(Photo
by
Bill
O’Leary/The
Washington
Post
via
Getty
Images)
Pauline
Newman’s
recent
test
is
being
touted
as
a
proof
that
she
is
fit
to
serve
on
the
U.S.
Court
of
Appeals
for
the
Federal
Circuit,
but
how
does
this
differ
meaningfully
from
the
two
other
highly
decorated
doctors
who
have
said
the
same
thing?
We
sat
with
Dr.
Aaron
Filler
—
who’s
a
neurosurgeon,
lawyer,
and
the
13th
President
of
the
Society
for
Brain
Mapping
and
Therapeutics
—
to
talk
about
what
his
new
report
could
mean
for
Newman’s
role
as
a
judge
moving
forward.
Here
is
a
(lightly
edited
and
condensed)
write-up
of
our
conversation
about
Newman,
the
usefulness
of
brain
imaging,
and
where
the
U.S.
Court
of
Appeals
for
the
Federal
Circuit
can
go
from
here.
Chris:
So,
What’s
the
main
difference
between
what
a
neurologist
does
and
what
a
neurosurgeon
does?
Dr.
Filler:
One
of
the
big
differences
is
that
neurologists
don’t
actually
look
at
images.
It
is
very
important.
So
the
radiologist
looks
at
images
and
they
don’t
see
patients,
so
they’re
often
disembodied
from
the
task
like
neurologists.
They
see
patients,
but
they
don’t
look
at
images.
So
they
are
entitled
entirely
to
look
at
the
report
of
the
radiologist.
And
they
may
recognize
everything,
but
they
would
not
really,
almost
never
will.
Very
few
of
them
will
actually
try
to
do
a
reading
of
an
image.
Neurosurgeons
are
in
a
different
situation.
The
way
I
like
to
explain
this
is
we
are
allowed
to
consider
the
opinion
of
a
radiologist.
We’re
not
allowed
to
rely
on
it,
which
is
different
from
the
neurology
situation.
They’re
absolutely
entitled
to
rely
on
the
reading
by
the
radiologist.
And
the
example
of
why
that
is,
is
for
instance,
if
the
radiologist
says
there’s
a
herniated
disc
at
C
five
six,
but
it’s
actually
at
C
six
seven
and
I
go
and
operate
at
C
five
six,
I
don’t
get
to
say,
“Oh,
well
the
radiologist
told
me
to.”
No
one
even
cares
what
the
radiologist
said.
The
neurosurgeon
is
a
hundred
percent
responsible
for
reading
his
own
images
and
acting
on
it.
I’m
very
involved
in
developing
new
methodology
in
this
field.
Diffusion
Tensor
Imaging
(DTI)
is
something
that
I
kind
of
started.
I
put
stuff
in
the
textbook
and
sometimes
I’m
privileged
to
be
able
to
put
things
on
the
board
certification
exam
and
on
the
review
book
for
the
board
certification
exam.
So
I
help
guide
what
neurosurgeons
at
least
are
expected
to
know.
And
we
don’t
really
have
that
much
outreach
across
other
subfields
such
as
neurology.
They
can
read
our
textbooks,
but
neuropsych
is,
it’s
not
a
medical,
it’s
not
an
MD
field.
Chris:
If
I
heard
you
correctly,
it
seems
like
the
court
is
basing
their
assessment
of
Newman’s
mental
capabilities
on
neuropsychological
assessments,
but
you’re
saying
that’s
been
out
of
vogue
recently
in
favor
of
neuro-imaging?
Dr.
Filler:
I
think
that
they
made
their
initial
assessment
based
on
personal
judgment
and
experience
that
they
were
looking
at
different
complaints.
I
don’t
think
anybody
really
knows
exactly
what
triggered
this
and
the
level
of
approach
that
the
Chief
Judge
and
colleagues
took
here,
but
they
designated
a
method
of
evaluation,
which
specifically
included
neuropsychology,
and
that’s
pretty
standard
in
traditional
law.
But
although
as
I
say,
in
the
modern
day
courtroom,
it’s
used
less
and
less,
and
they
may
not
really
be
that
aware
of
that.
So,
Judge
Newman
had
the
evaluation
by
the
chairman
of
Neurology
at
George
West
University
Hospital,
and
he
ran
a
basic
set
of
tests
from
a
neurological
point
of
view
and
felt
that
she
did
not
have
any
evidence
of
dementia.
And
they
rejected
that
on
the
grounds
that
there
was
someone
that
she
had
known
for
a
long
time,
it
was
a
prior
relationship
with,
but
the
physician
said
that
he
wouldn’t
be
biased.
And
then
I
guess
Mr.
Greg
Dolan
arranged
for
an
evaluation
by
a
forensic
psychiatrist,
which
involved
also
some
formal
testing
and
found
her
to
perform
well,
but
they
rejected
that
based
on
the
fact
that
the
forensic
psychiatrist
performing
the
test
would’ve
been
biased
because
of
being
a
longtime
associate
of
the
attorney.
Chris:
Could
you
speak
to
the
challenge
of
assessing
someone’s
mental
health?
Dr.
Filler:
I
mean
the
question
of
trying
to
assess
somebody’s
cognitive
status
on
a
grant
that
a
routine
basis,
neuropsychology
has
been
used
for
many
years
and
then
there
are
certain
standard
tests
that
are
administered
by
neurologists
as
well
as
by
neuropsychologists.
And
I
make
the
point
in
[the
report]
that
a
lot
of
the
neuropsychology
methods
date
back
hundreds
of
years
and
it
sort
of
has
its
roots
in
philosophy
as
opposed
to
medicine
per
se.
On
the
one
hand,
it’s
common
to
use
neuropsychology
to
assess
cognitive
status
in
legal
cases.
But
there’s
a
big
change
going
on
in
terms
of
how
attorneys
in
the
United
States
go
about
demonstrating
cognitive
impairment
shifting
because
the
DTI,
not
only
is
it
structural,
but
because
it
has
very,
very
detailed
relationship
with
specific
symptoms,
you
can
see
a
certain
spot
where
there’s
an
injury
and
you
would
expect
people
to
have
difficulty
remembering
names
in
a
different
spot.
You’d
have
difficulty
remembering
faces.
And
so
you
can
correlate
them
with
the
symptoms
and
any
given
symptom
a
person
complains
of
you
could
say,
“Oh,
well
here’s
where
it
is
on
the
DTI.”
Now
this
was
a
different
problem
we
had
for
Judge
Newman,
because
we’re
trying
to
see
on
a
positive
side,
not
just,
well,
the
dual
questions,
number
one,
is
there
evidence
of
mild
cognitive
impairment
or
dementia?
But
we’re
not
looking
for
a
Federal
Circuit
senior
judge
who
just
basically
passes
competence
like
any
person
would.
We
want
someone
with
excellent
intellect,
otherwise
they’re
still
going
to
be
frustrated.
I
really
want
to
be
careful
in
answering
questions
not
to
question
the
decision-making
of
the
other
judges.
I
think
this
report
can
be
most
helpful
if
it
just
says,
look,
here’s
a
reliable
medical
set
of
facts
about
Judge
Newman.
So
when
we
try
to
look
at
their
choice
of
how
to
prove
the
assertion
that
she
was
cognitively
impaired,
I
could
see
why
they
thought
to
do
a
routine
neuropsychology
test.
Chris:
When
you
first
heard
about
Newman’s
circumstances,
did
the
“How
is
the
court
justifying
these
mental
assessments?”
neurosurgeon
part
of
you
perk
up?
Or
was
it
the
“There
are
some
very
clear
due
process
errors
going
on
here”
lawyer
part?
Dr.
Filler:
Well,
I
think
it’s
hard
to
separate
those
concerns.
I
tend
to
engage
with
things
holistically
from
both
perspectives.
I
think
right
at
the
top
it
was
the
sort
of
due
process
concern
and
then
realizing
that
it
makes,
and
this
is,
I
think
hopefully
the
most
helpful
thing
I
could
be
saying
at
this
point
is
that
they
may
reasonably
have
had
a
concern,
and
I’m
not
questioning
that
they
had
a
concern,
but
I
think
they
were
not
sure
how
to
proceed.
And
so
I
would
believe
they’re
trying
to
do
the
right
thing
and
to
seek
an
optimal
and
unbiased
set
of
information
to
make
their
decision.
And
this
is
at
least
with
regard
to
the
cognitive
function.
But
as
you
know
with
regard
to
the
case,
they
roll
back
a
lot
of
the
original
challenges
or
objections
they
had
to
her
and
focus
simply
on
the
fact
that
she
has
not
complied
with
their
direction
for
testing.
So
that’s
really
the
issue
that’s
out
there,
because
I’m
coming
and
saying,
look,
this
is
very
reliable.
At
a
high
level,
there’s
a
substantial
amount
of
objective
information.
Granted,
there’s
some
subjective
in
there
as
well,
but
I
think
the
objective
part
is
very
compelling.
The
profusion
CT
scan
and
the
(evaluative)
questions,
and
I’d
be
willing
to
say,
will
they
see
this
as
an
opportunity
to
step
back
from
the
confrontation?
Because
attorneys
and
judges
certainly
get
drawn
into
the
confrontation
underneath
everything
and
say,
“Oh,
well,
we
didn’t
have
that
information
now
that
we
see
it.”
For
instance,
there’s
a
motion,
I
think,
for
reconsideration
on
the
new
suspension
and
grant
that
motion
based
on,
well,
we
now
have
factual
data
that
we’re
entitled
to
rely
on
because
part
of,
it’s
not
only
their
own
feelings,
but
their
concern
about
the
court.
They
want
to
make
sure
that
the
clients
of
the
court,
plaintiff
and
defense
that
are
showing
up
there
over
cases,
feel
that
they’re
getting
excellent
judicial
assessments.
And
I’m
sure
that
Chief
Judge
Moore
feels
a
lot
of
responsibility
for
that,
but
I’m
hoping
that
this
shows
them
that,
yeah,
this
is
a
good
basis
to
step
back
from
the
confrontation
and
say,
because
what
if
they
got
their
neuropsychology
about,
she
hadn’t
resisted
that
and
it
came
back
similarly
saying
she
seems
fine.
Would
they
have
then
said,
okay,
well
then
let’s
just
go
ahead,
because
I
guess
that’s
what
we’re
all
waiting
to
hear.
There’s
an
expectation
that
if
we
can
address
this
concern
in
a
way
that
both
the
judicial
council
and
Judge
Newman
are
comfortable
with,
then
maybe
they
can
step
back
from
the
confrontation
and
lift
the
suspension.
And
obviously
they
could
come
back
to
it
if
problems
then
occur.
But
I
do,
I
feel
confident
of
what
I’ve
said,
which
is
that
I
don’t
find
any
deterioration
compared
to
what
I
saw
in
court
and
the
type
of
level
of
function
analysis
that
she’s
been
respected
for.
Chris:
I
hear
that
you’re
extending
good
faith
to
the
circuit
court
in
saying
that
they
might
not
have
been
operating
on
fullest
information
at
the
time.
And
that
could
be
part
of
it,
there
isn’t
a
clearly
established
best
practice
situation
for
figuring
out
if
you’re
dealing
with
someone
who
is
stubborn
and
in
decline
or
a
super
ager
who
is
frustrated
by
years
of
accusations.
Do
you
think
that
this
could
set
any
precedent
for
later
judges
on
this
court
or
other
courts?
Because
the
functional
impeachment
angle
of
this
story
is
dangerous,
but
how
else
would
you
balance
the
need,
as
you
said,
to
have
the
people
that
come
before
the
court
feel
as
though
they’re
actually
being
heard?
Dr.
Filler:
Right.
And
I
think
there’s
a
little
bit
of
a
risk
of
this
sort
of
self-fulfilling
process
where
they
raise
a
lot
of
questions
and
then
when
a
case
comes
in
there,
will
the
litigants
feel
that
they
didn’t
get
a
fair
hearing
because
they
don’t
trust
one
of
the
judges?
And
I
don’t
think
that
would
be
supportable.
I
think
that
everybody
who
loses
a
case
probably
feels
this.
The
judge
was
all
wrong,
was
not
as
good
as
they
should
have
been.
Right?
And
that
means
half
the
time
every
attorney
goes
to
court,
you
come
away
feeling
that
way
a
little
bit,
but
so
we
have
to
have
a
strong
grounds
to
say,
no,
this
was
an
excellent
level
of
analysis.
And
of
course,
that’s
what’s
so
odd
about
this.
She’s
writing
opinions
and
she’s
winning
at
the
Supreme
Court
over
her
colleagues.
Chris:
Frequently!
Dr.
Filler:
Yes.
And
so
how
do
you
assert
this
person
has
got
a
cognitive
impairment?
But
the
problem
of
not,
last
thing
I
want
to
do
is
back
the
other
judicial
council
members
into
the
corner,
but
they
should
see
it
—
I
hope
it’s
not
to
dicey
a
term
—
as
an
exit
ramp.
That
is,
look,
this
[report]
is
a
way
out
of
this,
and
I
do
think
it’s
the
right
thing
to
do.
I
do
think
that
the
patent
community
will
support
it
that
both
the
plaintiff
and
defense
side,
if
they
see
this
as
sufficient
evidence
to
decide
to
reverse
the
additional
suspension.
As
I
said,
they
can
always
come
back
if
they
discover
problems.
But
in
terms
of
any
evidence
of
cognitive
impairment
or
dementia,
I
don’t
think
there’s
any,
I
feel
like
both,
as
I
said,
her
response
to
the
questions
I
posed,
but
also
the
objective
perfusion
CT
scan
is
very
helpful.
Chris:
The
thing
that
sticks
out
in
my
mind,
which
is
less
the
story
and
what
happens
after
the
story,
it’s
hard
for
me
to
imagine
what
happens
at
the
water
cooler
after
all
this.
Dr.
Filler:
Right?
Yeah.
Well,
I
mean,
obviously
it
did
not
escape
my
notice
that
they
might
not
be
very
happy
with
me.
But
that’s
beside
the
point
as
far
as
I’m
concerned.
I
think
they
should
be
accepting
of
the
facts.
And
as
with
anything
else,
they’re
able
to
find
some
opposing
expert
to
say
something
opposite.
I
don’t
know.
That’s
why
I
think
the
perfusion
CT
is
a
very
good
way
to
go
with
this.
***
We
want
to
thank
Dr.
Filler
for
his
time.
If
you’d
like
to
read
more,
I
highly
recommend
three
things:
IP
Watchdog’s
coverage
of
Dr.
Filler’s
findings,
the
underlying
44
page
report
(It
has
pictures!),
and
Pauline
Newman’s
own
words
on
the
ordeal.
Earlier:
Pauline
Newman
Speaks:
ATL
Interviews
The
Judge
Who’s
Fighting
To
Do
Her
Job
Huge
Development
In
Pauline
Newman’s
Case:
The
Test
Results
Are
In!
Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.