TRO Defense: Petition Dismissed After Independent Medical Review

The respondent was a corporate executive. The petitioner, his former partner, sought a restraining order alleging that he had physically assaulted her. She had been treated for injuries, and those injuries were the centrepiece of the petition.

What was at stake for the respondent went well beyond the order itself. A restraining order is a civil finding, but it is a public one, and for someone whose position depended on a reputation built over decades, the collateral consequences were more serious than anything the order would formally require of him. He denied the allegation. He had no way to prove that denial except through the medical evidence, and the medical evidence appeared, on its face, to support her account.

Defense counsel retained Dr. Alban to review the injury record before the hearing.

The question was narrow and it was medical rather than legal: were these injuries consistent with the mechanism described in the petition?

Injury pattern analysis asks what forces produce what damage, and where. A blow from another person and a fall against a fixed surface are different events, and they tend to leave different marks — different locations on the body, different distributions, different depths, different relationships between the injuries and the surfaces that could plausibly have caused them. The distinction is not always available, but where it is, it is objective in a way that competing testimony is not.

The review covered the treatment records, the clinicians’ contemporaneous descriptions of the injuries, and the documented location, type, and severity of each. It also considered the alternative mechanisms that could produce the same pattern, which is the part of the analysis most often skipped. An opinion that a record is consistent with an assault is close to worthless if the expert never asked what else it is consistent with.

The injury pattern did not fit the assault as described. The distribution and character of the documented injuries were more consistent with an accidental fall than with the intentional act alleged. The records also lacked the corroborating findings the described mechanism would ordinarily produce.

The opinion was not that the petitioner was lying, and it was not offered as one. Injury mechanism analysis does not reach credibility and an expert who claims otherwise has exceeded their qualifications. The opinion was narrower and more defensible: the objective medical evidence did not support the specific mechanism the petition asserted, and it was better explained by another.

The testimony gave the court something it had not previously had — an independent reading of the only objective evidence in the record, from a physician with no stake in the outcome. Where the petition had presented the injuries as self-evidently corroborating the account, the review established that they were at least as consistent with an entirely different event.

After argument, the court dismissed the petition. The judge noted the thoroughness of the medical analysis in doing so.

Three things made the opinion useful, and they generalise beyond this matter.

It was narrow. The opinion addressed injury mechanism and nothing else — not credibility, not intent, not what happened in the room. Opinions that stay inside the expert’s qualifications are considerably harder to attack, and considerably harder to exclude.

It considered alternatives. The analysis did not stop at whether the record was consistent with the allegation; it asked what else would produce the same findings. Under the Sargon gatekeeping standard California courts apply, an opinion that cannot show the reasoning connecting the data to the conclusion is vulnerable regardless of the expert’s credentials, and ruling out alternatives is a substantial part of showing that work.

And it was early. The review happened before the hearing rather than after an adverse finding, which is the difference between shaping a record and trying to repair one.