions, Even Plaintiffs do not challenge Dr.
Johnstone’s qualifications as an expert in the field of psychiatry based upon his substantial
knowledge, education, training, and experience in that field of medicine.
B. Dr. Johnstone’s expert opinions are relevant.
Expert testimony is relevant when it is sufficiently tied to the facts of the case that it will
aid the jury in resolving a factual dispute. E.I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 556 (Tex. 1995). In this case, Enrique Alvarez has testified that he no longer has
any memory of the events surrounding the accident in question. His last memory before the
accident is purchasing gas earlier that morning, and his first memory after the accident is having
blood drawn in the hospital after the accident. He indicates that he has no memory of events
which occurred during this gap. Plaintiffs have consistently asserted that Mr. Alvarez’s memory
loss is feigned or malingered to avoid liability for the accident in question, even after Plaintiffs’
own psychiatric expert, Dr. Brian Falls, has concluded that Mr. Alvarez’s memory loss is not
feigned or malingered. It is Dr. Johnstone’s opinion that the sort of psychologically induced
circumscribed amnesia Mr. Alvarez reports is recognized as an authentic phenomenon in the
field of psychiatry. While it is Dr. Johnstone’s opinion that it is not scientifically possible to
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E, JOHNSTONE, M.D. -Page4distinguish whether Mr. Alvarez is pretending to have a memory gap or is truthful in saying that
his memory is blank for the interval in question, it is Dr. Johnstone’s opinion that the
characteristic flow of the onset, dynamics and course of Mr. Alvarez’s reported condition
corresponds to the characteristics of cases of retrospective circumscribed amnesia. The jury
lacks the education, training, and experience in the field of psychiatry to know and understand
the symptoms and presentation of known, documented psychiatric conditions, in order to discern
whether the evidence in this case differs in a meaningful way. Dr. Johnstone’s testimony will be
useful to assist the jury in determining whether Mr. Alvarez is feigning his memory loss.
At the time of the accident, Jazlynn Nicole Salas was two years old. On her behalf,
Plaintiffs seek damages for mental anguish not only from the injuries she personally received in
the accident, but also for mental anguish for the deaths of her brothers and father. Because of her
young age at the time of the accident, it is Dr. Johnstone’s opinion that she will not remember the
accident as she grows older. He explains that this is due to the natural process of human brain
development, and not the result of any injury sustained in the accident or any disorder. Because
of this natural phenomenon, Jazlynn will not experience any persisting psychological effects or
mental distress from the events of the accident itself. Because the jury lacks the education,
training, and experience in the field of psychiatry to understand what is often called “infantile” or
“childhood” amnesia, Dr. Johnstone’s expert testimony will be useful to assist the jury in
determining the amount of damages to award to Jazlynn for future mental anguish. If Plaintiffs
had not, just last week, nonsuited and discontinued their claim for future psychological expenses
for Jazlynn, his testimony would have also been useful in determining whether any such
damages should be awarded.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 5Cc. The analytical gap test and Nenno factors apply to assess the reliability of
psychiatric testimony.
Courts have developed various factors to be considered in assessing the reliability of an
expert’s conclusions, E.g., Taylor v. Texas Dept. of Protective & Regulatory Servs., 160 S.W.3d
641, 650 (Tex. App.—Austin 2005, pet. denied). With respect to hard scientific evidence, courts
commonly examine the non-exclusive factors enumerated by the Texas supreme court in its
landmark decision in 1995. Robinson, 923 S.W.2d at 557. Courts have recognized that the
Robinson factors are not appropriate in every case, particularly those that involve expertise that
is not susceptible to scientific analysis. See, e.g., Gammill v. Jack Williams Chevrolet, Inc., 972
S.W.2d 713, 724-26 (Tex. 1998); Taylor, 160 S.W.3d at 650. In the area of soft sciences, experts
are qualified to give an opinion as long as there is not too great of an analytical gap between the
data and the opinion offered. E.g., Transcontinental Ins. Co. v. Crump, 330 8.W.3d 211, 219
(Tex. 2010); Gammill, 972 S.W.2d at 727.
Courts have recognized a distinction between “hard” sciences and “soft” sciences. E.g.,
Nenno vy. State, 970 S.W.2d 549, 560 (Tex. Crim. App. 1998), overruled on other grounds by
State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999); Taylor, 160 S.W.3d at 650. For
psychiatric and psychological testimony, courts have applied the “analytical gap” analysis rather
than the factors enumerated in Robinson. See, e.g., In re Zamora, 2007 Tex. App. LEXIS 5852 *
3-4 (Tex. App.—Beaumont 2007, orig. proceeding); In re Martinez, 2006 Tex. App. LEXIS
7459 *10-11(Tex. App.—Beaumont 2006, no pet.); Jn re Estate of Robinson, 140 S.W.3d 782,
792 (Tex. App—Corpus Christi 2004, pet. denied). When dealing with fields other than the
hard sciences, such as social sciences, the Nenno court concluded that factors like an expert’s
education, training, and experience are more appropriate factors in testing reliability than the
scientific method. Nenno, 970 S.W.2d at 561; see, eg., Taylor, 160 S.W.3d at 650. In
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D, ~Page 6measuring the reliability of an expert’s opinions in such fields, courts should consider whether:
(1) the field of expertise is a legitimate one; (2) the subject matter of the expert’s testimony is
within the scope of that field; and (3) the expert’s testimony properly relies upon the principles
involved in that field of study. Nenno, 970 S.W.2d at 561; Taylor, 160 S.W.3d at 650.
Nenno itself addressed the admissibility of expert testimony as to the future
dangerousness of the defendant in a criminal case. 970 S.W.2d at 552. The State offered
testimony from a special agent in the behavioral sciences unit of the FBI. Jd. From information
given to the agent about the defendant, the agent concluded that the defendant was a pedophile
and that such a person was difficult to rehabilitate. Jd. The agent testified that his analysis was
based upon his experience studying cases, and that he did not employ a particular methodology
for determining future dangerousness. Jd. at 562. The Court of Criminal Appeals noted that
research concerning the behavior of offenders who sexually victimize children appears to be a
legitimate field of expertise. Jd. “Through interviews, case studies, and statistical research, a
person may acquire, as a result of such experience, superior knowledge concerning the behavior
of such offenders.” Jd. The absence of peer review does not necessarily undercut the reliability
of such testimony. Jd. To the extent that its absence casts doubt on the credibility of the expert’s
testimony, such affects the weight of the evidence rather than its admissibility. /d. Because the
expert possessed superior knowledge concerning the behavior of such offenders, his testimony
did not merely duplicate the jury’s knowledge and was not substantially outweighed by the
danger of unfair prejudice. /d. Therefore, the expert testimony as to the defendant’s future
dangerousness was admissible. Jd.
Although Nenno arises from the area of criminal law, numerous appellate courts have
adopted and employed the Nenno framework to evaluate soft science and non-scientific
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 7testimony in a variety of civil cases. See, e.g., In re Polk, 2011 Tex. App. LEXIS 1323 *12 (Tex.
App.—Beaumont 2011, pet. denied); Jn the Interest of S.R., 2010 Tex. App. LEXIS 9681 *5
(Tex. App.—Waco 2010, pet. denied); Five Star Int’l Holdings, Inc. v. Thomson, Inc., 324
S.W.3d 160, 168 (Tex. App—El Paso 2010, pet. denied); Taylor, 160 S$.W.3d at 651; In the
Interest of A.J.L., 136 S.W.3d 293, 298 (Tex. App.—Fort Worth 2004, no pet.); Jn the Interest of
G.B., 2003 Tex. App. LEXIS *5-6 (Tex. App.—-Amarillo 2003, no pet.). The Austin court of
appeals has expressly adopted the Nenno framework to evaluate matters within the psychological
and sociological sciences. Taylor, 160 S.W.3d at 651.
In Taylor, the Austin court of appeals addressed the admissibility of testimony
concerning a home study performed by a social worker in a parental termination case. 160
S.W.3d at 649. The worker testified at length about her education and work experience, and
described her research, investigation, and conclusions in detail. Jd. at 651. She investigated the
parent and her boyfriend’s backgrounds and explained her findings and conclusions in a report.
Id. As a result of her investigation, the social worker determined that the parent’s home was
inappropriate for the child. Jd. The court concluded that Nenno provided the appropriate
framework to address such evidence. Jd. Considering the worker’s education, training, and
experience and the fact that she explained her findings and conclusions in depth, the court
determined that such testimony satisfied the Nenno standards for reliability and the trial court did
not err in allowing the worker’s testimony. Jd. at 651-52.
Because psychiatry is s a “soft” social science, factors like an expert’s education,
training, and experience are more appropriate factors in testing reliability than the scientific
method. Psychiatry is recognized as a legitimate field of medical expertise. The subject matter
of Dr. Johnstone’s anticipated testimony lies squarely within that field. Psychiatric experts are
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page8qualified to give an opinion as long as there is not too great of an analytical gap between the data
and the opinion offered.
1 Dr. Johnstone’s opinion as to Mr. Alvarez’s memory loss squarely fits the
data.
Plaintiffs only criticism of Dr. Johnstone’s opinion regarding Mr, Alvarez’s memory loss
is that he did not personally examine Mr. Alvarez. Based on ethical guidelines from the
American Academy of Psychiatry and the Law, Plaintiffs argue that the failure to perform a
personal examination calls into question the honesty, objectivity, and adequacy of his opinions.
See Pltfs’ Mtn. to Exclude at 14. Even were Plaintiffs correct, their argument does not address
the reliability of Dr. Johnstone’s anticipated testimony. Dr. Johnstone is not providing a
definitive diagnosis of Mr. Alvarez as a patient. Instead, he was asked to review records to
determine whether the memory loss described by the evidence in this case is consistent with a
known, documented psychiatric condition. Even the authority upon which Plaintiffs rely
specifically states: “For certain evaluations (such as record reviews for malpractice cases), a
personal examination is not required.”
In general, experts can, and routinely do, testify to expert opinions based on facts in
evidence presented in the form of a hypothetical question. The foundational sufficiency of the
hypothetical question is judged by the content of the question itself, and not by whether the
witness has ever examined the person, place or thing in question. See, e.g., State Farm Fire &
Cas. Co. v. Wicka, 474 N.W.2d 324, 333 (Minn. 1991)(addressing psychiatric opinion testimony
in particular). The want of a personal examination does not render a psychiatric opinion
inadmissible for lack of a foundation, but is merely a matter of weight. Jd. Indeed, Plaintiffs’
own psychiatric expert recognizes that it is proper for a psychiatrist to form an opinion without
personally seeing a person:
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page9On how many occasions have you examined Jazlynn Salas?
None.
How many psychiatric tests have you administered to Jazlynn Salas?
None.
OP Ob
Are all of your opinions concerning Jazlynn Salas based upon a review of
information that was provided to you?
A. Yes.
FoR
Q. All you did was do a -- what would be perhaps termed a peer review of
existing medical records. Correct?
A. A record review, yeah.
Q. Is that ethical in the field of psychiatry?
A. Yes. It's permissible, yes.
pad
Q. (BY MR. FRICK) And is there a difference between testifying as to a
particular diagnosis of a particular individual and testifying in general as to
psychiatric conditions?
A. That's correct.
Q. Ifyou form an opinion of a diagnosis for a particular individual, the ethical
guidelines encourage you to, if possible, examine the patient and see the patient
personally. Correct?
A. Yes.
MR. GONZALEZ: Objection, form.
A. If possible.
Q. (BY MR. FRICK) If you're testifying in general about psychiatric terms and
conditions, you're not required to examine a patient. Is that correct?
A. Yes.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E, JOHNSTONE, M.D. ~Page 10Q. And that's well established in the field of forensic psychiatry. Correct?
A. Yes.
MR. GONZALEZ: Objection, form.
Q. (BY MR. FRICK) In fact, you have written articles in the field of psychiatry
and the law, haven't you?
A. Yes, I have, uh-huh.
Falls Depo. 51:17-52:1; 53:16-22; 54:7-55:6.
In his report, Dr. Johnstone describes in considerable detail the differential diagnostic
methodology he employed in analyzing Mr. Alvarez’s medical records and the deposition
testimony in this case. He carefully relates the underlying data from the documents he reviewed
to established diagnostic criteria of specific medical and psychiatric conditions. The reliability
of Dr. Johnstone’s opinion that the evidence of Mr. Alvarez’s memory loss corresponds to the
characteristics of authentic cases of retrospective circumscribed amnesia is further supported by
the testimony of Plaintiffs’ own psychiatric expert:
Q. Did you perform an independent forensic psychiatric evaluation of Enrique
Alvarez on May 23, of 2015?
A. Yes.
Q. Asa result of your independent forensic psychiatric evaluation, you formed an
opinion as to whether Enrique Alvarez is feigning his memory loss, didn’t you?
A. Yes.
Q. And as a result of your independent forensic psychiatric evaluation, you
formed an opinion as to whether Enrique Alvarez is malingering, didn’t you?
A, Yes.
Q. Asa result of your independent forensic psychiatric evaluation, it is your
opinion that Enrique Alvarez is not feigning his memory loss, isn’t it?
A. That’s correct.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 11Q. And as a result of your independent forensic psychiatric evaluation, it is your
opinion that Enrique Alvarez is not malingering, isn’t it?
A. That’s correct.
Falls Depo. 7:10-8:5.
Q. Now there are several different types of dissociative amnesia, aren’t there?
A. Yes.
Q. Is localized amnesia one type?
A. Yes.
Q. Is localized amnesia a failure to recall events during a circumscribed period of
time.
A. Yes.
Q. Is circumscribed amnesia another name for localized amnesia?
A. That’s correct, yes,
Q. Isita loss of memory for all events during a discreet period of time?
A. Yes. All or most — most events during that time, yes.
Q. Mr. Alvarez reports an inability to remember events during a circumscribed
period of time, doesn’t he?
A
Q
. That’s correct.
. He reports an inability to remember events during that discreet specific period
of time between when he purchased gas on the morning of January 18" and when
he was in Brackenridge Hospital after the accident, doesn’t he?
MR. GONZALEZ: Objection, form.
A. That’s correct.
Q
is
. Is it your opinion that the type of dissociative amnesia affecting Mr. Alvarez
localized amnesia?
MR. GONZALEZ: Objection, form.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 12A. Yes, that’s correct.
Q. Can the onset of localized amnesia be delayed for hours, days, or even longer
periods of time?
A. Yes.
Q. Before the onset of dissociative amnesia, can the person retrieve memories?
A. Absolutely.
Q. It is only after the onset that the person cannot retrieve those memories.
Correct?
A. That’s correct. That’s the idea of a retrograde amnesia.
Q. And the onset could be hours, days, or weeks later. Correct.
A. That’s correct.
Falls Depo. 14:15-16:10.
Consistent with Dr. Falls’ opinions, it is Dr. Johnstone’s opinion that the sort of
psychologically induced circumscribed amnesia Mr. Alvarez reports is recognized as an
authentic phenomenon in the field of psychiatry. While it is Dr. Johnstone’s opinion that it is not
scientifically possible to distinguish whether he is pretending to have a memory gap or is truthful
in saying that his memory is blank for the interval in question, it is his opinion that the
characteristic flow of the onset, dynamics and course of Mr. Alvarez’s reported condition
corresponds to the characteristics of cases of retrospective circumscribed amnesia. Where Dr.
Johnstone and Dr. Falls disagree is the type of mechanism responsible. While Dr. Falls relates
Mr. Alvarez’s memory loss to dissociative amnesia, Dr. Johnstone finds no evidence of
dissociation. As he describes in his report and states in his affidavit:
I disagree with Dr. Falls to the extent that he attributes Mr. Alvarez’s memory
loss to the process of dissociation. Dissociation is a psychological process
through which a substantial portion of a person’s mind operates in an independent
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. ~Page 13fashion out of communication with the rest of consciousness. Occasionally, a
person who is caught in the middle of a traumatically stressful event goes into a
state of dissociation during the event. When dissociation occurs in association
with a traumatic event, the dissociation itself happens during the event. In such
cases, the individual characteristically reports that either the event never occurred
or describes the event as if seen from a distance like an uninvolved bystander.
The information provided to me as to Mr. Alvarez’s conversations with the EMT,
the DPS trooper, and hospital personnel immediately after the accident is
inconsistent with the known characteristic flow of the onset, dynamics and course
of dissociation in individuals exposed to traumatic stressful events.
Johnstone Aff. § 16. Plaintiffs do not challenge this particular aspect of Dr. Johnstone’s
anticipated testimony in their motion to exclude.
Dr. Johnstone also disagrees with Dr. Falls to the extent that he purports to describe the
unconscious motivation for Mr. Alvarez’s memory loss. As stated by Dr. Johnstone:
It is my strong opinion that there is no objective way to prove to a reasonably
degree of medical certainty what a person’s unconscious motivations may be.
There are certain psychoanalysts who believe that certain projective tests, such as
the thematic apperception test, allow them to discern the subconscious and
unconscious motivations of an individual; however, those tests are not reliable.
More importantly, because there is no way to objectively ascertain the true
unconscious motivation of any individual, there is no way to scientifically
validate such tests. In any event, according to his report, Dr. Falls did not
administer any such projective tests, or any other psychological test even
purportedly designed to detect unconscious motivations, to Mr. Alvarez. It is
therefore my opinion that Dr. Falls’ opinion as to the unconscious motivation for
Mr. Alvarez’s memory loss is not supportable to any degree of medical certainty
within the field of psychiatry and constitutes nothing more than personal
speculation.
Johnstone Aff. § 17. In short, Dr. Johnstone is expected to testify that Dr. Falls cannot testify
with a valid, reliable medical or psychiatric basis as to the unconscious motivation for Mr.
Alvarez’s memory loss.
Plaintiffs point to no flaw in the methodology employed by Dr. Johnstone. They identify
no inaccuracies in the foundational data he relied upon in forming his opinion as to Mr.
Alvarez’s memory loss. As admitted by their own psychiatrist, the absence of a personal
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 14examination of Mr. Alvarez by Dr. Johnstone is, in fact, ethical in the field of psychiatry when a
doctor is called upon to perform a record review and testify generally as to psychiatric
conditions, As an expert, Dr. Johnstone can offer an opinion based upon the facts presented in
this case, or even a hypothetical set of facts, without necessarily examining Mr. Alvarez. Dr.
Johnston’s testimony is both reliable and relevant under the facts of this case. Plaintiffs’
criticisms of Dr. Johnstone are proper subjects of cross-examination, but merely go to the weight
of his expert testimony, not to its reliability or admissibility.
2. The basis of Dr. Johnstone’s opinion that Jazlynn’s will be unable to
remember the accident due to her young age is “one of the most replicable”
observations in medical literature.
Plaintiffs grossly mischaracterize Dr. Johnstone’s anticipated testimony concerning
Jazlynn in an effort to strike his testimony. Dr. Johnstone’s opinion concerns a phenomenon
known as infantile or childhood amnesia, This phenomenon has been characterized as “one of
the most replicable [observations] in the literature: whether tested in 1893 or 1999.” P. Bauer,
Oh Where, Oh Where Have Those Early Memories Gone? A Developmental Perspective on
Childhood Amnesia (attached as part of Ex. E). Indeed, the Supreme Court of Texas has written
about this phenomenon, as follows:
There is basic agreement about the workings of the memory process. The senses
register an event; these sense images are organized into meaningful units; the
organized images are stored or “encoded” in the brain’s neural structure; and
finally, memories are retrieved and recounted. See MEMORIES OF SEXUAL
ABUSE, supra, at 261-262; MICHAEL D. YAPKO, SUGGESTIONS OF
ABUSE: TRUE AND FALSE MEMORIES OF CHILDHOOD SEXUAL
ABUSE 66-71 (1994); AUSTRALIAN PSYCHOLOGICAL SOC’Y, BD. OF
DIRECTORS, GUIDELINES RELATING TO THE REPORTING OF
RECOVERED MEMORIES § C.I. (1994) [hereinafter REPORTING OF
RECOVERED MEMORIES]; ELIZABETH LOFTUS & KATHERINE
KETCHAM, THE MYTH OF REPRESSED MEMORY: FALSE MEMORIES
AND ALLEGATIONS OF SEXUAL ABUSE 75 (1994). See also ROBERTA L,
KLATZKY, HUMAN MEMORY: STRUCTUREAND PROCESSES 2-9 (2d ed.
1980). People commonly recall little from the first five to seven years of life,
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 15and very infrequently anything before the age of two or three, principally
because the brain has not matured sufficiently to assimilate and carry
forward meaningful memories. Z.g. YAPKO, supra, at 77. See also Donald P.
Spence, Narrative Truth and Putative Child Abuse, 42 INT’L J. CLINICAL &
EXPERIMENTAL HYPNOSIS 289, 293-295 (1994).
SV. vy. RV. 933 S.W.2d 1, 49-50 (Tex. 1996). With respect to this topic, Dr. Johnstone is
expected to testify as follows:
Jazlynn Nicole Salas is unlikely to remember the accident as she grows older. It
is a known medical fact that children are not born with the capacity to form long-
term memories. The natural process of any human being acquiring the capacity
for long-term retention and retrieval of explicit memories requires the activity of
neural components that do not even begin to mature before a child is about three
years old. Even after that process begins, it takes several years for that
development process to finish. Consequently, hardly anyone can remember more
than an isolated event or two that happened before three years of age. Because
Jazlynn Nicole Salas was only two years of age—approximately three months
short of her third birthday—at the time of the accident, as she matures she will not
retain or have the ability to retrieve explicit memories of the accident in question.
Because of this phenomenon, which is a natural part of the development of the
human brain and not the result of any injury or disorder caused by the accident, to
a reasonable degree of medical certainty Jazlynn Nicole Salas will not experience
any persisting psychological effects or mental distress from the events of the
accident itself because she will not even remember the accident as she matures.
Johnstone Aff. § 21.
In his report and affidavit, Dr. Johnstone describes why Jazlynn, because of her young
age, will not remember the accident as she matures. The basis of Dr. Johnstone’s opinion is
well-settled in the area of memory and cognition. The established existence of this phenomenon
is further supported by the testimony of Plaintiffs’ own psychiatric expert:
Q. What is infantile amnesia?
A. That is the inability of small children to remember their young childhood.
Q. Is that a common, well-documented phenomenon in the medical and
psychiatric research?
MR. GONZALEZ: Objection, form.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 16A. Yes.
Q. Is that why the ladies and gentlemen of the jury cannot — do not have distinct
or are unable to recall distinct memories of their childhood when they were one,
two, and three years old?
MR. GONZALEZ: — Objection, form.
A. That’s right.
Q. Is the reason that individuals are unable to explicitly recall events form their
young childhood because the human brain has not developed yet to encode and
store that information?
MR. GONZALEZ: — Objection, form.
A. It’s pretty complicated, but that’s not quite my understanding of it.
Q. How would you explain it?
A. I would explain that the brain is developing, as you mentioned, but as it
develops, there are changes such that certain memories that may have been
encoded are lost to retrieval such that as we move further from — as our brain
develops more and we move further from that terminus, the further the terminus
of our memories can be.
So when you’re very small, even a few days old, you may remember
something that happened a few minutes ago. But when you’re a few years old,
you may remember something that happened a few months ago. When you’re
even older than that, you may remember — you know, when you’re ten, you may
remember something from when you were four or five.
But as we get older and older, we move further and further from those
memories, and our brains develop throughout the course of our human
development, and that essentially is what we believe in the scientific and medical
community contributes to this phenomenon.
Q. Is infantile amnesia something that is well recognized and well documented in
the medical and psychiatric literature?
MR. GONZALEZ: — Objection, form.
A. Yes.
Falls Depo. 59:3-61:1
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 17Plaintiffs incorrectly characterize Dr. Johnstone’s opinion as being that young children
“are unaffected by traumatic events.” That is not Dr. Johnstone’s opinion and, as pointed out in
their Motion, Dr. Johnstone disagrees with that proposition in his deposition testimony.
Although outside the scope of his designation, Dr. Johnstone undoubtedly agrees that traumatic
events can affect young children. During his deposition examination, Plaintiffs’ attorney
referred to certain studies regarding the effects of early childhood trauma on children. Dr.
Johnstone criticized Plaintiffs for being misleading because the studies upon which they wish to
rely concern children who have been subject to repetitive childhood abuse or family violence.
While there is some evidence in this case of family violence committed by decedent Jose
Antonio Salas-Castro upon Plaintiff Frances Lopez prior to Jazlynn’s birth, the effects of this
type of repetitive childhood abuse or family violence are not properly the subject of damages to
be recovered from Defendants. It is Dr. Johnstone’s opinion that there are few, if any,
scientifically-conducted studies which suggest that a young child subject to an isolated trauma
such as a traffic accident would suffer the same effects suggested by Plaintiffs.
It is also Dr. Johnstone’s opinion that Plaintiffs’ misuse of certain statistics with respect
to fatherless children is misleading. As stated by Dr. Johnstone:
Plaintiffs’ attorneys have pointed to statistics reflecting a correlation between
particular enumerated behavioral aberrations and fatherlessness. Such data is
misleading. As presented in the exhibit, a set of adult or adolescent behavioral
aberrations is enumerated with the percentage of offenders in each category who
report the absence of a father in their background. These percentages only
indicate a correlation of data sets. Correlation does not equate to causation. Most
importantly, the misleading data presented by Plaintiffs attorneys do not consider
the reason for the father’s absence and do not differentiate between a father who
is absent due to antisocial traits, which genetically would be passed along to his
offspring, and a father who is absent due to premature death.
Johnstone Aff. § 22. To the extent that Dr. Falls will espouse that these statistics support any
opinion as to the effect of the traffic accident on Jazlynn, Dr. Johnstone disagrees. Just because
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. ~Page 18Dr. Johnstone disagrees with the huge leap of logic Plaintiffs ask this Court to take does not
render his opinion unreliable. An expert is not required to agree with something just because it
appears on the internet and Plaintiffs want to use it to support a fictitious narrative of damages.
Moreover, these statistics may now be moot since Plaintiffs have non-suited and discontinued
their claim for future psychological expenses for Jazlynn.
3. Dr. Johnstone’s opinions regarding sleep apnea are within the general scope
of his knowledge, education, and experience as a medical doctor and
psychiatrist.
Dr. Johnstone has not offered and is not expected to offer, an opinion as to whether Mr.
Alvarez suffers from obstructive sleep apnea. He is, however, expected to testify as to the
impropriety of certain statements made by Dr. Slaughter in the history section of his report
concerning Mr. Alvarez. Obstructive sleep apnea hypopnea is a sleep-wake disorder which is
within the field of psychiatry as a specialized field of knowledge within the field of medicine.
Johnstone Aff. § 8. General knowledge of obstructive sleep apnea hypopnea is within the
specialty of psychiatry, but Dr. Johnstone is admittedly not a subspecialist who focuses his
practice specifically on sleep disorders. Id. Accordingly, he has limited his opinions pertaining
to obstructive sleep apnea hypopnea to matters of general knowledge within the field of medicine
and within his specialty area of psychiatry. Id.
With respect to sleep apnea, Dr. Johnstone is expected to testify as follows:
Dr. Daniel Slaughter’s report includes in his history portion a statement that there
is a history of daytime hypersomnolence, restless sleep, morning fatigue, and
frequent headaches. In evaluating symptoms such as those described for purposes
of diagnosing obstructive sleep apnea hypopnea, the DMS-5 requires the that such
symptoms meet the following diagnostic criteria:
Daytime sleepiness, fatigue, or unrefreshing sleep despite sufficient
opportunities to sleep that is not better explained by another mental
disorder (including a sleep disorder) and that is not attributable to another
medical condition.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 19In his deposition testimony, he denied many of these symptoms. In the written
medical history Mr. Alvarez provided to Dr. Slaughter in connection with his
sleep study, Mr. Alvarez wrote “sometimes” with respect to some of these
symptoms. I understand from certain documents shown to me during my
deposition by Plaintiffs’ attorneys that, in 2011, Mr. Alvarez reported some of
these symptoms.
In determining whether symptoms exist and are meaningful to a medical
diagnosis at a given time, it is my opinion that a contemporaneous report by a
person that he “sometimes” experiences the symptom is entirely too vague and
ambiguous to satisfy a medical conclusion of the existence of the symptom under
the diagnostic criteria like that set forth in the DSM-5 for obstructive sleep apnea
hypopnea. In my opinion as a medical doctor, an indication like “sometimes”
requires further inquiry by a properly trained physician so that he can use his
clinical experience and judgment to ascertain the importance and significance of
the report that the person “sometimes” experiences the symptom. Therefore,
unless Dr. Slaughter specifically discussed these items with Mr. Alvarez, Dr.
Slaughter cannot medically conclude that Mr. Alvarez experiences these
symptoms under the diagnostic criteria set forth in the DSM-5 for obstructive
sleep apnea hypopnea.
In determining whether symptoms exist and are meaningful to a medical
diagnosis at a given time, it is my opinion that a past report by a person of the
presence of certain symptoms years before the examination in question is entirely
too remote in time to satisfy a medical conclusion of the existence of the symptom
on the day of the diagnosis under the diagnostic criteria like that set forth in the
DSM-5 for obstructive sleep apnea hypopnea. While it would be helpful and
meaningful if a person’s historical medical records consistently over a period of
time reflected such symptoms without logically attributing them to another
medical condition, Mr. Alvarez’s medical records do not consistently contain
reports of such symptoms and, in many instances, contain specific other medical
diagnoses which logically explain the presence of the symptom at that time.
Therefore, it is my opinion that Dr. Slaughter could not medically conclude that
Mr. Alvarez was experiencing those symptoms at the time of his report under the
diagnostic criteria set forth in the DSM-5 for obstructive sleep apnea hypopnea
based upon a review of Mr. Alvarez’s past medical records.
Johnstone Aff. {§ 18-20. It is important to note that Dr. Johnstone participated in the
development of the DSM-III, which was the third edition of the Diagnostic and Statistical
Manual of Mental Disorders, the official manual of psychiatric diagnosis. When the manual was
published in the early 1980’s, he worked with a group that developed training materials and went
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 20around the state training practitioners at mental health centers, state facilities, and in private
practice regarding the DSM-III. Today, the fifth edition, DSM-5, is the standard treatise for
psychiatric and psychological diagnostics and evaluations throughout the United States. It is
recognized in the field of psychiatry as a reliable authority written primarily and impartially for
professionals in the fields of psychology and psychiatry. Johnstone Aff. ¥ 3; see Falls Depo.
12:1-16.
Dr. Johnstone’s limited anticipated testimony pertaining to sleep apnea is well within the
scope of his general expert knowledge in the field of medicine and in his specialty area of
psychiatry. Dr. Johnstone’s criticism of Dr. Slaughter is supported by the actual diagnostic
criteria set forth in the DSM-5 for obstructive sleep apnea hypopnea. See Ex. D. Dr. Johnstone
properly relates the facts of this case to the diagnostic criteria and describes with clarity his
criticisms of Dr. Slaughter’s unfounded remarks regarding Mr. Alvarez’s alleged medical history
based upon the data presented. Dr. Johnstone’s opinions in this regard satisfy the analytical gap
test and the Nenno standards for reliability. Plaintiffs’ criticism of Dr. Johnstone’s initial opinion
merely goes to the weight of his testimony, and not to its reliability as a medical opinion.
4, Dr. Johnstone’s opinion whether the absence of her father will have a net
positive or net negative influence on Jazlynn’s life depends upon his
demonstrated past character and behavior is supported by the law.
It is well-settled that evidence concerning the character of the decedent and his habits is
relevant and admissible in wrongful death actions as it is helpful in determining the amount of
damages to be awarded to the beneficiaries of the decedent. Allen v. Riedel, 425 S.W.2d 665, 672
(Tex. Civ. App—Eastland 1968, no writ); accord Schippers v. Mazak Props, Inc., 350 S.W.3d
294, 298 (Tex. App.—San Antonio 2011, pet denied); Borak v. Bridge, 524 S.W.2d 773, 778
(Tex. App.—Corpus Christi 1975, no writ); Missouri-Kansas-Texas R.R. v. Pierce, 519 $.W.2d
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 21157, 159 (Tex. App.—Austin 1975, no writ). Evidence of the decedent’s health, habits, sobriety
and the like have all long been held to be proper matters of inquiry. Texas Mexican Ry. v.
Douglas, 73 Tex. 325, 330, 11 S.W. 333, 334 (1889); Allen, 425 S.W.2d 672; Fort Worth & D.C.
Ry. v. Stalcup, 167 S.W. 279, 286 (Tex. Civ. App—Amarillo 1914, no writ). Evidence of a
decedent’s habits and morals is relevant and useful in showing the decedent’s general ability and
capacity for labor or business, industriousness, intelligence, manner of living including frugality,
lavishness, sobriety, intemperance, or other personal characteristics have all been held to be
admissible areas of inquiry. Allen, 425 S.W.2d at 672. Evidence tending to show a decedent’s
lack of respect for his wife or that he probably would not have continued to support and
contribute to her throughout the remainder of his life is admissible. Allen, 425 S.W.2d at 671.
Evidence that a decedent was “only an occasional father,” that “he gambled,” that “his
whereabouts were unknown most of the time,” and that “his wife was required to call on his
parents for money” has been considered in determining such an award. Best Steel Bldgs., Inc v.
Hardin, 533 S.W.2d 122, 133 (Tex. Civ. App.—Tyler 1977, writ ref?d n.r.e.).
It is anticipated that Dr. Johnstone will testify as follows:
While I agree that a girl child growing up in a household without a father figure is
less than ideal, it is very important to consider the personality traits and character
of Jazlynn’s father to determine whether, in her particular case, the presence or
absence of her father would have been a net positive or net negative influence.
Based upon information I have reviewed, Jazlynn’s father had a lengthy record of
criminal and antisocial behavior that persisted well into adulthood. Even though
there are no records of any criminal convictions of Jazlynn’s father during the few
years immediately prior to the accident, the duration and nature of his past
criminal conduct is an important consideration which suggests that his presence
likely would have had a negative influence. Moreover, evidence of continuing
lawless behavior that Jazlynn’s father may not have been arrested for or convicted
of would be important in making a determination as to whether his presence in her
life may have had a net negative, rather than a net positive, influence upon her
had he survived the accident.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D, -Page 22Johnstone Aff. ¥ 25. It is anticipated that Plaintiffs will attempt to limit the evidence of Jose
Antonio Salas-Castro’s past criminal and antisocial behavior at trial. It is Dr. Johnstone’s
opinion that it is important to consider such evidence to determine whether the presence or
absence of Jazlynn’s father would have been a net positive or net negative influence on her life.
In voicing his opinion from a psychiatric perspective, Dr. Johnstone substantiates what numerous
appellate courts have already concluded is a proper area of inquiry in a wrongful death suit.
CONCLUSION
Dr. Johnstone’s expected testimony clearly satisfies the standard for admissibility of
expert testimony. His experience, training, and education clearly show that he is a qualified
expert in the field of psychiatry. Evidence concerning Mr. Alvarez’s memory loss and the effect
of Jazlynn’s young age on her ability to remember the accident is relevant under the facts of this
case. His testimony will assist the jury in understanding such evidence. Johnstone’s testimony
satisfies the analytical gap test and the Nenno factors for reliability. Psychiatry is recognized as
a legitimate field of expertise. The subject matter of Dr. Johnstone’s expected testimony is
clearly within the scope of that field. Dr. Johnstone properly relies upon the principles involved
in that field of study, and clearly demonstrates how his opinions are connected to the objective
data presented. In many respects, Plaintiffs’ own psychiatric expert supports the opinions and
methodology employed by Dr. Johnstone. Although they have certain areas of disagreement,
there is no reasonable basis to exclude Dr. Johnstone’s testimony in this case.
PRAYER
Based upon the foregoing, Defendants FedEx Ground, E&S, and Enrique Alvarez
respectfully request that this Court deny Plaintiffs’ Motion to Exclude Testimony of Edwin E.
Johnstone in its entirety. Defendants pray for general relief.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. ~Page 23Respectfully submitted,
REID & DENNIS, P.C.
/s/ John M. Frick
By
Steve Dennis
State Bar No. 00798143
sdennis@reiddennis.com
John M, Frick
State Bar No, 0745200
jfrick@reiddennis.com
15660 Dallas North Tollway, Suite 1400
Tollway Towers South
Dallas, Texas 75248
(972) 991-2626 ~ Telephone
(972) 991-2678 — Facsimile
ATTORNEYS FOR DEFENDANTS
FEDEX GROUND PACKAGE SYSTEM, INC.,
E&S TRANSFER, INC., AND
ENRIQUE ALVAREZ
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Defendants’ Response to
Plaintiffs’ Motion to Exclude Edwin E. Johnstone, M.D. was served in accordance with the
Texas Rules of Civil Procedure on this the 24" day of August, 2015 to all counsel of record:
Keith M. Jensen
Brandon H. Steffey
JENSEN & ASSOCIATES
1024 N. Main Street
Fort Worth, TX 76164
Xavier A. Gonzalez
THE LAW OFFICE OF
XAVIER A. GONZALEZ
1024 N. Main Street
Fort Worth, TX 76164
/s/ John M. Frick
John M. Frick
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 24NOTICE: Contains Sensitive Data
EXHIBIT ACAUSE NO, D-i-GN-14-000959
FRANCES LOPEZ, INDIVIDUALLY § IN THE DISTRICT COURT OF
AND AS PERSONAL REPRESENTATIVE §
OF THE ESTATES OF JOSE ANTONIO §
SALAS-CASTRO, JAYDEN JOSHUA SALAS, §
AND JOE ANTHONY SALAS, AND AS §
NEXT FRIEND OF JAZLYNN NICOLE SALAS §
Plaintiffs §
§
v § TRAVIS COUNTY, TEXAS
§
FEDEX GROUND PACKAGE SYSTEM, INC., §
E&S TRANSFER, INC., §
AND ENRIQUE ALVAREZ, §
Defendants § 200™ JUDICIAL DISTRICT
AFFIDAVIT OF EDWIN E. JOHNSTONE, M.D.
STATE OF TEXAS }
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, personally appeared Edwin E. Johnstone, M.D.
who, after being duly sworn by me, stated under oath as follows:
1. “My name is Edwin E. Johnstone, M.D. I am over eighteen years of age, have
ne
Preview
NOTICE: Contains Sensitive Data 8/24/2015 5:29:04 PM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-14-000959 D-1-GN-14-000959 Jessica Arzola FRANCES LOPEZ, INDIVIDUALLY § IN THE DISTRICT COURT OF AND AS PERSONAL REPRESENTATIVE § OF THE ESTATES OF JOSE ANTONIO § SALAS-CASTRO, JAYDEN JOSHUA SALAS, § AND JOE ANTHONY SALAS, AND AS § NEXT FRIEND OF JAZLYNN NICOLE SALAS § Plaintiffs § § v. § TRAVIS COUNTY, TEXAS § FEDEX GROUND PACKAGE SYSTEM, INC., § E&S TRANSFER, INC., AND § ENRIQUE ALVAREZ, § Defendants § 2007" JUDICIAL DISTRICT DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. Defendants FedEx Ground Package System, Inc. (“FedEx Ground”), E&S Transfer, Inc. (E&S”), and Enrique Alvarez (“Alvarez”) file this Defendants’ Response to Plaintiffs’ Motion to Exclude Edwin E. Johnstone, M.D. Authorities presented in this Response establish that Edwin E. Johnstone, M.D. should be allowed to testify as an expert witness in this case because: e Edwin E. Johnstone, M.D. is qualified to testify as an expert in the field of psychiatry; indeed, Plaintiffs do not challenge his qualifications. e Dr. Johnstone’s opinion that Mr. Alvarez’s memory loss is consistent with circumscribed amnesia is relevant and is further supported by the diagnosis of Plaintiffs’ own psychiatric expert that Mr. Alvarez suffers from localized dissociative amnesia. e Dr. Johnstone’s opinion that Jazlynn Nicole Salas is highly unlikely to remember the accident due to “infantile amnesia” is relevant because it affects the damages to be awarded to her for future mental anguish. e« Dr. Johnstone’s opinion that Dr. Slaughter improperly interpreted Mr. Alvarez’s medical history to diagnose his sleep apnea is well-reasoned and logical. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E, JOHNSTONE, M.D. -Page iINTRODUCTION This case arises from a two vehicle collision which occurred at the very dangerous intersection of FM 1185 and Highway 183 in Caldwell County. One of the vehicles involved in the collision was a 2008 Dodge Sprinter delivery van owned by E&S, leased to FedEx Ground, and driven by E&S driver Alvarez. Alvarez, who was wearing a seat belt, survived the accident with relatively minor injuries. The other vehicle was a 1997 GMC Jimmy sports utility vehicle bearing a paper dealer’s temporary tag reflecting that the vehicle was owned by Last Chance Auto Sales. Jose Antonio Salas-Castro (“Salas-Castro”) was the only adult occupant of the 1997 GMC Jimmy, but Salas-Castro did not have, and apparently has never had, a valid driver’s license. Because they were not properly restrained by legally mandated safety belts or an age- appropriate child passenger safety seat belt system, two of Salas-Castro’s children in the 1997 GMC Jimmy were killed. Two-year old Jazlynn Salas, who was in a car seat, was the only occupant of the 1997 GMC Jimmy to survive the collision. Plaintiffs seek actual and exemplary damages in excess of $1,000,000 and up to $100,000,000. Following the accident, Alvarez developed a circumscribed period of memory loss relating to events on the day of the accident from when he purchased gasoline prior to the collision to when blood was being drawn from him at the hospital after the accident. Plaintiffs have persistently accused Alvarez of feigning or malingering his memory loss to somehow avoid legal liability for the collision. Following a compelled forensic psychiatric examination of Alvarez, even Plaintiffs’ own psychiatric expert, Dr. Brian Falls, M.D., has concluded that Alvarez is not feigning or malingering his memory loss and genuinely suffers from localized dissociative amnesia. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 2SUPPORTING EVIDENCE In support of this Response, Defendants rely upon the following evidence: 1, The Affidavit of Edwin E. Johnstone, M.D. (Ex. A). 2. The curriculum vitae of Edwin E. Johnstone, M.D. (Ex. B) 3. The expert report of Edwin E. Johnstone, M.D. (Ex. C). 4. Excerpts from the Diagnostic and Statistics Manual (Ex. D). 5. The deposition of Edwin E. Johnstone, M.D. taken May 6, 2015 (Ex. E). 6. The deposition of Edwin E. Johnstone, M.D. taken August 13, 2015 (Ex. F). 7. Psychiatric and medical literature supporting Dr. Johnstone’s opinions. (Ex. G.) 8. Excerpts from the deposition of Brian Falls, M.D, (Ex. H). These items are attached as an Appendix to this Response. ARGUMENT AND AUTHORITIES Rule 702 provides that a witness who qualifies as an expert because of knowledge, skill, experience, training, or education may testify as an expert if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or resolve an issue of fact. Tex. R. Evip. 702, To be admissible, expert testimony must be (1) uttered by a qualified expert; (2) relevant; and (3) based on a reliable foundation. E.g., Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Taylor v. Texas Dept. of Protective & Regulatory Servs., 160 8.W.3d 641, 650 (Tex. App—Austin 2005, pet. denied). A. Plaintiffs Do Not Challenge Dr. Johnstone’s Qualifications as an Expert Psychiatrist. In his affidavit, Dr. Johnstone details his substantial education, training, and experience in psychiatry. Dr. Johnstone received his medical license in 1964, He was board certified in the field of psychiatry in 1970, He was previously in charge of the Division of Outpatient Clinics at DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. ~-Page 3the Houston State Psychiatric Institute, which subsequently became the Texas Research Institute of Mental Sciences during his tenure there. In 1984, he became the medical director of a separate entity established by the institute named Clinical Research Associates, Inc., to conduct clinical drug trials. In 1986, he went into a solo office practice, and has been engaged in the private practice of psychiatry since then. He continues to see private patients and is frequently called upon to perform independent medical evaluations, peer reviews, and to offer descriptive testimony concerning psychiatric terms and diagnoses. He has previously testified as an expert witness in the field of psychiatry on numerous occasions, Even Plaintiffs do not challenge Dr. Johnstone’s qualifications as an expert in the field of psychiatry based upon his substantial knowledge, education, training, and experience in that field of medicine. B. Dr. Johnstone’s expert opinions are relevant. Expert testimony is relevant when it is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). In this case, Enrique Alvarez has testified that he no longer has any memory of the events surrounding the accident in question. His last memory before the accident is purchasing gas earlier that morning, and his first memory after the accident is having blood drawn in the hospital after the accident. He indicates that he has no memory of events which occurred during this gap. Plaintiffs have consistently asserted that Mr. Alvarez’s memory loss is feigned or malingered to avoid liability for the accident in question, even after Plaintiffs’ own psychiatric expert, Dr. Brian Falls, has concluded that Mr. Alvarez’s memory loss is not feigned or malingered. It is Dr. Johnstone’s opinion that the sort of psychologically induced circumscribed amnesia Mr. Alvarez reports is recognized as an authentic phenomenon in the field of psychiatry. While it is Dr. Johnstone’s opinion that it is not scientifically possible to DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E, JOHNSTONE, M.D. -Page4distinguish whether Mr. Alvarez is pretending to have a memory gap or is truthful in saying that his memory is blank for the interval in question, it is Dr. Johnstone’s opinion that the characteristic flow of the onset, dynamics and course of Mr. Alvarez’s reported condition corresponds to the characteristics of cases of retrospective circumscribed amnesia. The jury lacks the education, training, and experience in the field of psychiatry to know and understand the symptoms and presentation of known, documented psychiatric conditions, in order to discern whether the evidence in this case differs in a meaningful way. Dr. Johnstone’s testimony will be useful to assist the jury in determining whether Mr. Alvarez is feigning his memory loss. At the time of the accident, Jazlynn Nicole Salas was two years old. On her behalf, Plaintiffs seek damages for mental anguish not only from the injuries she personally received in the accident, but also for mental anguish for the deaths of her brothers and father. Because of her young age at the time of the accident, it is Dr. Johnstone’s opinion that she will not remember the accident as she grows older. He explains that this is due to the natural process of human brain development, and not the result of any injury sustained in the accident or any disorder. Because of this natural phenomenon, Jazlynn will not experience any persisting psychological effects or mental distress from the events of the accident itself. Because the jury lacks the education, training, and experience in the field of psychiatry to understand what is often called “infantile” or “childhood” amnesia, Dr. Johnstone’s expert testimony will be useful to assist the jury in determining the amount of damages to award to Jazlynn for future mental anguish. If Plaintiffs had not, just last week, nonsuited and discontinued their claim for future psychological expenses for Jazlynn, his testimony would have also been useful in determining whether any such damages should be awarded. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 5Cc. The analytical gap test and Nenno factors apply to assess the reliability of psychiatric testimony. Courts have developed various factors to be considered in assessing the reliability of an expert’s conclusions, E.g., Taylor v. Texas Dept. of Protective & Regulatory Servs., 160 S.W.3d 641, 650 (Tex. App.—Austin 2005, pet. denied). With respect to hard scientific evidence, courts commonly examine the non-exclusive factors enumerated by the Texas supreme court in its landmark decision in 1995. Robinson, 923 S.W.2d at 557. Courts have recognized that the Robinson factors are not appropriate in every case, particularly those that involve expertise that is not susceptible to scientific analysis. See, e.g., Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 724-26 (Tex. 1998); Taylor, 160 S.W.3d at 650. In the area of soft sciences, experts are qualified to give an opinion as long as there is not too great of an analytical gap between the data and the opinion offered. E.g., Transcontinental Ins. Co. v. Crump, 330 8.W.3d 211, 219 (Tex. 2010); Gammill, 972 S.W.2d at 727. Courts have recognized a distinction between “hard” sciences and “soft” sciences. E.g., Nenno vy. State, 970 S.W.2d 549, 560 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999); Taylor, 160 S.W.3d at 650. For psychiatric and psychological testimony, courts have applied the “analytical gap” analysis rather than the factors enumerated in Robinson. See, e.g., In re Zamora, 2007 Tex. App. LEXIS 5852 * 3-4 (Tex. App.—Beaumont 2007, orig. proceeding); In re Martinez, 2006 Tex. App. LEXIS 7459 *10-11(Tex. App.—Beaumont 2006, no pet.); Jn re Estate of Robinson, 140 S.W.3d 782, 792 (Tex. App—Corpus Christi 2004, pet. denied). When dealing with fields other than the hard sciences, such as social sciences, the Nenno court concluded that factors like an expert’s education, training, and experience are more appropriate factors in testing reliability than the scientific method. Nenno, 970 S.W.2d at 561; see, eg., Taylor, 160 S.W.3d at 650. In DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D, ~Page 6measuring the reliability of an expert’s opinions in such fields, courts should consider whether: (1) the field of expertise is a legitimate one; (2) the subject matter of the expert’s testimony is within the scope of that field; and (3) the expert’s testimony properly relies upon the principles involved in that field of study. Nenno, 970 S.W.2d at 561; Taylor, 160 S.W.3d at 650. Nenno itself addressed the admissibility of expert testimony as to the future dangerousness of the defendant in a criminal case. 970 S.W.2d at 552. The State offered testimony from a special agent in the behavioral sciences unit of the FBI. Jd. From information given to the agent about the defendant, the agent concluded that the defendant was a pedophile and that such a person was difficult to rehabilitate. Jd. The agent testified that his analysis was based upon his experience studying cases, and that he did not employ a particular methodology for determining future dangerousness. Jd. at 562. The Court of Criminal Appeals noted that research concerning the behavior of offenders who sexually victimize children appears to be a legitimate field of expertise. Jd. “Through interviews, case studies, and statistical research, a person may acquire, as a result of such experience, superior knowledge concerning the behavior of such offenders.” Jd. The absence of peer review does not necessarily undercut the reliability of such testimony. Jd. To the extent that its absence casts doubt on the credibility of the expert’s testimony, such affects the weight of the evidence rather than its admissibility. /d. Because the expert possessed superior knowledge concerning the behavior of such offenders, his testimony did not merely duplicate the jury’s knowledge and was not substantially outweighed by the danger of unfair prejudice. /d. Therefore, the expert testimony as to the defendant’s future dangerousness was admissible. Jd. Although Nenno arises from the area of criminal law, numerous appellate courts have adopted and employed the Nenno framework to evaluate soft science and non-scientific DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 7testimony in a variety of civil cases. See, e.g., In re Polk, 2011 Tex. App. LEXIS 1323 *12 (Tex. App.—Beaumont 2011, pet. denied); Jn the Interest of S.R., 2010 Tex. App. LEXIS 9681 *5 (Tex. App.—Waco 2010, pet. denied); Five Star Int’l Holdings, Inc. v. Thomson, Inc., 324 S.W.3d 160, 168 (Tex. App—El Paso 2010, pet. denied); Taylor, 160 S$.W.3d at 651; In the Interest of A.J.L., 136 S.W.3d 293, 298 (Tex. App.—Fort Worth 2004, no pet.); Jn the Interest of G.B., 2003 Tex. App. LEXIS *5-6 (Tex. App.—-Amarillo 2003, no pet.). The Austin court of appeals has expressly adopted the Nenno framework to evaluate matters within the psychological and sociological sciences. Taylor, 160 S.W.3d at 651. In Taylor, the Austin court of appeals addressed the admissibility of testimony concerning a home study performed by a social worker in a parental termination case. 160 S.W.3d at 649. The worker testified at length about her education and work experience, and described her research, investigation, and conclusions in detail. Jd. at 651. She investigated the parent and her boyfriend’s backgrounds and explained her findings and conclusions in a report. Id. As a result of her investigation, the social worker determined that the parent’s home was inappropriate for the child. Jd. The court concluded that Nenno provided the appropriate framework to address such evidence. Jd. Considering the worker’s education, training, and experience and the fact that she explained her findings and conclusions in depth, the court determined that such testimony satisfied the Nenno standards for reliability and the trial court did not err in allowing the worker’s testimony. Jd. at 651-52. Because psychiatry is s a “soft” social science, factors like an expert’s education, training, and experience are more appropriate factors in testing reliability than the scientific method. Psychiatry is recognized as a legitimate field of medical expertise. The subject matter of Dr. Johnstone’s anticipated testimony lies squarely within that field. Psychiatric experts are DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page8qualified to give an opinion as long as there is not too great of an analytical gap between the data and the opinion offered. 1 Dr. Johnstone’s opinion as to Mr. Alvarez’s memory loss squarely fits the data. Plaintiffs only criticism of Dr. Johnstone’s opinion regarding Mr, Alvarez’s memory loss is that he did not personally examine Mr. Alvarez. Based on ethical guidelines from the American Academy of Psychiatry and the Law, Plaintiffs argue that the failure to perform a personal examination calls into question the honesty, objectivity, and adequacy of his opinions. See Pltfs’ Mtn. to Exclude at 14. Even were Plaintiffs correct, their argument does not address the reliability of Dr. Johnstone’s anticipated testimony. Dr. Johnstone is not providing a definitive diagnosis of Mr. Alvarez as a patient. Instead, he was asked to review records to determine whether the memory loss described by the evidence in this case is consistent with a known, documented psychiatric condition. Even the authority upon which Plaintiffs rely specifically states: “For certain evaluations (such as record reviews for malpractice cases), a personal examination is not required.” In general, experts can, and routinely do, testify to expert opinions based on facts in evidence presented in the form of a hypothetical question. The foundational sufficiency of the hypothetical question is judged by the content of the question itself, and not by whether the witness has ever examined the person, place or thing in question. See, e.g., State Farm Fire & Cas. Co. v. Wicka, 474 N.W.2d 324, 333 (Minn. 1991)(addressing psychiatric opinion testimony in particular). The want of a personal examination does not render a psychiatric opinion inadmissible for lack of a foundation, but is merely a matter of weight. Jd. Indeed, Plaintiffs’ own psychiatric expert recognizes that it is proper for a psychiatrist to form an opinion without personally seeing a person: DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page9On how many occasions have you examined Jazlynn Salas? None. How many psychiatric tests have you administered to Jazlynn Salas? None. OP Ob Are all of your opinions concerning Jazlynn Salas based upon a review of information that was provided to you? A. Yes. FoR Q. All you did was do a -- what would be perhaps termed a peer review of existing medical records. Correct? A. A record review, yeah. Q. Is that ethical in the field of psychiatry? A. Yes. It's permissible, yes. pad Q. (BY MR. FRICK) And is there a difference between testifying as to a particular diagnosis of a particular individual and testifying in general as to psychiatric conditions? A. That's correct. Q. Ifyou form an opinion of a diagnosis for a particular individual, the ethical guidelines encourage you to, if possible, examine the patient and see the patient personally. Correct? A. Yes. MR. GONZALEZ: Objection, form. A. If possible. Q. (BY MR. FRICK) If you're testifying in general about psychiatric terms and conditions, you're not required to examine a patient. Is that correct? A. Yes. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E, JOHNSTONE, M.D. ~Page 10Q. And that's well established in the field of forensic psychiatry. Correct? A. Yes. MR. GONZALEZ: Objection, form. Q. (BY MR. FRICK) In fact, you have written articles in the field of psychiatry and the law, haven't you? A. Yes, I have, uh-huh. Falls Depo. 51:17-52:1; 53:16-22; 54:7-55:6. In his report, Dr. Johnstone describes in considerable detail the differential diagnostic methodology he employed in analyzing Mr. Alvarez’s medical records and the deposition testimony in this case. He carefully relates the underlying data from the documents he reviewed to established diagnostic criteria of specific medical and psychiatric conditions. The reliability of Dr. Johnstone’s opinion that the evidence of Mr. Alvarez’s memory loss corresponds to the characteristics of authentic cases of retrospective circumscribed amnesia is further supported by the testimony of Plaintiffs’ own psychiatric expert: Q. Did you perform an independent forensic psychiatric evaluation of Enrique Alvarez on May 23, of 2015? A. Yes. Q. Asa result of your independent forensic psychiatric evaluation, you formed an opinion as to whether Enrique Alvarez is feigning his memory loss, didn’t you? A. Yes. Q. And as a result of your independent forensic psychiatric evaluation, you formed an opinion as to whether Enrique Alvarez is malingering, didn’t you? A, Yes. Q. Asa result of your independent forensic psychiatric evaluation, it is your opinion that Enrique Alvarez is not feigning his memory loss, isn’t it? A. That’s correct. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 11Q. And as a result of your independent forensic psychiatric evaluation, it is your opinion that Enrique Alvarez is not malingering, isn’t it? A. That’s correct. Falls Depo. 7:10-8:5. Q. Now there are several different types of dissociative amnesia, aren’t there? A. Yes. Q. Is localized amnesia one type? A. Yes. Q. Is localized amnesia a failure to recall events during a circumscribed period of time. A. Yes. Q. Is circumscribed amnesia another name for localized amnesia? A. That’s correct, yes, Q. Isita loss of memory for all events during a discreet period of time? A. Yes. All or most — most events during that time, yes. Q. Mr. Alvarez reports an inability to remember events during a circumscribed period of time, doesn’t he? A Q . That’s correct. . He reports an inability to remember events during that discreet specific period of time between when he purchased gas on the morning of January 18" and when he was in Brackenridge Hospital after the accident, doesn’t he? MR. GONZALEZ: Objection, form. A. That’s correct. Q is . Is it your opinion that the type of dissociative amnesia affecting Mr. Alvarez localized amnesia? MR. GONZALEZ: Objection, form. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 12A. Yes, that’s correct. Q. Can the onset of localized amnesia be delayed for hours, days, or even longer periods of time? A. Yes. Q. Before the onset of dissociative amnesia, can the person retrieve memories? A. Absolutely. Q. It is only after the onset that the person cannot retrieve those memories. Correct? A. That’s correct. That’s the idea of a retrograde amnesia. Q. And the onset could be hours, days, or weeks later. Correct. A. That’s correct. Falls Depo. 14:15-16:10. Consistent with Dr. Falls’ opinions, it is Dr. Johnstone’s opinion that the sort of psychologically induced circumscribed amnesia Mr. Alvarez reports is recognized as an authentic phenomenon in the field of psychiatry. While it is Dr. Johnstone’s opinion that it is not scientifically possible to distinguish whether he is pretending to have a memory gap or is truthful in saying that his memory is blank for the interval in question, it is his opinion that the characteristic flow of the onset, dynamics and course of Mr. Alvarez’s reported condition corresponds to the characteristics of cases of retrospective circumscribed amnesia. Where Dr. Johnstone and Dr. Falls disagree is the type of mechanism responsible. While Dr. Falls relates Mr. Alvarez’s memory loss to dissociative amnesia, Dr. Johnstone finds no evidence of dissociation. As he describes in his report and states in his affidavit: I disagree with Dr. Falls to the extent that he attributes Mr. Alvarez’s memory loss to the process of dissociation. Dissociation is a psychological process through which a substantial portion of a person’s mind operates in an independent DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. ~Page 13fashion out of communication with the rest of consciousness. Occasionally, a person who is caught in the middle of a traumatically stressful event goes into a state of dissociation during the event. When dissociation occurs in association with a traumatic event, the dissociation itself happens during the event. In such cases, the individual characteristically reports that either the event never occurred or describes the event as if seen from a distance like an uninvolved bystander. The information provided to me as to Mr. Alvarez’s conversations with the EMT, the DPS trooper, and hospital personnel immediately after the accident is inconsistent with the known characteristic flow of the onset, dynamics and course of dissociation in individuals exposed to traumatic stressful events. Johnstone Aff. § 16. Plaintiffs do not challenge this particular aspect of Dr. Johnstone’s anticipated testimony in their motion to exclude. Dr. Johnstone also disagrees with Dr. Falls to the extent that he purports to describe the unconscious motivation for Mr. Alvarez’s memory loss. As stated by Dr. Johnstone: It is my strong opinion that there is no objective way to prove to a reasonably degree of medical certainty what a person’s unconscious motivations may be. There are certain psychoanalysts who believe that certain projective tests, such as the thematic apperception test, allow them to discern the subconscious and unconscious motivations of an individual; however, those tests are not reliable. More importantly, because there is no way to objectively ascertain the true unconscious motivation of any individual, there is no way to scientifically validate such tests. In any event, according to his report, Dr. Falls did not administer any such projective tests, or any other psychological test even purportedly designed to detect unconscious motivations, to Mr. Alvarez. It is therefore my opinion that Dr. Falls’ opinion as to the unconscious motivation for Mr. Alvarez’s memory loss is not supportable to any degree of medical certainty within the field of psychiatry and constitutes nothing more than personal speculation. Johnstone Aff. § 17. In short, Dr. Johnstone is expected to testify that Dr. Falls cannot testify with a valid, reliable medical or psychiatric basis as to the unconscious motivation for Mr. Alvarez’s memory loss. Plaintiffs point to no flaw in the methodology employed by Dr. Johnstone. They identify no inaccuracies in the foundational data he relied upon in forming his opinion as to Mr. Alvarez’s memory loss. As admitted by their own psychiatrist, the absence of a personal DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 14examination of Mr. Alvarez by Dr. Johnstone is, in fact, ethical in the field of psychiatry when a doctor is called upon to perform a record review and testify generally as to psychiatric conditions, As an expert, Dr. Johnstone can offer an opinion based upon the facts presented in this case, or even a hypothetical set of facts, without necessarily examining Mr. Alvarez. Dr. Johnston’s testimony is both reliable and relevant under the facts of this case. Plaintiffs’ criticisms of Dr. Johnstone are proper subjects of cross-examination, but merely go to the weight of his expert testimony, not to its reliability or admissibility. 2. The basis of Dr. Johnstone’s opinion that Jazlynn’s will be unable to remember the accident due to her young age is “one of the most replicable” observations in medical literature. Plaintiffs grossly mischaracterize Dr. Johnstone’s anticipated testimony concerning Jazlynn in an effort to strike his testimony. Dr. Johnstone’s opinion concerns a phenomenon known as infantile or childhood amnesia, This phenomenon has been characterized as “one of the most replicable [observations] in the literature: whether tested in 1893 or 1999.” P. Bauer, Oh Where, Oh Where Have Those Early Memories Gone? A Developmental Perspective on Childhood Amnesia (attached as part of Ex. E). Indeed, the Supreme Court of Texas has written about this phenomenon, as follows: There is basic agreement about the workings of the memory process. The senses register an event; these sense images are organized into meaningful units; the organized images are stored or “encoded” in the brain’s neural structure; and finally, memories are retrieved and recounted. See MEMORIES OF SEXUAL ABUSE, supra, at 261-262; MICHAEL D. YAPKO, SUGGESTIONS OF ABUSE: TRUE AND FALSE MEMORIES OF CHILDHOOD SEXUAL ABUSE 66-71 (1994); AUSTRALIAN PSYCHOLOGICAL SOC’Y, BD. OF DIRECTORS, GUIDELINES RELATING TO THE REPORTING OF RECOVERED MEMORIES § C.I. (1994) [hereinafter REPORTING OF RECOVERED MEMORIES]; ELIZABETH LOFTUS & KATHERINE KETCHAM, THE MYTH OF REPRESSED MEMORY: FALSE MEMORIES AND ALLEGATIONS OF SEXUAL ABUSE 75 (1994). See also ROBERTA L, KLATZKY, HUMAN MEMORY: STRUCTUREAND PROCESSES 2-9 (2d ed. 1980). People commonly recall little from the first five to seven years of life, DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 15and very infrequently anything before the age of two or three, principally because the brain has not matured sufficiently to assimilate and carry forward meaningful memories. Z.g. YAPKO, supra, at 77. See also Donald P. Spence, Narrative Truth and Putative Child Abuse, 42 INT’L J. CLINICAL & EXPERIMENTAL HYPNOSIS 289, 293-295 (1994). SV. vy. RV. 933 S.W.2d 1, 49-50 (Tex. 1996). With respect to this topic, Dr. Johnstone is expected to testify as follows: Jazlynn Nicole Salas is unlikely to remember the accident as she grows older. It is a known medical fact that children are not born with the capacity to form long- term memories. The natural process of any human being acquiring the capacity for long-term retention and retrieval of explicit memories requires the activity of neural components that do not even begin to mature before a child is about three years old. Even after that process begins, it takes several years for that development process to finish. Consequently, hardly anyone can remember more than an isolated event or two that happened before three years of age. Because Jazlynn Nicole Salas was only two years of age—approximately three months short of her third birthday—at the time of the accident, as she matures she will not retain or have the ability to retrieve explicit memories of the accident in question. Because of this phenomenon, which is a natural part of the development of the human brain and not the result of any injury or disorder caused by the accident, to a reasonable degree of medical certainty Jazlynn Nicole Salas will not experience any persisting psychological effects or mental distress from the events of the accident itself because she will not even remember the accident as she matures. Johnstone Aff. § 21. In his report and affidavit, Dr. Johnstone describes why Jazlynn, because of her young age, will not remember the accident as she matures. The basis of Dr. Johnstone’s opinion is well-settled in the area of memory and cognition. The established existence of this phenomenon is further supported by the testimony of Plaintiffs’ own psychiatric expert: Q. What is infantile amnesia? A. That is the inability of small children to remember their young childhood. Q. Is that a common, well-documented phenomenon in the medical and psychiatric research? MR. GONZALEZ: Objection, form. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 16A. Yes. Q. Is that why the ladies and gentlemen of the jury cannot — do not have distinct or are unable to recall distinct memories of their childhood when they were one, two, and three years old? MR. GONZALEZ: — Objection, form. A. That’s right. Q. Is the reason that individuals are unable to explicitly recall events form their young childhood because the human brain has not developed yet to encode and store that information? MR. GONZALEZ: — Objection, form. A. It’s pretty complicated, but that’s not quite my understanding of it. Q. How would you explain it? A. I would explain that the brain is developing, as you mentioned, but as it develops, there are changes such that certain memories that may have been encoded are lost to retrieval such that as we move further from — as our brain develops more and we move further from that terminus, the further the terminus of our memories can be. So when you’re very small, even a few days old, you may remember something that happened a few minutes ago. But when you’re a few years old, you may remember something that happened a few months ago. When you’re even older than that, you may remember — you know, when you’re ten, you may remember something from when you were four or five. But as we get older and older, we move further and further from those memories, and our brains develop throughout the course of our human development, and that essentially is what we believe in the scientific and medical community contributes to this phenomenon. Q. Is infantile amnesia something that is well recognized and well documented in the medical and psychiatric literature? MR. GONZALEZ: — Objection, form. A. Yes. Falls Depo. 59:3-61:1 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 17Plaintiffs incorrectly characterize Dr. Johnstone’s opinion as being that young children “are unaffected by traumatic events.” That is not Dr. Johnstone’s opinion and, as pointed out in their Motion, Dr. Johnstone disagrees with that proposition in his deposition testimony. Although outside the scope of his designation, Dr. Johnstone undoubtedly agrees that traumatic events can affect young children. During his deposition examination, Plaintiffs’ attorney referred to certain studies regarding the effects of early childhood trauma on children. Dr. Johnstone criticized Plaintiffs for being misleading because the studies upon which they wish to rely concern children who have been subject to repetitive childhood abuse or family violence. While there is some evidence in this case of family violence committed by decedent Jose Antonio Salas-Castro upon Plaintiff Frances Lopez prior to Jazlynn’s birth, the effects of this type of repetitive childhood abuse or family violence are not properly the subject of damages to be recovered from Defendants. It is Dr. Johnstone’s opinion that there are few, if any, scientifically-conducted studies which suggest that a young child subject to an isolated trauma such as a traffic accident would suffer the same effects suggested by Plaintiffs. It is also Dr. Johnstone’s opinion that Plaintiffs’ misuse of certain statistics with respect to fatherless children is misleading. As stated by Dr. Johnstone: Plaintiffs’ attorneys have pointed to statistics reflecting a correlation between particular enumerated behavioral aberrations and fatherlessness. Such data is misleading. As presented in the exhibit, a set of adult or adolescent behavioral aberrations is enumerated with the percentage of offenders in each category who report the absence of a father in their background. These percentages only indicate a correlation of data sets. Correlation does not equate to causation. Most importantly, the misleading data presented by Plaintiffs attorneys do not consider the reason for the father’s absence and do not differentiate between a father who is absent due to antisocial traits, which genetically would be passed along to his offspring, and a father who is absent due to premature death. Johnstone Aff. § 22. To the extent that Dr. Falls will espouse that these statistics support any opinion as to the effect of the traffic accident on Jazlynn, Dr. Johnstone disagrees. Just because DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. ~Page 18Dr. Johnstone disagrees with the huge leap of logic Plaintiffs ask this Court to take does not render his opinion unreliable. An expert is not required to agree with something just because it appears on the internet and Plaintiffs want to use it to support a fictitious narrative of damages. Moreover, these statistics may now be moot since Plaintiffs have non-suited and discontinued their claim for future psychological expenses for Jazlynn. 3. Dr. Johnstone’s opinions regarding sleep apnea are within the general scope of his knowledge, education, and experience as a medical doctor and psychiatrist. Dr. Johnstone has not offered and is not expected to offer, an opinion as to whether Mr. Alvarez suffers from obstructive sleep apnea. He is, however, expected to testify as to the impropriety of certain statements made by Dr. Slaughter in the history section of his report concerning Mr. Alvarez. Obstructive sleep apnea hypopnea is a sleep-wake disorder which is within the field of psychiatry as a specialized field of knowledge within the field of medicine. Johnstone Aff. § 8. General knowledge of obstructive sleep apnea hypopnea is within the specialty of psychiatry, but Dr. Johnstone is admittedly not a subspecialist who focuses his practice specifically on sleep disorders. Id. Accordingly, he has limited his opinions pertaining to obstructive sleep apnea hypopnea to matters of general knowledge within the field of medicine and within his specialty area of psychiatry. Id. With respect to sleep apnea, Dr. Johnstone is expected to testify as follows: Dr. Daniel Slaughter’s report includes in his history portion a statement that there is a history of daytime hypersomnolence, restless sleep, morning fatigue, and frequent headaches. In evaluating symptoms such as those described for purposes of diagnosing obstructive sleep apnea hypopnea, the DMS-5 requires the that such symptoms meet the following diagnostic criteria: Daytime sleepiness, fatigue, or unrefreshing sleep despite sufficient opportunities to sleep that is not better explained by another mental disorder (including a sleep disorder) and that is not attributable to another medical condition. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 19In his deposition testimony, he denied many of these symptoms. In the written medical history Mr. Alvarez provided to Dr. Slaughter in connection with his sleep study, Mr. Alvarez wrote “sometimes” with respect to some of these symptoms. I understand from certain documents shown to me during my deposition by Plaintiffs’ attorneys that, in 2011, Mr. Alvarez reported some of these symptoms. In determining whether symptoms exist and are meaningful to a medical diagnosis at a given time, it is my opinion that a contemporaneous report by a person that he “sometimes” experiences the symptom is entirely too vague and ambiguous to satisfy a medical conclusion of the existence of the symptom under the diagnostic criteria like that set forth in the DSM-5 for obstructive sleep apnea hypopnea. In my opinion as a medical doctor, an indication like “sometimes” requires further inquiry by a properly trained physician so that he can use his clinical experience and judgment to ascertain the importance and significance of the report that the person “sometimes” experiences the symptom. Therefore, unless Dr. Slaughter specifically discussed these items with Mr. Alvarez, Dr. Slaughter cannot medically conclude that Mr. Alvarez experiences these symptoms under the diagnostic criteria set forth in the DSM-5 for obstructive sleep apnea hypopnea. In determining whether symptoms exist and are meaningful to a medical diagnosis at a given time, it is my opinion that a past report by a person of the presence of certain symptoms years before the examination in question is entirely too remote in time to satisfy a medical conclusion of the existence of the symptom on the day of the diagnosis under the diagnostic criteria like that set forth in the DSM-5 for obstructive sleep apnea hypopnea. While it would be helpful and meaningful if a person’s historical medical records consistently over a period of time reflected such symptoms without logically attributing them to another medical condition, Mr. Alvarez’s medical records do not consistently contain reports of such symptoms and, in many instances, contain specific other medical diagnoses which logically explain the presence of the symptom at that time. Therefore, it is my opinion that Dr. Slaughter could not medically conclude that Mr. Alvarez was experiencing those symptoms at the time of his report under the diagnostic criteria set forth in the DSM-5 for obstructive sleep apnea hypopnea based upon a review of Mr. Alvarez’s past medical records. Johnstone Aff. {§ 18-20. It is important to note that Dr. Johnstone participated in the development of the DSM-III, which was the third edition of the Diagnostic and Statistical Manual of Mental Disorders, the official manual of psychiatric diagnosis. When the manual was published in the early 1980’s, he worked with a group that developed training materials and went DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 20around the state training practitioners at mental health centers, state facilities, and in private practice regarding the DSM-III. Today, the fifth edition, DSM-5, is the standard treatise for psychiatric and psychological diagnostics and evaluations throughout the United States. It is recognized in the field of psychiatry as a reliable authority written primarily and impartially for professionals in the fields of psychology and psychiatry. Johnstone Aff. ¥ 3; see Falls Depo. 12:1-16. Dr. Johnstone’s limited anticipated testimony pertaining to sleep apnea is well within the scope of his general expert knowledge in the field of medicine and in his specialty area of psychiatry. Dr. Johnstone’s criticism of Dr. Slaughter is supported by the actual diagnostic criteria set forth in the DSM-5 for obstructive sleep apnea hypopnea. See Ex. D. Dr. Johnstone properly relates the facts of this case to the diagnostic criteria and describes with clarity his criticisms of Dr. Slaughter’s unfounded remarks regarding Mr. Alvarez’s alleged medical history based upon the data presented. Dr. Johnstone’s opinions in this regard satisfy the analytical gap test and the Nenno standards for reliability. Plaintiffs’ criticism of Dr. Johnstone’s initial opinion merely goes to the weight of his testimony, and not to its reliability as a medical opinion. 4, Dr. Johnstone’s opinion whether the absence of her father will have a net positive or net negative influence on Jazlynn’s life depends upon his demonstrated past character and behavior is supported by the law. It is well-settled that evidence concerning the character of the decedent and his habits is relevant and admissible in wrongful death actions as it is helpful in determining the amount of damages to be awarded to the beneficiaries of the decedent. Allen v. Riedel, 425 S.W.2d 665, 672 (Tex. Civ. App—Eastland 1968, no writ); accord Schippers v. Mazak Props, Inc., 350 S.W.3d 294, 298 (Tex. App.—San Antonio 2011, pet denied); Borak v. Bridge, 524 S.W.2d 773, 778 (Tex. App.—Corpus Christi 1975, no writ); Missouri-Kansas-Texas R.R. v. Pierce, 519 $.W.2d DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 21157, 159 (Tex. App.—Austin 1975, no writ). Evidence of the decedent’s health, habits, sobriety and the like have all long been held to be proper matters of inquiry. Texas Mexican Ry. v. Douglas, 73 Tex. 325, 330, 11 S.W. 333, 334 (1889); Allen, 425 S.W.2d 672; Fort Worth & D.C. Ry. v. Stalcup, 167 S.W. 279, 286 (Tex. Civ. App—Amarillo 1914, no writ). Evidence of a decedent’s habits and morals is relevant and useful in showing the decedent’s general ability and capacity for labor or business, industriousness, intelligence, manner of living including frugality, lavishness, sobriety, intemperance, or other personal characteristics have all been held to be admissible areas of inquiry. Allen, 425 S.W.2d at 672. Evidence tending to show a decedent’s lack of respect for his wife or that he probably would not have continued to support and contribute to her throughout the remainder of his life is admissible. Allen, 425 S.W.2d at 671. Evidence that a decedent was “only an occasional father,” that “he gambled,” that “his whereabouts were unknown most of the time,” and that “his wife was required to call on his parents for money” has been considered in determining such an award. Best Steel Bldgs., Inc v. Hardin, 533 S.W.2d 122, 133 (Tex. Civ. App.—Tyler 1977, writ ref?d n.r.e.). It is anticipated that Dr. Johnstone will testify as follows: While I agree that a girl child growing up in a household without a father figure is less than ideal, it is very important to consider the personality traits and character of Jazlynn’s father to determine whether, in her particular case, the presence or absence of her father would have been a net positive or net negative influence. Based upon information I have reviewed, Jazlynn’s father had a lengthy record of criminal and antisocial behavior that persisted well into adulthood. Even though there are no records of any criminal convictions of Jazlynn’s father during the few years immediately prior to the accident, the duration and nature of his past criminal conduct is an important consideration which suggests that his presence likely would have had a negative influence. Moreover, evidence of continuing lawless behavior that Jazlynn’s father may not have been arrested for or convicted of would be important in making a determination as to whether his presence in her life may have had a net negative, rather than a net positive, influence upon her had he survived the accident. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D, -Page 22Johnstone Aff. ¥ 25. It is anticipated that Plaintiffs will attempt to limit the evidence of Jose Antonio Salas-Castro’s past criminal and antisocial behavior at trial. It is Dr. Johnstone’s opinion that it is important to consider such evidence to determine whether the presence or absence of Jazlynn’s father would have been a net positive or net negative influence on her life. In voicing his opinion from a psychiatric perspective, Dr. Johnstone substantiates what numerous appellate courts have already concluded is a proper area of inquiry in a wrongful death suit. CONCLUSION Dr. Johnstone’s expected testimony clearly satisfies the standard for admissibility of expert testimony. His experience, training, and education clearly show that he is a qualified expert in the field of psychiatry. Evidence concerning Mr. Alvarez’s memory loss and the effect of Jazlynn’s young age on her ability to remember the accident is relevant under the facts of this case. His testimony will assist the jury in understanding such evidence. Johnstone’s testimony satisfies the analytical gap test and the Nenno factors for reliability. Psychiatry is recognized as a legitimate field of expertise. The subject matter of Dr. Johnstone’s expected testimony is clearly within the scope of that field. Dr. Johnstone properly relies upon the principles involved in that field of study, and clearly demonstrates how his opinions are connected to the objective data presented. In many respects, Plaintiffs’ own psychiatric expert supports the opinions and methodology employed by Dr. Johnstone. Although they have certain areas of disagreement, there is no reasonable basis to exclude Dr. Johnstone’s testimony in this case. PRAYER Based upon the foregoing, Defendants FedEx Ground, E&S, and Enrique Alvarez respectfully request that this Court deny Plaintiffs’ Motion to Exclude Testimony of Edwin E. Johnstone in its entirety. Defendants pray for general relief. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. ~Page 23Respectfully submitted, REID & DENNIS, P.C. /s/ John M. Frick By Steve Dennis State Bar No. 00798143 sdennis@reiddennis.com John M, Frick State Bar No, 0745200 jfrick@reiddennis.com 15660 Dallas North Tollway, Suite 1400 Tollway Towers South Dallas, Texas 75248 (972) 991-2626 ~ Telephone (972) 991-2678 — Facsimile ATTORNEYS FOR DEFENDANTS FEDEX GROUND PACKAGE SYSTEM, INC., E&S TRANSFER, INC., AND ENRIQUE ALVAREZ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendants’ Response to Plaintiffs’ Motion to Exclude Edwin E. Johnstone, M.D. was served in accordance with the Texas Rules of Civil Procedure on this the 24" day of August, 2015 to all counsel of record: Keith M. Jensen Brandon H. Steffey JENSEN & ASSOCIATES 1024 N. Main Street Fort Worth, TX 76164 Xavier A. Gonzalez THE LAW OFFICE OF XAVIER A. GONZALEZ 1024 N. Main Street Fort Worth, TX 76164 /s/ John M. Frick John M. Frick DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EDWIN E. JOHNSTONE, M.D. -Page 24NOTICE: Contains Sensitive Data EXHIBIT ACAUSE NO, D-i-GN-14-000959 FRANCES LOPEZ, INDIVIDUALLY § IN THE DISTRICT COURT OF AND AS PERSONAL REPRESENTATIVE § OF THE ESTATES OF JOSE ANTONIO § SALAS-CASTRO, JAYDEN JOSHUA SALAS, § AND JOE ANTHONY SALAS, AND AS § NEXT FRIEND OF JAZLYNN NICOLE SALAS § Plaintiffs § § v § TRAVIS COUNTY, TEXAS § FEDEX GROUND PACKAGE SYSTEM, INC., § E&S TRANSFER, INC., § AND ENRIQUE ALVAREZ, § Defendants § 200™ JUDICIAL DISTRICT AFFIDAVIT OF EDWIN E. JOHNSTONE, M.D. STATE OF TEXAS } COUNTY OF HARRIS } BEFORE ME, the undersigned authority, personally appeared Edwin E. Johnstone, M.D. who, after being duly sworn by me, stated under oath as follows: 1. “My name is Edwin E. Johnstone, M.D. I am over eighteen years of age, have ne