Dr. Peeples spells out his very lengthy list of demands just to schedule a deposition.  He requires prepayment of a whopping $2,000, which includes his own preparation time (something that he probably cannot even charge to the adverse party under Ark. R. Civ. P. 26 which allows for "a reasonable fee for time spent in responding to discovery"), $1,000 of the fee is non-refundable even if the deposition cancels, and charges $800 for each hour in the deposition after two hours.  How lucrative!

Dr. Peeples Income

Is your name next?

Last week, I secured a federal magistrate judge order confirming something I already knew: Dr. Peeples has been short-changing us on information about his expert witness cases. The magistrate judge, James Marschewski of Ft. Smith, a former Army officer, ruled that Dr. Peeples wasn't providing adequate information about the cases where he was an expert witness. You see, Dr. Peeples was identifying the injured person he was testifying against, but not the person (or insurance company) who was hiring him.
 
In my case, Judge Marschewski has ordered Shelter Mutual Insurance Company to identify not only the injured party, but also the other party, court, and case number, which will allow me to see whose interests Dr. Peeples is really representing. Of course, Shelter is usually hiding behind the people it insures, rather than being a party outright. That's why I asked Judge Marschewski to make Shelter produce reports and depositions from every Shelter case where Shelter hired Dr. Peeples for a 4-year period. Judge Marschewski agreed, and this information will prove that Dr. Peeples always says one of three things for his insurance paymasters , none of which are favorable to the injured people Dr. Peeples testifies against.
 
Dr. Peeples is set to testify in a trial against my uncle next month. He's testified over 230 times. Each time, he disagreed with an injured person's treating doctor. Each time, he was paid by an insurance company or large corporation. Each time, he said one of three things: (1) The injury victim is faking or exaggerating her symptoms; (2) The treating doctor mistreated or overtreated the injury victim; or (3) The treating doctor performed adequate treatment, it just wasn’t related to the wreck or incident as the injury victim claims it was. Dr. Peeples did this to my uncle. He testifies against people like my uncle for money, and he's made over $1.5 million doing it.
 
If it can happen to my uncle, it can happen to anyone. It's already happened to Adam, Albert, Altheia, Andre, Anita, Ann, Annete, Annie, 2 Anthonys, Audrea, 2 Beths, 4 Bettys, Bill, 2 Billys, Bobby, Bonnie, 2 Brendas, Cal, Cancie, Caroline, Carolyn, Casandra, Cecil, Cedric, Cernat, 4 Charles, Charlotte, 2 Christinas, Connie, 7 Davids, Deborah, Debra, Deidra, 2 Denas, Diane, 3 Donalds, Donnie, 2 Doras, Doris, Doug, Douglas, Edward, Eric, Erwin, Ethel, Floyd, 2 Francis, Freddie, Garland, 2 Garys, Georgia, Gloria, Hallie, Harold, Harry, 2 Helens, 2 Homers, Ivy, 4 James, Jamie, 2 Janets, Jeff, Jeffery, Jennifer, Jeri, 2 Jerrys, Jessica, Jewel, Joel, 2 Johns, 2 Jons, 2 Justins, 4 Karens, Katherine, 3 Kenneths, Kenny, Kevin, Kyle, Lael, Laura, Leann, Lewis, Lloyd, Lonnie, Lori, Marcia, Marcus, Mark, Marnee, Martha, Marva, Melissa, 6 Michaels, Michelle, Morris, Nelda, Page, Patricia, Peggy, 2 Phillips, Rajendrakumar, Randall, 2 Randys, Rebecca, Renata, Rick, Rickey, 10 Roberts, Ron, Ruthie, Sam, Sammie Bo, Sarah, Scipio, 2 Seans, 2 Sharons, 2 Sheilas, Sherri, 2 Sherrys, 2 Sondras, Steve, Sue, 3 Susans, Tammy, Tandy, Tatiana, Terry, Thelma, 2 Tims, Tommy, Tonia, Triene, Troy, Ulysses, Van, Virginia, Wanda, William, and Winfer. The next name could be mine, it could be yours, or it could be anyone’s.
 
That's why I'm working to expose Dr. Peeples.
 
Nathan Chaney

Dr. Peeples in Benton County, Arkansas – June 2012

On June 13, I had my second opportunity to see first-hand the good Dr. Earl Peeples testify against one of my clients.  The first time did not end so well.  The second time, however, was different; and the tactics of Dr. Peeples and the insurance company that hired him were not convincing to the jury.

My client Sondra had been injured in a car wreck in November 2006.  Sondra was 67 years old at the time and a wonderfully active person, enjoying hiking and walking, boating and spending long hours browsing craft shows with her family and friends.  When she was struck from behind, however, that changed forever.  Since then, she has dealt with pain and discomfort as well as limitations to what she can do physically.  Before the wreck, Sondra had a minimal medical history…very rarely even seeing a doctor.  Very simply, she had great health and an attitude that if “it ain’t broke, don’t fix it.” 

Dr. Peeples, as he often does, performed a records-only review.  Essentially, he looked at a large set of Sondra’s medical records and, as if on cue, determined that the wreck had only caused her a sprain and/or strain to her neck and back.  In doing so, however, Dr. Peeples helped us prove our case.

Dr. Peeples issued a written report of his findings after reviewing Sondra’s records.  His report quickly began by highlighting Sondra’s history of what Dr. Peeples calls her “poorly controlled diabetes.”  He then proceeded to list and discuss the records he had reviewed and on which he based his opinion.

Interestingly, however, Dr. Peeples did not mention, even one time, the primary care physician that Sondra first visited and who treated her consistently for the months to come which included a prescription to physical therapy and referral for chiropractic treatment.

Even more interesting, though, was Dr. Peeples statement of how Sondra had been “thoroughly evaluated by radiographs and the ER physician following the motor vehicle accident.”  His report went on to say that “no other treatment other than the emergency room evaluation to rule out significant injury was required….” 

These sections of his report were interesting because in fact, Sondra never went to the ER, nor was ever treated or evaluated there.  Very simply, a key portion of Dr. Peeples’ opinion was at best completely mistaken or at worst completely false. 

When questioned about this at trial, Dr. Peeples, of course, attempted to explain it away.  His non-mention of Sondra’s primary care physician was chalked up to an oversight of not including the doctor’s name.  But, what about the records, Dr. Peeples?  His reliance on phantom records from the ER was chalked up to a typographical mistake:  he meant to write “PCP” (for primary care physician) and instead inadvertently wrote “ER” (for emergency room).  That was plausible at first glance, but far less so when it was pointed out that in his final summary he stated “emergency room evaluation….” (not exactly a “typo!”)  And coupled with the complete absence of mentioning Sondra’s primary care physician, this certainly begs the question, “Dr. Peeples, what records did you really review?”

Dr. Peeples, as he often does, chalked everything up to “pre-existing and aging changes….” He explained to the jury (many of whom were over 65 years old) how the human body will simply heal from a strain or sprain in a matter of weeks…and that no treatment will help that process. 

The jury was not convinced.  On our side, two expert witnesses testified: Dr. John Unruh, a chiropractor in Rogers, AR who treated Sondra for several months and Dr. Jon Huskins, a long-time family practice doctor in Rogers, AR who had evaluated Sondra for an impairment rating.  Each agreed that Sondra had those “pre-existing and aging changes” that Dr. Peeples so loves to point out.  Dr. Unruh and Dr. Huskins, however, explained what I think the jury already knew: an elderly person does not heal the same way he or she did when 18 years old!  Very importantly, Dr. Unruh and Dr. Huskins each explained that a person can have “pre-existing and aging changes” without having any symptoms whatsoever….but when certain trauma occurs (like a rear-end collision), the conditions can become symptomatic…and that is what they believed to have caused Sondra’s pain. 

Long before trial, the only offer to settle was for $2,500.  We refused it and no other offers were made.  It was easy: Sondra’s medical bills were over $20,000 and her life had been changed.  She was more than willing to risk $2500 for her day in court.  Sondra got that day (2 actually) and it paid off.  She won a verdict for $30,000!

Jeremy Ament
Attorney at Law

Dr. Peeples goes Cherry-Picking — Tasty and Tempting, but Unethical

In nearly every one of Dr. Peeples’ reports, he concludes that “[m]edicine is an inexact science; however, the opinions stated above are based on a reasonable degree of medical certainty.” The only way science comes into play in Dr. Peeples’ opinions is that he cherry-picks individual sentences from free articles on the Internet and calls that “science.” Unfortunately for the people he testifies against, Dr. Peeples ignores his ethical duties and instead raises out-of-context blurbs up like gospel. In technical terms, Dr. Peeples’ actions are known as “confirmation bias,” which is the tendency to favor information that confirms ones own beliefs and ignore information that does not conform to those beliefs.

One example of Dr. Peeples’ confirmation bias comes from a Chaney Law Firm case tried to a Pulaski County jury in October of 2011. During that trial, Dr. Peeples testified against a gentlemen who sustained permanent low back injuries as a result of a violent T-bone collision between a 30,000-pound delivery truck and a Ford F-150 that totaled both vehicles. Predictably, Dr. Peeples opined that the collision was “low energy” and did not cause our client’s injuries. Instead, our client’s injuries were the result of the degeneration process, or in other words, the normal process of aging. (That comes up a lot on this blog, doesn’t it?)

In his written report, Dr. Peeples stated that “[m]edical knowledge indicates that minor trauma does not cause serious low back illness,” and the following citation was given:  (Spine, v. 31 (25), p. 2944-2949). Vague and obscure references to medical literature have become routine in Dr. Peeples’ reports. The full citation to the article is as follows:  Eugene Carragee, Todd Alamin, Ivan Cheng, Franklin Thomas & Eric Hurwitz, Does Minor Trauma Cause Serious Low Back Illness? 31(25) Spine 2942-2949 (December 1, 2006). The full-text article may be located here: http://scholar.googleusercontent.com/scholar?q=cache:6NMz4vIWpDcJ:scholar.google.com/&hl=en&as_sdt=0,4 . This medical article states:

MRI after serious LBP (low back pain) episodes and minor trauma rarely demonstrated significant new findings. The vast majority of incident-adverse LBP events may be predicted, not by structural findings or minor trauma, but by a small set of demographic and behavioral variables.

* * *

Chronic pain, emotional issues and the perception of fault and entitlement appear to affect adversely symptoms, despite the native structural resilience [of the spine].

Dr. Peeples then states:  “I agree with this information; it is illustrative for this medical record.” No other information about the article was mentioned.

While the first impression of Dr. Peeples’ use of this medical article might appear to support his conclusion, actually reading the study’s limitations shows that Dr. Peeples irresponsibly overstated the authors’ conclusions.  For instance, the study only included 200 working people who did not have low back symptoms, or described their low back pain as mild enough to not have any functional loss or medical treatment. In addition, “minor trauma” was defined as an injury occurring in the absence of clear ligamentous injury. The study went on to state that it has design limitations that limited its ability to be generalized across the general population, and that the predictive model needed to be replicated and validated in other studies.

During cross-examination, Dr. Peeples was questioned extensively about the American Medical Association’s Code of Medical Ethics. When asked if he followed the AMA’s Code of Medical Ethics, Dr. Peeples responded by saying “it depends on what aspects of the code.” He was pressed and again stated that it depended “on the situation and part of the code.” Incredibly, he wouldn’t even agree that he followed the medical profession’s ethical code! The very first ethics opinion of the American Medical Association states that a failure to follow the Code of Medical Ethics is unethical conduct. Dr. Peeples was asked to read this during the trial, and only at that time did he change his tune and agree that it was unethical for a doctor not to follow the Code of Medical Ethics.

Another one of the Opinions in the Code of Medical Ethics, No. 9.07, states that “if a medical witness knowingly provides testimony based on a theory not widely accepted in the profession, the witness should characterize the theory as such.” When asked if Dr. Peeples could show in his report where it says that the study he relied upon needs to be validated, Dr. Peeples evasively attempted to distinguish between a “predictive model” and a “theory.” Rather than addressing the study’s limitations straight-up, Dr. Peeples played word games. This will start to sound familiar for regular readers of this blog.

Dr. Peeples’s report never mentioned these limitations on the study, and his testimony against an injured Arkansan completely ignored the negative information in the study. When he got caught cheating, he resorted to verbal gymnastics. These displays of confirmation bias are one of Dr. Peeples’ trademarks. They are also unethical according to the American Medical Association.  

S. Taylor Chaney

The Big Picture

The big picture is this – Peeples wants to talk about secondary gain and malingering without getting his hands dirty.  It has been my experience that if he has not seen the patient/client, he will not directly accuse them of seeking medical treatment for secondary gain or being malingerers.  He just wants to talk generally about the concepts without making the actual accusation.  If Peeples will not offer an opinion that secondary gain or malingering is involved in the present case, then any attempted testimony of this nature should be excludable based on the Arkansas Supreme Court holding of Rodgers v. CWR Construction, Inc., 343 Ark. 126, 33 S.W.3d 506 (2000) and Dowden v. Garcia and Collins & Associates, Inc., 2007 U.S. Dist. LEXIS 27579.

            Peeples tries to bolster his secondary gain/malingering position by citing medical journals.  In a recent report he cited two articles I had not previously seen him cite.

            Here is how the first article came up in his report:

            As indicated in the following paragraph of meta-analysis, it is my recommendation that no surgery be performed while the case remains open.  This avoids a situation summarized by Dr. Hadler when he stated: “If you have to prove you are ill, you can’t get well” (Spine 1996; 21: 2397-2400)  I agree with this statement.  I have observed these dynamics in my clinical practice.  Resolution of illness behavior should not be expected until litigation matters are concluded.

            First, his quote is a partial take on the title of the article.  The full title is: “If You Have to Prove You Are Ill, You Can’t Get Well: The Object Lesson of Fibromyalgia.”  This was a big distinction in my case which involved an orthopaedic injury without a single medical record referencing fibromyalgia.

            However, if your case does involve fibromyalgia, soft tissue injuries or ligamentous injuries, this article should serve you well.  The premise of Dr. Hadler’s article is that society has made the plight of those suffering with fibromyalgia worse by challenging whether or not they are truly ill.  Dr. Hadler contends that fibromyalgia patients are put through the wringer to an even higher degree in the context of torts.  The following section is particularly telling:

The Vortex of Disability Determination. The industrialized world is fast approaching the end of a century-long experiment in disability determination.  I have argued that the experiment is a failure.  Disability determination as practiced currently is designed to obviate the need to trust anyone who asserts that his or her earning capacity is compromised. Instead, we are to rely on the more objective quantification of impairment. If one quantifies the magnitude of disease (impairment), can one predict the quantity of illness? even the illness of work incapacity? So goes impairment-based disability determination, the holy grail of the Social Security Administration, of indemnification under Worker's Compensation, and of determination of awards for tort litigation. The construct has attained the status of common sense despite the fact it is a sophism.

What happens when the impairment is judged less than sufficient to account for the illness of work incapacity? Then, the "impairment rating" construct assaults the veracity and pari passu, the sense of invincibility of any claimant. That poor soul has to convince many who doubt-including physicians paid to perform "contracted examinations" and "independent medical examinations" for agencies whose interest is vested in questioning the veracity of the claimant's symptoms.  When there is no demonstrable impairment, when the illness is a pervasive sense of vulnerability and of disaffection, "impairment rating" schemes for disability determination turn into a vortex of escalating vulnerability and disaffection.  Very few recover.

(emphasis added)  Our clients are the poor souls Dr. Hadler had in mind when Peeples performs his records reviews or IMEs.

Also, it should be pointed out that Peeples did not state that my client’s records gave any indicator of the “dynamics” which he had observed in his clinical practice or that she suffered from “illness behavior.”

Here’s how the second article came up:

Meta-analysis of 211 published articles established in medical science the following: “Compensation status is associated with poor outcome after surgery.  This effect is significant, clinically important, and consistent.” (JAMA April 6, 2005, Vol 293, #13, 1644-1652) I agree.  I have recognized this in my own practice.  The probability of poor outcome should be strongly considered when elective surgery for pain is considered in a compensation or litigation situation.  Unless surgery offers a decided advantage over conservative non-operative treatment in such cases, it should not be performed until legal issues resolve.  After conclusion of litigation confounding factors negatively influencing surgical outcomes are no longer present.

First, his quote is a partial take on the article’s conclusions.  The full conclusion is as follows: “Compensation status is associated with poor outcome after surgery.  This effect is significant, clinically important, and consistent.  Because data were obtained from observational studies and were not homogenous, the summary effect should be interpreted with caution.  Compensation status should be considered a potential confounder in all studies of surgical intervention.  Determination of the mechanism for this association requires further study.”

(emphasis added)  The restrictions of the conclusion are significant.  The meta-analysis is further constrained by the fact that only studies involving workers’ compensation claimants and workers’ compensation claimants with litigation were studied.  There were no studies analyzed involving plaintiffs without work related injuries.  Also, not all studies were conducted in the United States – Canadian and European claimants had much higher rates of unsatisfactory results than Americans; Australians had lower rates than Americans.  Finally, the analysis only considered specific surgical procedures.

Another constraint of this analysis is the reference to secondary gain.

Attributing the effect to secondary gain implies conscious or unconscious illness exaggeration by patients who receive compensation.  This has been explored previously and, although evidence of conscious exaggeration of symptoms exists, it probably only accounts for a small proportion of the difference in outcomes.

(emphasis added).  I believe anything the article gives is quickly taken away by stating that only a small percentage of people are consciously exaggerating.

Another area of interest is the fact that Peeples will generally testify that all/most of his patients were satisfied with the surgical procedures he performed.  During his deposition in this case, he stated that he was unsure whether his patients had ongoing litigation when he performed surgery.  I think he will have a tough time explaining how he saw “compensation status” behavior in his practice when he will admit that in most cases he wasn’t aware when his clients had pending workers’ compensation cases or personal injury cases.

Again, Peeples made no specific reference to my client’s “compensation status” in his report.

In conclusion, if Peeples is unwilling to give a definitive position on whether your client has secondary gain, is a malingerer, has “illness behavior” as referenced in the Spine article, or is having a poor surgical outcome due to their “compensation status” as referred to in the JAMA article, then trial judges should grant motions in limine filed by plaintiff’s counsel to exclude this line of testimony.  There is also a strong argument that the articles themselves should be in limined out under Daubert as they don’t help the trier of fact decide an issue at hand in the case.

Alternatively, if trial judges let Peeples testify based on the above two articles, then there is enough fertile ground in the articles to make hay with Peeples on cross examination.

Carter C. Stein
Attorney at Law

In a worker's compensation case, Dr. Peeples was deposed by Joey McCutchen on May 14, 2012.  In that case, Dr. Peeples testified that his income at PMLC for the calendar year 2011 was $375,000.  Surprisingly, he did not know what his income was at his primary medical practice, OrthoArkansas, for the same time period.