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DALLAS COUNTY
FELICIA PITRE
CAUSE NO. DC-17-00333
ROBERTJ. IRWIN IN THE DISTRICT COURT OF
Vv DALLAS COUNTY, TEXAS
MARK ANTHONY RICHARD AND
MICROWAVE TRANSMISSION
SY STEMS, INC. 162ND JUDICIAL DISTRICT
DEFENDANTS’ EXPERT DESIGNATIONS
TO THE HONORABLE JUDGE OF SAID COURT
COMES NOW, Mark Anthony Richard and Microwave Transmission Systems, Inc.,
(“Defendants”) and files this Designation of Expert Witnesses and for cause would show unto the
court as follows:
RETAINED EXPERT
The following are retained experts and may be called upon to give expert testimony,
including opinions, within their respective areas of expertise.
() Dr. Neal Charles Small, M.D.
Orthopedic Expert Services, LLC
1903 Anson Rd
Dallas, TX 75235
(214) 414-9447
(2) Causation, usual and customary treatment and medical expenses, future medical needs,
and future medical expenses regarding Plaintiff Robert Irwin’s care after her alleged injuries in
the subject accident.
(3) Dr. Neal Small’s expert report regarding Plaintiff's treatment and alleged injuries is
attached hereto as Exhibit A.
(4) Dr. Neal Small was provided with the following medical and/or administrative records
from:
1. DFW MRI
DEFENDANTS’ EXPERT DESIGNATION
Charles D. Demarque, M.D.
The SOAR Institute
Frank McCormick, M.D.
Brian Reece, M.D.
All Injury Rehab
Jorge Nieto, DC
Doug McClellan, DC
9 Mackie Gourly, DC
10. Jason Wyatt, DC
11. The plaintiff's answers and objections to the first set of interrogatories
12. The deposition of the plaintiff Robert James Irwin
13. The deposition of Mark Anthony Richard
14. The deposition of Brian Reece, M.D.
However, Dr. Small may be provided additional documents, reports, and deposition
transcripts as they become available.
(5) Dr. Neal Small’s CV is attached hereto as Exhibit B.
NON-RETAINED EXPERTS
(1) All individuals identified as Persons Having Knowledge of Relevant Facts, including but
not limited to personnel of the Richardson Police Department, are also designated as non-retained
experts. The individuals identified as Persons Having Knowledge of Relevant Facts include the
individuals identified above as well as Plaintiffs, and/or witnesses to the incident in question.
PLAINTIFF’S EXPERTS
Defendants hereby cross-identify any and all individuals who Plaintiff may identify as
testifying experts in the future course of discovery as individuals that Defendants may call to
testify. Defendants reserve the right to call any expert designated by Plaintiff, without admitting
to their qualifications, expertise, or opinions. Defendants also reserve the right to cross-designate
Plaintiff’s experts as adverse experts.
Defendants may elicit expert testimony, through direct or cross examination, from any and
all experts or representatives who have been or may be designated by or called by Plaintiff, or who
DEFENDANTS’ EXPERT DESIGNATION
have been or may be named in any discovery responses or depositions or documents produced or
to be produced in this litigation, and their Custodian of Records. Defendants may call to testify as
expert witnesses in this cause, any and all parties to this lawsuit, or employees, agents, or
representatives of such parties.
CUSTODIANS OF RECORDS
Defendants may call to testify as expert witnesses in this cause, any and all custodians of
records for any records identified in any discovery responses, depositions, or documents produced
during discovery.
Those individuals identified as Persons Having Knowledge of Relevant Facts that may be
custodians of records may be called to testify regarding the authenticity of any and all such records
and the amount and reasonableness of any charges reflected in such records, if any. Those records
will serve as such custodian’s report.
REBUTTAL WITNESSES
Defendants reserve the right to call unidentified rebuttal witnesses, whose testimony cannot
be predicted at this time. Defendants reserve the right to supplement this designation and/or
otherwise identify or call witnesses in accordance with all Court orders, agreements by the parties,
the Texas Rules of Civil Procedure, the Texas Rules of Evidence, and Texas case law.
DE-DESIGNATION OF EXPERTS
Defendants expressly reserve the right to withdraw the designation of any expert and to
aver positively that any such previously designated expert will not be called as a witness at trial,
and to re-designate same as a consulting expert only, who cannot be called by opposing counsel.
DEFENDANTS’ EXPERT DESIGNATION
SUPPLEMENTATION OF ALL DISCOVERY RESPONSES
This designation shall serve to supplement Answers to Interrogatories, Responses to
Requests for Production, and Responses to Requests for Disclosure propounded by Plaintiff
inquiring as to expert witnesses.
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
aA--~T 2
CARLOS A. BALIDO
Texas Bar No. 01631230
Meadow Park Tower
10440 North Central Expressway, Suite 1500
Dallas, Texas 75231
Tel: 214-749-4805
Fax: 214-760-1670
BalidoEDocsNotifications@wbclawfirm.com
ATTORNEY FOR DEFENDANTS
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been mailed,
e-served, faxed, or hand delivered to all parties of record, in compliance with Rule 21a of the
Texas Rules of Civil Procedure on April 25, 2018.
Ain et
2
CARLOS A. BALIDO
DEFENDANTS’ EXPERT DESIGNATION
EXHIBIT A
DEFENDANTS’ EXPERT DESIGNATION
5941 Club Oaks Drive 214 414.9447 Cola ditey TC elie teat
Dallas, Texas 75248 neal@ orthoexpertservices.com
1 Cy) emt ee
Tati vel -y-1 |
Irwin v. Richard
Report Prepared by Neal C. Small, M.D.
Board Certified in Orthopedic Surgery
|, Neal C. Small, M.D., am a board certified orthopedic surgeon. | am licensed to practice in Texas,
Oklahoma and Idaho. | am able to proffer considered opinions regarding causation, usual and customary
treatment, usual and customary charges, future medical needs and future medical charges. | am able to
proffer these considered opinions, within reasonable degrees of medical probability or medical certainty,
by virtue of my education, training and experience during more than thirty-five years of orthopedic surgery
and spine care practice
Materials Reviewed
All materials provided by the referring insurance defense law firm have been reviewed. This includes
records from:
DFW MRI
Charles D. Demarque, M.D
The SOAR Institute
Frank McCormick, M.D.
Brian Reece, M.D.
All Injury Rehab
Jorge Nieto, DC
Doug McClellan, DC
Mackie Gourly, DC
Jason Wyatt, DC
The plaintiff's answers and objections to the first set of interrogatories
The deposition of the plaintiff Robert J ames Irwin
The deposition of Mark Anthony Richard
The deposition of Brian Reece, M.D
Chronological Summary of Provided Materials
A physical capacity evaluation was performed on February 26, 2016 by J ason Wyatt, DC. After numerous
tests, and after studying the results, the concluding statement was that “It is reasonable to expect as the
difficulty of the tasks increase there will be a correlated increase in report of pain level. Mr. Irwin did
demonstrate the expected result. Other factors may have influenced the subjective reports of any given
task.”
On March 4, 2016, the plaintiff underwent cervical trigger point injections performed by Charles D
Demarque, M.D.
A cervical MRI report from DFW MRI dated March 14, 2016 is reviewed. This revealed diffuse irregular
disc bulging of 3.1 mm at C4/C5. Mild foraminal narrowing was noted at this level. At the C5/C6 level a
diffuse disc bulge at 4.4 mm was noted with no central stenosis. The foramina were mildly narrowed by
osteophyte overgrowth of 2.5 mm. At C6/C7 a diffuse disc bulge of 3.1 mm was noted. There was no
foraminal or central narrowing. The disc bulges at C2/C3, C3/C4 and C5/C6 contacted the anterior
cervical spinal cord without significant indentation.
On March 22, 2016, the plaintiff was seen at The SOAR Institute by Frank McCormick, M.D. He ordered a
cervical epidural steroid injection. He further ordered medial branch blocks at C3/C4, C4/C5, C5/C6 and
C6/C7. He suggested that these be performed every two to three months for total of three treatments.
The plaintiff returned to The SOAR Institute see Brian Reece, M.D. on April 11, 2016. He had received
trigger point injections. He was still symptomatic. A cervical epidural steroid injection was ordered.
Additional physical therapy was prescribed.
The plaintiff was seen on April 25, 2016 by Brian Reece, M.D. He had previously been placed on a home
exercise program and physical therapy. He discussed surgical options with the plaintiff, but stated that
most similar problems could be handled nonoperatively. A cervical epidural steroid injection was ordered.
An exit functional capacity evaluation (FCE) was performed on May 3, 2016 The testing purportedly
revealed that physical abilities were less than optimal. Additional physical therapy was recommended.
The signature on this report was by Mackie Gourly, DC.
Cervical, thoracic and lumbar spine x-rays dated May 13, 2016 are noted. The cervical spine x-rays show
degenerative disc disease predominantly at C5/C6. The thoracic spine x-rays were unremarkable. The
lumbar spine x-rays showed well preserved intervertebral disc spaces and were otherwise unremarkable
On May 16, 2016, the plaintiff was seen for follow-up by Brian Reece, M.D. He was two weeks post
cervical epidural steroid injection, from which he received only mild relief. Physical therapy was
prescribed for four weeks. It was stated that he would most likely require surgery.
On June 23, 2016, a Treatment Narrative Report was authored by Dr. J orge Nieto, DC and Dr. Doug
McClellan, DC at All Injury Rehab in Plano, Texas. Their written opinion stated that it is “ within
reasonable medical probability that future supportive care will be needed for exacerbations”. This would
include diagnostic testing and pain management. A detailed pseudo-scholarly opinion regarding fibrosis
was provided.
On July 6, 2016, the plaintiff returned to see Dr. Reece. He noted that the plaintiff had failed conservative
management which had included chiropractic physical therapy, pain management, epidural injections and
trigger point injections. An anterior cervical discectomy and fusion was recommended. The estimated cost
was $78,458. Postsurgical physical therapy would continue for 4 to 6 weeks following the surgery ata
cost of $1000-$2000 per week.
On October 31, 2016, the plaintiff underwent an anterior cervical discectomy at C5/C6 performed by Dr.
Reece. An instrumented cervical fusion was performed. A 5.5 mm cervical cage was fitted in place.
The plaintiff returned to see Dr. Reece on November 1, 2016. He was doing well. The drain was removed.
The plaintiff returned again to see Dr. Reece on November 7, 2016. Cervical spine x-rays were ordered
The cervical spine x-rays were obtained on November 11, 2016 at DFW MRI. The films were read by
James Schroeder, M.D. He noted 3 mm of posterior spurring at C4/C5 which could be conceivably
creating spinal stenosis at that level. He also noted 3 mm of posterior spurring at C5/C6. The anterior
abutment plate and screws at the C5/C6 level was noted along with a small disc prosthesis (cage). No
mention as to consolidation was made by the radiologist.
The plaintiff returned again on November 21, 2016 to see Dr. Reece for a follow-up evaluation
The plaintiff was discharged by Dr. Reece on J anuary 26, 2017 following an allegedly successful cervical
spine fusion.
Interrogatories and Deposi jons
The plaintiff's answers and objections to the defendant's first set of interrogatories are dated April 7,
2017. Of note, the plaintiff stated that he suffered from severe neck pain which had not resolved after
months of physical therapy, injections and the constant use of medications. He had undergone cervical
disc surgery on October 31, 2016; however, he stated that he still suffered from neck pain and stiffness.
His statement for lost wages stated that he was salaried at $37.31 per hour. He stated that he would have
worked to his 66th birthday, which amounted to 277 weeks. He, therefore, claimed lost wages damages of
$568,459.40. Photographs of the damage to the claimant's vehicle were included as an exhibit within this
document. They demonstrated slight denting of the rear tailgate
The condensed deposition of Robert J ames Irwin is reviewed. The plaintiff stated that he had worked at
AT&T for 36 years. He stated that he had a pension. He retired on October 7, 2016. He stated that he had
not had citations for poor performance. He further stated that he had not had conversations with any of
his superiors regarding his inability to perform his job because of physical limitations or disability. He
further stated that he had not presented any documentation to the employer requesting a need for
modified or light duty due to a physical condition. He stated, however, that he could not continue to
perform his job following his injury. His job consisted of maintaining cable facilities overhead and
underground. He stated that he had not requested a transfer to another department which required less
physically demanding work. At the time of his retirement he was making $37.50 per hour. He stated that
he usually worked 40 hours per week, but that annually there would be 500 to 1000 hours of overtime. He
alleged $568,459.40 in lost wages. He was receiving $2450 per month from his AT&T pension at the time
of this deposition. Additionally, he stated he received stock dividends monthly of an undetermined
amount. The plaintiff stated that he had not been notified of any job layoffs by AT&T prior to his
retirement. The plaintiff stated that he had experienced a heart attack in 2014. This required the insertion
of a stent. He stated that he was back to work in 2 days. He stated that he had never experienced a right
ankle fracture at work, an injury to the neck or back, or any injury which required physical therapy. He
stated that he had been in one motor vehicle accident 2010 while driving an AT&T vehicle. His vehicle
was struck by another vehicle. He stated that he was not injured in that accident.
In this deposition the plaintiff was asked about the accident which occurred on February 10, 2016. The
accident occurred at approximately 7:45 AM. He stated that he was on the Interstate 75 Access Rd. in
Richardson reporting to work on Firman Street. He was driving a 2013 J eep Wrangler. He was in the
middle lane with normal morning traffic. He stated that he was traveling approximately 5 mph approaching
the intersection of Campbell Road. There was an entrance to southbound Highway 75 north of Campbell
Rd. He stated that the vehicle in front of him was merging into traffic and had slowed. He then slowed his
vehicle to 5 mph. His vehicle was struck from the rear creating a violent impact that, he stated, sent his
vehicle catapulting 200 feet forward. He exited the vehicle and approached the other driver. He spoke to
the other driver and took photographs. He left his vehicle in the middle lane. Police were called. His
vehicle was drivable after the impact. He stated that the only damage was to the rear tailgate and the
spare tire cover.
The plaintiff stated that he began feeling pain in his neck and upper back the following day. He rated the
upper back pain as 8 scale of 0 to 10. He then visited his primary care physician Dr. Yagnik. He was sent
for x-rays and an MRI. The plaintiff stated that he began treatment at Plano Injury Rehab on or about
February 12, 2016. There was a gap in treatment between April 13, 2016 and May 3, 2016 when the
plaintiff stated he was working a hundred hours a week with mandatory overtime because of rain. The
plaintiff also underwent trigger point injections in the neck. The injections only helped for very brief
period of time. Following that he underwent “spinal injections”. He then underwent neck surgery.
Following the neck surgery he stated he was never pain-free. He returned to see the surgeon where
discussions regarding additional surgery occurred. He stated that his upper back was no longer painful
His neck pain made it difficult for him to look up for any length of time. He stated that he had previously
been very athletic, but was no longer able to participate in athletics or recreational activities, which
included scuba diving. He stated he was unable to participate in his hobby of photography. He stated that
driving for any length time became very painful. He stated that his social life had diminished. When cross-
examined by the plaintiff attorney he stated that he was homebound. He stated that he was increasingly
withdrawn.
On July 25, 2017 the deposition of Mark Anthony Richard was taken. He did not claim any mechanical
problem with the company truck that he was driving or any malfunction of the truck’s brakes. He stated
that he was coming from home and on his way to work. He was exiting Highway 75 at Renner Road. He
stated that he was trying to get into the left hand lane to make a left turn on Renner Road (or Campbell
Road). He looked up and saw the plaintiff's vehicle before striking the rear of that vehicle. He stated that
he was traveling 20 to 25 miles an hour. Mr. Richard stated that he was not injured as a result of the
accident. He stated that he was drug tested with a urine sample immediately following the accident and
the results came back “inconclusive”. His company driving privileges were suspended for one year.
On November 28, 2017 the deposition of Brian Reece, M.D. was obtained. He stated that he was nota
board certified orthopedic surgeon, despite having completed his residency and fellowship and having
been in practice for four years. He stated that the plaintiff's cervical spine condition was the direct result
of the index motor vehicle accident. He stated that the surgery had been successful and reduced the
plaintiff's level of pain from level 7 or 8 to level 2 or 3. He stated that adjacent segment disease was likely
in the future in approximately 8 to 10 years. He stated that his clinic had charged approximately $25,000
of which approximately half had been paid by insurance
During this deposition Brian Reece, M.D. was cross-examined by Carlos Balido of the law firm of Walters
Balido and Crane. Attorney Balido asked Dr. Reece if he had previously been referred patients and done
work on plaintiffs referred by the law firm of Bailey & Galyen. He stated that he had seen approximately
ten or more patients referred to him by that law firm. He stated that approximately 50% of his patients
were referred with personal injuries by plaintiff centric law firms. He stated that he had done no previous
work for Walters Balido and Crane. He stated that he had no affiliation with The Frisco Ambulatory
Surgery Center. Attorney Balido then refreshed his memory by stating that a Frisco Ambulatory Surgery
Center invoice of $48,528.24 was included within the invoice from The SOAR Institute. He noted that,
further down the ledger, the amount of the Frisco Amatory Surgery Center bill totaled $189,362.75.
Dr. Reece was asked by attorney Balido whether the cervical spine condition that was diagnosed could
have been caused by factors other than the motor vehicle accident in question. Dr. Reece answered that,
because of the disc herniation posterior to the posterior longitudinal ligament, no other mechanism of
injury would have been responsible for this plaintiff's condition. Attorney Balido then asked him if he
specifically had any training in engineering or biomechanics. He stated that he did not, but as an
orthopedic surgeon he needed to possess knowledge in this area. He was asked whether he had written
any articles on engineering or biomechanics related to orthopedic surgery. He admitted that he had not.
When questioned about cervical stenosis possibly being related to aging and chronic degenerative
changes, Dr. Reece stated that this was nota possibility in this case. Attorney Balido then asked him if he
had seen a case of acute spinal stenosis. Dr. Reece mentioned congenital stenosis. Attorney Balido
stated that congenital stenosis was a different problem entirely. He then asked pointedly if the spinal
stenosis mentioned on the cervical MRI was directly the result of the motor vehicle accident. Dr. Reece
answered that it was not. He then stated that the stenosis found on MRI in the cervical spine of this
plaintiff was the result of a disc protrusion and not bony degenerative changes. Attorney Balido further
questioned Dr. Reece about the loss of disc height and challenged him to provide scholarly articles
demonstrating that the loss of cervical disc height would be related to acute trauma. Dr. Reece stated that
the degenerative changes at C4/C5 may have preexisted the accident in question; however, the changes
at C5/C6 resulted from the trauma of the accident. Attorney Balido then asked Dr. Reece if he told the
plaintiff not to return to work following the surgical procedure. Dr. Reece stated that he had not told the
plaintiff to remain out of work on a permanent basis. Attorney Balido then asked, regarding the alleged
radiculopathy, whether any diagnostic testing and been performed to document any radiculopathy. Dr.
Reece stated that he had not done testing of this nature. It was also brought to his attention that, when
the plaintiff completed the paperwork at Dr. DeMarques’ office, he had not drawn on the pain diagram
anything in the upper extremities to indicate upper extremity discomfort or any radiculopathy symptoms.
Dr. Reece was asked whether he could authoritatively state that the plaintiff would require an additional
cervical spine procedure in the future. He stated that the incidence was high; however, he could not quote
specific studies to that effect. When asked by attorney Balido whether degenerative disc herniations can
occur, Dr. Reece pondered the question, but ultimately answered yes
Summary
This plaintiffis a sixty-year-old male who had previously worked in the telecommunications industry for
AT&T in a job with physical requirements including overhead work. He was involved in a rear end motor
vehicle collision on February 10, 2016. His J eep was struck from the rear by a pickup truck traveling at
the alleged speed of 20 to 25 mph. He complained of neck pain which began the following day. No
electrodiagnostic testing was performed to documenta potential radiculopathy. He underwent chiropractic
therapy, trigger point injections and a cervical epidural steroid injection. Ultimately, he underwent a
cervical decompression and instrumented fusion at C4/C5. He has continued to complain of postoperative
discomfort, although at a lesser level than prior to the surgical procedure. He states that he has been
unable to work following the cervical fusion. He retired from his job with AT&T. He claims that lost wages
to the retirement age of 66 amounted to $568,459.40.
Expense Affidavits Included
Frisco Ambulatory Surgery Center billed by The SOAR Institute ....$75,954.88
Frisco Ambulatory Surgery Center billed separately....$189,362.75
The SOAR Institute.... $1557
The SOAR Institute... $6234
The SOAR Institute... $2430
North Star Diagnostic Imaging in Allen.... $333.02
Texas Anesthesia Group.... $20,800
M.D. Now.... $1335
Greenhead Diagnostics.... $770
Hitesh Yagnik, M.D.... $233
DFW Open MRI.... $3605
All Injury Rehab Plano.... $9180
Precision Medical Products.... $995
Discussion and Considered Opinions
This sixty-year-old claimant sustained trauma to the neck and upper spine secondary to a motor vehicle
accident which occurred on February 10, 2016. After undergoing conservative management and a surgical
procedure which included a cervical decompression and instrumented fusion, the plaintiff retired from his
job at AT&T. The treating chiropractors and the treating surgeon have stated that his cervical spine
difficulties emanated from the index motor vehicle accident of February 10, 2016.
The MRI report that has been provided for my review indicates disc protrusions at predominantly two
levels (C4/C5 and C5/C6). Additionally, and significantly, this pre-operative cervical MRI report noted
chronic degenerative changes in the cervical spine, including osteophytes involving the posterior aspects
of the cervical vertebral bodies and osteophytic foraminal narrowing creating foraminal stenosis.
Despite the subjective opinion of the treating surgeon, Dr. Reece, no objective evidence of cervical
radiculopathy is noted in the records provided for my review. The pain diagram drawn by the plaintiff,
prior to receiving the prescribed trigger point injections, did not indicate any acknowledgment by the
plaintiff that he was experiencing radicular symptoms in either upper extremity. Despite the prolonged
period of conservative management prescribed by the treating chiropractors and Dr. Reece, no
electrodiagnostic testing was performed to confirm, or rule out, acute or chronic cervical radiculopathy.
It is my considered opinion, within a reasonable degree of medical probability, that this plaintiff
experienced a significant cervical myofascial strain, within the broad category of whiplash associated
disorders (WAD’s), as a result of the rear end impact which occurred on February 10, 2016. The duration
of symptoms following a substantial whiplash associated disorder (WAD) varies. The average duration of
symptoms is less than six months. The usual and customary treatment for whiplash associated disorders
(WAD's) of the magnitude described in this rear end collision would include physical therapy for six weeks
to six months, nonsteroidal anti-inflammatory drugs (NSAID’s), the occasional and judicious use of
narcotic analgesics and, occasionally, the use of a cervical collar (1,2,3,4,5)
There is no objective evidence in the records provided for my review that would indicate an acute disc
herniation or the acute development of cervical spinal stenosis (either central or foraminal). Moreover, it
is my considered opinion, within a reasonable degree of medical probability, that the degenerative
changes in the cervical spine, which were noted on the X-rays and the MRI study, clearly indicate that the
disc protrusions and the central and foraminal stenosis are degenerative in nature and preceded the
index accident of February 10, 2016.
It is my considered opinion, within a reasonable degree of medical certainty, that the prolonged
chiropractic treatment and multiple functional capacity assessments ordered by the chiropractic treatment
center at All Injury Rehab Plano were unnecessary, prolonged and costly.
It is, furthermore, my considered opinion, within a reasonable degree of medical certainty, that the
charges from The SOAR Institute and from The Frisco Ambulatory Surgery Center are above and beyond
the usual and customary charges for a similar surgical procedure performed elsewhere in the DFW
Metroplex.
It is my considered opinion, within a reasonable degree of medical certainty, that this plaintiff was
capable of returning to his previous level of workplace functionality after recovering from the whiplash
associated disorder within six months, or sooner, from the date of the index motor vehicle collision. He is
capable of this level of functionality at this present time. The medium level of functionality includes
constant lifting/carrying/pushing/pulling up to 10 pounds, frequent (34% to 67% of the workday)
lifting/carrying/pushing/pulling 10 pounds to 20 pounds and occasional (1% to 33% of the workday)
lifting/carrying/pushing/pulling up to 50 pounds.
Finally, itis my considered opinion, within a reasonable degree of medical probability, that this plaintiff
will not require any future cervical spine injections, surgical procedures or fusions because of adjacent
segment disease. The plaintiff is sixty years of age and is no longer employed in any significant physical
capacity. Even upon returning to his previous level of functionality in the workplace, there would be
nothing to precipitate the need for any additional surgery. The likelihood of developing adjacent segment
disease to the extent necessitating an additional cervical fusion is remote. Any cervical spine injections,
cervical decompressions or cervical fusions would not be related to the index accident of February 10,
2016; rather, the need for such procedures would be the result of chronic degenerative changes in the
cervical spine unrelated to the accident.
N.C Aral ins,
Neal C. Small, M.D
Board Certified in Orthopedic Surgery
February 14, 2018
References
Miettinen, et al, Clin Exp Rheumatol, 2002, May-] un: 399-402
Matsumoto, etal, Spine, 2010, J un: 1359-1364.
Cho, et al, ) Am Acad Orthop Surg, 2013,J an: 3-11.
Matsumoto, etal, Injury, 2013,J un: 819-824.
Kemper, et al, Pain, 2008, Sep: 617-629.
EXHIBIT B
DEFENDANTS’ EXPERT DESIGNATION
CURRICULUM VITAE
Neal Charles Small, M.D
2017
Medical Licenses
Texas License: D7304
Oklahoma License: 24271
Idaho License: M-8985
Practice Office
Orthopedic Expert Services, LLC
1903 Anson Road
Dallas, Texas 75235
214 414.9447
Expert Services Office
5941 Club Oaks Drive
Dallas, Texas 75248
Phone: 214 414.9447
Fax: 469 291.5734
Email: neal@orthoexpertservices.com
EDUCATION
Certification: American Board of Orthopedic Surgery, 1976 (Lifetime Certification)
Voluntarily Tested and Recertified 2012
Residency: University of California — Davis, 1971-1975: Orthopedic Surgery
2
Internship: University of California — Davis, 1970-1971: Straight Surgery
Medical School: University of Texas Southwestern Medical School, 1970, M.D.
Undergraduate: University of Texas — Austin, 1967, B.A. History, Cum Laude
EXPERIENCE, HOSPITAL AFFILIATIONS, ACADEMIC APPOINTMENTS
Orthopedic Expert Services, LLC: Principal and primary independent consultant on
orthopedic cases for the Insurance Industry and Legal Field: 2012 to present
Private Practice: Dallas, TX , 2015-
Private Practice: Ardmore Orthopedic Center, 2009-2015: Managing Physician
Associated Orthopedics and Sports Medicine, 1985-2002: Founder/President
Plano Orthopedics and Sports Medicine, 1975-1985: Founder/President
Active Staff Member: Medical Center Plano; Plano, Texas, 1975-2002
Active Staff Member: Presbyterian Hospital of Plano; Plano, Texas, 1988-2002
Courtesy Staff Member: Medical City Dallas Hospital; Dallas, Texas, 1975-2002
Courtesy Staff Member: Parkland Memorial Hospital; Dallas, Texas, 1975-2002
Assistant Clinical Professor: Department of Orthopedic Surgery UT Southwestern Medical Center: 1975-1995
Associate Cli ical Professor: Department of Orthopedic Surgery UT Southwestern Medical Center 1995-2001
FORENSIC EXPERIENCE
Extensive nationwide experience reviewing medical records, x-rays and imaging studies for preparation of
Affidavits of Merit (or similar documents required)
Extensive nationwide experience providing expert opinions for plaintiffs pertaining to Standards of Care,
Causation, Expenses and Damages (Past and Future)
Extensive nationwide experience providing considered opinions for the defense on Standards of Care, Causation,
Expenses and Damages (Past and Future)
Served as designated expert witness providing depositions in numerous cases related to orthopedic surgery issues
Provided courtroom testimony, when necessary, on cases relating to orthopedic surgery issues
Reviewed hundreds of cases and provided expert opinions for the insurance industry related to personal injury,
workers’ compensation, disability and third party liability
Performed more than 200 independent medical evaluations (IME’s)
3
FILE REVIEW AND ANALYSIS EXPERIENCE
Reviewed and analyzed hundreds of files for personal injury, third party liability, workers compensation and
disability issues related to orthopedic surgery
Worked with virtually all of the major insurance companies including disability carriers, workers compensation
carriers and liability insurers
PUBLICATIONS
Small NC. Complications in Arthroscopy: The Knee and Other Joints; - Arthroscopy:
The Journal of Arthroscopic and Related Surgery, 1986; 2 (4): 253-258.
Small NC. Complications in Meniscal Repair. Complications in Orthopedics,
Sprague, Raven Press. New York, N.Y. 1989.
Small NC. Complications in Arthroscopic Surgery; Performed by Experienced Arthroscopists.
Arthroscopy: The Journal of Arthroscopic and Related Surgery, 1988; 4(3)215-221.
Small NC. An Analysis of Complications in Lateral Retinacular Release Procedures.
Arthroscopy: The Journal of Arthroscopic and Related Surgery, 1989; 5(4) 282-286.
Small NC. Complications in Arthroscopic Meniscal Surgery. Clinics in Sports Medicine.
July 1990; 609-617.
Small NC. Complications in Arthroscopic Surgery. Surgical Rounds for Orthopedics, 990; 42-45
Small NC. General Overview of Complications in Arthroscopic Surgery. Arthroscopic Surgery, 1990.
Small NC. Barber FA, Click J. Anterior Cruciate Ligament Reconstruction by Semitendious and
Gracilis Tendon Autograft. American Journal of Knee Surgery, 1991 4(2) 84-93.
Small NC. Complications in Arthroscopic Surgery. Knee Surgery: Current Practice, Aichroth Cannon.
1992 Martin Dunitz Publishers, London.
Small NC. Avoiding Complications in Meniscus Repair. Techniques in Orthopedics, 1993, 8(2) 70-75.
Small NC. Complications of Arthroscopic Surgery of the Knee and Shoulder. Orthopedics, 1993, 6(9) 985-
992
Small NC. Malek MM. Complications of Arthroscopic Surgery of the Shoulder. Current Techniques i
Arthroscopy, Parisen First Edition; 1994. Current Medicine. Philadelphia, P.A.
Small NC. Office Operative Arthroscopy. January 1994, Raven Press, New York, N.Y.
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Small NC. Malek MM. Complications in Arthroscopic Surgery. Complications in Orthopedics, Epps, 1994.
J.B. Lippencott & Co., Philadelphia, P.A.
Small NC. Sledge CB, Katz JN. A Conceptual Framework for Outcomes Research in Arthroscopic
Meniscectomy: Results of a Nominal Group Process. Arthroscopy: The Journal of Arthroscopic
and Related Surgery, 1994 10(5) 486-492.
Small NC. Glogau AL, Berezin MA, Farless BI. Office Operative Arthroscopy of the Knee; Technical
Considerations and a Preliminary Analysis of the First 100 patients. Arthroscopy: The Journal of
Arthroscopic and Related Surgery, 1994. 10(5) 534-539
Small NC. Malek MM. Complications of Knee Arthroscopy; Diagnostic and Operative Arthroscopy.
Andrews & Timmerman, 1995. WB Saunders, Philadelphia, P.A.
Small NC. Lidge R. Enviroment for Arthroscopic Surgery; Operative Arthroscopy, 2" edition, 1995.
McGinty, Raven Press, New York, NY. (in publication)
Small NC. Office Arthroscopy; Operative Arthroscopy, 2™ edition, 1995. McGinty; Raven Press, New York,
NY.
COURSES DIRECTED BY NEAL C. SMALL, M.D.
Office Arthroscopy: Plano, Texas; September 1993, March 1994, September 1995, March 1996
Maintaining Your Orthopedic Practice: Dallas, Texas; April 1995, September 1996, April 1997, November 1997,
May 1998, November 1998
Building and Running an Office Ambulatory Surgery Center: Dallas Texas; April 1999, October 1999, San
Francisco, CA, and April 2000, Washington D.C.
RECENT COURSES ATTENDED BY NEAL C. SMALL, M.D.
American Academy Orthopedic Surgeons; Annual Meeting (1972 — March 2017)
SEAK Course: Expert Witness Skills for Medical Malpractice Cases-Special Techniques (October 2016)
SEAK Course: Expert Witness Exemplary Practice (May 2016)
Stryker Course: Radiofrequency Intervertebral Facet Joint Ablation (2013 and 2015)
SEAK Course: File Reviews and Disability Evaluations (2015)
SEAK Course: IME Evaluators (2014)
SEAK Course Disability Evaluations, Peer Reviews, Chart Reviews (2014)
International Spine Intervention Society Courses Lumbar Spine Non-Surgical Intervention; (2011-2012)
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OFFICES HELD
President: Arthroscopy Association of North America, 1995-1996
First Vice President: Arthroscopy Association of North America, 1994-1995
Second Vice President: Arthroscopy Association of North America, 1993-1994
Treasurer: Arthroscopy Association of North America, 1991-1993
Chairman, Complications Committee: Arthroscopy Association of North America, 1984-1991
Director: Arthroscopy Association of North America, 1999
Chairman, Department of Orthopedic Surgery: HCA Medical Center Plano, TX, 1985
Chief of Medical Staff: HCA Medical Center Plano, TX, 1980
OTHER POSITIONS HELD
Editorial Board American Journal of Arthroscopic Surgery 1990-1996
Editorial Board: Orthopedics Today 1989-2000
Monthly Columnist for Orthopedics Today: Maintaining Your Orthopedic Practice 1995-2000
Preview
I ARE DALLAS COUNTY FELICIA PITRE CAUSE NO. DC-17-00333 ROBERTJ. IRWIN IN THE DISTRICT COURT OF Vv DALLAS COUNTY, TEXAS MARK ANTHONY RICHARD AND MICROWAVE TRANSMISSION SY STEMS, INC. 162ND JUDICIAL DISTRICT DEFENDANTS’ EXPERT DESIGNATIONS TO THE HONORABLE JUDGE OF SAID COURT COMES NOW, Mark Anthony Richard and Microwave Transmission Systems, Inc., (“Defendants”) and files this Designation of Expert Witnesses and for cause would show unto the court as follows: RETAINED EXPERT The following are retained experts and may be called upon to give expert testimony, including opinions, within their respective areas of expertise. () Dr. Neal Charles Small, M.D. Orthopedic Expert Services, LLC 1903 Anson Rd Dallas, TX 75235 (214) 414-9447 (2) Causation, usual and customary treatment and medical expenses, future medical needs, and future medical expenses regarding Plaintiff Robert Irwin’s care after her alleged injuries in the subject accident. (3) Dr. Neal Small’s expert report regarding Plaintiff's treatment and alleged injuries is attached hereto as Exhibit A. (4) Dr. Neal Small was provided with the following medical and/or administrative records from: 1. DFW MRI DEFENDANTS’ EXPERT DESIGNATION Charles D. Demarque, M.D. The SOAR Institute Frank McCormick, M.D. Brian Reece, M.D. All Injury Rehab Jorge Nieto, DC Doug McClellan, DC 9 Mackie Gourly, DC 10. Jason Wyatt, DC 11. The plaintiff's answers and objections to the first set of interrogatories 12. The deposition of the plaintiff Robert James Irwin 13. The deposition of Mark Anthony Richard 14. The deposition of Brian Reece, M.D. However, Dr. Small may be provided additional documents, reports, and deposition transcripts as they become available. (5) Dr. Neal Small’s CV is attached hereto as Exhibit B. NON-RETAINED EXPERTS (1) All individuals identified as Persons Having Knowledge of Relevant Facts, including but not limited to personnel of the Richardson Police Department, are also designated as non-retained experts. The individuals identified as Persons Having Knowledge of Relevant Facts include the individuals identified above as well as Plaintiffs, and/or witnesses to the incident in question. PLAINTIFF’S EXPERTS Defendants hereby cross-identify any and all individuals who Plaintiff may identify as testifying experts in the future course of discovery as individuals that Defendants may call to testify. Defendants reserve the right to call any expert designated by Plaintiff, without admitting to their qualifications, expertise, or opinions. Defendants also reserve the right to cross-designate Plaintiff’s experts as adverse experts. Defendants may elicit expert testimony, through direct or cross examination, from any and all experts or representatives who have been or may be designated by or called by Plaintiff, or who DEFENDANTS’ EXPERT DESIGNATION have been or may be named in any discovery responses or depositions or documents produced or to be produced in this litigation, and their Custodian of Records. Defendants may call to testify as expert witnesses in this cause, any and all parties to this lawsuit, or employees, agents, or representatives of such parties. CUSTODIANS OF RECORDS Defendants may call to testify as expert witnesses in this cause, any and all custodians of records for any records identified in any discovery responses, depositions, or documents produced during discovery. Those individuals identified as Persons Having Knowledge of Relevant Facts that may be custodians of records may be called to testify regarding the authenticity of any and all such records and the amount and reasonableness of any charges reflected in such records, if any. Those records will serve as such custodian’s report. REBUTTAL WITNESSES Defendants reserve the right to call unidentified rebuttal witnesses, whose testimony cannot be predicted at this time. Defendants reserve the right to supplement this designation and/or otherwise identify or call witnesses in accordance with all Court orders, agreements by the parties, the Texas Rules of Civil Procedure, the Texas Rules of Evidence, and Texas case law. DE-DESIGNATION OF EXPERTS Defendants expressly reserve the right to withdraw the designation of any expert and to aver positively that any such previously designated expert will not be called as a witness at trial, and to re-designate same as a consulting expert only, who cannot be called by opposing counsel. DEFENDANTS’ EXPERT DESIGNATION SUPPLEMENTATION OF ALL DISCOVERY RESPONSES This designation shall serve to supplement Answers to Interrogatories, Responses to Requests for Production, and Responses to Requests for Disclosure propounded by Plaintiff inquiring as to expert witnesses. Respectfully submitted, WALTERS, BALIDO & CRAIN, L.L.P. aA--~T 2 CARLOS A. BALIDO Texas Bar No. 01631230 Meadow Park Tower 10440 North Central Expressway, Suite 1500 Dallas, Texas 75231 Tel: 214-749-4805 Fax: 214-760-1670 BalidoEDocsNotifications@wbclawfirm.com ATTORNEY FOR DEFENDANTS CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been mailed, e-served, faxed, or hand delivered to all parties of record, in compliance with Rule 21a of the Texas Rules of Civil Procedure on April 25, 2018. Ain et 2 CARLOS A. BALIDO DEFENDANTS’ EXPERT DESIGNATION EXHIBIT A DEFENDANTS’ EXPERT DESIGNATION 5941 Club Oaks Drive 214 414.9447 Cola ditey TC elie teat Dallas, Texas 75248 neal@ orthoexpertservices.com 1 Cy) emt ee Tati vel -y-1 | Irwin v. Richard Report Prepared by Neal C. Small, M.D. Board Certified in Orthopedic Surgery |, Neal C. Small, M.D., am a board certified orthopedic surgeon. | am licensed to practice in Texas, Oklahoma and Idaho. | am able to proffer considered opinions regarding causation, usual and customary treatment, usual and customary charges, future medical needs and future medical charges. | am able to proffer these considered opinions, within reasonable degrees of medical probability or medical certainty, by virtue of my education, training and experience during more than thirty-five years of orthopedic surgery and spine care practice Materials Reviewed All materials provided by the referring insurance defense law firm have been reviewed. This includes records from: DFW MRI Charles D. Demarque, M.D The SOAR Institute Frank McCormick, M.D. Brian Reece, M.D. All Injury Rehab Jorge Nieto, DC Doug McClellan, DC Mackie Gourly, DC Jason Wyatt, DC The plaintiff's answers and objections to the first set of interrogatories The deposition of the plaintiff Robert J ames Irwin The deposition of Mark Anthony Richard The deposition of Brian Reece, M.D Chronological Summary of Provided Materials A physical capacity evaluation was performed on February 26, 2016 by J ason Wyatt, DC. After numerous tests, and after studying the results, the concluding statement was that “It is reasonable to expect as the difficulty of the tasks increase there will be a correlated increase in report of pain level. Mr. Irwin did demonstrate the expected result. Other factors may have influenced the subjective reports of any given task.” On March 4, 2016, the plaintiff underwent cervical trigger point injections performed by Charles D Demarque, M.D. A cervical MRI report from DFW MRI dated March 14, 2016 is reviewed. This revealed diffuse irregular disc bulging of 3.1 mm at C4/C5. Mild foraminal narrowing was noted at this level. At the C5/C6 level a diffuse disc bulge at 4.4 mm was noted with no central stenosis. The foramina were mildly narrowed by osteophyte overgrowth of 2.5 mm. At C6/C7 a diffuse disc bulge of 3.1 mm was noted. There was no foraminal or central narrowing. The disc bulges at C2/C3, C3/C4 and C5/C6 contacted the anterior cervical spinal cord without significant indentation. On March 22, 2016, the plaintiff was seen at The SOAR Institute by Frank McCormick, M.D. He ordered a cervical epidural steroid injection. He further ordered medial branch blocks at C3/C4, C4/C5, C5/C6 and C6/C7. He suggested that these be performed every two to three months for total of three treatments. The plaintiff returned to The SOAR Institute see Brian Reece, M.D. on April 11, 2016. He had received trigger point injections. He was still symptomatic. A cervical epidural steroid injection was ordered. Additional physical therapy was prescribed. The plaintiff was seen on April 25, 2016 by Brian Reece, M.D. He had previously been placed on a home exercise program and physical therapy. He discussed surgical options with the plaintiff, but stated that most similar problems could be handled nonoperatively. A cervical epidural steroid injection was ordered. An exit functional capacity evaluation (FCE) was performed on May 3, 2016 The testing purportedly revealed that physical abilities were less than optimal. Additional physical therapy was recommended. The signature on this report was by Mackie Gourly, DC. Cervical, thoracic and lumbar spine x-rays dated May 13, 2016 are noted. The cervical spine x-rays show degenerative disc disease predominantly at C5/C6. The thoracic spine x-rays were unremarkable. The lumbar spine x-rays showed well preserved intervertebral disc spaces and were otherwise unremarkable On May 16, 2016, the plaintiff was seen for follow-up by Brian Reece, M.D. He was two weeks post cervical epidural steroid injection, from which he received only mild relief. Physical therapy was prescribed for four weeks. It was stated that he would most likely require surgery. On June 23, 2016, a Treatment Narrative Report was authored by Dr. J orge Nieto, DC and Dr. Doug McClellan, DC at All Injury Rehab in Plano, Texas. Their written opinion stated that it is “ within reasonable medical probability that future supportive care will be needed for exacerbations”. This would include diagnostic testing and pain management. A detailed pseudo-scholarly opinion regarding fibrosis was provided. On July 6, 2016, the plaintiff returned to see Dr. Reece. He noted that the plaintiff had failed conservative management which had included chiropractic physical therapy, pain management, epidural injections and trigger point injections. An anterior cervical discectomy and fusion was recommended. The estimated cost was $78,458. Postsurgical physical therapy would continue for 4 to 6 weeks following the surgery ata cost of $1000-$2000 per week. On October 31, 2016, the plaintiff underwent an anterior cervical discectomy at C5/C6 performed by Dr. Reece. An instrumented cervical fusion was performed. A 5.5 mm cervical cage was fitted in place. The plaintiff returned to see Dr. Reece on November 1, 2016. He was doing well. The drain was removed. The plaintiff returned again to see Dr. Reece on November 7, 2016. Cervical spine x-rays were ordered The cervical spine x-rays were obtained on November 11, 2016 at DFW MRI. The films were read by James Schroeder, M.D. He noted 3 mm of posterior spurring at C4/C5 which could be conceivably creating spinal stenosis at that level. He also noted 3 mm of posterior spurring at C5/C6. The anterior abutment plate and screws at the C5/C6 level was noted along with a small disc prosthesis (cage). No mention as to consolidation was made by the radiologist. The plaintiff returned again on November 21, 2016 to see Dr. Reece for a follow-up evaluation The plaintiff was discharged by Dr. Reece on J anuary 26, 2017 following an allegedly successful cervical spine fusion. Interrogatories and Deposi jons The plaintiff's answers and objections to the defendant's first set of interrogatories are dated April 7, 2017. Of note, the plaintiff stated that he suffered from severe neck pain which had not resolved after months of physical therapy, injections and the constant use of medications. He had undergone cervical disc surgery on October 31, 2016; however, he stated that he still suffered from neck pain and stiffness. His statement for lost wages stated that he was salaried at $37.31 per hour. He stated that he would have worked to his 66th birthday, which amounted to 277 weeks. He, therefore, claimed lost wages damages of $568,459.40. Photographs of the damage to the claimant's vehicle were included as an exhibit within this document. They demonstrated slight denting of the rear tailgate The condensed deposition of Robert J ames Irwin is reviewed. The plaintiff stated that he had worked at AT&T for 36 years. He stated that he had a pension. He retired on October 7, 2016. He stated that he had not had citations for poor performance. He further stated that he had not had conversations with any of his superiors regarding his inability to perform his job because of physical limitations or disability. He further stated that he had not presented any documentation to the employer requesting a need for modified or light duty due to a physical condition. He stated, however, that he could not continue to perform his job following his injury. His job consisted of maintaining cable facilities overhead and underground. He stated that he had not requested a transfer to another department which required less physically demanding work. At the time of his retirement he was making $37.50 per hour. He stated that he usually worked 40 hours per week, but that annually there would be 500 to 1000 hours of overtime. He alleged $568,459.40 in lost wages. He was receiving $2450 per month from his AT&T pension at the time of this deposition. Additionally, he stated he received stock dividends monthly of an undetermined amount. The plaintiff stated that he had not been notified of any job layoffs by AT&T prior to his retirement. The plaintiff stated that he had experienced a heart attack in 2014. This required the insertion of a stent. He stated that he was back to work in 2 days. He stated that he had never experienced a right ankle fracture at work, an injury to the neck or back, or any injury which required physical therapy. He stated that he had been in one motor vehicle accident 2010 while driving an AT&T vehicle. His vehicle was struck by another vehicle. He stated that he was not injured in that accident. In this deposition the plaintiff was asked about the accident which occurred on February 10, 2016. The accident occurred at approximately 7:45 AM. He stated that he was on the Interstate 75 Access Rd. in Richardson reporting to work on Firman Street. He was driving a 2013 J eep Wrangler. He was in the middle lane with normal morning traffic. He stated that he was traveling approximately 5 mph approaching the intersection of Campbell Road. There was an entrance to southbound Highway 75 north of Campbell Rd. He stated that the vehicle in front of him was merging into traffic and had slowed. He then slowed his vehicle to 5 mph. His vehicle was struck from the rear creating a violent impact that, he stated, sent his vehicle catapulting 200 feet forward. He exited the vehicle and approached the other driver. He spoke to the other driver and took photographs. He left his vehicle in the middle lane. Police were called. His vehicle was drivable after the impact. He stated that the only damage was to the rear tailgate and the spare tire cover. The plaintiff stated that he began feeling pain in his neck and upper back the following day. He rated the upper back pain as 8 scale of 0 to 10. He then visited his primary care physician Dr. Yagnik. He was sent for x-rays and an MRI. The plaintiff stated that he began treatment at Plano Injury Rehab on or about February 12, 2016. There was a gap in treatment between April 13, 2016 and May 3, 2016 when the plaintiff stated he was working a hundred hours a week with mandatory overtime because of rain. The plaintiff also underwent trigger point injections in the neck. The injections only helped for very brief period of time. Following that he underwent “spinal injections”. He then underwent neck surgery. Following the neck surgery he stated he was never pain-free. He returned to see the surgeon where discussions regarding additional surgery occurred. He stated that his upper back was no longer painful His neck pain made it difficult for him to look up for any length of time. He stated that he had previously been very athletic, but was no longer able to participate in athletics or recreational activities, which included scuba diving. He stated he was unable to participate in his hobby of photography. He stated that driving for any length time became very painful. He stated that his social life had diminished. When cross- examined by the plaintiff attorney he stated that he was homebound. He stated that he was increasingly withdrawn. On July 25, 2017 the deposition of Mark Anthony Richard was taken. He did not claim any mechanical problem with the company truck that he was driving or any malfunction of the truck’s brakes. He stated that he was coming from home and on his way to work. He was exiting Highway 75 at Renner Road. He stated that he was trying to get into the left hand lane to make a left turn on Renner Road (or Campbell Road). He looked up and saw the plaintiff's vehicle before striking the rear of that vehicle. He stated that he was traveling 20 to 25 miles an hour. Mr. Richard stated that he was not injured as a result of the accident. He stated that he was drug tested with a urine sample immediately following the accident and the results came back “inconclusive”. His company driving privileges were suspended for one year. On November 28, 2017 the deposition of Brian Reece, M.D. was obtained. He stated that he was nota board certified orthopedic surgeon, despite having completed his residency and fellowship and having been in practice for four years. He stated that the plaintiff's cervical spine condition was the direct result of the index motor vehicle accident. He stated that the surgery had been successful and reduced the plaintiff's level of pain from level 7 or 8 to level 2 or 3. He stated that adjacent segment disease was likely in the future in approximately 8 to 10 years. He stated that his clinic had charged approximately $25,000 of which approximately half had been paid by insurance During this deposition Brian Reece, M.D. was cross-examined by Carlos Balido of the law firm of Walters Balido and Crane. Attorney Balido asked Dr. Reece if he had previously been referred patients and done work on plaintiffs referred by the law firm of Bailey & Galyen. He stated that he had seen approximately ten or more patients referred to him by that law firm. He stated that approximately 50% of his patients were referred with personal injuries by plaintiff centric law firms. He stated that he had done no previous work for Walters Balido and Crane. He stated that he had no affiliation with The Frisco Ambulatory Surgery Center. Attorney Balido then refreshed his memory by stating that a Frisco Ambulatory Surgery Center invoice of $48,528.24 was included within the invoice from The SOAR Institute. He noted that, further down the ledger, the amount of the Frisco Amatory Surgery Center bill totaled $189,362.75. Dr. Reece was asked by attorney Balido whether the cervical spine condition that was diagnosed could have been caused by factors other than the motor vehicle accident in question. Dr. Reece answered that, because of the disc herniation posterior to the posterior longitudinal ligament, no other mechanism of injury would have been responsible for this plaintiff's condition. Attorney Balido then asked him if he specifically had any training in engineering or biomechanics. He stated that he did not, but as an orthopedic surgeon he needed to possess knowledge in this area. He was asked whether he had written any articles on engineering or biomechanics related to orthopedic surgery. He admitted that he had not. When questioned about cervical stenosis possibly being related to aging and chronic degenerative changes, Dr. Reece stated that this was nota possibility in this case. Attorney Balido then asked him if he had seen a case of acute spinal stenosis. Dr. Reece mentioned congenital stenosis. Attorney Balido stated that congenital stenosis was a different problem entirely. He then asked pointedly if the spinal stenosis mentioned on the cervical MRI was directly the result of the motor vehicle accident. Dr. Reece answered that it was not. He then stated that the stenosis found on MRI in the cervical spine of this plaintiff was the result of a disc protrusion and not bony degenerative changes. Attorney Balido further questioned Dr. Reece about the loss of disc height and challenged him to provide scholarly articles demonstrating that the loss of cervical disc height would be related to acute trauma. Dr. Reece stated that the degenerative changes at C4/C5 may have preexisted the accident in question; however, the changes at C5/C6 resulted from the trauma of the accident. Attorney Balido then asked Dr. Reece if he told the plaintiff not to return to work following the surgical procedure. Dr. Reece stated that he had not told the plaintiff to remain out of work on a permanent basis. Attorney Balido then asked, regarding the alleged radiculopathy, whether any diagnostic testing and been performed to document any radiculopathy. Dr. Reece stated that he had not done testing of this nature. It was also brought to his attention that, when the plaintiff completed the paperwork at Dr. DeMarques’ office, he had not drawn on the pain diagram anything in the upper extremities to indicate upper extremity discomfort or any radiculopathy symptoms. Dr. Reece was asked whether he could authoritatively state that the plaintiff would require an additional cervical spine procedure in the future. He stated that the incidence was high; however, he could not quote specific studies to that effect. When asked by attorney Balido whether degenerative disc herniations can occur, Dr. Reece pondered the question, but ultimately answered yes Summary This plaintiffis a sixty-year-old male who had previously worked in the telecommunications industry for AT&T in a job with physical requirements including overhead work. He was involved in a rear end motor vehicle collision on February 10, 2016. His J eep was struck from the rear by a pickup truck traveling at the alleged speed of 20 to 25 mph. He complained of neck pain which began the following day. No electrodiagnostic testing was performed to documenta potential radiculopathy. He underwent chiropractic therapy, trigger point injections and a cervical epidural steroid injection. Ultimately, he underwent a cervical decompression and instrumented fusion at C4/C5. He has continued to complain of postoperative discomfort, although at a lesser level than prior to the surgical procedure. He states that he has been unable to work following the cervical fusion. He retired from his job with AT&T. He claims that lost wages to the retirement age of 66 amounted to $568,459.40. Expense Affidavits Included Frisco Ambulatory Surgery Center billed by The SOAR Institute ....$75,954.88 Frisco Ambulatory Surgery Center billed separately....$189,362.75 The SOAR Institute.... $1557 The SOAR Institute... $6234 The SOAR Institute... $2430 North Star Diagnostic Imaging in Allen.... $333.02 Texas Anesthesia Group.... $20,800 M.D. Now.... $1335 Greenhead Diagnostics.... $770 Hitesh Yagnik, M.D.... $233 DFW Open MRI.... $3605 All Injury Rehab Plano.... $9180 Precision Medical Products.... $995 Discussion and Considered Opinions This sixty-year-old claimant sustained trauma to the neck and upper spine secondary to a motor vehicle accident which occurred on February 10, 2016. After undergoing conservative management and a surgical procedure which included a cervical decompression and instrumented fusion, the plaintiff retired from his job at AT&T. The treating chiropractors and the treating surgeon have stated that his cervical spine difficulties emanated from the index motor vehicle accident of February 10, 2016. The MRI report that has been provided for my review indicates disc protrusions at predominantly two levels (C4/C5 and C5/C6). Additionally, and significantly, this pre-operative cervical MRI report noted chronic degenerative changes in the cervical spine, including osteophytes involving the posterior aspects of the cervical vertebral bodies and osteophytic foraminal narrowing creating foraminal stenosis. Despite the subjective opinion of the treating surgeon, Dr. Reece, no objective evidence of cervical radiculopathy is noted in the records provided for my review. The pain diagram drawn by the plaintiff, prior to receiving the prescribed trigger point injections, did not indicate any acknowledgment by the plaintiff that he was experiencing radicular symptoms in either upper extremity. Despite the prolonged period of conservative management prescribed by the treating chiropractors and Dr. Reece, no electrodiagnostic testing was performed to confirm, or rule out, acute or chronic cervical radiculopathy. It is my considered opinion, within a reasonable degree of medical probability, that this plaintiff experienced a significant cervical myofascial strain, within the broad category of whiplash associated disorders (WAD’s), as a result of the rear end impact which occurred on February 10, 2016. The duration of symptoms following a substantial whiplash associated disorder (WAD) varies. The average duration of symptoms is less than six months. The usual and customary treatment for whiplash associated disorders (WAD's) of the magnitude described in this rear end collision would include physical therapy for six weeks to six months, nonsteroidal anti-inflammatory drugs (NSAID’s), the occasional and judicious use of narcotic analgesics and, occasionally, the use of a cervical collar (1,2,3,4,5) There is no objective evidence in the records provided for my review that would indicate an acute disc herniation or the acute development of cervical spinal stenosis (either central or foraminal). Moreover, it is my considered opinion, within a reasonable degree of medical probability, that the degenerative changes in the cervical spine, which were noted on the X-rays and the MRI study, clearly indicate that the disc protrusions and the central and foraminal stenosis are degenerative in nature and preceded the index accident of February 10, 2016. It is my considered opinion, within a reasonable degree of medical certainty, that the prolonged chiropractic treatment and multiple functional capacity assessments ordered by the chiropractic treatment center at All Injury Rehab Plano were unnecessary, prolonged and costly. It is, furthermore, my considered opinion, within a reasonable degree of medical certainty, that the charges from The SOAR Institute and from The Frisco Ambulatory Surgery Center are above and beyond the usual and customary charges for a similar surgical procedure performed elsewhere in the DFW Metroplex. It is my considered opinion, within a reasonable degree of medical certainty, that this plaintiff was capable of returning to his previous level of workplace functionality after recovering from the whiplash associated disorder within six months, or sooner, from the date of the index motor vehicle collision. He is capable of this level of functionality at this present time. The medium level of functionality includes constant lifting/carrying/pushing/pulling up to 10 pounds, frequent (34% to 67% of the workday) lifting/carrying/pushing/pulling 10 pounds to 20 pounds and occasional (1% to 33% of the workday) lifting/carrying/pushing/pulling up to 50 pounds. Finally, itis my considered opinion, within a reasonable degree of medical probability, that this plaintiff will not require any future cervical spine injections, surgical procedures or fusions because of adjacent segment disease. The plaintiff is sixty years of age and is no longer employed in any significant physical capacity. Even upon returning to his previous level of functionality in the workplace, there would be nothing to precipitate the need for any additional surgery. The likelihood of developing adjacent segment disease to the extent necessitating an additional cervical fusion is remote. Any cervical spine injections, cervical decompressions or cervical fusions would not be related to the index accident of February 10, 2016; rather, the need for such procedures would be the result of chronic degenerative changes in the cervical spine unrelated to the accident. N.C Aral ins, Neal C. Small, M.D Board Certified in Orthopedic Surgery February 14, 2018 References Miettinen, et al, Clin Exp Rheumatol, 2002, May-] un: 399-402 Matsumoto, etal, Spine, 2010, J un: 1359-1364. Cho, et al, ) Am Acad Orthop Surg, 2013,J an: 3-11. Matsumoto, etal, Injury, 2013,J un: 819-824. Kemper, et al, Pain, 2008, Sep: 617-629. EXHIBIT B DEFENDANTS’ EXPERT DESIGNATION CURRICULUM VITAE Neal Charles Small, M.D 2017 Medical Licenses Texas License: D7304 Oklahoma License: 24271 Idaho License: M-8985 Practice Office Orthopedic Expert Services, LLC 1903 Anson Road Dallas, Texas 75235 214 414.9447 Expert Services Office 5941 Club Oaks Drive Dallas, Texas 75248 Phone: 214 414.9447 Fax: 469 291.5734 Email: neal@orthoexpertservices.com EDUCATION Certification: American Board of Orthopedic Surgery, 1976 (Lifetime Certification) Voluntarily Tested and Recertified 2012 Residency: University of California — Davis, 1971-1975: Orthopedic Surgery 2 Internship: University of California — Davis, 1970-1971: Straight Surgery Medical School: University of Texas Southwestern Medical School, 1970, M.D. Undergraduate: University of Texas — Austin, 1967, B.A. History, Cum Laude EXPERIENCE, HOSPITAL AFFILIATIONS, ACADEMIC APPOINTMENTS Orthopedic Expert Services, LLC: Principal and primary independent consultant on orthopedic cases for the Insurance Industry and Legal Field: 2012 to present Private Practice: Dallas, TX , 2015- Private Practice: Ardmore Orthopedic Center, 2009-2015: Managing Physician Associated Orthopedics and Sports Medicine, 1985-2002: Founder/President Plano Orthopedics and Sports Medicine, 1975-1985: Founder/President Active Staff Member: Medical Center Plano; Plano, Texas, 1975-2002 Active Staff Member: Presbyterian Hospital of Plano; Plano, Texas, 1988-2002 Courtesy Staff Member: Medical City Dallas Hospital; Dallas, Texas, 1975-2002 Courtesy Staff Member: Parkland Memorial Hospital; Dallas, Texas, 1975-2002 Assistant Clinical Professor: Department of Orthopedic Surgery UT Southwestern Medical Center: 1975-1995 Associate Cli ical Professor: Department of Orthopedic Surgery UT Southwestern Medical Center 1995-2001 FORENSIC EXPERIENCE Extensive nationwide experience reviewing medical records, x-rays and imaging studies for preparation of Affidavits of Merit (or similar documents required) Extensive nationwide experience providing expert opinions for plaintiffs pertaining to Standards of Care, Causation, Expenses and Damages (Past and Future) Extensive nationwide experience providing considered opinions for the defense on Standards of Care, Causation, Expenses and Damages (Past and Future) Served as designated expert witness providing depositions in numerous cases related to orthopedic surgery issues Provided courtroom testimony, when necessary, on cases relating to orthopedic surgery issues Reviewed hundreds of cases and provided expert opinions for the insurance industry related to personal injury, workers’ compensation, disability and third party liability Performed more than 200 independent medical evaluations (IME’s) 3 FILE REVIEW AND ANALYSIS EXPERIENCE Reviewed and analyzed hundreds of files for personal injury, third party liability, workers compensation and disability issues related to orthopedic surgery Worked with virtually all of the major insurance companies including disability carriers, workers compensation carriers and liability insurers PUBLICATIONS Small NC. Complications in Arthroscopy: The Knee and Other Joints; - Arthroscopy: The Journal of Arthroscopic and Related Surgery, 1986; 2 (4): 253-258. Small NC. Complications in Meniscal Repair. Complications in Orthopedics, Sprague, Raven Press. New York, N.Y. 1989. Small NC. Complications in Arthroscopic Surgery; Performed by Experienced Arthroscopists. Arthroscopy: The Journal of Arthroscopic and Related Surgery, 1988; 4(3)215-221. Small NC. An Analysis of Complications in Lateral Retinacular Release Procedures. Arthroscopy: The Journal of Arthroscopic and Related Surgery, 1989; 5(4) 282-286. Small NC. Complications in Arthroscopic Meniscal Surgery. Clinics in Sports Medicine. July 1990; 609-617. Small NC. Complications in Arthroscopic Surgery. Surgical Rounds for Orthopedics, 990; 42-45 Small NC. General Overview of Complications in Arthroscopic Surgery. Arthroscopic Surgery, 1990. Small NC. Barber FA, Click J. Anterior Cruciate Ligament Reconstruction by Semitendious and Gracilis Tendon Autograft. American Journal of Knee Surgery, 1991 4(2) 84-93. Small NC. Complications in Arthroscopic Surgery. Knee Surgery: Current Practice, Aichroth Cannon. 1992 Martin Dunitz Publishers, London. Small NC. Avoiding Complications in Meniscus Repair. Techniques in Orthopedics, 1993, 8(2) 70-75. Small NC. Complications of Arthroscopic Surgery of the Knee and Shoulder. Orthopedics, 1993, 6(9) 985- 992 Small NC. Malek MM. Complications of Arthroscopic Surgery of the Shoulder. Current Techniques i Arthroscopy, Parisen First Edition; 1994. Current Medicine. Philadelphia, P.A. Small NC. Office Operative Arthroscopy. January 1994, Raven Press, New York, N.Y. 4 Small NC. Malek MM. Complications in Arthroscopic Surgery. Complications in Orthopedics, Epps, 1994. J.B. Lippencott & Co., Philadelphia, P.A. Small NC. Sledge CB, Katz JN. A Conceptual Framework for Outcomes Research in Arthroscopic Meniscectomy: Results of a Nominal Group Process. Arthroscopy: The Journal of Arthroscopic and Related Surgery, 1994 10(5) 486-492. Small NC. Glogau AL, Berezin MA, Farless BI. Office Operative Arthroscopy of the Knee; Technical Considerations and a Preliminary Analysis of the First 100 patients. Arthroscopy: The Journal of Arthroscopic and Related Surgery, 1994. 10(5) 534-539 Small NC. Malek MM. Complications of Knee Arthroscopy; Diagnostic and Operative Arthroscopy. Andrews & Timmerman, 1995. WB Saunders, Philadelphia, P.A. Small NC. Lidge R. Enviroment for Arthroscopic Surgery; Operative Arthroscopy, 2" edition, 1995. McGinty, Raven Press, New York, NY. (in publication) Small NC. Office Arthroscopy; Operative Arthroscopy, 2™ edition, 1995. McGinty; Raven Press, New York, NY. COURSES DIRECTED BY NEAL C. SMALL, M.D. Office Arthroscopy: Plano, Texas; September 1993, March 1994, September 1995, March 1996 Maintaining Your Orthopedic Practice: Dallas, Texas; April 1995, September 1996, April 1997, November 1997, May 1998, November 1998 Building and Running an Office Ambulatory Surgery Center: Dallas Texas; April 1999, October 1999, San Francisco, CA, and April 2000, Washington D.C. RECENT COURSES ATTENDED BY NEAL C. SMALL, M.D. American Academy Orthopedic Surgeons; Annual Meeting (1972 — March 2017) SEAK Course: Expert Witness Skills for Medical Malpractice Cases-Special Techniques (October 2016) SEAK Course: Expert Witness Exemplary Practice (May 2016) Stryker Course: Radiofrequency Intervertebral Facet Joint Ablation (2013 and 2015) SEAK Course: File Reviews and Disability Evaluations (2015) SEAK Course: IME Evaluators (2014) SEAK Course Disability Evaluations, Peer Reviews, Chart Reviews (2014) International Spine Intervention Society Courses Lumbar Spine Non-Surgical Intervention; (2011-2012) 5 OFFICES HELD President: Arthroscopy Association of North America, 1995-1996 First Vice President: Arthroscopy Association of North America, 1994-1995 Second Vice President: Arthroscopy Association of North America, 1993-1994 Treasurer: Arthroscopy Association of North America, 1991-1993 Chairman, Complications Committee: Arthroscopy Association of North America, 1984-1991 Director: Arthroscopy Association of North America, 1999 Chairman, Department of Orthopedic Surgery: HCA Medical Center Plano, TX, 1985 Chief of Medical Staff: HCA Medical Center Plano, TX, 1980 OTHER POSITIONS HELD Editorial Board American Journal of Arthroscopic Surgery 1990-1996 Editorial Board: Orthopedics Today 1989-2000 Monthly Columnist for Orthopedics Today: Maintaining Your Orthopedic Practice 1995-2000