20Q: Forensic Audiology - Putting on Your Investigator's Hat

From the Desk of Gus Mueller

My only “forensic” audiologic experience was chronicaled in an article David Hawkins and I published in The Hearing Journal in 2006: “The Case of the Missing Ping.”  This was about a golfer who could hear the ping of his golf drive without using his hearing aids, but not when he had his hearing aids inserted. A bit puzzling. In case you missed the article, we did eventually solve the mystery with a little testing and some careful sleuthing.

That bit of forensic audiology only required a visit to a golf course with a sound level meter, a few probe-mic measures, and a couple bar napkins for notes.  But there is real forensic audiology happening most every day, sometimes discussed in real courtrooms, with real judges and attorneys, often involving millions of dollars.

Gus Mueller

Most consider the father of this audiology sub-specialty the late David Lipscomb, who became interested in the hazards of occupational noise exposure in the mid-1960s, and went on to publish books and teach about various areas of forensic audiology in later years.  In a 2001 interview here at AudiologyOnline, Dr. Lipscomb stated that he didn’t really set out to become a forensic audiologist, he simply got involved based on opportunities which presented themselves to him—probably how many audiologists get their start.  Dr. Lipscomb’s work has influenced many of today’s forensic audiologists, and one of them is here to launch our 2015 season of 20Q.

Tom Thunder, AuD, is an audiologist and acoustical engineer in private practice based near Chicago. He is a long-time faculty member at Northern Illinois University and Rush University, where he teaches courses in clinical audiology, acoustics, psychoacoustics, and noise. Many of you have read his articles and book chapters, or attended his workshops on hearing conservation and forensic audiology. Dr. Thunder belongs to numerous national professional organizations, and is the former president of the Illinois Academy of Audiology; this Academy’s annual meetings are legendary, and sometimes include a performance by the impromptu band “Cochlear Microphonics,” of which Dr. Thunder is a charter member.

You probably already knew that forensic audiology can be thought-provoking and fascinating, but after reading Tom’s review of this specialty, you’ll certainly be even more intrigued.  Keep this article handy, as your “first case” may be just around the corner. 

Gus Mueller, PhD

Contributing Editor
January,  2015

To browse the complete collection of 20Q with Gus Mueller CEU articles, please visit www.audiologyonline.com/20Q

20Q: Forensic Audiology - Putting on Your Investigator's Hat

Tom Thunder

1.  Forensic audiology?  You can test the hearing of dead people?

Ah. You’ve been watching too many NCIS and Law and Order shows. They all start with a dead body, don’t they? Forensic means “of or relating to matters at law.” Forensic audiology means applying what you know about hearing science and audiology to legal issues. By the way, you can test the “hearing” of dead people. Von Bekesy did it to prove his traveling wave theory.

2. Thanks for reminding me of my hearing science class. What kind of audiology courses would you need to enter the forensic specialty?

It’s not really a specialty - forensic work is simply applying your expertise to work within the legal system. My background and expertise is in acoustics, psychoacoustics, and noise. As a result, I work on cases that involve occupational or environmental noise and related areas like audibility, speech understanding, and the effects of noise. Cases involving other audiology specialty areas such as pediatrics, central auditory processing, or cochlear implants I will refer to colleagues.

3. Does forensic audiology mean you work with attorneys most of the time?

Yes, in each case I have been involved with, I have worked with an attorney.  Cases can involve workers compensation, administrative law, constitutional law (such as the Occupational Safety and Health Administration and the Americans with Disability Act), tort law such as injury and product liability, as well as criminal matters. 

4.  I’m curious, how did you get stated in this unique area?

I got a call from an attorney who needed an audiologist to testify about the communication issues a railroad worker would face with a bilateral, moderate, high-frequency hearing loss. The physician for the defense testified that since the American Medical Association's (AMA) formula resulted in 0% impairment, this worker should have no real problem in everyday communication. But most audiologists would take one look at the worker’s audiogram and agree that that he would face significant problems in auditory clarity and speech understanding in background noise.  In my testimony, I used the American Speech, Language and Hearing Association's (ASHA) formula and presented a different story – a 42% impairment. I supported this degree of impairment by testifying that based on a sample of my patient files, 18% of my patients with a 0% hearing loss using the AMA formula were fit with hearing instruments and derived benefit from amplification. The jury awarded the worker $500,000.

5. Wow. Half a million bucks! That’s a lot of money.

Well, that was the amount the jury decided on, not me. But yes, it was a lot of money. For me, that verdict was a defining moment in my career. For the first time, I realized that the knowledge and expertise we have as audiologists could be valuable when applied in legal cases. Wouldn’t you agree that audiologists are the best experts on matters of hearing loss, hearing aids, speech communication, and auditory function?   

6.  You don’t have to convince me!  But how often are audiology experts really needed?

Well for a long time, coroners and ballistic experts have been used in murder cases, doctors in personal injury and medical malpractice cases, and forgery experts in document authenticity cases. Under Rule 702 of the Federal Rules of Evidence, expert testimony is permitted whenever it would be helpful to a judge or jury in understanding the case. That opens the door to a variety of experts including, to name a few, experts in accounting, computer technology, safety, and real estate. Litigants now rely on experts in the vast majority of civil cases and these experts are used in more than 35% of trials.

7.  Really? And my expert witness testimony as an audiologist would be respected? 

Most certainly. Your testimony is different than a material, alibi or character witness. These witnesses give accounts of what they heard or saw. But an expert witness is regarded as a “friend of the court” and their testimony is special. In some legal venues the jury gives an expert’s opinion the same weight as fact.

8. Exactly what kind of cases would audiologists work on?

Way more than you would ever believe.  Here are a few of the cases I have worked on where audiology testimony was helpful to the jury:

• A hospital contemplates terminating a hearing impaired nurse working in a pediatric ICU. At question is her ability to hear the different alarms even with her hearing aid.
• An NFL football player visits a friend’s home where an after-prom sleep over is occurring. He is accused of rape the next morning. At question was the credibility of a teenage witness who was upstairs in a closed bedroom and said she could hear zippers and clothes being thrown around a washroom downstairs.
• Six people are killed in a fire in a high-rise building. The case involved the question of why the security guards didn't respond to emergency phone calls from people trapped in the stairwell.
• Police search a home for drugs, because they claim to have heard a phone conversation through a closed window of the home, which was situated next to a noisy highway.  
• A worker is crushed by a moving machine. The defense attorney said the victim should have heard the machine based on sound measurements taken by an industrial hygienist. But at the time the noise measurements were conducted, much of the plant’s equipment was not operating. 
• A snowmobile rider is struck and killed at an intersection despite the fact that the locomotive horn was 100 dBA at his position. Testing revealed that his snowmobile, at 105 dBA, was in fact louder.
• A parent of a child with hearing loss requests that the child's school acoustically treat his classroom.  The school consults with an architect who indicates that acoustic modifications are not needed in the room because the architect himself could hear just fine in it.

As you can see, all of these cases involve hearing loss, auditory masking, speech recognition, and signal detection - issues that fall well within the scope of expertise of audiologists.

9.  All right. I see. But does every case lead to court work?

Usually not. You could be involved as a non-testifying expert. In other words, you might be used to educate an attorney as to what all the Xs and Os mean on an audiogram.  You could help generate questions to be posed to the opposition or conduct short experiments to support the attorney’s thinking. You could also appear at a trial, but to testify about general principles or test procedures, not to offer an opinion. When working in a consultation role, your work is covered by “privilege” so you cannot be questioned or deposed by an opposing attorney.  But don’t be surprised if the attorney who hired you is so impressed with your knowledge that she begs you to allow her to identify you by name as someone who will give a professional opinion and testify.

10. Well if I do get involved as an expert, do I need to take a law course?

Haven’t you had enough schooling? No one expects you to understand the law. That’s the lawyer’s job. But it does help to become a familiar with the anatomy and of a lawsuit and some of the legal terminology. After all, the American Jurisprudence could not survive without a precise set of rules. These rules dictate that a lawsuit begins with the complaint, which initiates the action within the legal system. This can be brought in an administrative forum - such as licensure, environmental law, OSHA, etc. or in a judicial forum, each of which involve their own rules of procedure and evidence. When the complaint has been filed in the proper jurisdiction and venue, the defendant then receives a notification and the issue moves forward in a predictable course.  

11.  This is pretty boring.  I sure am glad I am an audiologist and not an attorney.

Yes, me too! The fun for us begins with the next stage: the discovery. Here is where attorneys try to determine the facts and circumstances of the case to be tried before the court. They develop interrogatories – written questions directed to the parties involved – and document requests – such as that subpoena you get to appear in court at a certain date with all of your records on a patient. By the way, you don’t actually have to appear as long as you copy all the records and sign a statement. The $25 check you get is to cover your copy expenses.  This is the stage where experts are often called in. The IME or independent medical exam is another form of discovery that may involve audiologists.

12.  Stop right there. You’re saying that as audiologists we legally can do a “medical exam?”

Insurance companies and law firms use the general term IME when they engage a professional with no prior relationship to the victim or the case to provide an opinion in an injury or liability case.  While oftentimes this may involve physicians, if the injury or liability involves hearing loss, vestibular issues or other areas within our scope of practice, certainly audiologists can be called in.  With an IME, the professional is asked his or her opinion regarding the diagnosis, possible cause, extent of the injury, best course of treatment, and the patient’s maximum medical recovery or MMR.  MMR refers to when and how much improvement in the condition can be expected with treatment.

Let's say an attorney calls you and wants you to perform an IME for a person who have claims to have lost hearing and developed tinnitus after an incident involving acoustic trauma in the workplace.  By reviewing past audiograms and documents, could you state that the acoustic trauma was the likely cause of the hearing loss? Could you also indicate that it may take time to know how much of the loss is actually permanent? Could you address treatment and prognosis with hearing aids?

 13. OK. I get it. I’ve heard colleagues mention depositions.  Where do they fit in?

Well, this is another legal tool used for discovery.  Because it’s a formal record of evidence under oath, the deposition is considered the most powerful form of discovery. They are transcribed by a court reporter so that they can be reviewed by either party afterwards. They give the opposing side an opportunity to learn more details about your background and training, the basis for your thinking, and the substance of your opinions. It also gives them a forum to establish what you are not going to opine about so that there are no surprises at trial.

14.  Speaking of giving an opinion, do I need to be certain of my conclusion?

The legal system is not asking us to be 100% certain - for expert testimony, the criterion is “a preponderance of evidence that is more likely than not.”  Your reports should state that your opinion is based on "a reasonable degree of audiological certainty.”

When forming your opinion, you may also rely on self-reported patient histories just as you typically would do in a clinical practice. And, you don't need to examine the patient yourself; you can rely on tests conducted by other audiologists and data from other experts such as industrial hygienists.  

15. Good point. So when do you get to the trial?

Not so fast. There is a pretrial phase first where attorneys submit trial briefs to inform the judge what facts will be proven and to review the relevant law surrounding the case. Motions may be made to limit the evidence that can be presented at trial. Or they can be made asking the judge to give a “judgment” to preclude the need for a trial based on the results of discovery. For example, I wrote a report in one case that, based on my review of the records, complaints, and depositions, the plaintiff had not given any evidence that my client should be a party to the lawsuit. The judge agreed and issued a summary judgment excluding my client from the lawsuit.

16. OK, I’m with you. Now the trial?

Yes, now comes the trial. This is the part you see in every Law and Order TV show. But before the trial, it is critical that you spend time with your client’s attorney to review the case, explore possible questions, and conduct a sort of rehearsal. There is nothing new here. There should be no surprises. All the facts and issues are elements you have already gone over. Now they are laid out before a jury so the jury can render a verdict. 

Going to trial is time-consuming, costly, and unpredictable, so both parties typically try and avoid it.  As the late Dr. Dave Lipscomb once told me, if an audiologist spends enough effort on the front end writing a good report, then chances are the case will settle. In fact, most cases that use an expert do not go to trial.

And remember, a case can settle at any time before the verdict is delivered. For example, I was ready to play an audio clip in one case to demonstrate to a jury what effect a severe high-frequency loss has on speech understanding – you know, like the one in the “Say What” CD sold by the American Academy of Audiology.  The defense asked for a lunch recess and by the time I got back, the case had settled.

17.  All very interesting.  How does someone like me know if they’d do a good job as an expert witness?  

I used to think that only the very top experts in a profession could be expert witnesses, but that's not actually the case.  Jurors are real people, and like all people they have emotions, opinions and inherent biases.   I use the acronym F-O-R-E-N-S-I-C to describe the traits needed to be a good expert witness:

• Friendly.  Jurors relate to experts who are personable and genuine.
• Objectivity.  Leave it to the attorneys to advocate for their clients.  Experts need to remain objective. 
• Reputable. You can bet on the fact that the opposing side will be checking your reputation.
• Enthusiastic. The ability of an expert witness to teach a jury is critical, and enthusiasm goes a long way in explaining hearing loss, hearing aids and noise.  
• Neutral. Your conclusions must be reached independently and based on all available data.
• Self-Esteem. Experts need to be confident of their knowledge and expertise.  
• Integrity. Experts must be committed to knowledge and truth rather than client and cause. 
• Current.  Experts should display current knowledge and skills through ongoing continuing education and membership in professional organizations.

18. The reason I asked that last question was because an attorney called me last month to discuss a case. I just wasn’t sure I had the experience to take the case.

Let the attorney be the judge of that. The type of witness he will want depends on the case and the strategy they want to implement. I have found that taking legal cases sharpens your thinking, makes you more confident, and makes you a better audiologist.

19. That’s good to hear. Do you have a few tips you could give me for testifying?

Boy do I. When I taught a forensics course at Salus University, I had students prepare an assignment summarizing tips for testifying.  Here are some of the tips we discussed.

• Don’t guess. If you don’t know an answer or remember something, say so.  
• Ask for clarification. Questions can often be complicated.  It is OK to ask the attorney to repeat a question or break up a complicated question into individual questions.
• Stay within the scope of the question.  Don’t volunteer extra information.
• Wait until the entire question is asked before responding.  If you anticipate a question and volunteer information, you may end up answering something that was never asked and open a whole new line of questioning. 
• Be truthful, even if the answer is not favorable to your side.  

20.  What could I do to learn more about being an expert witness?

A good book to read is Succeeding as an Expert Witness by Harold Feder. There are also seminars you can take offered by SEAK Inc. and websites you can visit like www.kramerslaw.com or www.expertlaw.com. Finally, if you are near a law school, give them a call and ask if you can serve as an expert in a mock trial. Just like student audiologists, student lawyers need to work in courts with judges and juries to practice trial law. Serving in a mock trial will get you inside a courtroom to become familiar with how a trial works. I sure hope this review of the role that an audiologist can play in the legal system will give you the confidence to accept being retained as a consulting or testifying expert witness. You might even find that it is fun!