1

 

 

     1          SUPERIOR COURT OF NEW JERSEY

                LAW DIVISION - HUDSON COUNTY

     2          DOCKET NO. HUD-L-3520-04

       PETER deVRIES and TIMOTHY

     3 CARTER

                                       TRANSCRIPT

     4                               OF PROCEEDING

       Plaintiffs,

     5                                TRIAL DAY 9

            Vs.

     6

       THE TOWN OF SECAUCUS,

     7 Defendant.

       - - - - - - - - - - - - - - - -

     8

       HUDSON COUNTY COURTHOUSE

     9 595 Newark Avenue

       Jersey City, New Jersey  07306

    10 Thursday, May 22, 2008

       Commencing 9:50 a.m.

    11

       B E F O R E:

    12           HONORABLE BARBARA A. CURRAN

 

    13                     TRACEY R. SZCZUBELEK, CSR

                           LICENSE NO. XIO1983

    14

 

    15

 

    16

 

    17

 

    18

 

    19

 

    20          SCHULMAN, WIEGMANN & ASSOCIATES

 

    21           CERTIFIED SHORTHAND REPORTERS

 

    22                 216 STELTON ROAD

 

    23                     SUITE C-1

 

    24           PISCATAWAY, NEW JERSEY  08854

 

    25                (732) - 752 - 7800


 

 

                                                     2

 

 

     1 A P P E A R A N C E S:

 

     2

 

     3 SMITH MULLIN, ESQS.

 

     4 Attorneys for the Plaintiffs

 

     5      240 Claremont Avenue

 

     6      Montclair, New Jersey  07042

 

     7 BY:  NEIL MULLIN, ESQ.

 

     8      NANCY ERIKA SMITH, ESQ.

 

     9

 

    10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.

 

    11 Attorneys for the Defendants

 

    12      360 Passaic Avenue

 

    13      Nutley, New Jersey  07110

 

    14 BY:  DANIEL R. BEVERE, ESQ.

 

    15      DAVID M. PARIS, ESQ.

 

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                                                     3

 

 

     1                     I N D E X

 

     2

 

     3 WITNESS      DIRECT            VOIR

 

     4                                DIRE

 

     5 ALBERTO GOLDWASER, M.D.

 

     6 By:  Mr. Bevere 88, 125, 138

 

     7 By:  Ms. Smith                108, 131

 

     8

 

     9                  E X H I B I T S

 

    10 NUMBER    DESCRIPTION                      PAGE

 

    11 C-8       Dr. Goldwaser's handwritten notes 211

 

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                                                     4

 

 

     1               COURT CLERK:  On the record.

 

     2               JUDGE CURRAN:  Thank you.  We are

 

     3 back on the record.  Do you wish to wait for Mr.

 

     4 Bevere?

 

     5               MR. PARIS:  No, I do not.

 

     6               JUDGE CURRAN:  I will note he is

 

     7 here.  He is just not in the court.

 

     8               MR. PARIS:  We are bringing in Dr.

 

     9 Goldwaser at 11.

 

    10               JUDGE CURRAN:  Mr. and Mrs. Smith

 

    11 are in the court.  The jury is not.

 

    12                In regard to the readings, I

 

    13 understand that there has been some agreement to

 

    14 certain changes but there are some issues

 

    15 remaining; is that correct?

 

    16               MS. SMITH:  Yes, Your Honor.  I

 

    17 can give you full copies of both depositions we

 

    18 will refer to this morning.

 

    19               JUDGE CURRAN:  Thank you.

 

    20                I will note that counsel has

 

    21 handed me the deposition of Dennis Elwell taken

 

    22 June 12th, 2006 and the deposition of Anthony,

 

    23 Iacono taken July 7th, 2006.

 

    24               COURT CLERK:  Off the record now?

 

    25               JUDGE CURRAN:  No, they'll be


 

 

                                                     5

 

 

     1 fine, thanks.

 

     2                Mr. Paris.

 

     3               MR. PARIS:  Your Honor, with

 

     4 regard to the deposition -- proposed deposition

 

     5 reads of Dennis Elwell, I'm going to page 62,

 

     6 line 24.  And the question was, "Was Charles

 

     7 Snyder ever disciplined for using the antigay,

 

     8 homophobic term" -- then it's in quotes --

 

     9 "cock-sucker," end quote.

 

    10                There was an objection by Mr.

 

    11 Bevere.  There was an objection by Mr. kneels,

 

    12 who was in the case at that point.

 

    13                Then the answer was,

 

    14 "Disciplined, no not to my knowledge."

 

    15                The objection was made at that

 

    16 point in time.  There is a characterization with

 

    17 regard to the phrase that was stated by Mr.

 

    18 Snyder.  It's really a characterization of

 

    19 counsel.  If she had asked the question, "Was he

 

    20 ever disciplined for using the word," et cetera,

 

    21 you know, again, "cock-sucker," that would have

 

    22 been one thing.  But she is characterizing the

 

    23 phrase and the intention with which,

 

    24 theoretically, had been said.

 

    25                So we do have a problem with that


 

 

                                                     6

 

 

     1 being read.  We object to that.

 

     2               MS. SMITH:  Judge, I offered to

 

     3 take the characterization out and ask simply if

 

     4 he had ever been disciplined.

 

     5               JUDGE CURRAN:  Any objection to

 

     6 that?

 

     7               MR. PARIS:  Not really.  I mean,

 

     8 it's cumulative.  I -- it's really cumulative

 

     9 because they have already established and there

 

    10 is not a dispute that he was disciplined or

 

    11 wasn't disciplined.  So I don't -- I don't know

 

    12 what question they're proposing that wasn't

 

    13 asked at depositions, that wasn't covered

 

    14 somewhere else in all the reads.  I mean, it's

 

    15 not a -- you know, it's not really a factual

 

    16 dispute here.

 

    17               MS. SMITH:  It goes to the Mayor's

 

    18 knowledge specifically, Your Honor.

 

    19               JUDGE CURRAN:  Right.

 

    20               MR. PARIS:  So I don't know what

 

    21 question they want to substitute.

 

    22               JUDGE CURRAN:  What they want to

 

    23 substitute, as I understand it, question, "Was

 

    24 Charles Snyder ever disciplined?"  Is that

 

    25 correct?


 

 

                                                     7

 

 

     1               MS. SMITH:  Yes, just leave out

 

     2 the characterization.

 

     3               MR. PARIS:  Well, I guess at that

 

     4 point it should probably -- you know, "Was

 

     5 Charles Snyder ever disciplined for using the

 

     6 word?"

 

     7               MS. SMITH:  That's fine.  I'll

 

     8 agree.

 

     9               JUDGE CURRAN:  I think that's a

 

    10 fair compromise, Mr. Paris.

 

    11               MR. PARIS:  That's fair.

 

    12               JUDGE CURRAN:  I don't find that

 

    13 that is cumulative in regard to Mayor Elwell's

 

    14 knowledge, so we'll simply make this for using

 

    15 the -- we can even keep term in there because

 

    16 then we're not changing anything -- or word,

 

    17 whichever is more convenient -- more

 

    18 appropriate, as far as either of the -- if you

 

    19 disagree, which I doubt you do.

 

    20                What's the next issue?

 

    21               MR. PARIS:  Next issue goes to the

 

    22 deposition of Anthony Iacono.  And we're going

 

    23 to page 52, line 10.  And again, this is a

 

    24 discussion that we had yesterday with regard to

 

    25 our objection to questions --


 

 

                                                     8

 

 

     1               JUDGE CURRAN:  Miss Catapano,

 

     2 would you wait for a moment.

 

     3                Go ahead.

 

     4               MR. PARIS:  -- with regard to our

 

     5 objections with questions related to workplace

 

     6 policy or harassment training within the

 

     7 workplace.  And the question -- the questions

 

     8 that are asked here go to that.

 

     9                In fact, if you look at question

 

    10 ten, it says, "Regarding harassment,

 

    11 discrimination in the workplace; is that right?"

 

    12 And it starts there.  And again, it's the same

 

    13 objection that we had yesterday with regard to

 

    14 the relevance of training within the workplace.

 

    15                And here -- if there was any

 

    16 ambiguity as to what was being asked, here it's

 

    17 clear.  They're asking about workplace

 

    18 harassment and discrimination training.  That

 

    19 issue has already been determined going back to

 

    20 the motions for summary judgment.  And here

 

    21 again we think these questions are irrelevant to

 

    22 this case.  Doesn't apply.  So --

 

    23               JUDGE CURRAN:  Thank you.

 

    24               MR. PARIS:  -- you know, I'm

 

    25 giving you that general objection to put that on


 

 

                                                     9

 

 

     1 the record again.  If we need to parse through

 

     2 which questions in particular, I'd be happy to

 

     3 do that; but I think that's where it starts.

 

     4                It's clear as he goes on,

 

     5 continuing through page 54, at various points in

 

     6 time they are talking about harassment in the

 

     7 workplace.

 

     8               JUDGE CURRAN:  Miss Smith.

 

     9               MS. SMITH:  Your Honor, we argued

 

    10 this yesterday; but I would just like to add for

 

    11 purposes of this deposition and this case the

 

    12 firefighters' workplace is the firehouse.  I

 

    13 mean, there may have been other ways that we

 

    14 could have asked that; but their workplace as

 

    15 firefighters is the firehouse.  And -- yeah, and

 

    16 where they meet with the public.

 

    17                But I rely on our arguments

 

    18 yesterday, Your Honor, with regard to this.

 

    19               MR. PARIS:  I think that that

 

    20 is -- that argument is a stretch, to say that

 

    21 because the firemen work in a firehouse, that's

 

    22 their workplace harassment issues.  The

 

    23 harassment policy, when we talk about workplace

 

    24 harassment, the policy is always with regard to

 

    25 employees and employees.


 

 

                                                    10

 

 

     1                But again, we made the argument

 

     2 yesterday.  I rely upon that argument, as well.

 

     3               JUDGE CURRAN:  What I will do

 

     4 would be to preserve your objection on the

 

     5 record.  I will make my determination the same

 

     6 as I did yesterday in regard to the issues that

 

     7 were -- thank you -- that arose when -- yes,

 

     8 that's fine, they can -- when we had the

 

     9 question with regard to "within" or "in" or

 

    10 "by."  I don't think I need to repeat the

 

    11 arguments.  I'm relying on the same arguments

 

    12 that were made on both sides yesterday.  And

 

    13 basically, I'll keep the decision the same.

 

    14                Anything else?

 

    15               MS. SMITH:  No, thank you, Your

 

    16 Honor.

 

    17               JUDGE CURRAN:  Mr. Paris, anything

 

    18 else?

 

    19               MR. PARIS:  No, I just -- just in

 

    20 terms of scheduling, Mr. Bevere will be here at

 

    21 11:00.  Dr. Goldwaser will be ready at 11:00.  I

 

    22 think, based upon what Your Honor had said about

 

    23 your view of the course of the day today, that's

 

    24 the witness that we have for today.

 

    25               JUDGE CURRAN:  Sure.


 

 

                                                    11

 

 

     1               MR. PARIS:  And then, after that,

 

     2 before -- before the jury leaves I think it

 

     3 would be appropriate for us to tell them what

 

     4 they can expect next week and -- and the week

 

     5 thereafter.

 

     6               JUDGE CURRAN:  Okay.

 

     7               MR. PARIS:  Thank you.

 

     8               MS. SMITH:  Yeah.

 

     9               JUDGE CURRAN:  The week

 

    10 thereafter?

 

    11               MR. PARIS:  Well, Your Honor --

 

    12               JUDGE CURRAN:  In case?

 

    13               MR. PARIS:  -- there are only

 

    14 three days next week.

 

    15               JUDGE CURRAN:  Let's not do that

 

    16 now.  You're right; there are only three days.

 

    17 And it's my understanding the charge conference

 

    18 is going to take two days, anyway.

 

    19               MR. PARIS:  There are motions to

 

    20 be made.  There are only three days next week.

 

    21               JUDGE CURRAN:  I got it.

 

    22               MR. PARIS:  Frankly, today is day

 

    23 eight or day nine.

 

    24               JUDGE CURRAN:  Right.

 

    25               MR. MULLIN:  Judge, is there any


 

 

                                                    12

 

 

     1 outside chance of trying this case on Friday

 

     2 next week?  Is that ever possible of --

 

     3               JUDGE CURRAN:  Friday is a

 

     4 non-motion day next week, right?

 

     5               MS. SMITH:  I think it's the 30th.

 

     6               JUDGE CURRAN:  Yeah, it's a

 

     7 non-motion.  What that means is that we have got

 

     8 Special Civil -- I will say this.  I could

 

     9 check, but I know that Judge Bariso is already

 

    10 in Atlantic City because he is speaking at the

 

    11 Bar Association today.  If I can get in touch

 

    12 with him down there, I will.

 

    13                I'm sure I'd still have to have

 

    14 my Special Civil cases because that's not fair

 

    15 to the other judges.  But you know, we could at

 

    16 least see.  I could theoretically cancel the

 

    17 proofs and friendlies.  And theoretically, they

 

    18 could not send me a DC case.

 

    19                So I could ask, but I can't

 

    20 really give you an answer on that today.

 

    21               MR. MULLIN:  Just thought I'd put

 

    22 it on the table, Judge.

 

    23               JUDGE CURRAN:  Absolutely.  What

 

    24 I -- okay.

 

    25               MR. PARIS:  Probably -- probably,


 

 

                                                    13

 

 

     1 if we are talking about that type of a day on

 

     2 Friday, maybe, again, presuming that motions are

 

     3 either not granted or reserved, maybe we could

 

     4 have a charge conference on Friday.

 

     5               JUDGE CURRAN:  And then that would

 

     6 not require the jury to come in.

 

     7               MR. PARIS:  They wouldn't have to

 

     8 come in.

 

     9               JUDGE CURRAN:  Because I am a

 

    10 little concerned we definitely told them no

 

    11 Fridays.  I will definitely see if we can do

 

    12 that.

 

    13               MR. PARIS:  Because I

 

    14 definitely -- I have to say I definitely expect

 

    15 that there are going to be witnesses the week

 

    16 after that.  They --

 

    17               JUDGE CURRAN:  You know, we really

 

    18 don't --

 

    19               MR. PARIS:  We can do that later.

 

    20               JUDGE CURRAN:  We can do that

 

    21 later.

 

    22               MR. PARIS:  That's fine.

 

    23               JUDGE CURRAN:  I just wanted to

 

    24 indicate they're sending up some jurors.  It

 

    25 will just take a moment, but it saves them


 

 

                                                    14

 

 

     1 having to wait.  Normally if jurors have arrest

 

     2 warrant issued for them, they are brought in and

 

     3 chastised by Judge Gallipoli.  He is not here

 

     4 today, so I am required to chastise them.

 

     5 Please keep a straight face, if you're in the

 

     6 courtroom.  Okay?

 

     7               MR. MULLIN:  Judge --

 

     8               JUDGE CURRAN:  Off the record.

 

     9               MR. MULLIN:  -- I was going to

 

    10 talk briefly about Interrogatory readings.  And

 

    11 we have had some e-mail communications.

 

    12               JUDGE CURRAN:  Okay.  Off the

 

    13 record.

 

    14               (Whereupon, a brief recess is

 

    15        taken.)

 

    16               COURT CLERK:  Jurors are

 

    17 approaching.

 

    18               (Whereupon, the jury is brought

 

    19        into the courtroom.)

 

    20               COURT CLERK:  On the record.

 

    21               JUDGE CURRAN:  Thank you.  On the

 

    22 record.

 

    23                Thank you, Ladies and Gentlemen.

 

    24 I apologize for keeping you waiting.  I actually

 

    25 delayed counsel.  And maybe we should have let


 

 

                                                    15

 

 

     1 you come out into court and see.  We had a

 

     2 number of jurors who failed to show up for jury

 

     3 duty, and warrants were issued for their arrest.

 

     4 And then they have to come in and explain why

 

     5 they did not show up.  And sometimes they are

 

     6 fined, sometimes not, depending on the

 

     7 circumstances.  But we did tell them that you

 

     8 all were in the jury room, you showed up, as you

 

     9 properly should, and you were being kept waiting

 

    10 by these individuals.  So I apologize for that.

 

    11                I am going to ask again that we

 

    12 put the appearances on the record for the jury.

 

    13               MR. MULLIN:  Good morning, Ladies

 

    14 and Gentlemen.  Neil Mullin, Nancy Erika Smith.

 

    15               JUDGE CURRAN:  Thank you.

 

    16               MR. PARIS:  Good morning, Ladies

 

    17 and Gentlemen.  David Paris, Piro, Zinna,

 

    18 Cifelli, Paris & Genitempo.  Mr. Bevere will be

 

    19 here shortly.

 

    20               JUDGE CURRAN:  Thank you.  And on

 

    21 behalf of the plaintiff, Mr. Mullin, what is

 

    22 your next witness or reading?

 

    23               MR. MULLIN:  We have a few short

 

    24 readings, Your Honor.

 

    25               JUDGE CURRAN:  Thank you, sir.


 

 

                                                    16

 

 

     1               MR. MULLIN:  Hopefully short.

 

     2               JUDGE CURRAN:  And you're doing

 

     3 the deposition -- readings from the deposition

 

     4 of Dennis Elwell; is that correct?

 

     5               MS. SMITH:  That's where we're

 

     6 starting, Your Honor.  Thank you.

 

     7               JUDGE CURRAN:  Miss Smith will

 

     8 read the questions, and Mr. Mullin will read the

 

     9 answers given on the record of Mr. Elwell.

 

    10               MR. MULLIN:  Your Honor, the

 

    11 deposition was taken on June 12th, 2006.

 

    12               JUDGE CURRAN:  Thank you.

 

    13               MS. SMITH:  Thank you, Your Honor.

 

    14 READING OF PORTION OF DENNIS ELWELL'S DEPOSITION

 

    15        Q      Okay.  Mr. Elwell --

 

    16               MR. MULLIN:  What page are you on?

 

    17               MS. SMITH:  Page 14.

 

    18               MR. MULLIN:  I don't have a list

 

    19 up here, so you have to help me.

 

    20               MS. SMITH:  I will give you a

 

    21 list.

 

    22               MR. MULLIN:  Thank you very much.

 

    23        Q      -- how long did you hold the

 

    24 second ward Council seat?

 

    25 A      Until 1999.


 

 

                                                    17

 

 

     1        Q      When you became Mayor?

 

     2 A      That's correct.

 

     3        Q      Do you know Charles Snyder, Sr.?

 

     4 A      Yes, I do.

 

     5        Q      How are you familiar with him?

 

     6 A      He is the assistant superintendent of

 

     7 Streets.  He has also been involved in the North

 

     8 End Firehouse for many, many years as a

 

     9 volunteer firefighter.

 

    10        Q      What about Charles Snyder, Jr.?

 

    11 A      I know him to be Charles Snyder, Sr.'s

 

    12 son.  I know he is involved in the firehouse

 

    13 too.

 

    14        Q      Do you have some familiarity with

 

    15 the North End Firehouse?

 

    16 A      Yes.

 

    17        Q      And are you familiar with its

 

    18 members?

 

    19 A      Yes.

 

    20        Q      And how are you familiar with its

 

    21 members?

 

    22 A      Well, it's a small Town.  I happen to

 

    23 live in the North End.  My great grandfather was

 

    24 a founding member of the firehouse.  Also, any

 

    25 firefighter who becomes a member of any


 

 

                                                    18

 

 

     1 firehouse, the Mayor and Council must vote on

 

     2 approving them.  And we also must vote to

 

     3 dismiss them.  So we have a general idea of

 

     4 who's in the firehouse.

 

     5          There is, I think, maybe 12 or 15 men

 

     6 in there, so we have a general idea.  If you ask

 

     7 me today exactly what the roster is, I could not

 

     8 answer that; but we have a general knowledge.

 

     9        Q      Did you indicate that you are

 

    10 responsible for the hiring and firing of these

 

    11 firefighters?

 

    12               MR. MULLIN:  And Mayor Elwell

 

    13 answers.

 

    14 A      Well, when a firefighter becomes a

 

    15 firefighter, they have to meet certain

 

    16 qualifications put out by the Town and Fire

 

    17 Department.  Once we are advised by the Fire

 

    18 Chief that they have finished all training, yes,

 

    19 we vote to hire them.

 

    20        Q      Do you vote based on a

 

    21 recommendation by the Chief, or do you do any

 

    22 independent evaluation?

 

    23 A      No, generally by recommendation of the

 

    24 Chief.

 

    25               MS. SMITH:  Page 20.


 

 

                                                    19

 

 

     1        Q      You testified earlier that in the

 

     2 last few years there have been five or six

 

     3 resignations.  Have there been any involuntary

 

     4 separations of firefighters from the Department

 

     5 based on a vote of the Mayor and Council?

 

     6 A      Yes.

 

     7        Q      Who is that?

 

     8 A      His name escapes me now.  There was one

 

     9 firefighter the Mayor and Council removed from

 

    10 his position.

 

    11        Q      Do you know why?

 

    12 A      Yes, based on reports given to us by our

 

    13 fire chiefs.

 

    14        Q      Based on safety?  Based on what?

 

    15 A      Moral character.

 

    16        Q      You testified that there was an

 

    17 individual who was let go from the Fire

 

    18 Department based on an issue related to his

 

    19 moral character.  Those were your words; is that

 

    20 accurate?

 

    21 A      Yes.

 

    22        Q      Are you familiar with this

 

    23 individual's name?

 

    24 A      Yes, now I am.  It came back to me.

 

    25        Q      What is this person's name?


 

 

                                                    20

 

 

     1 A      Richard Ballans.

 

     2        Q      What was it that Richard Ballans

 

     3 did to be removed from the Fire Department as a

 

     4 result of his moral character?

 

     5 A      There was an allegation involving serving

 

     6 alcoholic beverages to a minor.  There was

 

     7 another allegation that just escapes me right

 

     8 now.  I can't comment on it because I don't

 

     9 remember.

 

    10        Q      Was he serving the alcoholic

 

    11 beverages to a minor in the firehouse?

 

    12 A      No.

 

    13        Q      Where was it?

 

    14 A      At a local park.

 

    15        Q      Did he come up before some kind of

 

    16 disciplinary committee?

 

    17 A      I think he went in front of the local

 

    18 municipal judge.

 

    19        Q      Was he arrested?

 

    20 A      No, I think the charges were dropped.

 

    21        Q      So yes, he was arrested; but then

 

    22 the charges were dropped?

 

    23 A      I'm not aware of an arrest.  It was

 

    24 reported to us.  That would have been done in

 

    25 the investigation that was done by Chief Eggers


 

 

                                                    21

 

 

     1 that I talked to you about before.

 

     2        Q      Why did he go before the local

 

     3 municipal judge?

 

     4 A      There was an allegation, only an

 

     5 allegation of giving a minor alcoholic

 

     6 beverages.  I'm not aware what happened in

 

     7 court.  That was all done in the investigation

 

     8 by Chief Eggers.

 

     9        Q      Do you know who currently is a

 

    10 member of the North End Firehouse?

 

    11 A      Yes, I have an idea who is, yes.

 

    12        Q      Do you know any of them better

 

    13 than just knowing that you have an idea that

 

    14 they are in the North End Firehouse?

 

    15 A      With respect to certain members I know

 

    16 longer than others.

 

    17        Q      Perhaps it would be easier to do

 

    18 it this way.  Do you know Charles Snyder, Sr.?

 

    19               MR. MULLIN:  Mayor Elwell answers.

 

    20 A      Yes.

 

    21        Q      How long have you known him?

 

    22 A      I would say 15 to 20 years.

 

    23        Q      Have you ever socialized with him?

 

    24 A      Once or twice.

 

    25        Q      Recently?


 

 

                                                    22

 

 

     1 A      Describe recently.

 

     2        Q      In the last five years?

 

     3 A      Yes.

 

     4        Q      Were both times in the last five

 

     5 years?

 

     6 A      Yes.

 

     7        Q      What did that socializing involve?

 

     8 A      Fire Departments, many of them have a

 

     9 party where, you know, they go out of the

 

    10 firehouse, they invite the Mayor and Council out

 

    11 to dinner once a year; and I think the two

 

    12 occasions of socializing with Charles Snyder was

 

    13 at those functions.

 

    14        Q      Do you remember what years those

 

    15 functions took place?

 

    16 A      Well, I think there was one I was always

 

    17 invited as Mayor.  So I imagine they took place

 

    18 in the years from the year 2000 going forward.

 

    19 I was not generally invited as a councilman.

 

    20        Q      But you don't recall which years

 

    21 you attended from the year 2000?

 

    22 A      I don't want to say year because if you

 

    23 are more specific, I could probably be more

 

    24 specific.  I don't know what year.

 

    25        Q      Do you know Charles Snyder, Jr.?


 

 

                                                    23

 

 

     1 A      Yes.

 

     2        Q      How long have you known him?

 

     3 A      I know him to be Charles Snyder, Sr.'s

 

     4 son; that is all I know of him.

 

     5        Q      Do you know Charles Mutschler?

 

     6 A      I know him to be a firefighter.  I knew

 

     7 his father very well.

 

     8               MS. SMITH:  Page 31.

 

     9        Q      As Mayor of Secaucus what do your

 

    10 job responsibilities include?

 

    11 A      I'm a member of the governing body.  I

 

    12 chair meetings.  I sign documents.  I sit on

 

    13 certain boards that are -- that I'm obligated to

 

    14 be on by State statute.  I have sole

 

    15 appointments to different statutory boards.  I

 

    16 can marry people.  I think I said chair

 

    17 meetings.  I chair our Council meetings.  And I

 

    18 vote on issues.

 

    19        Q      Who do you supervise?

 

    20 A      We have a chain of command here.

 

    21 Normally my contact with other employees would

 

    22 be through the Town Administrator.

 

    23        Q      Do you have your own support

 

    24 staff?

 

    25 A      I have a secretary.  I have a Town


 

 

                                                    24

 

 

     1 attorney.

 

     2        Q      Do they report to you?

 

     3 A      Yes.

 

     4        Q      Anyone else?

 

     5 A      The Administrator, Chief Financial

 

     6 Officer, Purchasing Agent, Town Clerk,

 

     7 Superintendent of Streets, all department heads.

 

     8        Q      Is that it?

 

     9 A      Yes.

 

    10        Q      Anyone responsible for human

 

    11 resources?

 

    12 A      The Town Administrator, he is our Equal

 

    13 Opportunity Employment officer.  He handles, and

 

    14 I believe that is by ordinance that we have to

 

    15 have in place that gives him that position.

 

    16        Q      Do you know whether sexual

 

    17 orientation training is provided?

 

    18               MR. PARIS:  Objection, Your Honor.

 

    19 That was -- that was not read totally

 

    20 accurately, the answer.

 

    21               MR. MULLIN:  Which.

 

    22               JUDGE CURRAN:  I didn't think it

 

    23 was significant; but I will ask you please to

 

    24 reread the last question, starting with line

 

    25 14 --


 

 

                                                    25

 

 

     1               MR. PARIS:  Thank you very much.

 

     2               JUDGE CURRAN:  -- and after.

 

     3        Q      Anyone responsible for human

 

     4 resources?

 

     5 A      The Town Administrator, he is our Equal

 

     6 Opportunity Employment officer.  He handles and

 

     7 I believe that is by an ordinance that we have

 

     8 in place that gives him that position.

 

     9        Q      Do you know whether sexual

 

    10 orientation training is provided to any Town

 

    11 employees?

 

    12 A      It's provided to all employees.

 

    13        Q      Sexual orientation specifically,

 

    14 not sexual harassment?

 

    15 A      You know what, I'm not understanding your

 

    16 word.  I know there is training.  There were

 

    17 seminars.  There were classes.

 

    18        Q      You're not understanding the word

 

    19 "sexual orientation"?

 

    20 A      I don't know what you mean by that.

 

    21        Q      You don't know what I mean by the

 

    22 words "sexual orientation"?

 

    23 A      No.

 

    24               MS. SMITH:  Thirty-nine.

 

    25        Q      Now, moving to the events of


 

 

                                                    26

 

 

     1 April 25th, 2004 -- and when I say that, I'm

 

     2 going to assume that you know what I mean --

 

     3 that I mean what took place at 988 Schopmann

 

     4 Drive between the firefighters and my clients.

 

     5 Is that fair?

 

     6 A      That's fair.

 

     7        Q      When did you first find out what

 

     8 happened?

 

     9 A      I received a phone call I would guess

 

    10 somewhere between 1 and 2:00 in the morning.  I

 

    11 was woken up.  I was asleep.  So somewhere

 

    12 between 1 and 2:00 in the morning.

 

    13        Q      Who called you?

 

    14 A      Chuck Snyder, Sr.

 

    15        Q      What did he say?

 

    16 A      He called.  He asked me to come over.  He

 

    17 said there was a problem at the firehouse.

 

    18        Q      What was Chuck Snyder, Sr.'s title

 

    19 at that time?

 

    20 A      You know, he has been a captain of that

 

    21 firehouse several times.  At that point I can't

 

    22 tell you.  I don't know who the captain was.  It

 

    23 could have been him.  It could have been his

 

    24 son.  It could have been any other firefighter.

 

    25 They share terms for like a year.  They have


 

 

                                                    27

 

 

     1 their own in-house elections.  So I can't tell

 

     2 you if he was a captain or he was just -- if he

 

     3 was a -- just a firefighter.

 

     4        Q      Do you know why he was the one who

 

     5 called you?

 

     6 A      No, I have no knowledge as to why.

 

     7        Q      And what did you do?

 

     8 A      I got up, I got dressed and I went to the

 

     9 firehouse.

 

    10        Q      And what did you see when you got

 

    11 there?

 

    12 A      There was a police car there.  There was

 

    13 some firefighters there.  I guess Chuck Snyder

 

    14 might have been outside waiting for me to come.

 

    15 There was some firefighters inside.  That is

 

    16 what I saw.

 

    17        Q      Did you speak to anyone on the

 

    18 scene?

 

    19 A      I spoke to Chuck Snyder.  And I'm trying

 

    20 to think.  There was a police officer there.

 

    21 I'm not really sure which police officer.

 

    22        Q      And when you --

 

    23 A      But there was a police officer there.

 

    24        Q      When you say, "Chuck Snyder," you

 

    25 mean Senior?


 

 

                                                    28

 

 

     1 A      Yes.

 

     2        Q      What did he say to you at that

 

     3 time?

 

     4 A      I asked him what happened.  He said there

 

     5 was a commotion between the -- some -- I guess

 

     6 he said there was charges made by two neighbors.

 

     7 There was a commotion.  There was some yelling

 

     8 and screaming.  And that was all.

 

     9        Q      How long did you stay at the site?

 

    10 A      Probably no more than -- less than five

 

    11 minutes.

 

    12        Q      Did you speak to the police

 

    13 officer who was there?

 

    14 A      Yes, I did.

 

    15        Q      And what did he say?

 

    16 A      He said he had asked the firefighters to

 

    17 close the firehouse and go home.

 

    18        Q      When you were speaking with Chuck

 

    19 Snyder, Sr., did he indicate that he had done

 

    20 any yelling that evening?

 

    21 A      No.

 

    22        Q      So you were there for, what did

 

    23 you say, 10 or 15 minutes?

 

    24 A      Five minutes.

 

    25        Q      I'm sorry.  And then you went


 

 

                                                    29

 

 

     1 home?

 

     2 A      What I did was I told the firefighters to

 

     3 close the firehouse and go home.  And then I

 

     4 went home --

 

     5        Q      Was the --

 

     6 A      -- which they did.

 

     7        Q      Was the firehouse clear when you

 

     8 left?

 

     9 A      Yes -- well, there was a police officer

 

    10 there; and firefighters were clearing out.

 

    11        Q      Would it surprise you to learn

 

    12 that there is a police report that indicates

 

    13 that while the police were trying to get the

 

    14 firefighters out of the firehouse that Charles

 

    15 Snyder, Sr. was on his cell phone indicating

 

    16 that he was calling you in order so they can

 

    17 stay?

 

    18 A      I know he called me.  I don't know who

 

    19 was there when he called me.  I did go there,

 

    20 and I told him to close the firehouse and go

 

    21 home.

 

    22        Q      Now, later that morning on the

 

    23 25th, what is the first thing -- and I mean

 

    24 besides breakfast and so forth.  What is the

 

    25 first thing that you did?  Did you attend a


 

 

                                                    30

 

 

     1 meeting with a number of other Town officials,

 

     2 or did you go to the home of Peter and Tim?

 

     3 A      No.

 

     4        Q      When you first got up that

 

     5 morning, after breakfast and so forth, did you

 

     6 attend a Town meeting with other officials?

 

     7 A      Yes.

 

     8        Q      Was that the first thing that you

 

     9 did before going to the home of Timothy Carter

 

    10 and Peter deVries?

 

    11 A      Yes.

 

    12        Q      Who was present at the meeting

 

    13 that you attended on April 25th, 2004?

 

    14 A      It's a long time ago.  I go to a lot of

 

    15 meetings.

 

    16        Q      To the best of your recollection?

 

    17 A      To the best of my recollection, Charles

 

    18 Snyder, Sr., Charles Snyder, Jr., myself,

 

    19 Councilman John Reilly, Chief Walters, Deputy

 

    20 Chief Raymond Cieciuch, the Police Chief.  I

 

    21 think that's all.  There may have been another

 

    22 person.  You know, it was held right in this

 

    23 room here.  If there was someone else, there may

 

    24 have been; but I'm not going to comment on that.

 

    25        Q      Who called the meeting?


 

 

                                                    31

 

 

     1 A      I did.

 

     2        Q      Who was responsible for deciding

 

     3 who was at the meeting?

 

     4 A      Well, obviously, after the incident, the

 

     5 night before, when I got up in the morning I

 

     6 called Councilman John Reilly, who was the fire

 

     7 liaison.  And I told him I thought there was an

 

     8 incident at the North End Firehouse and I

 

     9 thought we should sit and meet and find out

 

    10 exactly what happened.

 

    11          And I think at that point he reached

 

    12 out to the fire chiefs and/or I may have called

 

    13 them myself.  Two years later I don't remember

 

    14 exactly who -- I remember making phone calls.  I

 

    15 think I made one phone call and the rest of it

 

    16 just happened.  To the best of my knowledge,

 

    17 anyway.

 

    18        Q      Do you recall why Chuck Snyder was

 

    19 present at the meeting?

 

    20 A      I said, "Charles Snyder."

 

    21        Q      Do you know why he was present?

 

    22 Did you request him to be present?

 

    23 A      He would have been a captain of the house

 

    24 or just he was a longtime member of the house.

 

    25 I can't answer that.  It could be because I did


 

 

                                                    32

 

 

     1 speak to him that night.

 

     2        Q      I just want to make sure I am

 

     3 clear.  You didn't personally invite each person

 

     4 who participated?  You indicated to one or two

 

     5 people, "Gather some folks together, we need to

 

     6 sit down"?

 

     7 A      Absolutely.

 

     8        Q      During the course of that meeting

 

     9 did anyone use the phrase, "You're going to" --

 

    10               MS. SMITH:  I'm sorry.

 

    11        Q      -- "You're going to believe those

 

    12 cock-suckers over me?"

 

    13 A      You know, that meeting was -- there were

 

    14 a lot of things going on at that meeting.  I may

 

    15 have heard the term that you just used.  I don't

 

    16 know that I could ascertain exactly who said it.

 

    17 And there was a reason for that.  There was a

 

    18 phone call that came to me from my wife.  There

 

    19 were other phone calls that had come in because

 

    20 I have a business.  I had people working.  And

 

    21 the door was open.  I walked out.  And I walked

 

    22 back in.  So there was a quite a bit of

 

    23 conversation going on at the time.  And you

 

    24 know, I think even in the police report that I

 

    25 gave I said that I did hear that term but I


 

 

                                                    33

 

 

     1 could not ascertain who said it.

 

     2               MS. SMITH:  An exhibit was then

 

     3 shown to Mr. Elwell, Your Honor.  It's called

 

     4 Elwell-1 in the record.  Today it's P-342.

 

     5               JUDGE CURRAN:  Thank you.

 

     6 A      That's my report.  I said this.

 

     7        Q      I haven't asked you a question

 

     8 yet.

 

     9 A      Okay.

 

    10        Q      I'm only going to ask you about

 

    11 the front page, but you can read the whole

 

    12 thing.

 

    13 A      Okay.

 

    14        Q      Have you had the opportunity to

 

    15 review the document that has been marked as

 

    16 Elwell-1 for Identification?

 

    17 A      Yes.

 

    18        Q      Is it familiar to you?

 

    19 A      Yes.

 

    20        Q      Is it a document that you have

 

    21 seen before today?

 

    22 A      I don't know that I seen it.  I remember

 

    23 giving the one part of it where I was asked

 

    24 questions.  I know -- I don't think I have ever

 

    25 actually looked at the document.


 

 

                                                    34

 

 

     1        Q      Does it refresh your recollection

 

     2 as to who said, "Are you going to believe those

 

     3 cock-suckers over me"?

 

     4 A      Yes.

 

     5        Q      Who was that person?

 

     6 A      According to the report, Chuck Snyder,

 

     7 Sr.

 

     8        Q      Does the report reflect what you

 

     9 told Detective Sergeant Michael Reinke on

 

    10 4/29/04?

 

    11 A      Well, if that is what he wrote, I assume,

 

    12 yes, that's what I said.

 

    13        Q      So it accurately reflects what you

 

    14 told Detective Sergeant Michael Reinke on

 

    15 4/29/04?

 

    16 A      Yes.

 

    17               MS. SMITH:  Fifty-six.

 

    18        Q      Okay.  Following events of

 

    19 April 25th, 2004 did numerous members of Engine

 

    20 Company Number 3 threaten to resign?

 

    21               MR. MULLIN:  Number 2, Engine

 

    22 Company Number 2.

 

    23               MS. SMITH:  Sorry.

 

    24 A      I remember reading that in the newspaper,

 

    25 yes.


 

 

                                                    35

 

 

     1               MS. SMITH:  Whereupon what was

 

     2 marked Elwell-3 was marked for Identification,

 

     3 Your Honor.  Elwell-3 is P-399 in this record.

 

     4               JUDGE CURRAN:  Thank you.

 

     5 A      I also remember this.  It was also in the

 

     6 newspaper.

 

     7        Q      Have you had an opportunity to

 

     8 review what's been marked as Elwell-3 for

 

     9 Identification?

 

    10 A      Yes.

 

    11        Q      You were copied on this memo?

 

    12 A      Yes.

 

    13        Q      Do you remember receiving it?

 

    14 A      Well, now that I see it, yes.

 

    15        Q      Were you involved in responding to

 

    16 this memo?

 

    17 A      I think about that point every time we

 

    18 received anything we sent it through our

 

    19 administrator to our, I don't know, you can --

 

    20 I'm not sure what happened with that.

 

    21        Q      Did you participate in the

 

    22 decision-making process as to whether or not the

 

    23 firehouse should open?

 

    24 A      Initially there was an order to close the

 

    25 firehouse for all activities other than fires.


 

 

                                                    36

 

 

     1 It was a period of time after that that the

 

     2 governing body allowed the firefighters, the

 

     3 firehouse to open back up.  I'm not sure what it

 

     4 was, but it was somewhat of a few months or

 

     5 something like that.  I know that the firehouse

 

     6 was closed for all activities for a period of

 

     7 time.  And then at one point we did allow them

 

     8 to go back into the firehouse because the

 

     9 firehouse was used for training and other

 

    10 duties, cleaning of equipment and training and

 

    11 actual training sessions that are held on

 

    12 evenings and weekends.

 

    13        Q      So you participated in that

 

    14 decision?

 

    15 A      Yes.

 

    16        Q      And was it -- as a result of this

 

    17 threatened resignation?

 

    18               MR. MULLIN:  Read it again.

 

    19        Q      And was it as a result of this

 

    20 threatened resignation?

 

    21 A      No, I don't think so.  I think that came

 

    22 at a later date.  I'm not sure of the exact

 

    23 dates, but I'm -- unless you're going to show me

 

    24 something I did it the next week, it was never

 

    25 my intention that the firefighters were going to


 

 

                                                    37

 

 

     1 threaten us into -- by resignation.

 

     2               MS. SMITH:  At this point Exhibit

 

     3 Elwell-4 is marked, Your Honor.  And in this

 

     4 proceeding Elwell-4 is P-344.

 

     5               JUDGE CURRAN:  Thank you.

 

     6        Q      Have you had the opportunity to

 

     7 review what's been marked as Elwell-4 for

 

     8 Identification?

 

     9 A      Yes.

 

    10        Q      Referring your attention to

 

    11 Elwell-3, the signatures attached to this

 

    12 letter, do you have that in front of you still?

 

    13 A      Yes, I have that.

 

    14        Q      That is dated April 29th, 2004; is

 

    15 that accurate?

 

    16 A      Yes.

 

    17        Q      So the threatened resignation is

 

    18 on April 29th, according to Elwell-3?

 

    19 A      Yes.

 

    20        Q      Elwell-4 is dated April 30th,

 

    21 2004.  And it is to Fire Chief Walters from

 

    22 Anthony Iacono.  You are copied on that letter.

 

    23 This is the first time that you have seen it?

 

    24 A      No, I have seen it.  I don't know that I

 

    25 saw it on April 30th, though.  I may have seen


 

 

                                                    38

 

 

     1 it at a later date.

 

     2        Q      Did you agree with the decision by

 

     3 Anthony Iacono to open the houses, not just for

 

     4 use of fighting fires but for full use without

 

     5 any restrictions?

 

     6               MR. MULLIN:  Couple minor word

 

     7 changes.  You want to just read it again.

 

     8               MS. SMITH:  I'm sorry.

 

     9        Q      Did you agree with this decision

 

    10 by Anthony Iacono to open the houses not only

 

    11 for use of fighting fires but for full use

 

    12 without any restrictions?

 

    13 A      Yes.

 

    14        Q      And that would include the use of

 

    15 alcohol?

 

    16 A      No, that would not.

 

    17        Q      Without any restrictions

 

    18 doesn't --

 

    19 A      There was no alcohol allowed in the Fire

 

    20 Department at this -- at this point.

 

    21        Q      I think you were misunderstanding

 

    22 my question.  Going forward pursuant to the

 

    23 letter would there have been -- strike that

 

    24 question.

 

    25          After this letter of April 30th, 2004,


 

 

                                                    39

 

 

     1 the North End Firehouse was permitted full use

 

     2 without any restrictions.  Does that include no

 

     3 restrictions on the use of alcohol in the house?

 

     4 A      I think the intent of the letter was the

 

     5 firehouse was open.  We suspended the use of the

 

     6 firehouse for anything other than when an alarm

 

     7 went off.  The firefighters could go and take

 

     8 equipment and go to a fire.  I think the words

 

     9 "full use of the firehouse without any

 

    10 restrictions" was geared to only fire duties.

 

    11 As I said before, the firefighters were not

 

    12 allowed to drink alcohol in their firehouse

 

    13 unless they were off-duty.

 

    14        Q      So when was the North End

 

    15 Firehouse again permitted to have alcohol in the

 

    16 firehouse for use socially?

 

    17 A      I can't ascertain that.  That would be

 

    18 done by the Fire Chief.

 

    19        Q      And you would have no involvement

 

    20 in that decision?

 

    21 A      No, that is a decision that is left

 

    22 entirely up to the Fire Department.  If they

 

    23 sign themselves off-duty, we are not aware of --

 

    24        Q      I'm talking about using the North

 

    25 End Firehouse for drinking, even if they are


 

 

                                                    40

 

 

     1 off-duty.

 

     2 A      They are not allowed to drink in the

 

     3 firehouse.

 

     4        Q      Even if they are off-duty?

 

     5 A      If they sign themselves off-duty, then

 

     6 they can have alcoholic beverages.

 

     7        Q      In the firehouse?

 

     8 A      In the firehouse.

 

     9        Q      How soon after April 25th, 2004

 

    10 was that reinstated?

 

    11 A      Well, if you're saying the incident

 

    12 happened on April 25th, five days.  But I don't

 

    13 think the intention of the administrator's

 

    14 letter was to say that they could have a party

 

    15 at the firehouse.  I'm not going to comment any

 

    16 further because it's not my memo.  I was only

 

    17 copied on it.

 

    18        Q      Were you involved in the

 

    19 decision-making process as to when there could

 

    20 be the social use of alcohol in the North End

 

    21 Firehouse after the events of April 25th, 2004?

 

    22 A      I don't know that we -- I'm not aware of

 

    23 any -- I don't remember any decisions to allow

 

    24 the use of the house for social functions.

 

    25        Q      Could such decisions have been


 

 

                                                    41

 

 

     1 made without your approval?

 

     2 A      I don't know.  I don't think so.  I'm

 

     3 just not aware of it or I don't remember.  Maybe

 

     4 I should rephrase that.

 

     5               MS. SMITH:  Finally.

 

     6        Q      Was Charles Snyder ever

 

     7 disciplined for using the term "cock-sucker"?

 

     8 A      Disciplined, no, not to my knowledge.

 

     9               MS. SMITH:  Moving to Mr. Iacono,

 

    10 Your Honor.

 

    11               JUDGE CURRAN:  Thank you.

 

    12               MS. SMITH:  Starting at page 26,

 

    13 the deposition of Anthony Iacono, which occurred

 

    14 on July 7th, 2006.

 

    15               JUDGE CURRAN:  Thank you.

 

    16 READING OF PORTION OF ANTHONY IACONO'S

 

    17 DEPOSITION

 

    18        Q      Are you currently a Secaucus

 

    19 firefighter?

 

    20 A      Yes, I am.

 

    21        Q      What engine?

 

    22 A      Engine 3.

 

    23        Q      How long have you been a

 

    24 firefighter?

 

    25 A      Eight years.


 

 

                                                    42

 

 

     1        Q      Have you always been with Engine

 

     2 3?

 

     3 A      Yes.

 

     4        Q      Do you socialize with other

 

     5 firefighters?

 

     6 A      Yes.

 

     7        Q      Do you socialize with any of the

 

     8 Secaucus Police Officers?

 

     9 A      Yes.

 

    10        Q      Which firefighters do you

 

    11 socialize with?

 

    12 A      Can you define "socialize with"?

 

    13        Q      Go out for drinks, have dinner,

 

    14 have them come to your house, go to your house.

 

    15 Any of those; it doesn't have to be all four.

 

    16 A      Do I consider some of the Secaucus

 

    17 officers and firefighters my friends?  Yes.  Do

 

    18 I occasionally play golf with both firefighters

 

    19 and police officers?  Yes.  Have I been to

 

    20 dinner with both police and fire occasionally?

 

    21 Occasionally, yes.

 

    22               MS. SMITH:  Page 35.

 

    23        Q      You have been the Town

 

    24 Administrator for Secaucus for how long?

 

    25 A      Ten years.


 

 

                                                    43

 

 

     1               MS. SMITH:  Thirty-six.

 

     2        Q      Have you always been the Town

 

     3 Administrator in --

 

     4               MS. SMITH:  I'm sorry.

 

     5        Q      Have you held other positions

 

     6 within the Town of Secaucus besides Town

 

     7 Administrator?

 

     8 A      Yes.

 

     9        Q      Do you currently hold other

 

    10 positions?

 

    11 A      Yes.

 

    12        Q      Currently what other positions do

 

    13 you hold?  That includes paid and nonpaid

 

    14 positions.

 

    15 A      I am the vice chairman of the Secaucus

 

    16 Municipal Utility Authority.

 

    17        Q      Is that paid?

 

    18 A      Nonpaid.  I am the EEO officer for the

 

    19 Town of Secaucus.

 

    20        Q      Paid or nonpaid?

 

    21 A      I don't receive a stipend for that.  It

 

    22 is part of my -- part of the duties as

 

    23 administrator.  I am State certified.  I am also

 

    24 a certified consumer affairs investigator, which

 

    25 I do receive a stipend.  I am a member of the


 

 

                                                    44

 

 

     1 Secaucus Planning Board, which I do not get

 

     2 paid.  I am a member of the Secaucus Volunteer

 

     3 Fire Department, which I do receive a stipend.

 

     4 I serve on some advisory committees.

 

     5        Q      Anything else?

 

     6 A      No.  No.

 

     7        Q      Is the Town Administrator a

 

     8 full-time job?

 

     9 A      Yes, it is.

 

    10               MS. SMITH:  Page 40.

 

    11        Q      During the time that you have been

 

    12 a firefighter has the consumption of alcohol

 

    13 been permitted in the firehouses?

 

    14 A      As it pertains to the policy, which is

 

    15 the policy of allowing alcohol at private

 

    16 parties and firehouses, yes.

 

    17        Q      And is that the current policy?

 

    18 A      It's the current policy, yes.

 

    19        Q      And has that always been the

 

    20 policy?

 

    21 A      Over the years it may have gotten -- the

 

    22 policy may have tightened up a little bit; but

 

    23 to the best that I recall, the firehouse as a

 

    24 meeting facility has always been allowed to be

 

    25 taken out by members and guests of members as a


 

 

                                                    45

 

 

     1 banquet hall, so to speak.

 

     2        Q      Has the policy always been that

 

     3 you need to get permission to use the firehouse

 

     4 for that purpose?

 

     5 A      In my ten years as the administrator,

 

     6 yes.

 

     7        Q      And what is the process for

 

     8 obtaining permission to use the firehouse for

 

     9 purposes that include the consumption of

 

    10 alcohol?

 

    11 A      A member from that individual firehouse

 

    12 may request the use of the facility.

 

    13               MR. PARIS:  Your Honor, I hate to

 

    14 interrupt.  Can I be heard at sidebar for one

 

    15 second, please?

 

    16               JUDGE CURRAN:  Sure.

 

    17               (Whereupon, the following sidebar

 

    18        discussion is held.)

 

    19               MR. PARIS:  Your Honor, I know

 

    20 that it was referenced earlier by Mr. Mullin

 

    21 when he had the permit form up there; but there

 

    22 is a reference in this answer to notification of

 

    23 the insurance company.  The insurance company

 

    24 had nothing to do with the events afterwards.  I

 

    25 think that that should be removed from the


 

 

                                                    46

 

 

     1 answer.

 

     2               MR. MULLIN:  Why don't we just

 

     3 strike it from the end of line 67?

 

     4               MR. PARIS:  I'd appreciate it very

 

     5 much.

 

     6               JUDGE CURRAN:  Thank you.

 

     7               MR. MULLIN:  I will do it on my

 

     8 copy.

 

     9               MR. PARIS:  Thank you, Your Honor.

 

    10               (Whereupon, sidebar discussion is

 

    11        concluded.)

 

    12               MR. MULLIN:  Hang on a second.

 

    13 What page was that?

 

    14               MS. SMITH:  Forty going on -- the

 

    15 answer is on 41.

 

    16               MR. MULLIN:  The issue we just

 

    17 dealt with what page was that on.

 

    18               MS. SMITH:  Forty-one.  Okay.  I

 

    19 will ask the question again.

 

    20               MR. MULLIN:  Very good.

 

    21               MS. SMITH:  Is that okay, Your

 

    22 Honor?

 

    23               JUDGE CURRAN:  Okay.

 

    24        Q      What is the process for obtaining

 

    25 permission --


 

 

                                                    47

 

 

     1               MR. MULLIN:  Oops, I'm screwing

 

     2 up.  Something went over the side.  Thank you

 

     3 very much.

 

     4        Q      And what is the process for

 

     5 obtaining permission to use the firehouse for

 

     6 purposes that include the consumption of

 

     7 alcohol?

 

     8 A      A member from that individual firehouse

 

     9 may request the use of the facility.  He fills

 

    10 out a Town form; and it is signed by the

 

    11 individual member, signed by the Chief of the

 

    12 Department and I believe the captain of the

 

    13 particular company.

 

    14        Q      And what kind of information does

 

    15 the form request?

 

    16 A      I believe it requests the names of the he

 

    17 individual using the facility.

 

    18        Q      Does it request the names of

 

    19 people who would be present?

 

    20 A      No.

 

    21        Q      Does it require information

 

    22 regarding the amount of alcohol that would be

 

    23 served?

 

    24 A      No.

 

    25        Q      Does it require information


 

 

                                                    48

 

 

     1 regarding the type of alcohol that would be

 

     2 served?

 

     3 A      No.

 

     4        Q      Did you, as Town Administrator,

 

     5 establish the rule that a permit is required to

 

     6 use the firehouse for the consumption of

 

     7 alcohol?

 

     8 A      The best of my knowledge the policy had

 

     9 been in place prior to me being administrator.

 

    10        Q      So that's always been the policy

 

    11 as far as your recollection is concerned?

 

    12 A      That's correct.

 

    13               MS. SMITH:  Forty-eight.

 

    14        Q      Going back to the certifications

 

    15 that you hold, are there actual certifications,

 

    16 pieces of paper, that you have that indicate

 

    17 that you are certified?

 

    18 A      Yes.

 

    19        Q      Do you have them?

 

    20 A      Yes.

 

    21        Q      I am going to ask that you produce

 

    22 them to your lawyer.  Throw them in the Xerox,

 

    23 that would be fine.  I have already used the

 

    24 term; but throughout the remainder of your

 

    25 deposition I will be using the term "sexual


 

 

                                                    49

 

 

     1 orientation discrimination" and "sexual

 

     2 orientation harassment."  Do you understand

 

     3 those terms?

 

     4 A      Yes.

 

     5        Q      What do you understand them to be?

 

     6 A      Sexual orientation?

 

     7        Q      Discrimination and sexual

 

     8 orientation harassment.

 

     9 A      As far as discriminating against someone

 

    10 based on his sexual orientation.

 

    11        Q      What about harassment?

 

    12 A      The same, harassing someone based on his

 

    13 sexual orientation.

 

    14        Q      What are your responsibilities as

 

    15 the Equal Employment Opportunity officer?

 

    16 A      Primarily to make sure that the Town is

 

    17 in compliance with our hirings and our

 

    18 performance as public servants to the community.

 

    19        Q      And how do you do that?

 

    20 A      Make sure we are in total compliance with

 

    21 law.

 

    22        Q      As a practical matter, how do you

 

    23 ensure that that is happening?

 

    24 A      We have policies in place, and we promote

 

    25 a safe and clean harassment-free environment in


 

 

                                                    50

 

 

     1 the workplace.

 

     2        Q      How do you do that in addition

 

     3 to -- let's back up a minute.  Where do the

 

     4 policies come from?

 

     5 A      The policies are reviewed periodically.

 

     6 Some -- some are revised, implemented.  And we

 

     7 also promote and continue the practice of a

 

     8 harassment-free work environment.  Any form of

 

     9 harassment.

 

    10        Q      Where do the policies originate?

 

    11 A      They originated with the Town policy, I

 

    12 guess.

 

    13        Q      Who drafts the policies?

 

    14 A      Ultimately I would take an existing

 

    15 policy and I would revise it.  If we didn't have

 

    16 one in place, I would write a policy, as the EEO

 

    17 officer, submit it to the Mayor and Council for

 

    18 approval.

 

    19        Q      Are you responsible for drafting

 

    20 the sexual harassment policy for the Town of

 

    21 Secaucus?

 

    22 A      I'm sure, since I have been the

 

    23 administrator in Secaucus I have participated in

 

    24 that particular policy that you are referring

 

    25 to.  I don't know that I wrote the original


 

 

                                                    51

 

 

     1 policy; but I'm sure we have revised, you know,

 

     2 the existing one now.

 

     3        Q      And who participates in that

 

     4 process besides yourself?

 

     5 A      The Town labor attorney.

 

     6        Q      Who is that?

 

     7 A      Martin Pachman.

 

     8        Q      And how often is the policy

 

     9 updated?

 

    10 A      Periodically.  In my tenure of ten years,

 

    11 maybe twice.

 

    12        Q      How are Town employees educated

 

    13 about the policy?

 

    14 A      We have in the past offered in-service

 

    15 trainings on a work -- a harassment-free work

 

    16 environment.

 

    17        Q      How often are the trainings

 

    18 provided?

 

    19 A      Periodically.

 

    20        Q      Meaning?

 

    21 A      Anywhere from one to five years.

 

    22        Q      So every five years?

 

    23 A      In some cases every five years; in some

 

    24 cases sooner.  I don't recall specifically the

 

    25 dates of our training.


 

 

                                                    52

 

 

     1        Q      Do Secaucus Fire fighters receive

 

     2 specific training regarding sexual harassment

 

     3 and other types of workplace discrimination?

 

     4 A      Secaucus Volunteer Fire Department

 

     5 received training within the last -- I don't

 

     6 know the date.  Within the last two years.

 

     7        Q      Was it after April 25th, 2004?

 

     8 A      Yes.

 

     9        Q      And when was the last training

 

    10 before that, most recent training?

 

    11 A      I don't know the exact year as it

 

    12 pertained to a harassment-free work environment.

 

    13        Q      We are talking only about

 

    14 firefighters right now.

 

    15 A      No, that was the only one.  Prior to that

 

    16 incident volunteer firefighters did not receive

 

    17 formal training.

 

    18        Q      Did not receive formal training --

 

    19 A      Formal in-service.

 

    20        Q      -- regarding harassment and

 

    21 discrimination in the workplace; is that right?

 

    22 A      That's correct.

 

    23        Q      Why was that?

 

    24 A      I cannot answer.  I can't answer on

 

    25 behalf of the Mayor and Council, or I can't


 

 

                                                    53

 

 

     1 answer on behalf of the Fire Chief.

 

     2        Q      Can you answer on behalf of

 

     3 yourself as the EEO officer?

 

     4 A      Yes, it was not part of the policy that

 

     5 was in place prior to me being the

 

     6 administrator.

 

     7        Q      Are you responsible for the

 

     8 harassment and discrimination policy that

 

     9 pertains to Town employees of Secaucus?

 

    10 A      The Volunteer Fire Department are not

 

    11 employees of the Town of Secaucus.  So my

 

    12 jurisdiction as the administrator is not as

 

    13 clear as it is -- as it pertains to Town

 

    14 employees, which I am fully responsible for.

 

    15        Q      So who is responsible for ensuring

 

    16 that the Secaucus Fire fighters get training

 

    17 related to discrimination and harassment in the

 

    18 workplace?

 

    19 A      Ultimately, it would be the policy that

 

    20 is set in place by the Fire Chief submitted to

 

    21 the Mayor and Council for approval.

 

    22        Q      What policy is that?

 

    23 A      Whatever policy exists or did not exist.

 

    24        Q      There is a policy specific to the

 

    25 Fire Department?


 

 

                                                    54

 

 

     1 A      Whatever policy exists or does not exist

 

     2 is made up through the code of the Town of

 

     3 Secaucus.

 

     4        Q      You are losing me.  Is there a

 

     5 policy or is there not a policy which applies to

 

     6 the Secaucus Fire fighters --

 

     7               MS. SMITH:  I'm sorry, I will read

 

     8 it again, Your Honor.

 

     9        Q      You are losing me.  Is there a

 

    10 policy or is there not a policy in place which

 

    11 applies to the Secaucus firefighters?

 

    12 A      What kind of policy?

 

    13        Q      Regarding harassment and

 

    14 discrimination in the workplace.

 

    15 A      Prior to the incident?  I'm confused.

 

    16        Q      Let's say currently.  Is there

 

    17 such a policy?

 

    18               MR. MULLIN:  And that's currently

 

    19 was the date of the deposition July 7, 2006.

 

    20               JUDGE CURRAN:  That is not the

 

    21 answer.  That is an aside.

 

    22               MR. MULLIN:  That is just an

 

    23 aside, yes.

 

    24               JUDGE CURRAN:  Please read the

 

    25 question again.


 

 

                                                    55

 

 

     1               MS. SMITH:  Read it again?

 

     2               JUDGE CURRAN:  Please.

 

     3        Q      Let's say currently.  Is there

 

     4 such a policy?

 

     5               MR. MULLIN:  Answer.

 

     6 A      The code of the Town of Secaucus requires

 

     7 that the Volunteer Fire Department are of good

 

     8 moral character and conducts themselves in a

 

     9 professional manner.  But is there a policy as

 

    10 it specifically relates to the Fire Department?

 

    11 No.

 

    12        Q      Has there ever been?

 

    13 A      To the best of my knowledge, no.

 

    14        Q      Is that part of your

 

    15 responsibility or not?

 

    16 A      Volunteer Fire Department falls under the

 

    17 guidelines of the Town Code, which is governed

 

    18 by the Mayor and Council.  They are not

 

    19 employees.  I do not have direct responsibility

 

    20 on volunteer firefighters.

 

    21        Q      Do you have indirect

 

    22 responsibility?

 

    23 A      Through the Fire Chief, yes.

 

    24               MS. SMITH:  Sixty-six.

 

    25        Q      So it is your responsibility --


 

 

                                                    56

 

 

     1               MR. MULLIN:  Read it again.

 

     2        Q      So is it also your responsibility

 

     3 to ensure that Town employees interact with the

 

     4 general public in a way that is not

 

     5 discriminatory?

 

     6 A      Yes.

 

     7               MS. SMITH:  Seventy-six.  An

 

     8 exhibit is marked Iacono-5.  In this proceeding,

 

     9 Your Honor, it's P-400?

 

    10               JUDGE CURRAN:  Thank you.

 

    11        Q      Have you had the opportunity to

 

    12 review what has been marked as Exhibit Iacono-5

 

    13 for Identification?

 

    14 A      Yes.

 

    15        Q      Are you familiar with this

 

    16 document?

 

    17 A      Am I familiar with it?  No.

 

    18        Q      Are you copied on it?

 

    19 A      Yes.

 

    20        Q      Do you recall receiving it on

 

    21 April 29th, 2004 or any time thereafter?

 

    22 A      I don't recall receiving it; but as I'm

 

    23 reading it now, I'm sure it was submitted, yes.

 

    24        Q      Does it refresh your recollection

 

    25 that these firefighters threatened to resign?


 

 

                                                    57

 

 

     1 A      Again, I don't think anything ever came

 

     2 of it, so I'm sure by the time that it was --

 

     3 from the initial time it was written to the time

 

     4 we received it, whether it was the same day or

 

     5 day after, I don't think anybody ever resigned.

 

     6 So I don't recall anything specifically like

 

     7 that.

 

     8        Q      Does this letter indicate that

 

     9 these firefighters are threatening to resign?

 

    10 A      Yes.

 

    11        Q      Do you remember how this incident

 

    12 was handled by the Mayor?  I'm sorry, it's

 

    13 actually addressed to Chief Walters.  Do you

 

    14 know how it was addressed by the Chief?

 

    15 A      I think the Chief was probably trying to

 

    16 find a happy medium.

 

    17        Q      What's a happy medium?

 

    18 A      I think certainly --

 

    19               MR. MULLIN:  Start --

 

    20        Q      What was the happy medium?

 

    21               MS. SMITH:  I'm sorry.

 

    22 A      I think certainly that the -- I think

 

    23 that the time this was written I believe the

 

    24 company quarters were off limits, and I think

 

    25 the members wanted the company quarters to be


 

 

                                                    58

 

 

     1 open.  Again, the Chief had not made a decision

 

     2 at that time yet.

 

     3        Q      Were you involved in that

 

     4 decision-making process?

 

     5 A      Was I involved in the decision-making

 

     6 process?  I'm sure that I had offered an opinion

 

     7 as to -- as it pertained to the issue, yes.

 

     8        Q      Do you recall what that opinion

 

     9 was?

 

    10 A      Specifically, you know, I knew there were

 

    11 some members in the company that weren't even

 

    12 there that night that felt they were being --

 

    13 they were being, you know, penalized for an

 

    14 incident that happened that they weren't even

 

    15 there.

 

    16          I think there was a concern in the

 

    17 neighborhood that the firehouse was closed, even

 

    18 though the firehouse was never closed but the

 

    19 quarters were.  I think the perception was if

 

    20 there was a fire, that fire company wasn't going

 

    21 to respond, which obviously was not true.

 

    22          But a lot of the stuff was what people

 

    23 were hearing and reading about in the paper,

 

    24 which was sometimes not a hundred percent

 

    25 accurate.


 

 

                                                    59

 

 

     1        Q      Do you happen to know how many

 

     2 members of Engine Company Number 2 were not

 

     3 present in the early morning hours of April 25,

 

     4 2004?

 

     5 A      Specifically, no.

 

     6        Q      Do you remember how many of the

 

     7 members, even if you don't remember specifically

 

     8 who they were?

 

     9 A      How many were there, or how many were not

 

    10 there?

 

    11        Q      How many were not there.

 

    12 A      I don't know that number.

 

    13        Q      Did you ultimately make a

 

    14 recommendation regarding the closure of Engine

 

    15 Company Number 2?

 

    16 A      Could you repeat the question?

 

    17        Q      Sure.  The letter dated

 

    18 April 29th, 2004 indicated -- indicates that the

 

    19 firefighters who signed off on this wanted their

 

    20 company quarters to be opened; is that correct?

 

    21 A      That's correct.

 

    22        Q      Did you make any recommendation in

 

    23 that regard?

 

    24 A      I'm sure at one point I asked the Fire

 

    25 Chief to reconsider his decision in closing the


 

 

                                                    60

 

 

     1 firehouse quarters.

 

     2        Q      Why did you do that?

 

     3 A      Again, I felt that the firefighters that

 

     4 were not there that evening were being penalized

 

     5 for something that they weren't even at.  And I

 

     6 thought that the perception of the Fire

 

     7 Department being closed in general was not at

 

     8 the time the best perception in that particular

 

     9 neighborhood community.

 

    10        Q      Did the Fire Chief ask you for

 

    11 your input on this matter?

 

    12 A      The Fire Chief and I had several

 

    13 conversations and discussions during the course

 

    14 of the incident, including while I was away in

 

    15 Florida and when I came back.  It was a concern

 

    16 of his and a concern of mine.

 

    17        Q      So whose responsibility was it to

 

    18 make the decision as to whether or not the

 

    19 quarters should be opened?

 

    20 A      Ultimately it's the Fire Chief's

 

    21 decision.

 

    22               MS. SMITH:  At this point we

 

    23 marked Iacono-6, Your Honor.  And that is in

 

    24 this proceeding P-401.

 

    25               JUDGE CURRAN:  Thank you.


 

 

                                                    61

 

 

     1        Q      Have you had the opportunity to

 

     2 review what has been marked as Iacono-6 for

 

     3 Identification?

 

     4 A      Yes.

 

     5        Q      Are you familiar with this

 

     6 document?

 

     7 A      Yes.

 

     8        Q      Did you author it?

 

     9 A      Yes.

 

    10        Q      Is it a letter dated April 30th,

 

    11 2004 from you to Chief Walters?

 

    12 A      Yes.

 

    13        Q      And it is your recommendation that

 

    14 the quarters be -- and is it your recommendation

 

    15 that the quarters be reopened?

 

    16 A      Yes.

 

    17        Q      And after you sent this letter

 

    18 were the quarters reopened?

 

    19 A      Sometime after that letter, yes.

 

    20        Q      Did you discuss this with Chief

 

    21 Walters, or did you simply send him the letter?

 

    22 A      I discussed it with him, as well.

 

    23        Q      After you sent the letter did you

 

    24 discuss it with him?

 

    25 A      I'm sure I did, yes.


 

 

                                                    62

 

 

     1        Q      Do you recall the substance of

 

     2 those conversations?

 

     3 A      Similar to the concerns that I just

 

     4 mentioned previously as to the perception of the

 

     5 firehouse being closed, even though it wasn't

 

     6 being closed.  The perception in that

 

     7 neighborhood in that part of the community was

 

     8 the firehouse was closed.  There were, you know,

 

     9 firefighters that were not anywhere near the

 

    10 alleged incident that were being penalized.

 

    11 Those were just, I thought, were valid concerns

 

    12 to point out to the Fire Chief.  And at the same

 

    13 time as to the opening of the quarters it would

 

    14 have no bearing on the outcome of the incident.

 

    15        Q      Do you think that opening the

 

    16 quarters would send a message to the Secaucus

 

    17 community?

 

    18 A      In respect to?

 

    19        Q      Well, you indicated in your

 

    20 testimony that you thought that having the

 

    21 quarters closed would send a message to the

 

    22 Secaucus community; is that right?  Did you

 

    23 testify to that?

 

    24 A      I think I said the perception that the

 

    25 firehouse was closed, even though that was not


 

 

                                                    63

 

 

     1 the case, the firehouse was open but the back

 

     2 quarters was closed, the perception was the

 

     3 firehouse was closed in general.  And there was

 

     4 some concern with closing a firehouse, even

 

     5 though what we say the firehouse is closed

 

     6 versus what the public perceived it as.  That

 

     7 was the message I was referring to.

 

     8        Q      Did you think that there would be

 

     9 any perception of -- strike that.

 

    10          Did you think the companies --

 

    11               MR. MULLIN:  Do you think.

 

    12        Q      Do you think the company's

 

    13 quarters were closed as a punitive measure?

 

    14 A      I believe there was some great concern by

 

    15 the Fire Chief over the incident, and he

 

    16 probably closed the quarters for all of the

 

    17 above reasons.

 

    18        Q      And do you think opening the

 

    19 quarters had the potential to show a lack of

 

    20 concern on the part of the Town of Secaucus?

 

    21 A      No.

 

    22        Q      Why not?

 

    23 A      I believe that the incident in question

 

    24 would certainly go through the court systems.

 

    25 And certainly, if anyone was guilty of anything,


 

 

                                                    64

 

 

     1 they certainly would have to pay that penalty.

 

     2 But certainly, to penalize all the firefighters

 

     3 that weren't even there that night, that would

 

     4 be just as wrong.

 

     5        Q      What about the firefighters who

 

     6 were there that night?

 

     7 A      Again, it was always my belief that if

 

     8 someone did anything wrong and they were guilty

 

     9 of anything, certainly, they would have to face

 

    10 the penalty.  That would have no bearing on any

 

    11 firefighters that didn't do anything wrong.

 

    12 Certainly, I would hope in any case scenario one

 

    13 or two bad apples wouldn't ruin the whole

 

    14 company.

 

    15               MS. SMITH:  Page 89.

 

    16        Q      After the events of April 25th,

 

    17 2004 there was mandatory sensitivity training

 

    18 for the firefighters; is that right?

 

    19 A      Yes.

 

    20        Q      Did there come a time where a

 

    21 number of those firefighters refused to attend

 

    22 the training?

 

    23 A      I believe so, yes.

 

    24        Q      Do you recall the reason they

 

    25 refused to attend?


 

 

                                                    65

 

 

     1 A      Various reasons from what I remember.

 

     2        Q      Can you tell me some of them?

 

     3 A      One reason was someone from the

 

     4 Washington Hook and Ladder, his concern was why

 

     5 do we have to go through something for some

 

     6 mandatory training when we didn't do anything

 

     7 wrong, when it was those guys?  If they used

 

     8 common sense, we wouldn't be here.  That was

 

     9 some of the reasons from other firehouses.  I

 

    10 think there was some resistance.  Not many, but

 

    11 there was some resistance.

 

    12        Q      Was it 14 members?

 

    13 A      It may have started at 14 and then

 

    14 dwindled down to two or three.

 

    15        Q      Was it only members from

 

    16 firehouses other than Engine Company Number 2?

 

    17 A      No, I believe there may have been one

 

    18 maybe two members from Engine 2 that outright

 

    19 refused.

 

    20        Q      Do you remember who?

 

    21 A      Mutschler might have been one of them.

 

    22        Q      Do you remember who the other one

 

    23 was?

 

    24 A      I would probably have to take a look at

 

    25 that list again.


 

 

                                                    66

 

 

     1        Q      What action was taken against the

 

     2 firefighters who refused to attend?

 

     3 A      I don't know if the Chief imposed a

 

     4 suspension.  I know that was one of his options.

 

     5        Q      Did anyone confer with you

 

     6 regarding this issue?

 

     7 A      Not specifically, no.

 

     8        Q      Why not?

 

     9 A      Again, I believe it was the

 

    10 responsibility of the Fire Chief to see to it

 

    11 that everybody received the required training.

 

    12        Q      Did the Fire Chief report to you?

 

    13 A      Yes.

 

    14        Q      Did the Police Chief report to

 

    15 you?

 

    16 A      Yes.

 

    17        Q      And you report to the Mayor and

 

    18 Council?

 

    19 A      That's correct.

 

    20        Q      And that's it?

 

    21 A      That is basically the flow chart of our

 

    22 organization, yes.

 

    23        Q      So do you know whether these 14

 

    24 firefighters ultimately took the training?

 

    25 A      I believe the best that I could remember,


 

 

                                                    67

 

 

     1 I think at the end of the day there was maybe

 

     2 two, maybe three that didn't.

 

     3        Q      And was any punitive action taken

 

     4 against them?

 

     5 A      I don't recall.  That would come from the

 

     6 Fire Chief.

 

     7               MS. SMITH:  That concludes the dep

 

     8 readings, Your Honor.

 

     9               JUDGE CURRAN:  Thank you.

 

    10               MS. SMITH:  We have a couple

 

    11 Interrogatories to read into the record.  I'm

 

    12 sorry, I don't have an extra copy of those, Your

 

    13 Honor.

 

    14               JUDGE CURRAN:  It's okay.

 

    15               MR. MULLIN:  Judge.

 

    16               MS. SMITH:  Do you want me to read

 

    17 along with you?

 

    18               MR. MULLIN:  Judge, do you want to

 

    19 explain what rogs are, Your Honor?  I will show

 

    20 it to you.  These are rogs answered by the Town

 

    21 of Secaucus.

 

    22               JUDGE CURRAN:  Who signed them on

 

    23 behalf of the --

 

    24               MR. MULLIN:  I think someone did.

 

    25 I don't have that certification.  It's conceded.


 

 

                                                    68

 

 

     1               JUDGE CURRAN:  Ladies and

 

     2 Gentlemen, I think I mentioned this earlier.

 

     3 During a pretrial time, preparing for trial, the

 

     4 parties and the attorneys engage in what we call

 

     5 "discovery."  Part of that is what we call

 

     6 submission of Interrogatories and Answers to

 

     7 Interrogatories.  It's simply a question and

 

     8 answer list.  But as I said earlier, we lawyers

 

     9 can't call them "questions and answers."  We

 

    10 call them "Interrogatories."

 

    11                The Interrogatories have to be --

 

    12 if it's an individual, they have to be signed by

 

    13 the individual; and that individual has to

 

    14 indicate they basically signed under a section

 

    15 that indicates everything's to the best of their

 

    16 knowledge and the answer is true.

 

    17                In regard to the Town -- and the

 

    18 first reading I believe is on behalf of the

 

    19 Town?

 

    20               MS. SMITH:  Yes, Your Honor.

 

    21               JUDGE CURRAN:  A representative of

 

    22 the Town certifies as to the truth of the

 

    23 answers.

 

    24                Thank you.

 

    25               MS. SMITH:  Thank you, Your Honor.


 

 

                                                    69

 

 

     1               MR. MULLIN:  Your Honor, I will be

 

     2 reading the Town of Secaucus' Answers to

 

     3 Interrogatories we served on behalf of our

 

     4 clients.

 

     5               JUDGE CURRAN:  Thank you.

 

     6               MS. SMITH:  And I'll be reading

 

     7 the plaintiffs -- the Mr. deVries' and

 

     8 Mr. Carter's questions or Interrogatories.

 

     9                Number seven.  By what means did

 

    10 the volunteer firemen travel to the function

 

    11 described in Interrogatory Number 4?

 

    12               MR. MULLIN:  Attendees traveled

 

    13 from Engine Company Number 2 to the function in

 

    14 a Secaucus transportation bus operated by

 

    15 Secaucus driver, Miss Linda Lunde.

 

    16               MS. SMITH:  Number 17.  Describe

 

    17 the application process for Secaucus

 

    18 firefighters.

 

    19               MR. MULLIN:  All Secaucus

 

    20 firefighters are required to fill out an

 

    21 application with the Secaucus Office of

 

    22 Emergency Management.  The application is then

 

    23 turned over to the Police Department for a

 

    24 criminal background check.  Provided the

 

    25 applicant passes the criminal background check,


 

 

                                                    70

 

 

     1 the Police Chief will sign off on the

 

     2 application; and it is returned to the Fire

 

     3 Chief.

 

     4                Next the applicant is required to

 

     5 attend fire training, specifically Firefighter

 

     6 1, which consists of 140 hours of basic fire and

 

     7 emergency training with either the Bergen County

 

     8 Fire Academy, the North Jersey Volunteer Fire

 

     9 Academy or the Middletown Fire Academy.

 

    10                Once the applicant successfully

 

    11 completes Firefighter 1, the applicant is

 

    12 assigned to an engine company in a Secaucus Fire

 

    13 Department as a probationary firefighter for a

 

    14 period of one year.

 

    15                Provided the applicant has good

 

    16 job performance and there are no disciplinary

 

    17 problems, he will be assigned as a regular

 

    18 firefighter subject to the approval of the Mayor

 

    19 and Council upon recommendation of the Chief.

 

    20               MS. SMITH:  Number 27.  State

 

    21 whether Secaucus firefighters receive any

 

    22 compensation, including but not limited to

 

    23 salary or commissions.  For example, health

 

    24 insurance, pension benefits and stock options.

 

    25               MR. MULLIN:  Any volunteer


 

 

                                                    71

 

 

     1 firefighter who is not otherwise employed in a

 

     2 full-time position with the Town of Secaucus is

 

     3 entitled to an incentive of $300 per month, if

 

     4 said firefighter responds to 35 percent or more

 

     5 of the fire calls for that Town.

 

     6                Any voluntary firefighter who is

 

     7 also employed by the Town in a full-time

 

     8 position must make at least 40 percent of the

 

     9 monthly calls in order to qualify for the $300

 

    10 bonus.

 

    11                In addition, all Secaucus

 

    12 firefighters -- all Secaucus' firefighters are

 

    13 entitled to a yearly clothing allowance of $500.

 

    14 Lieutenants are entitled to a yearly clothing

 

    15 allowance of $600.  Captains are entitled to a

 

    16 yearly clothing allowance of $650.  Battalion

 

    17 chiefs and the deputy chief are entitled to a

 

    18 yearly clothing allowance of a thousand dollars.

 

    19 And the Chief is entitled to a yearly clothing

 

    20 allowance of $1,500.

 

    21               MS. SMITH:  Number 31.  Describe

 

    22 the relationship between Defendant Secaucus Fire

 

    23 Department and Defendant Town of Secaucus.

 

    24               MR. MULLIN:  The Secaucus

 

    25 Volunteer Fire Department is not a separate body


 

 

                                                    72

 

 

     1 politic; it is a department of the Town.

 

     2               MS. SMITH:  Number 33.  Describe

 

     3 the relationship between Defendant Frank

 

     4 Walters -- I'm sorry, between Frank Walters and

 

     5 Defendant Secaucus Fire Department.

 

     6               MR. MULLIN:  Frank Walters is

 

     7 retired as Secaucus' Fire Chief.  He continues

 

     8 to be a Secaucus volunteer fireman.

 

     9               MS. SMITH:  Number 35.  Describe

 

    10 the relationship between Anthony Iacono and

 

    11 Defendant Town of Secaucus.

 

    12               MR. MULLIN:  Anthony Iacono was

 

    13 employed as the Secaucus's Town Administrator.

 

    14 He is also a volunteer firefighter assigned to

 

    15 Engine Company Number 3.

 

    16               MS. SMITH:  Number 37.  State

 

    17 Frank Walters' entire work history while

 

    18 employed by Defendant Secaucus -- while employed

 

    19 by Secaucus Fire Department and/or the Town of

 

    20 Secaucus, including each promotion and each

 

    21 demotion.

 

    22               MR. MULLIN:  We go to F on this

 

    23 one and then to G.

 

    24               MS. SMITH:  Okay.  For each

 

    25 promotion, the job titles from which and to


 

 

                                                    73

 

 

     1 which Frank Walters was promoted, the date of

 

     2 the promotion, the reasons for the promotion and

 

     3 the name, last known address, last known

 

     4 telephone number, job title and current

 

     5 employment status of each person involved in the

 

     6 promotion decision.

 

     7               MR. MULLIN:  That's F.  Once a

 

     8 term is completed as a lieutenant, then there is

 

     9 an automatic promotion to captain.  Battalion

 

    10 chief is an elected position.  And from there

 

    11 there is an automatic promotion to deputy chief

 

    12 and chief at the end of each respective term.

 

    13 G.

 

    14               MS. SMITH:  For each demotion the

 

    15 job titles from which and to which Frank Walters

 

    16 was demoted, the date of the demotion, the

 

    17 reason or reasons for the demotion and the name,

 

    18 last known address, last known telephone number,

 

    19 job title and current employment status of each

 

    20 person involved in the demotion decision.

 

    21               MR. MULLIN:  No demotions.

 

    22               MS. SMITH:  Number 41.  State

 

    23 whether the Secaucus Fire Department and/or the

 

    24 Defendant Town of Secaucus maintained a system

 

    25 or procedure for employee discipline.


 

 

                                                    74

 

 

     1               MR. MULLIN:  All Secaucus'

 

     2 employees, including volunteer firefighters, are

 

     3 subject to the disciplinary procedures for all

 

     4 Secaucus personnel as set forth in the Secaucus'

 

     5 Town Code.

 

     6               MS. SMITH:  Number 49.  State

 

     7 whether any member of Engine Company Number 2

 

     8 was ever disciplined in relation to plaintiffs'

 

     9 complaints against them.  If so, identify and

 

    10 provide true and accurate copies of any and all

 

    11 documents relevant to each such action.

 

    12               MR. MULLIN:  No discipline was

 

    13 administered by the Town of Secaucus arising out

 

    14 of the plaintiffs' complaints against Engine

 

    15 Company Number 2.  The matter was handled

 

    16 initially by the Secaucus Police Department for

 

    17 investigation and depending upon the results of

 

    18 the investigation, criminal prosecution.  As set

 

    19 forth in the police reports for the alleged

 

    20 incident, which are in possession of plaintiffs

 

    21 and defendants, having been released by the

 

    22 Office of the Attorney General, Bias Crimes

 

    23 Unit, the investigation was referred to the

 

    24 Secaucus Police Department, to the Hudson -- was

 

    25 referred by the Secaucus Police Department to


 

 

                                                    75

 

 

     1 the Hudson County Prosecutor's Office and then

 

     2 to the Office of the Attorney General, Bias

 

     3 Crimes Unit.

 

     4               MS. SMITH:  That concludes the

 

     5 readings, Your Honor.

 

     6               JUDGE CURRAN:  Thank you very

 

     7 much.

 

     8                Ladies and Gentlemen, you have

 

     9 been very patient.  I see that we're working our

 

    10 way through the morning, so we will take the

 

    11 morning break from now.  If you will be kind

 

    12 enough to come back at 11:30.  Thank you.

 

    13                Off the record.

 

    14               (Whereupon, a brief recess is

 

    15        taken.)

 

    16               JUDGE CURRAN:  Go back on the

 

    17 record.  I understand you have some issues

 

    18 before we go back with the jury.

 

    19               MR. MULLIN:  Counsel asked if I

 

    20 would this morning rest, and short -- subject

 

    21 to, as we discussed yesterday, moving my

 

    22 documents into Evidence -- we're working out

 

    23 stipulated documents -- and subject to the

 

    24 completion by the Town of the stipulation I have

 

    25 asked for -- I know they're working on that --


 

 

                                                    76

 

 

     1 which will include the jobs that all the folks

 

     2 in the North End Firehouse at the relevant time

 

     3 held with the Town, whether it be DPW or some

 

     4 other department, the -- how they were advanced,

 

     5 that is, their promotions and the dates of the

 

     6 promotions and the same information as to the

 

     7 same individuals with respect to the positions

 

     8 they held as firefighters, when they were made

 

     9 lieutenant, when they were made captain.  I need

 

    10 the dates.  I need the tiles.  We are in no mad

 

    11 rush for it.  I know they are preparing it.

 

    12 Subject to that, Your Honor, I could get up in

 

    13 front of the jury and say, "I now rest" with

 

    14 this understanding on the record.  I don't even

 

    15 have to say it in front of the jury, but subject

 

    16 to.

 

    17               MR. PARIS:  That's fine, Your

 

    18 Honor.

 

    19               MR. BEVERE:  We don't have to do

 

    20 it in front the injury, if Mr. Mullin does it

 

    21 here.

 

    22               MR. PARIS:  It should just be done

 

    23 in front of the jury.

 

    24               JUDGE CURRAN:  It can be done in

 

    25 front of the jury.


 

 

                                                    77

 

 

     1               MR. BEVERE:  I misunderstood what

 

     2 our preference was, I guess, because I usually

 

     3 go along with the preference.  So I guess I

 

     4 misunderstood what the preference was, but

 

     5 that's okay.

 

     6               JUDGE CURRAN:  I think we may have

 

     7 changed the preferences.  You weren't here this

 

     8 morning to defend yourself.

 

     9               MR. BEVERE:  No, I was not.

 

    10               JUDGE CURRAN:  We did some

 

    11 motions.

 

    12               MR. BEVERE:  That happens a lot.

 

    13               JUDGE CURRAN:  Going to be some

 

    14 changes of side.  You may be all by yourself

 

    15 over there.

 

    16               MR. PARIS:  We wanted to make him

 

    17 feel at home.  No one has any regard for what he

 

    18 prefers.

 

    19               JUDGE CURRAN:  I will say,

 

    20 Mr. Paris at one point indicated that you would

 

    21 be here, whatever.  We made sure the record

 

    22 indicated you were here, you had been seen, so

 

    23 it's not that you had played golf for the

 

    24 morning.

 

    25               MR. BEVERE:  No, no.  I don't even


 

 

                                                    78

 

 

     1 play golf, so --

 

     2               JUDGE CURRAN:  Okay.

 

     3               MR. PARIS:  Judge, the -- just

 

     4 there is a long list of documents that I

 

     5 received late last night.  We're going to go

 

     6 over that.  If we have objections with regard to

 

     7 documents, obviously, we will just -- you know,

 

     8 we will either try to resolve it.  If we can't

 

     9 resolve them, we will abide by the Court's --

 

    10               JUDGE CURRAN:  Absolutely.

 

    11               MR. PARIS:  -- determination.  But

 

    12 other that, than we understand.

 

    13               MS. SMITH:  Your Honor, I request

 

    14 a sidebar before the witness takes the stand

 

    15 about a couple minor issues about what's in his

 

    16 report.

 

    17               JUDGE CURRAN:  Absolutely.

 

    18               (Whereupon, the following sidebar

 

    19        discussion is held.)

 

    20               JUDGE CURRAN:  Before I forget,

 

    21 may I return the deposition transcripts.

 

    22               MS. SMITH:  Thank you.  You don't

 

    23 want that for late night reading, Your Honor?

 

    24               JUDGE CURRAN:  No, thank you.

 

    25               MS. SMITH:  If you have insomnia,


 

 

                                                    79

 

 

     1 might work.

 

     2                In his report Dr. Goldwaser

 

     3 discusses the Grand Jury did not indict.  I

 

     4 assume that we are not going to --

 

     5               MR. BEVERE:  I will remind -- I

 

     6 will remind him of that.

 

     7               JUDGE CURRAN:  Miss Castelli, can

 

     8 you hear?

 

     9               COURT CLERK:  Yes.

 

    10               MR. BEVERE:  I will remind him of

 

    11 that.

 

    12               MS. SMITH:  Okay.  So no

 

    13 conversation about that.

 

    14                There is also highlighted page 12

 

    15 of Dr. Goldwaser's report.

 

    16               MR. PARIS:  Which one?

 

    17               MS. SMITH:  DeVries.

 

    18               MR. BEVERE:  Okay.

 

    19               JUDGE CURRAN:  I'm sorry, what are

 

    20 the numbers for his report, so I can get them

 

    21 out of the 75 pounds of exhibits?

 

    22               MS. SMITH:  I think this is 311.

 

    23               MR. MULLIN:  D.

 

    24               MR. PARIS:  That's a new document

 

    25 number.  Do we have an extra copy of it?


 

 

                                                    80

 

 

     1               MS. SMITH:  He just gave it to me

 

     2 this morning.

 

     3               MR. PARIS:  The court --

 

     4               JUDGE CURRAN:  Is it in our -- in

 

     5 the documents I have?

 

     6               MR. BEVERE:  No, but Dave is going

 

     7 to give it to you.  My apologies, Judge.  I

 

     8 didn't put it on your desk because I was -- as

 

     9 you know, I was outside not defending myself

 

    10 when everything was going on this morning.

 

    11               JUDGE CURRAN:  No --

 

    12               MR. BEVERE:  No need to apologize.

 

    13               JUDGE CURRAN:  Tracey, excuse us.

 

    14               MR. BEVERE:  312, deVries's

 

    15 report.  Highlighted is --

 

    16               MS. SMITH:  4/30/04 he has

 

    17 highlighted the term "working class people," as

 

    18 if that's part of the quote about what the

 

    19 patient feels.  In fact, that was a

 

    20 parenthetical.  I believe that that was Dr.

 

    21 Almeleh's interpretation of Mr. deVries

 

    22 describing people that he felt fearful of that

 

    23 looked like firefighters.  I assume you are not

 

    24 going to elicit any testimony that -- that my

 

    25 client had some fear of working class people.


 

 

                                                    81

 

 

     1               MR. BEVERE:  Well, Judge, let -- I

 

     2 guess --

 

     3               MS. SMITH:  If you want to look at

 

     4 the Almeleh records, I can show it to you.

 

     5               MR. BEVERE:  No, no, I have the

 

     6 Almeleh records right in front of me.

 

     7               MS. SMITH:  Okay.

 

     8               MR. BEVERE:  And I am very

 

     9 familiar with what Miss Smith is saying, Judge.

 

    10 Here is the problem.  My -- the expert in this

 

    11 case is going to reference a lot of notations in

 

    12 Dr. Almeleh's records.  And many -- he relied

 

    13 upon those in reaching his opinions and

 

    14 conclusions, just as Dr. Bursztajn relied upon

 

    15 them in reaching his opinions and conclusions.

 

    16 So to the extent that Dr. Almeleh wrote

 

    17 something in his note, I think it's fair for my

 

    18 witness to be able to utilize that to the extent

 

    19 he relied upon it.

 

    20               JUDGE CURRAN:  Well, my belief is

 

    21 that there is only an objection to this, maybe

 

    22 one or two others, I don't know; but there is no

 

    23 objection in general.  It's an objection to this

 

    24 specific --

 

    25               MR. BEVERE:  To the term "working


 

 

                                                    82

 

 

     1 class people"?

 

     2               JUDGE CURRAN:  Working class

 

     3 people.  I think it's a fair objection, if it

 

     4 was the doctor's view, even if Dr. Goldwaser

 

     5 relied on it.

 

     6               MR. BEVERE:  You see, here is the

 

     7 thing.

 

     8               JUDGE CURRAN:  I think it is --

 

     9 let me -- easy argument or easy answer.  It's

 

    10 more prejudicial than probative.  And I think

 

    11 that's fair to say with a jury I think it would

 

    12 not be fair.

 

    13               MR. BEVERE:  All right, Judge.

 

    14 But just so that my -- so that I'm on the

 

    15 record, clearly, Dr. -- I don't think from the

 

    16 note, itself, it's so clear that it's his

 

    17 interpretation of what Mr. deVries is saying, as

 

    18 opposed to writing down what Mr. deVries is

 

    19 saying.

 

    20               JUDGE CURRAN:  Oh, I didn't

 

    21 realize that.

 

    22               MS. SMITH:  It's specifically in

 

    23 parentheses.

 

    24               JUDGE CURRAN:  Yeah, it is in

 

    25 parentheses.


 

 

                                                    83

 

 

     1               MS. SMITH:  Specifically in

 

     2 parentheses in the -- in the notes.  The word

 

     3 "working class people" is in parentheses.  It's

 

     4 not in this report, but it is in the notes.

 

     5               MR. BEVERE:  But, Judge --

 

     6               JUDGE CURRAN:  I will note that on

 

     7 the record.

 

     8               MR. BEVERE:  I agree that that's

 

     9 what it says; however, whether that's not

 

    10 something Mr. deVries said or not, I don't know

 

    11 how we determine that because it's in

 

    12 parentheses.

 

    13               JUDGE CURRAN:  Well, that's what

 

    14 it looks like.  I don't know.

 

    15               MR. BEVERE:  But Judge --

 

    16               JUDGE CURRAN:  It does appear to

 

    17 me.  That's what it appears to me.  Whether it

 

    18 is or isn't, whether Mr. deVries said it or

 

    19 whether it's the doctor's impression --

 

    20               MR. BEVERE:  Okay.

 

    21               JUDGE CURRAN:  -- I still think

 

    22 it's more --

 

    23               MR. BEVERE:  Judge, I have no

 

    24 problem telling the doctor not to --

 

    25               JUDGE CURRAN:  I understand.  Your


 

 

                                                    84

 

 

     1 argument is preserved for the record.

 

     2               MR. BEVERE:  We are going to run

 

     3 into a lot of problems, if Dr. Goldwaser can't

 

     4 comment in what's Dr. Almeleh's notes.

 

     5               JUDGE CURRAN:  No, I don't think

 

     6 that is the motion.  The motion is only in

 

     7 regard to that phrase at this point.  And that's

 

     8 the only thing we are talking about at this

 

     9 point.

 

    10               MR. BEVERE:  Okay.  The objection

 

    11 is to the fact that "working class people" we

 

    12 believe is prejudicial?

 

    13               JUDGE CURRAN:  Unduly prejudicial.

 

    14               MR. BEVERE:  Not because Mr.

 

    15 deVries might not have said it to Dr. Almeleh?

 

    16               JUDGE CURRAN:  Right.  Oh, yep,

 

    17 I'm not questioning the --

 

    18               MR. BEVERE:  Fine.  That was my

 

    19 only concern.  Okay.

 

    20               MS. SMITH:  Okay.  And the final

 

    21 thing, on page 16 of the report Dr. Almeleh

 

    22 refers to some dispute that Mr. deVries and

 

    23 Mr. Carter had with their landlord after they

 

    24 moved out.

 

    25               MR. BEVERE:  We are not going to


 

 

                                                    85

 

 

     1 bring that up.  I already talked to him about

 

     2 that.

 

     3               JUDGE CURRAN:  Great.

 

     4               MR. BEVERE:  He has already been

 

     5 instructed not to talk about Jersey City, any

 

     6 blood towels and anything like that.  So he is

 

     7 not --

 

     8               MS. SMITH:  Too bad.

 

     9               MR. BEVERE:  I know you were

 

    10 hoping he would stick it in there, open the door

 

    11 but --

 

    12               MR. PARIS:  We are going to try

 

    13 not.

 

    14               JUDGE CURRAN:  Thank you.

 

    15               MS. SMITH:  I was hoping that door

 

    16 would crack open.

 

    17               MR. BEVERE:  I am not all that

 

    18 smart, but I am smarter than that.

 

    19               MR. PARIS:  We hope.

 

    20               MR. BEVERE:  Judge, can I just

 

    21 before --

 

    22               JUDGE CURRAN:  Surely.

 

    23               COURT CLERK:  Off the record.

 

    24               (Whereupon, sidebar discussion is

 

    25        concluded.)


 

 

                                                    86

 

 

     1               (Whereupon, a discussion is held

 

     2        off the record.)

 

     3               (Whereupon, the jury is brought

 

     4        into the courtroom.)

 

     5               JUDGE CURRAN:  Back on the record.

 

     6 We appreciate your being back on time, Ladies

 

     7 and Gentlemen.  Some of you look a little

 

     8 chilly.  If you want to go get a sweater or coat

 

     9 or whatever, feel free to do that, okay.

 

    10                All right.  Mr. Mullin, does the

 

    11 plaintiff have any additional witnesses to call

 

    12 or readings to do at this time?

 

    13               MR. MULLIN:  No, Your Honor.  The

 

    14 plaintiff now -- the plaintiffs now rest.

 

    15               JUDGE CURRAN:  Thank you very

 

    16 much.  What that means is that the plaintiffs

 

    17 have completed their case.  We will now move to

 

    18 the defense case.  Is the defense prepared to

 

    19 proceed, Mr. Bevere?

 

    20               MR. BEVERE:  Yes, Your Honor.

 

    21               JUDGE CURRAN:  Thank you.  Please

 

    22 call your first witness.

 

    23               MR. BEVERE:  I will, Your Honor.

 

    24 I will call Alberto Goldwaser to the stand.

 

    25               JUDGE CURRAN:  Thank you.


 

 

                                                    87

 

 

     1                Good morning, sir.

 

     2               THE WITNESS:  Good morning.

 

     3               JUDGE CURRAN:  If you will please

 

     4 put your left hand on the Bible and raise your

 

     5 right hand.

 

     6 A L B E R T O  G O L D W A S E R, M.D. is duly

 

     7      sworn by a Notary Public of the State of

 

     8      New Jersey and testifies under oath as

 

     9      follows:

 

    10               JUDGE CURRAN:  Thank you, sir.

 

    11 Please be seated.  Thank you, sir.  You're under

 

    12 oath.  All your testimony must be truthful and

 

    13 accurate to the best of your ability.  Do you

 

    14 understand?

 

    15               THE WITNESS:  Yes, I do.

 

    16               JUDGE CURRAN:  Thank you.  Please

 

    17 give me your full name for the record, spell

 

    18 your last name and give us your professional

 

    19 address.

 

    20               THE WITNESS:  My first name is

 

    21 Alberto.  Middle name is Mario.  Last name is

 

    22 Goldwaser, G-o-l-d-w-a-s-e-r.  My office is in

 

    23 Hackensack, is 24 Bergen Street, Hackensack, New

 

    24 Jersey, 07601.

 

    25               JUDGE CURRAN:  Thank you, sir.


 

 

                                                    88

 

 

     1                Your witness, Mr. Bevere.

 

     2               MR. BEVERE:  Your Honor, I am

 

     3 going to stand -- it's difficult for me to see

 

     4 the witness from my seat.

 

     5               JUDGE CURRAN:  Sure.

 

     6               MR. BEVERE:  So I am going to

 

     7 stand over near the jury box.  Try not to spill

 

     8 my papers.

 

     9 DIRECT EXAMINATION BY MR. BEVERE:

 

    10        Q      Good morning, Dr. Goldwaser.

 

    11 A      Good morning.

 

    12        Q      Doctor, where were you born?

 

    13 A      I was born in South America in Argentina.

 

    14        Q      And how old were you when you came

 

    15 to the United States?

 

    16 A      Oh, I was 26.

 

    17        Q      Are you currently a U.S. citizen?

 

    18 A      Yes.

 

    19        Q      And what is your profession?

 

    20 A      I'm psychiatrist.

 

    21        Q      And what is a psychiatrist in

 

    22 general terms?

 

    23 A      Okay.  I'm a physician, medical doctor

 

    24 that specializes in the branch of medicine which

 

    25 is psychiatry, in the diagnosing and treating


 

 

                                                    89

 

 

     1 mental disorders, mental illnesses.

 

     2        Q      And as a psychiatrist are you

 

     3 authorized to prescribe medication?

 

     4 A      Yes.

 

     5        Q      And do you prescribe medication?

 

     6 A      Yes, I do.

 

     7        Q      Doctor, are you familiar with the

 

     8 term called "forensic psychiatry"?

 

     9 A      Yes.

 

    10        Q      What is forensic psychiatry?

 

    11 A      It is a subspecialty of psychiatry.

 

    12 Psychiatry is a subspecialty of medicine.  It's

 

    13 a branch of psychiatry that works at the

 

    14 borderline between medicine or psychiatry and

 

    15 the law.

 

    16          Forensic psychiatrist is a medical

 

    17 professional that participates in the

 

    18 establishment of legal decisions, helping

 

    19 juries, helping attorneys or judges understand

 

    20 the mental status or the mental state of a

 

    21 person when a decision based on that mental

 

    22 state requires a medical expert or psychiatric

 

    23 expert.

 

    24        Q      Are you familiar with the term

 

    25 "clinical psychiatry"?


 

 

                                                    90

 

 

     1 A      Clinical psychiatry is also called

 

     2 "general psychiatry."  It's the actual practice

 

     3 of psychiatry, the actual treating of a patient

 

     4 that is suffering from a mental condition.

 

     5        Q      And are you both a clinical

 

     6 psychiatrist and a forensic psychiatrist?

 

     7 A      Yes, I am.

 

     8        Q      Now, are you currently licensed to

 

     9 practice medicine in New Jersey?

 

    10 A      Yes.

 

    11        Q      And are you licensed to practice

 

    12 in any other state besides New Jersey?

 

    13 A      Yes, also the State of New York and in

 

    14 the State of Maryland.

 

    15        Q      Maryland?

 

    16 A      Maryland, uh-huh.

 

    17        Q      Doctor, what medical schools did

 

    18 you attend -- actually, why don't you give us

 

    19 the benefit of your entire educational history

 

    20 right up through medical school?

 

    21 A      Okay.  I said earlier I was born in

 

    22 Argentina.  I studied medicine in Peru.  When I

 

    23 was 12 my whole family moved from Argentina to

 

    24 Peru, and I did there my high school years.  I

 

    25 was 12, 12-and-a-half.  And then I went to


 

 

                                                    91

 

 

     1 college and medical school in Peru.  I graduated

 

     2 there in -- I graduated in 1975.  Then I stayed

 

     3 there for another year doing Civil Service.

 

     4          And then I came to the United States in

 

     5 1977 to Brooklyn, New York.  And I trained as a

 

     6 psychiatrist.  I did what is called "residency

 

     7 training program" in psychiatry at Kings County

 

     8 Hospital in Brooklyn.

 

     9        Q      You can continue with your

 

    10 educational background.

 

    11 A      At the same time that I did my

 

    12 psychiatric training I did also psychoanalytic

 

    13 training, which is another branch of psychiatry.

 

    14 This is -- it's a modality of treatment.  And I

 

    15 did that training, as well also, at Kings County

 

    16 Hospital.

 

    17          Eventually the institution where I was

 

    18 training moved to New York University.  And I

 

    19 moved with them, and I started working at New

 

    20 York University Medical Center as a staff

 

    21 psychiatrist.  And at the same time I continued

 

    22 my training until I completed it at NYU.

 

    23        Q      What years did you obtain your

 

    24 licenses to practice medicine in New York and

 

    25 New Jersey?


 

 

                                                    92

 

 

     1 A      In New York was in 1980.  In New Jersey

 

     2 was in 1989, when actually I moved -- I used to

 

     3 live in New York in Brooklyn.  And whole family

 

     4 moved to New Jersey; and at that time I obtained

 

     5 my license to practice medicine, psychiatry, in

 

     6 New Jersey in '89.

 

     7        Q      Now, after your psychoanalytic

 

     8 training in NYU School of Medicine did you

 

     9 receive any further specialized training in

 

    10 psychiatry?

 

    11 A      I pursued different -- different

 

    12 trainings.  Well, one of them --

 

    13        Q      Can you tell us about those?

 

    14 A      I'm sorry.

 

    15        Q      Can you tell us about those?

 

    16 A      Yeah, one was in forensic psychiatry.

 

    17 Took courses, year-long courses; and then

 

    18 eventually I took an exam that qualified me to

 

    19 be a forensic psychiatrist.

 

    20          And I did similar trainings in -- it

 

    21 was a year-and-a-half training in child abuse

 

    22 assessment, termination, treatment.  I took a --

 

    23 an institute course there, and I became

 

    24 certified, as well as in a branch of cognitive

 

    25 behavior therapy, which is another modality of


 

 

                                                    93

 

 

     1 treatment.

 

     2        Q      Can you explain that, what that

 

     3 means?

 

     4 A      It's based on a different model of how

 

     5 the mind works, how -- the approach of treating

 

     6 mental conditions without the use of medication,

 

     7 in this particular situation based on learning

 

     8 behavior that is maladaptive or doesn't really

 

     9 lead to being happy and how to -- how to make

 

    10 changes based on what we learn or how we learn

 

    11 to behave in certain circumstances and how we

 

    12 can confront that and change into different way

 

    13 of relating or reacting.  That is basically what

 

    14 rational and motive behavior therapies are that

 

    15 was that training.

 

    16          Different than psychoanalysis, which is

 

    17 based on understanding the -- and the line

 

    18 experience that moves us to do things and the

 

    19 unconscious conflicts that make us respond or

 

    20 feel or act in certain ways.

 

    21        Q      Thank you, Doctor.  Have you

 

    22 received certifications as a specialist in any

 

    23 field?  I guess -- I guess the question --

 

    24 A      Board certification.

 

    25        Q      -- question is are you board


 

 

                                                    94

 

 

     1 certified?

 

     2 A      Yes.  Board certification is, again,

 

     3 testing and proving that one knows enough to be

 

     4 able to treat or to be able to work within that

 

     5 particular specialty competently and we can be

 

     6 entrusted to treat people and -- and see people

 

     7 and all that.  And I have -- I'm board

 

     8 certified.

 

     9          There is a board.  There is a group of

 

    10 people that take these tests and certified us,

 

    11 and I am certified by the American Board of

 

    12 Psychiatry & Neurology in the specialty of

 

    13 psychiatry, also in the specialty of forensic

 

    14 psychiatry.  And I am certified by the American

 

    15 College of Forensic Examiners in the specialty

 

    16 of psychiatry and American Board of Forensic

 

    17 Medicine.

 

    18        Q      Are you also a distinguished

 

    19 fellow of the American Psychiatric Association?

 

    20 A      Yes.

 

    21        Q      What does that mean to be a

 

    22 distinguished fellow of the American Psychiatric

 

    23 Association?

 

    24 A      Well, it's -- it's an award given based

 

    25 on the amount of work one does, not just in the


 

 

                                                    95

 

 

     1 office clinically, seeing, treating patients but

 

     2 being members of committees, participating,

 

     3 educating the community, going to religious

 

     4 groups and, again, making them aware of certain

 

     5 mental health issues and all that.  And based on

 

     6 all those different type of jobs, not just

 

     7 working, seeing patients in the office, one is

 

     8 granted this distinction as a distinctive --

 

     9 distinguished fellow.

 

    10        Q      Now, since you've received your

 

    11 license to practice medicine have you continued

 

    12 to practice psychiatry in addition to acting as

 

    13 a forensic psychiatrist?  I mean, do you

 

    14 continue to treat patients?

 

    15 A      Yes.

 

    16        Q      And you currently maintain a

 

    17 private practice?

 

    18 A      Yes, I do.

 

    19        Q      And where is that private practice

 

    20 located?

 

    21 A      Currently it's in Hackensack, New Jersey.

 

    22        Q      And how long have you been in

 

    23 private practice?

 

    24 A      For about, I would say, close to 30

 

    25 years.  A little before 30 years in private


 

 

                                                    96

 

 

     1 since I left my residency training program,

 

     2 yeah.

 

     3        Q      In the course of your -- I'm

 

     4 sorry, Doctor.

 

     5 A      No, no, that's -- thank you.  Thanks.

 

     6        Q      Can you quantify for us the

 

     7 portion of your practice that's spent doing

 

     8 clinical psychiatry, as opposed to forensic

 

     9 psychiatry?

 

    10 A      Right now I would say perhaps 35 percent

 

    11 or I would say little more of my practice is

 

    12 clinical work with -- directly with patients,

 

    13 and about 65 or a little less is the forensic

 

    14 work.  That requires a great deal of reading and

 

    15 great deal of time preparing.

 

    16        Q      And in your clinical practice have

 

    17 you had the opportunity to treat people with

 

    18 depression?

 

    19 A      Yes.

 

    20        Q      Could you tell us how many times?

 

    21 A      Oh, well, in the last 30 years numerous

 

    22 times in the inpatient service when I was

 

    23 working at Kings County.  After my training I

 

    24 worked there for two more years in the inpatient

 

    25 service.  People that were hospitalized.  Also


 

 

                                                    97

 

 

     1 in Bellevue Hospital, when I moved to NYU, New

 

     2 York University Medical Center, I was working

 

     3 both at NYU and also at Bellevue in the

 

     4 inpatient service for a number of years and then

 

     5 the outpatient service and then in my practice.

 

     6 So in the last 30 years or so exactly I don't

 

     7 know.  I would say maybe hundreds but --

 

     8        Q      And have you had the opportunity

 

     9 to treat patients with posttraumatic stress

 

    10 disorder?

 

    11 A      Yes.

 

    12        Q      And I am going to have to ask you

 

    13 the same question about are you able to quantify

 

    14 that for us?

 

    15 A      Exactly I don't know.  Probably would

 

    16 say -- I don't know a number, but I would say

 

    17 maybe 70, 80 cases.

 

    18        Q      And have you had the opportunity

 

    19 to treat patients with attention deficit

 

    20 disorder?

 

    21 A      Yes.

 

    22        Q      And on a quantification?

 

    23 A      Between 50 and 100.

 

    24        Q      And have you -- as a forensic

 

    25 examining psychiatrist have you had the


 

 

                                                    98

 

 

     1 opportunity to examine people who have

 

     2 depression?

 

     3 A      Yes.

 

     4        Q      And with posttraumatic stress

 

     5 disorder?

 

     6 A      Yes.

 

     7        Q      And how about attention deficit

 

     8 disorder?

 

     9 A      Also, yes, the three.

 

    10        Q      And I will ask you the

 

    11 quantification question with respect to each of

 

    12 those, if you can do it?

 

    13 A      I would say most of the cases

 

    14 forensically were in the area of posttraumatic

 

    15 stress disorder.  Depression would be the second

 

    16 one.  Attention deficit disorder would be close

 

    17 to depression, maybe third, about that.

 

    18        Q      Now, do you currently have staff

 

    19 privileges in any hospitals?

 

    20 A      Right now at this moment no.  I had a

 

    21 privilege at Barnert Hospital.  That was the

 

    22 last one.  But this hospital just closed about

 

    23 maybe be two months ago, in Paterson, New

 

    24 Jersey.  I --

 

    25        Q      You had staff privileges before?


 

 

                                                    99

 

 

     1 A      Yes, I had.  And the hospital closed.

 

     2 And right now I don't have any other privilege.

 

     3 I just do private practice.

 

     4        Q      And was that your choice?

 

     5 A      It was my choice.  If I -- if the patient

 

     6 needs to be hospitalized, I work about two

 

     7 blocks away from Hackensack University Hospital

 

     8 and I admit a patient there; but I would not

 

     9 follow.  I just --

 

    10        Q      Admit?

 

    11 A      -- participate in giving my clinical

 

    12 impression from the outpatient treatment to the

 

    13 doctors that treat the patient.

 

    14        Q      Now, do you currently belong to

 

    15 any professional groups?

 

    16 A      Yes.

 

    17        Q      Can you tell us about those?

 

    18 A      Well, I belong to the American

 

    19 Psychiatric Association.  I am a member of

 

    20 Psychiatric Association, New Jersey Psychiatric

 

    21 Association.  Here in New Jersey, New Jersey

 

    22 Psychoanalytic Society.  I am a member of the

 

    23 American Bar Association.  I am not an attorney.

 

    24 I am not a lawyer.  I am an associate member

 

    25 because I am a physician.  And I am there.  I am


 

 

                                                   100

 

 

     1 a member of the Health Law section of the

 

     2 Membership Committee of the Health Law section

 

     3 of the American Bar Association.

 

     4          I am a member of the American Academy

 

     5 of Forensic Sciences and also a member of the

 

     6 American Academy of Society and the Law, which

 

     7 is the Forensic Psychiatric Group belonging to

 

     8 the American Psychiatric Association.  And some

 

     9 others.

 

    10        Q      Now, do you hold any positions

 

    11 within the American Psychoanalytic Association?

 

    12 A      Yes, the American Psychoanalytic

 

    13 Association.  I'm a member of the Ethics

 

    14 Committee of the American Psychoanalytic

 

    15 Association.  Also member of the malpractice --

 

    16 Professional Malpractice Committee of that

 

    17 American Psychoanalytic Association.  The local

 

    18 committees or the local groups, chairman of the

 

    19 Ethics Committee of the New Jersey

 

    20 Psychoanalytic Society.

 

    21          I'm also the chairman of the

 

    22 Psychoanalytic Association of New York.  And

 

    23 within the Psychoanalytic Institute at New York

 

    24 University Medical Center, which is where I

 

    25 trained and where I teach right now, I'm also


 

 

                                                   101

 

 

     1 the chairman, I head Professional Ethics

 

     2 Committee of the institute.

 

     3        Q      Do you currently do any teaching?

 

     4 A      Yes.

 

     5        Q      Where do you do teaching?

 

     6 A      I do teaching at New York University

 

     7 School of Medicine.

 

     8        Q      What do you teach there?

 

     9 A      I teach there -- I supervise residents.

 

    10 Residents are doctors that are training to

 

    11 become psychiatrists in this case.  I supervise

 

    12 their work with their patients.  And I teach a

 

    13 course that is called Psychopathology 2.  It's a

 

    14 course on understanding the different medical --

 

    15 medical diseases and how they present and so on.

 

    16 I teach that to psychotherapy group.

 

    17 Psychotherapy.

 

    18          And I do teach ethics, professional

 

    19 ethics at the Psychoanalytical Institute at NYU

 

    20 Medical Center.

 

    21          Here in New Jersey I teach a course in

 

    22 forensic psychiatry at the Bergen Regional

 

    23 Medical Center Department of Psychiatry, the

 

    24 residency training program there.

 

    25          Also at UMDNJ, University of Medicine &


 

 

                                                   102

 

 

     1 Dentistry of New Jersey, I teach their

 

     2 psychiatric residents course on psychoanalytic

 

     3 psychotherapy concepts.  And I also teach their

 

     4 medical students -- the second-year medical

 

     5 students start going -- leaving the classroom

 

     6 and start going to hospitals.  And I lead a

 

     7 group of six students for a period of eight

 

     8 weeks interviewing patients, meaning it is the

 

     9 first approach to patients.  And what we

 

    10 discuss, what they learn is how to approach

 

    11 them, how to ask questions, what not to ask, how

 

    12 to ask it and then how to put together the

 

    13 presentation.  We don't deal with diseases per

 

    14 se because they are very young in their

 

    15 training.  But how to approach, how -- how to

 

    16 understand the patient's suffering, that is the

 

    17 basic thrust, the basic idea of my working with

 

    18 them.  That is at UMDNJ.

 

    19          And I also am a guest lecturer at Seton

 

    20 Hall School of Law in the mental health law

 

    21 section, this mental health law course conducted

 

    22 by Professor Deedy, Raymond Deedy.

 

    23        Q      Now, have you lectured or given

 

    24 presentations on psychiatry?

 

    25 A      Yes.


 

 

                                                   103

 

 

     1        Q      If you -- could you just tell us

 

     2 about that generally?  I don't want to go

 

     3 through every one you have ever done.  Just give

 

     4 us a general overview, if you can.

 

     5 A      I -- I present papers or presentations in

 

     6 different -- within the organizations that I

 

     7 belong in different areas.  Lately my main

 

     8 occupation in terms of presenting papers is in

 

     9 the forensic and ethical areas.  And I go to

 

    10 different places, different societies or groups.

 

    11          Right now I'm organizing -- I started

 

    12 about two years ago.  I'm a member of the

 

    13 International Committee Forensic Society,

 

    14 International Committee of the American Academy

 

    15 of Psychiatry and the Law and also Cross

 

    16 Cultural Committee.  And within that I work with

 

    17 two countries in South America -- I speak

 

    18 Spanish -- Chile and Argentina.

 

    19          And I organize and help from -- I mean,

 

    20 I'm not sponsored directly from American Academy

 

    21 of Psychiatry and the Law; but I organize

 

    22 lectures and give courses both in Chile and in

 

    23 Argentina, trying to -- I cannot say raise the

 

    24 level but certainly for me to learn from them

 

    25 and from them to learn from what we do and how


 

 

                                                   104

 

 

     1 we do things here.

 

     2          I remember when I was a student down

 

     3 there and somebody came from -- a doctor that

 

     4 trained here came to, in this case was Peru.  We

 

     5 all look up, we all wanted to learn, we all

 

     6 really tried to suck as much as possible from.

 

     7 So it's my way of paying back in a way.

 

     8          And I have family in Argentina.  I

 

     9 don't have any family in Peru, but in Argentina

 

    10 I do -- Chile, I mean.  But I enjoy doing it.

 

    11 And next week I am going to be there doing that,

 

    12 next week on Thursday and Friday.

 

    13        Q      Now, Doctor, do you serve as an

 

    14 editor in any journals on psychiatry?

 

    15 A      I was the associate editor of the

 

    16 bulletin of the Psychoanalytic Association of

 

    17 New York from '91 to '96.  And currently from

 

    18 2006, when I started doing these groups in

 

    19 Chile, the editor of -- the international editor

 

    20 of the Chilean Journal of Forensic Psychiatry,

 

    21 that they had something; but now it's becoming a

 

    22 little more organized and papers are differently

 

    23 presented.

 

    24        Q      Now, Doctor, have you been

 

    25 retained by the New Jersey Department of Human


 

 

                                                   105

 

 

     1 Services to provide forensic psychiatric

 

     2 evaluations?

 

     3 A      Yes.

 

     4        Q      Since when?

 

     5 A      I would say -- I would have to look at --

 

     6 at my -- I would say perhaps for about 10 or 12

 

     7 years; I'm not sure.  I have to look at my CV.

 

     8 This is working for DYFS.

 

     9        Q      Can you tell us about that, what

 

    10 that means?

 

    11 A      It is actually working and providing for

 

    12 DYFS, the Division of Youth and Family Services,

 

    13 doing evaluation, forensic evaluations for

 

    14 court.  It comes related to child abuse, child

 

    15 neglect, parental fitness, termination of

 

    16 parental rights.  So when those are the

 

    17 questions, I -- I do the examination for DYFS.

 

    18          Sometimes I do it for the Department Of

 

    19 Defendants Office, cases that have to do with

 

    20 DYFS, as well.

 

    21        Q      Now have you done any

 

    22 presentations?

 

    23 A      Yes.

 

    24        Q      I -- I understand.  We don't want

 

    25 to go through every presentation.  Just if you


 

 

                                                   106

 

 

     1 could highlight a couple that are -- are -- that

 

     2 you believe to be relevant here.

 

     3 A      I did presentations in -- in the area of

 

     4 forensic psychiatry on many different topics.

 

     5 civil topics, criminal topics, guardianship,

 

     6 assessment of -- one of them is, "Assessment of

 

     7 Psychiatric Disorders Following Trauma and the

 

     8 Conditions That Mimics Them."  In this case was

 

     9 malingering.  And --

 

    10        Q      Would one of those topics be

 

    11 posttraumatic stress disorder?

 

    12 A      I did -- I did one of them.  And it's

 

    13 something that I quoted Humpty Dumpty

 

    14 affliction, when it is and when it is not in

 

    15 terms of posttraumatic stress disorder.  And

 

    16 following a little bit that rhyme, of their

 

    17 breaking and trying to put it together again,

 

    18 whether it's possible or not.  And I did a few

 

    19 with different titles of that particular

 

    20 aspects, as well.  Those particular aspects

 

    21 of --

 

    22        Q      So -- so you have done

 

    23 presentations in the area of posttraumatic

 

    24 stress disorder?

 

    25 A      Yes.


 

 

                                                   107

 

 

     1        Q      Now, Doctor, have you been

 

     2 qualified as an expert in forensic psychiatry by

 

     3 any other court?

 

     4 A      Yes.

 

     5        Q      So you have been qualified as an

 

     6 expert in forensic psychiatry by courts before

 

     7 today?

 

     8 A      Correct, yes.

 

     9        Q      In the courts of New Jersey?

 

    10 A      Yes.

 

    11        Q      Have you been qualified as an

 

    12 expert in forensic psychiatry in courts in any

 

    13 other state?

 

    14 A      Yes.

 

    15        Q      Can you tell us those, please?

 

    16 A      In the State of New York, in

 

    17 Pennsylvania, Louisiana, Puerto Rico,

 

    18 California, Florida.  And I have done work that

 

    19 right now didn't -- didn't move on to any kind

 

    20 of either deposition or trial for -- in many

 

    21 other states, as well, Illinois and Ohio and in

 

    22 New Mexico that I was qualified.

 

    23        Q      Now, Doctor, have you evaluated or

 

    24 testified on behalf of both plaintiffs and

 

    25 defendants?


 

 

                                                   108

 

 

     1 A      Yes.

 

     2        Q      As -- can you quantify for us how

 

     3 much of your forensic psychiatric practice is --

 

     4 is on behalf of plaintiffs or on behalf of

 

     5 defendants?

 

     6 A      It's pretty much even.  It's pretty much

 

     7 50/50.  It's -- it depend on how they get to me,

 

     8 who -- who calls me first, let's say.  And if I

 

     9 can do the job, I'm retained to -- to examine,

 

    10 to do the -- to do the work.

 

    11        Q      And Doctor, you currently see and

 

    12 treat patients, as well?

 

    13 A      Yes.

 

    14               MR. BEVERE:  At this time, Your

 

    15 Honor, I move to qualify Dr. Goldwaser as an

 

    16 expert in the field of forensic psychiatry.

 

    17               JUDGE CURRAN:  Thank you.  Any

 

    18 questions or objections?

 

    19               MR. BEVERE:  I'm sorry, Judge, and

 

    20 clinical, as well.

 

    21               MS. SMITH:  Just a few questions,

 

    22 please.

 

    23               JUDGE CURRAN:  Sure.

 

    24 VOIR DIRE EXAMINATION BY MS. SMITH:

 

    25        Q      Good morning, Dr. Goldwaser.


 

 

                                                   109

 

 

     1 A      Good morning.

 

     2        Q      We haven't met.  I'm Nancy Smith.

 

     3 I think you met Kelly Smith from my office at a

 

     4 deposition.

 

     5 A      Okay.

 

     6        Q      Dr. Goldwaser, I just want to be

 

     7 clear.  You have no staff privileges at any

 

     8 hospital today?

 

     9 A      No.

 

    10        Q      Okay.  And you're currently an

 

    11 editor -- I'm sorry, is it a -- is it -- what's

 

    12 the -- I'm sorry, I don't know the name of it.

 

    13 Is it a newsletter?

 

    14 A      No, no, it's -- it's a forensic

 

    15 psychiatric journal that is published in Chile.

 

    16        Q      Is that -- that's not a

 

    17 peer-reviewed journal, is it?

 

    18 A      Yes, it is.

 

    19        Q      It's a peer-reviewed journal?

 

    20 A      Yes.

 

    21        Q      Have -- can you please explain --

 

    22 let me start.  A peer-reviewed journal, just so

 

    23 we're on the same page, that's when you send

 

    24 something you've written blind -- blind copy

 

    25 without your name on it out to experts in the


 

 

                                                   110

 

 

     1 field and they review it before it gets

 

     2 published; is that your understanding of what a

 

     3 peer-reviewed journal is?

 

     4 A      Yes, although sometimes my understanding

 

     5 that can also be -- author is identified.

 

     6        Q      Okay.  But it has to be reviewed

 

     7 by your peers?

 

     8 A      Yes.

 

     9        Q      Right people who do what you do

 

    10 out in the field, right?

 

    11 A      Yes, exactly.

 

    12        Q      Okay.  And on your CV, which has

 

    13 been marked D-310, there are no publications by

 

    14 you in peer-reviewed journals; is that correct?

 

    15 A      That's correct.

 

    16        Q      Okay.  And you represent or

 

    17 have -- do you currently represent DYFS in child

 

    18 abuse cases?

 

    19 A      I don't know if the term is

 

    20 "presentation."  I'm a provider --

 

    21        Q      Do you --

 

    22 A      -- so yes.

 

    23        Q      Do you get paid?

 

    24 A      Yes, I get paid for the work from DYFS,

 

    25 yes.


 

 

                                                   111

 

 

     1        Q      You get paid by the State to

 

     2 interview a child or look at the situation?

 

     3 A      Exactly.

 

     4        Q      You also get paid sometimes by the

 

     5 person who's accused of the child abuse and you

 

     6 do an analysis and you testify?

 

     7 A      Well, in the case of DYFS, no, it's not

 

     8 the case.  But if -- if it is not related to

 

     9 DYFS, yes.

 

    10        Q      I thought you said -- told the

 

    11 jury that sometimes you were retained by the

 

    12 Public Defender's Office?

 

    13 A      That's right.  That's right, the Public

 

    14 Defendant -- Public Defendant's Office is the

 

    15 one who pays me, not the person I interviewed or

 

    16 the patient or whoever.

 

    17        Q      Doesn't the Public Defender

 

    18 represent the patient or whoever has been

 

    19 accused of the abuse?

 

    20 A      Yes, but I'm not paid directly in this

 

    21 particular case from DYFS.  I am not collecting

 

    22 from the parents or the children of anybody.  I

 

    23 agree to the fee that they assign to me.

 

    24        Q      I'm sorry, there is no question

 

    25 pending.


 

 

                                                   112

 

 

     1               MR. BEVERE:  Judge, I think he was

 

     2 finishing his answer.

 

     3               JUDGE CURRAN:  If it is a

 

     4 continuing answer.

 

     5        Q      Go ahead.  Go ahead.  You want --

 

     6 go ahead, Doctor, I'm sorry.  You want to say

 

     7 some more about that topic?

 

     8 A      No, I am complete.

 

     9        Q      You have never published an

 

    10 article in a peer-reviewed journal with regard

 

    11 to posttraumatic stress disorder; is that

 

    12 correct?

 

    13 A      No.

 

    14        Q      Okay.  And the two articles that

 

    15 you discussed in 2002, you did a presentation

 

    16 on, "The Assessment of Psychiatric Disorders

 

    17 Following Trauma and of the Conditions That

 

    18 Mimics Them:  Malingering," right?  You just

 

    19 discussed that with Mr. Bevere?

 

    20 A      Yes, yes.

 

    21        Q      You did that presentation to the

 

    22 Travelers Property & Casualty Insurance

 

    23 Company's --

 

    24               MR. BEVERE:  Judge, come to

 

    25 sidebar.


 

 

                                                   113

 

 

     1        Q      -- Workers' Compensation Unit?

 

     2               JUDGE CURRAN:  Sure.

 

     3               MR. BEVERE:  Thank you.

 

     4               (Whereupon, the following sidebar

 

     5        discussion is held.)

 

     6               JUDGE CURRAN:  Mr. Bevere.

 

     7               MR. BEVERE:  I have an objection

 

     8 to the insurance reference.

 

     9               MS. SMITH:  Come on, a reference

 

    10 to an -- that's who he gave the presentation to.

 

    11               JUDGE CURRAN:  It's -- if that's

 

    12 who he gave -- I can understand that, but there

 

    13 is not even -- not even a, I don't think, a fair

 

    14 inference that insurance, which we all pretend

 

    15 doesn't exist, would be involved here.  But

 

    16 thank you.

 

    17               MR. BEVERE:  Thank you, Judge.

 

    18               JUDGE CURRAN:  The objection is

 

    19 noted.

 

    20               MR. BEVERE:  Thank you.

 

    21               (Whereupon, sidebar discussion is

 

    22        concluded.)

 

    23 BY MS. SMITH:

 

    24        Q      Okay.  Doctor you -- you gave that

 

    25 presentation at the Travelers Property &


 

 

                                                   114

 

 

     1 Casualty Insurance Company's Workers'

 

     2 Compensation Unit, right?

 

     3 A      Right, yes.

 

     4        Q      Okay.  And the other one you

 

     5 discussed with Mr. Bevere, it's called, "Humpty

 

     6 Dumpty Versus The Emperor's New Clothes, PTSD

 

     7 and TBI Versus Deception."  Is that the other

 

     8 one you talked to Mr. Bevere about?

 

     9 A      I guess I did.  This is another

 

    10 presentation that I did do.

 

    11        Q      Okay.  That was also in the year

 

    12 2002, correct?

 

    13 A      Let me see.

 

    14        Q      I think it's on page 15 of D-310,

 

    15 Doctor, if we have the same --

 

    16 A      No, we don't.  I have --

 

    17        Q      Sorry.

 

    18 A      I have the latest one.  I don't have that

 

    19 one.  Yes, I have it.

 

    20        Q      Okay.  You have it now?

 

    21 A      Yes, I found it.

 

    22        Q      Okay.  And that was sponsored by

 

    23 the Bergen County Bar Association Continuing

 

    24 Legal Education Committee, right?

 

    25 A      Yes.


 

 

                                                   115

 

 

     1        Q      And that was in the year 2002?

 

     2 A      Yes.

 

     3        Q      Doctor, let's talk about your

 

     4 areas of expertise.  You talked a little bit

 

     5 with Mr. Bevere about your areas of expertise.

 

     6 You have expertise in agoraphobia, correct?

 

     7 A      Yes, I could say you're correct.

 

     8        Q      And Alzheimer's disease?

 

     9 A      Yes.

 

    10        Q      And Americans with Disabilities

 

    11 Act?

 

    12 A      Yes.

 

    13        Q      And amnesia?

 

    14 A      Correct.

 

    15        Q      And you -- you've listed -- your

 

    16 areas of expertise include anxiety disorders?

 

    17 A      That's correct.

 

    18        Q      And back pain?

 

    19 A      Yes.

 

    20        Q      And brain jury?

 

    21 A      Yes, what it -- back pain and brain

 

    22 injury is not related to --

 

    23        Q      No, I'm sorry, I didn't make it

 

    24 sound like they were --

 

    25 A      I have to qualify, so it's clear.  It's


 

 

                                                   116

 

 

     1 not related to orthopedic problems or

 

     2 neurological problems.  It has to do with

 

     3 psychological or psychiatric component of these

 

     4 two conditions, yes.

 

     5        Q      And bulimia?

 

     6 A      Correct.

 

     7        Q      And child custody?

 

     8 A      Yes.

 

     9        Q      And child psychology?

 

    10 A      Yes.

 

    11        Q      And Civil Rights?  Again, as a

 

    12 forensic psychiatrist?

 

    13 A      Correct.

 

    14        Q      These are your areas of expertise

 

    15 within forensic psychiatry?

 

    16 A      Yes.

 

    17        Q      Okay.  And competency valuations?

 

    18 A      Yes.

 

    19        Q      And concussion?

 

    20 A      Yes.

 

    21        Q      And correctional psychiatry?

 

    22 A      That's correct, yes.

 

    23        Q      And criminal responsibility?

 

    24 A      Yes.

 

    25        Q      And damages?


 

 

                                                   117

 

 

     1 A      Yeah, you're reading the different

 

     2 aspects of the work I do.

 

     3        Q      These are -- this is what you --

 

     4 A      Yes.

 

     5        Q      -- yourself say are your areas of

 

     6 expertise --

 

     7 A      Correct, yes.

 

     8        Q      -- correct?

 

     9 A      I do.

 

    10        Q      And malpractice?

 

    11 A      Yes.

 

    12        Q      And medical malpractice

 

    13 separately, correct?

 

    14 A      Correct, yes.

 

    15        Q      Okay.  And mood disorders?

 

    16 A      Yes.

 

    17        Q      And your expertise includes

 

    18 Munchausen's Syndrome, correct?

 

    19 A      Correct, or fictitious disorder.

 

    20        Q      That's when people pretend to be

 

    21 sick and they're not really sick, they go to the

 

    22 hospital all the time for the attention?

 

    23 A      Well, yes and no.  They do have a

 

    24 sickness, but it's different.  It's not a

 

    25 pretension.  They do have a sickness that makes


 

 

                                                   118

 

 

     1 them manifest in -- in -- in a physical form;

 

     2 but it's a psychiatric condition, yes.

 

     3        Q      And pain management?

 

     4 A      Yes.

 

     5        Q      And panic disorder?

 

     6 A      Correct.

 

     7        Q      And personal injury?

 

     8 A      Yes.

 

     9        Q      And personality disorders?

 

    10 A      Yes.

 

    11        Q      And pharmacology?

 

    12 A      Psychopharmacology.

 

    13        Q      Okay.  Pornography addiction --

 

    14 A      Yes.

 

    15        Q      -- is one of your areas of

 

    16 expertise?

 

    17 A      Yes.

 

    18        Q      Postpartum depression is one of

 

    19 your areas of expertise?  Premenstrual syndrome,

 

    20 right?

 

    21 A      Yeah.

 

    22        Q      Psychiatric malpractice is one of

 

    23 your areas?

 

    24 A      Yeah, which you mentioned it earlier.  I

 

    25 mean, these are different categories.  This is a


 

 

                                                   119

 

 

     1 listing most likely you are reading from, and

 

     2 this is -- these are categories where people

 

     3 that are looking for an expert can find me.  So

 

     4 there are different ways of presenting it.  But

 

     5 for example, malpractice, you did it two or

 

     6 three times.  Or traumatic brain jury or

 

     7 concussion, all that -- all those are different

 

     8 ways of calling a same -- same problem.

 

     9        Q      This is a paid advertisement,

 

    10 right?  I'm reading from a paid advertisement

 

    11 that you put on the internet, right?

 

    12 A      This is that I have for attorneys to be

 

    13 able to find me, yes.

 

    14        Q      And this is what you put down as

 

    15 your areas of expertise, correct?

 

    16 A      Correct.

 

    17        Q      Dissociative identity disorder --

 

    18 A      Yes.

 

    19        Q      -- right?  Divorce proceedings,

 

    20 right?

 

    21 A      Again, what relates to my specialty.

 

    22        Q      Okay.  Eating disorders?

 

    23 A      Yeah.

 

    24        Q      Elder abuse?

 

    25 A      Yes.


 

 

                                                   120

 

 

     1        Q      Family law?

 

     2 A      Yeah.

 

     3        Q      Female genital mutilation?

 

     4 A      As a matter of fact, I am a member of the

 

     5 family law section of the American Bar

 

     6 Association, as well, yes.

 

     7        Q      Okay.  Female genital mutilation?

 

     8 A      Yes.

 

     9        Q      Headaches?

 

    10 A      They are not related to the procedure,

 

    11 itself, but related to the problem that it

 

    12 brings along, yes.

 

    13        Q      This is all related to the

 

    14 psychiatric implications of these, right?

 

    15 A      You're right.

 

    16        Q      This is all your areas of

 

    17 expertise?

 

    18 A      Yes.

 

    19        Q      Headaches?

 

    20 A      Uh-huh, yes.

 

    21        Q       I'm sorry.  Heirs, probate.  That

 

    22 means wills, right?

 

    23 A      Wills and undue influence, mental

 

    24 capacity and all that, yes.

 

    25        Q      You have listed as you are area of


 

 

                                                   121

 

 

     1 expertise kidney cancer?

 

     2 A      No.  Actually, it was brought to my

 

     3 attention during the deposition; and I called

 

     4 the people.  And somehow it went -- went

 

     5 through.  I have nothing to do with kidney

 

     6 cancer, but I am not listed -- if you look --

 

     7 this is not a current one, right?  This is an

 

     8 old one, correct?

 

     9        Q      This is the only one we've ever

 

    10 discussed.  It's marked Gold -- Goldwaser-6 at

 

    11 your deposition.

 

    12 A      That's right.  When --

 

    13        Q      Okay.

 

    14 A      When attorney called my attention to it

 

    15 said kidney problem, kidney cancer, I called the

 

    16 agency; and I said, "I don't want to be listed

 

    17 there because I have nothing to do with kidney

 

    18 cancer."

 

    19        Q      So we take kidney cancer off your

 

    20 areas of expertise?

 

    21 A      That is not my area of expertise, no.

 

    22        Q      Insomnia?

 

    23 A      Yes.

 

    24        Q      Reactive attachment disorder?

 

    25 A      Yes.


 

 

                                                   122

 

 

     1        Q      Schizophrenia?

 

     2 A      Correct.

 

     3        Q      School violence?

 

     4 A      Yes.

 

     5        Q      Sensory deprivation?

 

     6 A      Yes.

 

     7        Q      Sexual addiction?

 

     8 A      Yes.

 

     9        Q      Sexual disorders --

 

    10 A      Yes.

 

    11        Q      -- right?  Shaken baby syndrome is

 

    12 another area of your expertise --

 

    13 A      Yes.

 

    14        Q      -- right?  Sleep disorders is an

 

    15 area of your expertise, right?

 

    16 A      Yes.

 

    17        Q      Social phobia is part of your

 

    18 areas of expertise?

 

    19 A      Correct.

 

    20        Q      Sports medicine is part of your

 

    21 areas of expertise, right?

 

    22 A      Yes.  As a matter of fact, up until two

 

    23 years ago I was member of the Sports Medicine

 

    24 Committee of the New Jersey Psychiatric

 

    25 Association.  I'm not any longer because I don't


 

 

                                                   123

 

 

     1 have the time to do it, since I am doing other

 

     2 things, yes.

 

     3        Q      Stalking is part of your areas of

 

     4 expertise --

 

     5 A      Correct.

 

     6        Q      -- right?

 

     7 A      Yes.

 

     8        Q      Stress management is part of your

 

     9 areas of expertise, right?

 

    10 A      Yes.

 

    11        Q      Violence risk assessment is part

 

    12 of your area of expertise, right?

 

    13 A      Corrects.

 

    14        Q      And workers' compensation is part

 

    15 of your areas of expertise, right?

 

    16 A      Yes.

 

    17        Q      And -- but you have never

 

    18 published a peer-reviewed article on any of

 

    19 these topics, right?

 

    20 A      I am not associated to an academic place,

 

    21 like in this case the New York University.  I'm

 

    22 an associate professor of psychiatry.  I am

 

    23 not -- I don't work full-time at this place

 

    24 anymore.  I am not interested in moving up

 

    25 academically, which is one of the things that


 

 

                                                   124

 

 

     1 people do when they move up academically to a

 

     2 professorship, a full professorship.  I am not

 

     3 pursuing that particular avenue.

 

     4          My avenue is primarily clinical and

 

     5 forensic right now.  So I am not in the -- in

 

     6 the mode of publishing.  My publications are

 

     7 mainly related to, again, teaching or

 

     8 instructing or -- or preparing or presenting or

 

     9 making more available to the public, in this

 

    10 case would be attorneys, what -- what type of

 

    11 work forensic psychiatrists do because, believe

 

    12 it or not, it's not all that clear even for

 

    13 lawyers.

 

    14        Q      Okay.  My question was:  You

 

    15 haven't published in a peer-reviewed journal on

 

    16 any of the topics that you advertise you have

 

    17 expertise in, right?

 

    18 A      No, I do not.

 

    19        Q      Okay.  You haven't published any

 

    20 books, have you, Doctor?

 

    21 A      No.

 

    22        Q      Any chapters in any books?

 

    23 A      No, not yet.

 

    24               MS. SMITH:  I have no further

 

    25 questions, Your Honor.


 

 

                                                   125

 

 

     1               JUDGE CURRAN:  Thank you.

 

     2 Anything else, Mr. Bevere?

 

     3               MR. BEVERE:  Judge, just --

 

     4 CONTINUED DIRECT EXAMINATION BY MR. BEVERE:

 

     5        Q      Doctor, is it fair to say that as

 

     6 a psychiatrist you are qualified to diagnose any

 

     7 psychiatric disorder?

 

     8               MS. SMITH:  Objection, leading.

 

     9               JUDGE CURRAN:  Sustained.

 

    10        Q      Doctor, why is it that so many

 

    11 categories of psychiatric disorders are listed

 

    12 under your area of expertise?

 

    13 A      Because these are the areas that I work

 

    14 with in clinical settings and also in forensic

 

    15 settings.  I have done all these areas of

 

    16 expertise.  All these areas that Miss Smith --

 

    17               THE WITNESS:  Right --

 

    18               MS. SMITH:  Right.

 

    19 A      -- mentioned are areas in which I did

 

    20 work and currently work on in the forensic

 

    21 field, as well.

 

    22        Q      When you evaluate a patient in a

 

    23 clinical setting or an examinee in a forensic

 

    24 setting, do you have to keep an open mind as to

 

    25 what, if any, type of disorder that person


 

 

                                                   126

 

 

     1 you're evaluating is suffering from?

 

     2               MS. SMITH:  Objection, leading.

 

     3               MR. BEVERE:  I don't think that's

 

     4 leading, Judge.

 

     5               JUDGE CURRAN:  It's leading.  Any

 

     6 question that can be answered -- law school.

 

     7 Yes or no answer is the easiest way.

 

     8               MS. SMITH:  And I object to him

 

     9 ruling on my objections.

 

    10               JUDGE CURRAN:  Noted on the

 

    11 record.

 

    12               MR. BEVERE:  I will try not to do

 

    13 that again, Judge.  All right.  Now I have to

 

    14 get my train of thought about how to get back to

 

    15 asking this.

 

    16               JUDGE CURRAN:  You did fine last

 

    17 time, sustained it and --

 

    18               MR. BEVERE:  Showing my

 

    19 inexperience, but I'm trying.

 

    20 BY MR. BEVERE:

 

    21        Q      Doctor, when you examine a patient

 

    22 in a clinical setting or evaluate a patient in a

 

    23 forensic setting, what do you have to do as far

 

    24 as evaluating that patient, if you can

 

    25 understand that?


 

 

                                                   127

 

 

     1 A      Uh-huh.

 

     2        Q      I don't know if I understood it;

 

     3 but if you understand, you can tell us.

 

     4 A      The first and most important thing is to

 

     5 be able to be objective, not to -- not to mix

 

     6 whatever we think or feel as people when we are

 

     7 in the role of a professional, a physician of

 

     8 any kind, being clinical or forensic.

 

     9          What I do in the process of evaluating

 

    10 first is what we call an "examination."  I

 

    11 examine a patient or what we call an "examinee"

 

    12 in the forensic area.  In the clinical area we

 

    13 call it "patient" because the relationship is

 

    14 totally different when I treat somebody than

 

    15 when I examine somebody.

 

    16          In case of a treatment, well, I have to

 

    17 listen to their complaints, their symptoms,

 

    18 meaning what -- what they feel that I am not

 

    19 able to see because it comes from within.  And

 

    20 as we go along, based on my knowledge of the

 

    21 field, my knowledge of psychiatry, how mental

 

    22 illnesses present themselves, I have to ask

 

    23 different questions to put it together in a --

 

    24 in a diagnostic category.  I mean, all these

 

    25 symptoms can be part of this illness or this


 

 

                                                   128

 

 

     1 illness or this illness.  And this is what we

 

     2 call "differential diagnosis."  We rule out

 

     3 different ones, and eventually we come up with

 

     4 one.

 

     5        Q      And do you have to have expertise

 

     6 in all those areas in order to do that properly?

 

     7 A      Yes, this is one of the things that we go

 

     8 through in our training for these three, four

 

     9 years and then through our courses and -- and --

 

    10 and lectures and all that that we take to -- to

 

    11 learn more about it.

 

    12          In the case of the forensic field, it's

 

    13 the same thing.

 

    14          Now, being neutral, this is extremely

 

    15 important because, again, whatever we feel will

 

    16 interfere.  I mean, we are here to be able to

 

    17 explain something that is not easy to explain.

 

    18 If I explain it based on what I feel about a

 

    19 particular situation, I may be misleading.  So I

 

    20 have to -- to be able to, again, hold on to my

 

    21 professionalism; and I have to be able to use

 

    22 the psychiatric concepts, all -- everything that

 

    23 we know about psychiatry when we play the role

 

    24 of a forensic expert and apply it to this

 

    25 particular case.


 

 

                                                   129

 

 

     1          So what we do is we -- in the clinical

 

     2 setting it's not as important.  Sometimes it is;

 

     3 but generally speaking, it's not as important

 

     4 to -- to -- to learn from as many sources as

 

     5 possible of what's going on with the patient.

 

     6 We trust the patient.  The patient is coming to

 

     7 see us because the patient is sick and the

 

     8 patient wants to get better.  We -- we start a

 

     9 relationship like that.  And we take plenty of

 

    10 time to be able to develop that relation, to be

 

    11 able to treat and so on.

 

    12          In the forensic field it's totally

 

    13 different.  It's something that has to do with

 

    14 an open forum, that the principle of

 

    15 confidentiality, which is a very -- a must in

 

    16 the clinical setting, is very different in the

 

    17 forensic setting because it's open to -- I'm

 

    18 here talking about somebody.  So the rules

 

    19 change very substantially, very dramatically;

 

    20 but the principle is the same.

 

    21          Applying my clinical, my psychiatric

 

    22 knowledge and reading as much what we call

 

    23 "collateral sources," as much -- as many

 

    24 records, as many sources that will tell me about

 

    25 this particular person that I'm about to see.


 

 

                                                   130

 

 

     1 So I'm familiar, more or less, through the eyes

 

     2 of other people and through the interpretation

 

     3 of a lot of different sources, as many as

 

     4 possible.

 

     5          And then I sit with this person.  I

 

     6 examine this person.  I observe.  I listen to

 

     7 what the person tells me.  I observe how it is

 

     8 said, when it is said, the effect and tone, so

 

     9 on, what we call a "mental status exam."  And

 

    10 then we put -- we put everything together to

 

    11 arrive at a conclusion.

 

    12        Q      In order to be a -- an effective

 

    13 clinical and forensic psychiatrist, do you have

 

    14 to have expertise in these areas?

 

    15 A      Yes.

 

    16        Q      I have no further questions.

 

    17               JUDGE CURRAN:  Thank you.

 

    18                Ladies and Gentlemen -- I am so

 

    19 sorry, Miss Smith.

 

    20               MS. SMITH:  That's okay, Judge.  I

 

    21 will be brief.  Everybody wants lunch.  I just

 

    22 have two short ones, I promise.

 

    23               JUDGE CURRAN:  I'm sorry.

 

    24               MS. SMITH:  I'm so sorry.

 

    25               JUDGE CURRAN:  I think the jurors


 

 

                                                   131

 

 

     1 are writing a note saying --

 

     2               MS. SMITH:  I am so sorry.  I

 

     3 promise too because then we are going to move

 

     4 completely off this topic.  I'm sorry, just two.

 

     5 CONTINUED VOIR DIRE EXAMINATION BY MS. SMITH:

 

     6        Q      Doctor, doing an analysis of a

 

     7 particular diagnosis in one forensic case, that

 

     8 doesn't make you a -- particularly specialized

 

     9 in that, does it?  Aren't there -- I'm sorry, I

 

    10 will just start with that question?

 

    11 A      What was the question?

 

    12        Q      Doing an analysis in a forensic

 

    13 case for anybody of -- the whole analysis you

 

    14 just talked to Mr. Bevere about, that doesn't

 

    15 give you a particular expertise so that you're a

 

    16 specialist in that particular topic after one

 

    17 analysis, does it?

 

    18 A      The answer is yes.  And if you want to

 

    19 explain why -- what I mean by "yes," I will tell

 

    20 you.  In order to -- one of the questions that I

 

    21 was asked before is I was qualified as an expert

 

    22 before in -- in different courts and in

 

    23 different cases.  And the answer was yes.  I was

 

    24 always qualified.  I did all these cases that

 

    25 you read; I -- I have done it.  I have done it.


 

 

                                                   132

 

 

     1 I cannot tell you exactly all of them how many

 

     2 times I did -- I did them, but I -- I did work

 

     3 on all those cases.

 

     4          And the preparation and the study

 

     5 and -- and basically the preparation that goes

 

     6 into doing that is -- is inordinate.  So the

 

     7 bottom line is yes, I am applying my psychiatric

 

     8 knowledge on all these matters that you -- all

 

     9 these titles that you read and I applied to this

 

    10 particular person.  Again, I am applying my

 

    11 clinical knowledge to this particular legal

 

    12 issue forensic case.  So the answer is yes.

 

    13        Q      Okay.  Aren't some psychiatrists

 

    14 well known specialists in a subspecialty like

 

    15 PTSD?  Can we agree on that?

 

    16 A      Yes.

 

    17        Q      No?  Okay.  Some -- some

 

    18 psychiatrists teach at well known institutions

 

    19 about PTSD, right?

 

    20 A      Absolutely.

 

    21        Q      And some publish regularly in

 

    22 peer-reviewed journals about PTSD --

 

    23 A      Yes.

 

    24        Q      -- right?  And they're recognized

 

    25 in their -- by their peers as having a real


 

 

                                                   133

 

 

     1 expertise in a subspecialty, right?

 

     2 A      Yes.

 

     3        Q      Okay.  And you don't have that in

 

     4 PTSD, do you?

 

     5 A      Yes, I do.  I said at the very beginning,

 

     6 when Mr. Bevere asked me what I teach and where

 

     7 I teach, I teach at New York University School

 

     8 of Medicine, among other places.  And in that

 

     9 place in particular the course that I teach on

 

    10 psychopathology, I teach Psychopathology 1,

 

    11 Psychopathology 2.  And PTSD is a major topic

 

    12 that -- and is something that, again, was part

 

    13 of my training in the Psychoanalytic Institute

 

    14 at NYU.  First was Downstate Medical Center,

 

    15 then became NYU.

 

    16          Trauma is one of the basic tenets, one

 

    17 of the basic points that we study when we talk

 

    18 about mental function.  And I did go through

 

    19 that training.  I completed that training in

 

    20 several years.  And again, trauma is one of the

 

    21 most important elements of that particular

 

    22 theory, that particular way of -- modality of

 

    23 treatment.  And I teach it every year.  I am

 

    24 teaching at NYU for I don't know exactly, but my

 

    25 CV says.  It's probably ten years or more.  I


 

 

                                                   134

 

 

     1 don't know.

 

     2        Q      The last conference -- the last

 

     3 lecture you gave was, "Competence to Consent to

 

     4 Sexual Intercourse Legal and Psychiatric

 

     5 Interviews "-- "Issues" at Hackensack University

 

     6 Medical Center on your resume, rights?

 

     7 A      Yes.

 

     8        Q      And prior to that it was,

 

     9 Professional Malpractice Committee meeting of

 

    10 the American Psychoanalytical Association,

 

    11 winter meeting in 2006, right?

 

    12 A      Those are lectures that you are reading

 

    13 from?

 

    14        Q      This is under, "Conferences and

 

    15 Lectures."

 

    16 A      Yeah, yes.

 

    17        Q      Prior to that it was "Criminal

 

    18 Angst, as Diminished Responsibility?"  That was

 

    19 at Bellevue Hospital Center in the Tristate of

 

    20 AAPM, right?

 

    21 A      The try -- yeah, Tristate section of the

 

    22 American Academy of Psychiatry and the Law.

 

    23        Q      And prior to that it was, "Drugs,

 

    24 Mental Health and Competence, The Role of the

 

    25 Clinical Forensic Psychiatrist," right?


 

 

                                                   135

 

 

     1 A      Right.

 

     2               MS. SMITH:  Okay.  I have no

 

     3 further questions, Your Honor.

 

     4               JUDGE CURRAN:  Thank you, Mr.

 

     5 Bevere?

 

     6               MR. BEVERE:  Judge, I have no

 

     7 further questions.

 

     8               JUDGE CURRAN:  Thank you.  Ladies

 

     9 and Gentlemen, based on the doctor's testimony,

 

    10 his experience, his education, all of the

 

    11 professional information he put on the record, I

 

    12 find that it is appropriate to qualify him as an

 

    13 expert in forensic and clinical psychiatry.

 

    14 Thank you.

 

    15                I, having no psychiatric

 

    16 background or whatever, can just sort of

 

    17 ascertain the mental attitudes that I am seeing

 

    18 over there, if not every place in the courtroom,

 

    19 so we will take the lunch break.  I would

 

    20 appreciate it if you could be back at 1:45 after

 

    21 lunch.

 

    22                Please don't discuss the case.

 

    23 Thank you.  Off the record.

 

    24               (Whereupon, the jury is excused.)

 

    25               JUDGE CURRAN:  You may step down.


 

 

                                                   136

 

 

     1               THE WITNESS:  Thank you.

 

     2               (Whereupon, a luncheon recess is

 

     3        taken.)

 

     4               JUDGE CURRAN:  I will note that

 

     5 Juror Number 1 was in court.

 

     6                What was your problem downstairs

 

     7 with the sheriff?

 

     8               JUROR NUMBER 1:  I have a digital

 

     9 camera, and I brought it because I am going to

 

    10 event this afternoon.  And I wasn't stopped this

 

    11 morning, but I was stopped today.  And they said

 

    12 I can't leave it there -- if I leave it, it;

 

    13 will be gone -- and I can't bring it up.  So

 

    14 another juror, I put it in his motorcycle.  He

 

    15 was kind enough to --

 

    16               JUDGE CURRAN:  They wouldn't let

 

    17 you bring it up, even after I called and talked

 

    18 to them?

 

    19               JUROR NUMBER 1:  No, I don't know,

 

    20 because I went to put it in the bag.  So they

 

    21 didn't stop me after I came back.  They didn't

 

    22 say anything to me about that.

 

    23               JUDGE CURRAN:  They may have just

 

    24 had it known, or maybe I called in the meantime.

 

    25 Because Mr. Bevere said, just so it's clear, one


 

 

                                                   137

 

 

     1 of the jurors addressed him and said that

 

     2 another juror was stopped because she couldn't

 

     3 get back up.

 

     4               MR. BEVERE:  Actually, one of the

 

     5 jurors addressed Tracey.

 

     6               JUDGE CURRAN:  I'm sorry.  Oh,

 

     7 poor Tracey was the only one here, right?  Well,

 

     8 I'm sorry.  I mean, it was not a picture phone;

 

     9 it was a camera.

 

    10               MR. BEVERE:  I realized that after

 

    11 I spoke to you, but I figured you were already

 

    12 on the phone.

 

    13               JUDGE CURRAN:  I was, anyway.  I'm

 

    14 sorry.  Had I known they were stopping people

 

    15 with cameras -- I never heard that before.

 

    16               JUROR NUMBER 1:  I don't

 

    17 understand why they do that because cell phone

 

    18 has cameras.  So it's --

 

    19               JUDGE CURRAN:  I know.

 

    20               JUROR NUMBER 1:  -- basically same

 

    21 thing.

 

    22               JUDGE CURRAN:  I'm sorry you had

 

    23 that problem.

 

    24               JUROR NUMBER 1:  It's okay.

 

    25               JUDGE CURRAN:  You can go into the


 

 

                                                   138

 

 

     1 jury box.

 

     2                We will bring out the other

 

     3 jurors, Miss Castelli.

 

     4                I wanted it to be clear because I

 

     5 knew there was some conversation at lunchtime.

 

     6                I didn't realize, Tracey, that

 

     7 you were stuck with that.

 

     8               MR. BEVERE:  Tracey was the

 

     9 intermediary.

 

    10               COURT CLERK:  Jurors are

 

    11 approaching.

 

    12               (Whereupon, the jury is brought

 

    13        into the courtroom.)

 

    14               (Whereupon, a discussion is held

 

    15        off the record.)

 

    16               JUDGE CURRAN:  Sir, I understand

 

    17 you are now the guardian of the camera; is that

 

    18 right?  Okay.  That's a very big responsibility.

 

    19                Thank you.  We will proceed with

 

    20 the questioning of Dr. Goldwaser by Mr. Bevere.

 

    21                Mr. Bevere.

 

    22               MR. BEVERE:  Thanks, Judge.

 

    23 CONTINUED DIRECT EXAMINATION BY MR. BEVERE:

 

    24        Q      Dr. Goldwaser, at my request did

 

    25 you perform a forensic psychiatric examination


 

 

                                                   139

 

 

     1 of Mr. Peter deVries?

 

     2 A      Yes, I did.

 

     3        Q      Okay.  And I think you've told us

 

     4 before in the voir dire what a forensic

 

     5 psychiatrist does.  What was the purpose for

 

     6 your examining Mr. deVries?

 

     7 A      Well, the specific question that was

 

     8 presented to me by you to -- to determine was

 

     9 whether Mr. deVries and also Mr. Carter, whether

 

    10 they were suffering from psychiatric condition

 

    11 known as "posttraumatic stress disorder" as a

 

    12 result or directly connected, related to event

 

    13 that was reported that took place on April 25th,

 

    14 2004.  And that was what I was asked

 

    15 to determine.

 

    16        Q      Now, did I also ask you to

 

    17 determine whether or not Mr. deVries or

 

    18 Mr. Carter were suffering from any psychiatric

 

    19 disorder as a result of the or caused by the

 

    20 incidents of April 25th, 2004?

 

    21 A      Yes.

 

    22        Q      Now, Doctor, in connection with

 

    23 your examination of -- we'll start with

 

    24 Mr. deVries.  Were you provided with certain

 

    25 information?


 

 

                                                   140

 

 

     1 A      Yes, I was.

 

     2        Q      Okay.  And as you're sitting here

 

     3 do you have a copy of your report?

 

     4 A      Yes.

 

     5        Q      Do you need to use that report to

 

     6 refresh your recollection?

 

     7 A      I may need it, yeah.

 

     8               MR. BEVERE:  Okay.  I would just

 

     9 ask if there is an objection to the doctor

 

    10 referring to his report?

 

    11               MS. SMITH:  No, no objection.

 

    12               MR. BEVERE:  Thank you.

 

    13               MS. SMITH:  You want to put the

 

    14 number on the record?

 

    15               MR. BEVERE:  It's D-311, Your

 

    16 Honor.

 

    17               JUDGE CURRAN:  Thank you very

 

    18 much.

 

    19 BY MR. BEVERE:

 

    20 A      Yes, I have it.

 

    21        Q      Okay.  Thank you, Doctor.

 

    22 Starting with just with Mr. deVries, what

 

    23 information were you provided with by me in

 

    24 connection with your examination?

 

    25 A      Okay.  What I received from you were a


 

 

                                                   141

 

 

     1 bunch of medical records and some legal records,

 

     2 as well.  The medical records were the office

 

     3 notes of Dr. Almeleh, the psychiatrist that

 

     4 Mr. deVries was seeing, was treating with.

 

     5 Also, the psychotherapy records of Barbara

 

     6 Hines, a psychotherapist that Mr. deVries was in

 

     7 treatment with from May 2004 to about May, June,

 

     8 2005.  I also received records from Dr. Pumill.

 

     9 He is a cardiologist.  Mr. deVries was treating

 

    10 with him, as well.

 

    11          I received the complaint of the legal

 

    12 issues were complained -- they complained of,

 

    13 both Mr. deVries and Mr. Carter.  And also the

 

    14 answers and the reply to those answers related

 

    15 to the complaint.  I also received the

 

    16 deposition transcripts.  I mean the typed

 

    17 deposition of Mr. deVries.  There were four

 

    18 volumes adding up to about 23 hours.  And also I

 

    19 received the deposition transcript of -- oh, for

 

    20 Mr. deVries?

 

    21        Q      We will start with Mr. deVries

 

    22 first?

 

    23 A      Okay.  That's pretty much -- I also

 

    24 received -- I think that it was also the

 

    25 disability, long-term disability request.  I


 

 

                                                   142

 

 

     1 believe this is -- this is pretty much it.  And

 

     2 also I received psychiatric report prepared by

 

     3 Dr. Bursztajn.

 

     4        Q      Now, Doctor, with regard to the

 

     5 medical records that you were provided -- I

 

     6 think you referred to them as notes from Dr.

 

     7 Almeleh -- did those notes cover periods both

 

     8 before and after April 25th, 2004?

 

     9 A      Yes.

 

    10        Q      And the records of Dr. Pumill with

 

    11 which you were provided, were those records that

 

    12 also were for treatment that occurred both

 

    13 before and after April 25th, 2004?

 

    14 A      Yes, correct.

 

    15        Q      To your understanding as you are

 

    16 sitting here, did Mr. deVries treat with Barbara

 

    17 Hines, the psychotherapist, before April 25th,

 

    18 2004?

 

    19 A      No, it started afterwards.

 

    20        Q      Now, Doctor, I want to start by

 

    21 talking about the medical records of Dr.

 

    22 Almeleh.  What is your understanding as to who

 

    23 Dr. Almeleh is?

 

    24 A      My understanding is that he is a

 

    25 psychiatrist in New York City and that he was


 

 

                                                   143

 

 

     1 the psychiatrist -- I believe he started seeing

 

     2 the -- being the psychiatrist of Mr. deVries

 

     3 prior to Mr. Carter and eventually became also

 

     4 the psychiatrist of Mr. deVries as far back as

 

     5 August '94.  It was '94 I think the treatment

 

     6 started with Mr. deVries.

 

     7        Q      All right.  Now, Doctor, based

 

     8 upon your review of the medical records of Dr.

 

     9 Almeleh from -- I think the period of time you

 

    10 just related to us was 1994?

 

    11 A      Yes.

 

    12        Q      Through April -- let's say

 

    13 April 24th, 2004.  I won't say there was a visit

 

    14 on the 24th, but the period of time from the

 

    15 time that Mr. deVries first started seeing Dr.

 

    16 Almeleh until just before the incidents in

 

    17 question here.  Do you have an understanding as

 

    18 you're sitting here as to what, if any, medical

 

    19 condition Mr. deVries suffered from in that

 

    20 period of time?

 

    21 A      Yes, he was being treated for condition

 

    22 known as major depressive disorder recurrent,

 

    23 meaning it comes and goes.

 

    24        Q      Well, let's -- first let's define

 

    25 what major depressive disorder is, and then you


 

 

                                                   144

 

 

     1 can tell us what recurrent means.

 

     2 A      Major depressive disorder describes a

 

     3 major psychiatric illness that is considered as

 

     4 it has a biological basis, something in the --

 

     5 the brain is not working all that well; and this

 

     6 illness is characterized by, basically, feeling

 

     7 depressed.  Not just feeling sad, not just

 

     8 feeling down, but feeling, let me say, very sad

 

     9 or very down for a sustained, for a prolonged

 

    10 period of time, but down to the point of the

 

    11 functioning of the person in society in general

 

    12 becomes compromised at some point, meaning a

 

    13 person cannot function well, doesn't see much

 

    14 reason living, sometimes eats too much or eats

 

    15 too little, sometimes sleeps too much or sleeps

 

    16 too little.

 

    17          So there are a lot of problems,

 

    18 physical problems, like appetite, sleep.  But

 

    19 it's primarily a deep sense of despair that can

 

    20 go all the way to feeling hopeless and helpless,

 

    21 meaning it cannot feel better, I cannot feel

 

    22 better and helpless, nobody can help me.  I

 

    23 mean, the sense is very, very severe, very, very

 

    24 deep.  It's not something that we can say,

 

    25 "Well, snap out of it" or, "Come on" or, "I will


 

 

                                                   145

 

 

     1 take you for an ice cream" or whatever like

 

     2 that.  It's something, again, it's determined

 

     3 biologically, something in the brain.  It is a

 

     4 chemical imbalance that we have to find a way of

 

     5 balancing in the brain for a person to come out

 

     6 of it.

 

     7          And there are different types of it.

 

     8 One of them is called "recurrent," meaning it

 

     9 doesn't happen only once and good treatment,

 

    10 good medication, good psychotherapy solves it

 

    11 and never happens again.  The recurrent type is

 

    12 the type that is chronic, meaning it lasts for

 

    13 very long time and it goes in waves.  There is a

 

    14 period where one feels very, very bad and then

 

    15 one feels okay.  Sometimes one feels okay

 

    16 without much treatment, one feels okay because

 

    17 it has its own cycle, that is brain-determined

 

    18 more than whatever happens around us.

 

    19        Q      All right.  Doctor, what is --

 

    20 what is your understanding as to the first time

 

    21 that Mr. -- sorry, let me rephrase it.  What is

 

    22 your understanding of when Mr. deVries first saw

 

    23 Dr. Almeleh following his moving from Minnesota

 

    24 back to New Jersey?

 

    25 A      I believe it was in 2003.  He moved back


 

 

                                                   146

 

 

     1 to New Jersey 2001.  He was still treating with

 

     2 medication, antidepressant medication; but he

 

     3 was not treated -- he was not treating with Dr.

 

     4 Almeleh.  He was being treated by his primary

 

     5 care physician.  His internist, let's say,

 

     6 provided medication.

 

     7        Q      What is your understanding as to

 

     8 how long Mr. deVries was on antidepressant

 

     9 medication prior to November of 2003?

 

    10 A      My understanding is that pretty much he

 

    11 was on this type of medication all the way back

 

    12 to the very beginning, 1994.

 

    13        Q      Now, I want to talk about the

 

    14 period of time from -- I thought you said it was

 

    15 2003.  In your report do you have the date of

 

    16 when it was in 2003 that Mr. deVries first saw

 

    17 Dr. Almeleh again?

 

    18 A      Yes, November 7th, the end of the year of

 

    19 2003.

 

    20        Q      Okay.  And if you could tell us,

 

    21 what was the condition of Mr. deVries'

 

    22 depression between the period of November 7,

 

    23 2003 up until his last psychiatric visit with

 

    24 Dr. Almeleh prior to the incident of April 25th?

 

    25 A      Okay.  He was in the throws of a relapse,


 

 

                                                   147

 

 

     1 a depressive relapse when he came to see him.

 

     2 Dr. Almeleh has indicated the depression has

 

     3 come back and was taking medication.  He had

 

     4 stopped taking medication sometime back.  So

 

     5 there were periods in which he didn't take

 

     6 anything, but throughout all these years he --

 

     7 he took.  When he was in Minnesota he also took

 

     8 medication, antidepressant medication.

 

     9          He was feeling very severely bad.  As I

 

    10 said earlier, he saw very little purpose in

 

    11 continuing living.  This is what I was talking

 

    12 about before, when one feels in the throws of a

 

    13 major depressive episode, hope is -- is not a

 

    14 word that is part of what -- what a patient

 

    15 feels.  There is no -- no hope.  There is no

 

    16 purpose in living.

 

    17          He wanted to retire.  He didn't want to

 

    18 work.  He felt that he was worse after his

 

    19 surgery.  He had surgery some months earlier,

 

    20 heart surgery.  Sleeping problems.  The

 

    21 medication was raised substantially to the

 

    22 maximum amount, Zoloft, which is 200 milligrams.

 

    23          And he continued on that same mode of

 

    24 feeling depressed.  At work he was not feeling

 

    25 comfortable.  He wasn't getting along with his


 

 

                                                   148

 

 

     1 boss.  He wasn't getting along with people.  He

 

     2 could not concentrate.  He was very tired,

 

     3 sleeping, taking a lot of naps.  He could not

 

     4 stay up; he -- he had to lie down.

 

     5          One thing that is interesting is that

 

     6 at some point briefly he felt better.  And he

 

     7 started in November.  In December he started

 

     8 taking a -- another medication, a new medication

 

     9 that is called Adderall.

 

    10        Q      Now, Doctor, not to cut you off;

 

    11 but was that in addition to antidepressant

 

    12 medications?

 

    13 A      In addition to the antidepressant

 

    14 medication.  The antidepression medication was

 

    15 Zoloft.  Antidepressant medication that was

 

    16 replaced by Dr. Almeleh for another, that is

 

    17 called Lexapro.  Let me say they are similar in

 

    18 a way.  They work similarly, but they have a

 

    19 little different properties.  But they are both

 

    20 antidepressant.  And -- and Dr. Almeleh changed

 

    21 Zoloft for Lexapro and was going to start him

 

    22 on -- on a medication that is called Ritalin.

 

    23          Ritalin is a medication that is used

 

    24 for people that suffer from attention deficit

 

    25 disorder.  Helps -- it is a stimulant that


 

 

                                                   149

 

 

     1 people that suffer from AADD or ADHD, attention

 

     2 deficit disorder, because of, again, certain

 

     3 abnormalities in the brain, the brain can pull

 

     4 itself together and people can focus better, can

 

     5 pay more attention and so on.  So Dr. Almeleh

 

     6 was planning to do that, to -- to include that

 

     7 as a -- as a way of stimulating him,

 

     8 start-jumping him.

 

     9        Q      Now, Mr. deVries to your knowledge

 

    10 prior to this point, had he had a diagnosis of

 

    11 ADD?

 

    12 A      No.

 

    13        Q      So what was the purpose of the

 

    14 Adderall?

 

    15 A      Well, the purpose of the Adderall was not

 

    16 introduced by Dr. Almeleh.  Dr. Almeleh did not

 

    17 prescribe Adderall for the first time for his

 

    18 patient.  His patient actually took it from

 

    19 Mr. Carter.  Mr. Carter was taking Adderall.

 

    20 And Mr. Carter was taking Adderall prescribed

 

    21 for the treatment of ADD, but Mr. Carter gave

 

    22 him this medication.

 

    23          And Adderall is also stimulant.

 

    24 It's -- it's a combination of different types of

 

    25 amphetamines.  Amphetamines are stimulants of


 

 

                                                   150

 

 

     1 the -- of the brain, of the central nervous

 

     2 system.  He started taking this medication,

 

     3 which is potentially a very dangerous medication

 

     4 for -- for many reasons.

 

     5          When he went to see Dr. Almeleh in

 

     6 December, middle of December, December 18, he

 

     7 had started to take this medication and wanted

 

     8 to continue.  Dr. Almeleh had some questions

 

     9 about this medication because people that have

 

    10 hypertension -- and Mr. deVries has

 

    11 hypertension -- people that have heart

 

    12 conditions -- I mean actual, the structure of

 

    13 the heart, not just that the heart doesn't pump

 

    14 well, but there are problems with the heart,

 

    15 itself -- there are cases of sudden death, there

 

    16 are cases of serious bad effect when people take

 

    17 Adderall.

 

    18          And Adderall is actually -- is

 

    19 discouraged to be taken when people have these

 

    20 kind of problems.  And Mr. deVries had those

 

    21 kind of problems.  He had heart surgery.  He had

 

    22 a valve of the aorta, main artery of the heart

 

    23 was changed.  So he was not a good candidate to

 

    24 receive this kind of medication.  But he did

 

    25 take it.  When he went to see doctor, he told


 

 

                                                   151

 

 

     1 him that he had been taking it for about a week

 

     2 or so.  And he told him that he took his pulse

 

     3 and things are okay.  So he continued taking it.

 

     4          He was at the same time taking some

 

     5 medication for the blood pressure, to lower the

 

     6 blood pressure, some medication for the heart

 

     7 to -- to beat well and so on.  And that was

 

     8 the -- this -- the other medication that was

 

     9 added to the Lexapro.

 

    10        Q      All right.  So you began to tell

 

    11 us about a feeling that Mr. deVries developed

 

    12 sometime after December of 2003.  Is it your

 

    13 understanding from reading Dr. Almeleh's records

 

    14 that there was a period of time after

 

    15 November 2003 and before April 25th where

 

    16 Mr. deVries was feeling better?

 

    17 A      Okay.  There was -- there was a time, and

 

    18 that was the beginning of January.  He started

 

    19 taking this medication, again, stimulant.  And

 

    20 in January, which is the -- the session or

 

    21 the -- the treatment visit that followed the one

 

    22 in which he said, "I'm taking the Adderall," he

 

    23 was still struggling with sleeping issues and

 

    24 all that.  He was taking the Lexapro.

 

    25          But he mentioned that he started


 

 

                                                   152

 

 

     1 feeling better, he was able to concentrate

 

     2 better, he was -- he was more active and also

 

     3 that he -- another -- another good thing about

 

     4 this and he was happy for that was that he had

 

     5 started to lose weight.  And that was something

 

     6 that his cardiologist had told him the previous

 

     7 year, in July, I believe, of '03, had told him

 

     8 that he needed to exercise.  He had put on

 

     9 weight.  So he was feeling glad of that.  He was

 

    10 feeling better that he was losing weight and he

 

    11 was -- he was a little more active.

 

    12        Q      To your knowledge did that feeling

 

    13 last?

 

    14 A      No, that feeling did not last.  In --

 

    15 in -- that was during the month of January that

 

    16 he felt better on the combination of Lexapro,

 

    17 which is the new antidepressant, and Adderall.

 

    18 He was feeling better at that time, and he

 

    19 preferred to stay on Adderall and not to take

 

    20 Ritalin.

 

    21          In February was when he was happy of

 

    22 losing weight and feeling good about it.  Still

 

    23 taking naps, but they are shorter.

 

    24          And towards the end of the month,

 

    25 towards the end of February, which is that --


 

 

                                                   153

 

 

     1 that following session, he started feeling down

 

     2 again.  And he had started -- this is

 

     3 February 27th.

 

     4          So we started in November.  He went to

 

     5 see him.  He was feeling very badly, and he

 

     6 didn't see any -- any hope, any reason to go on

 

     7 living and all that.  The medication was

 

     8 changed, and at the same time Adderall was

 

     9 introduced by Mr. Carter.  That meant that new

 

    10 medication -- and he was taking it at a high

 

    11 dose.  Normally people start at very low dose,

 

    12 but he started at 40 milligrams a day.  So he

 

    13 was taking a lot for somebody that didn't take

 

    14 them before.  And responded.

 

    15        Q      Now, at some point was the Lexapro

 

    16 discontinued?

 

    17 A      Yes, the problem was that he -- in

 

    18 February he was feeling good on the -- on the

 

    19 antidepressant and the Adderall.  Towards the

 

    20 end of the month, also February, he came to Dr.

 

    21 Almeleh and told him that he had relapsed in

 

    22 terms of his cigarette smoking.  He started

 

    23 smoking again.  He had started some days back or

 

    24 some week back or so, and he was smoking ten

 

    25 cigarettes a day.  And he -- he knew that he had


 

 

                                                   154

 

 

     1 to give it up because he had shortness of

 

     2 breath, periodic tightness of the chest, a sense

 

     3 of lack of oxygen, mild coughing.  He was aware

 

     4 of the heart condition that he had.

 

     5          He was taking 70 milligrams of

 

     6 Adderall.  Generally speaking, the maximum

 

     7 somebody who needs Adderall is about

 

     8 70 milligrams.  He is taking 70 without a very

 

     9 clear indication for that, and he started it on

 

    10 his own.

 

    11          He -- he started developing

 

    12 light-headedness.  And Dr. Almeleh thought that

 

    13 maybe it's related to the Lexapro, but maybe

 

    14 it's also related to another medication that is

 

    15 for the heart.  It's called Toprol.  That is for

 

    16 the heart.  A side effect of this other

 

    17 medication, Toprol, to help the heart is

 

    18 fatigue, sluggishness and all that.  So Dr.

 

    19 Almeleh was not clear whether this

 

    20 light-headedness was due to the Lexapro or due

 

    21 to the Toprol, but he knew that Toprol he needed

 

    22 to take for the heart to work.

 

    23          So what he did is he stopped the

 

    24 Lexapro at that moment, thinking that the

 

    25 Lexapro was creating this light-headedness.  And


 

 

                                                   155

 

 

     1 that is potentially serious.

 

     2          And then, the next month, which is in

 

     3 March of '04, he had a conference with Dr.

 

     4 Pumill, the cardiologist.  And Dr. Pumill said,

 

     5 "Look, there is no question about the Toprol.

 

     6 He has to take it for the rest of his life, so I

 

     7 am not going to do anything for that other than

 

     8 reduce."  They reduce a little bit the

 

     9 medication the Toprol, but the Lexapro was taken

 

    10 off.  So he was not taking Lexapro, hoping that

 

    11 the Adderall alone would carry him on.

 

    12        Q      Now, how did Mr. deVries'

 

    13 depression symptoms progress following the

 

    14 discontinuation of the Lexapro in either late

 

    15 February or early March of 2004?

 

    16 A      Okay.  The following visit he started to

 

    17 decline again.  On the 14th, March 14th he was

 

    18 having trouble at work.  He was starting again

 

    19 having the difficulties that he wasn't having.

 

    20 When he came in January he was talking about

 

    21 liking his -- his work.  Now he started going

 

    22 back down, not liking it.

 

    23        Q      Did Dr. Almeleh indicate whether

 

    24 or not Mr. deVries had been reprimanded at work

 

    25 in March of 2004?


 

 

                                                   156

 

 

     1               MS. SMITH:  Objection, Your Honor,

 

     2 leading.

 

     3               JUDGE CURRAN:  Sustained.

 

     4               MR. BEVERE:  I will rephrase, Your

 

     5 Honor.

 

     6 BY MR. BEVERE:

 

     7        Q      Did Dr. Almeleh indicate in March

 

     8 of 2004 one of the reasons why Mr. deVries was

 

     9 having problems at work?

 

    10 A      Yes, in March, March 19th -- and again,

 

    11 he started showing problems in February.  He

 

    12 started smoking again, knowing that he

 

    13 shouldn't; but he -- he couldn't stop it.  On

 

    14 March 19th he was -- he was having problems at

 

    15 work.  He -- he had been reprimanded at work.

 

    16 And he described having hard time at work.  The

 

    17 way he decided to -- to make it up for it,

 

    18 whatever, he started as of March 19th, around

 

    19 that time, to work more hours, to go to work and

 

    20 stay there longer to complete the assignment and

 

    21 so on he was --

 

    22        Q      What was the indication in Dr.

 

    23 Almeleh's notes how many hours Mr. deVries was

 

    24 spending at work as of March 19th, 2004?

 

    25 A      Twelve to 13 hours a day he began -- he


 

 

                                                   157

 

 

     1 began working.  As of March 19 or around

 

     2 March 19 he started working 12 to 13 hours a

 

     3 day, putting -- putting this time at work.

 

     4        Q      When was the next visit after the

 

     5 March 19th visit?

 

     6 A      It was April 9 -- I'm sorry -- yes, April

 

     7 9.

 

     8        Q      And what was -- according to Dr.

 

     9 Almeleh's notes, what was Mr. deVries' condition

 

    10 as of April 9th, 2004?

 

    11 A      He still he was feeling depressed again.

 

    12 And he related that he was feeling depressed

 

    13 about not liking work.  Now, that would be a --

 

    14 the explanation that he is giving, the point of

 

    15 not liking work most likely is related to

 

    16 feeling depressed, rather than the other way

 

    17 around.  Being depressed, not just sad or down,

 

    18 implies lack of energy, lack of enthusiasm, lack

 

    19 of ability to -- to go do things.  And at work

 

    20 we have to perform.  And that was one of the

 

    21 problems he was complaining on 4/9, on

 

    22 April 9th.

 

    23        Q      Did Dr. Almeleh indicate whether

 

    24 or not he was considering reinstituting the

 

    25 antidepressant medication on April 9th, 2004?


 

 

                                                   158

 

 

     1               MS. SMITH:  Objection, leading.

 

     2               JUDGE CURRAN:  Sustained.

 

     3               MR. BEVERE:  Judge, the question

 

     4 was whether or not --

 

     5               JUDGE CURRAN:  No.

 

     6               MR. BEVERE:  I will be happy to

 

     7 rephrase.

 

     8               JUDGE CURRAN:  Well --

 

     9 BY MR. BEVERE:

 

    10        Q      Doctor, what, if any, indication

 

    11 Did Dr. Almeleh make as to medication as of the

 

    12 office visit on April 9th, 2004?

 

    13 A      April 9th, 2004 Dr. Almeleh was really at

 

    14 a loss with his patient.  He was depressed.  He

 

    15 was not functional at work.  He didn't like

 

    16 work.  He -- he was saying, "Work makes me

 

    17 depressed."  And doctor in his note, he is -- he

 

    18 wonders -- he writes down that he is not sure

 

    19 whether this is, as he put it, an environmental

 

    20 factor, meaning there is something about work

 

    21 that makes him depressed and maybe that is what

 

    22 I should be focusing on right now; or is the

 

    23 biological depression, as he put it, that makes

 

    24 him depressed, therefore not to work well and to

 

    25 get in trouble with people at work.  So that was


 

 

                                                   159

 

 

     1 what he was wondering.

 

     2          And he was, again, thinking of

 

     3 reinstating the medication and wondering about

 

     4 the possible problems with the heart or not -- I

 

     5 mean what to do.

 

     6          But it is that -- it was recognized

 

     7 that throughout all this period from November

 

     8 '03 through April '04 he was not stable.  His --

 

     9 his depressive, major depressive condition,

 

    10 major depressive disorder was not -- he was not

 

    11 what we call "compensating," meaning he was not

 

    12 put together and he was not better.

 

    13          And this is how we do it.  We treat to

 

    14 get the patient to feel better and then to be

 

    15 stable, to continue being better.  He was not

 

    16 only unstable by all this, but he was not

 

    17 compensating.  His depressions were still there.

 

    18 In other words, the -- the other worked

 

    19 momentarily, was a new medication, was a mix of

 

    20 amphetamines, was a stimulant that worked for a

 

    21 moment, made him lose some weight, made him feel

 

    22 confident, made him feel he liked working, then

 

    23 immediately he went down again.

 

    24        Q      Now, Doctor, in the office notes

 

    25 for Dr. Almeleh between November 7, 2003 and


 

 

                                                   160

 

 

     1 April 9th, 2004, which was the last visit prior

 

     2 to April 25th, 2004, is there any reference in

 

     3 Dr. Almeleh's notes to firefighters?

 

     4               MS. SMITH:  Objection, leading.

 

     5               JUDGE CURRAN:  It really is

 

     6 leading.

 

     7               MR. BEVERE:  Judge, my smile

 

     8 was -- my smile as an acknowledgment that I had

 

     9 led and I would rephrase.

 

    10               JUDGE CURRAN:  Well, Miss Smith is

 

    11 not about to follow, so you may as well change

 

    12 the leading.  So if you will please rephrase.

 

    13               MR. BEVERE:  Yes.

 

    14 BY MR. BEVERE:

 

    15        Q      Doctor, do you know from your

 

    16 review of Dr. Almeleh's treatment notes if there

 

    17 is any reference to firefighters prior to

 

    18 April 9th -- prior to April 25th, 2004?

 

    19 A      Yes, I know; I know it.  I know that

 

    20 there is none whatsoever.

 

    21        Q      Do you know if there is any

 

    22 reference to the Town of Secaucus in

 

    23 Mr. deVries' psychiatric records that predate

 

    24 April 25th, 2004?

 

    25 A      No, as a matter of fact, this is -- these


 

 

                                                   161

 

 

     1 are the type of notes or this is the type of

 

     2 treatment that he has been providing all along.

 

     3 He is treating this condition, and in his mind

 

     4 he is trying to -- he is struggling with how to

 

     5 treat major depressive disorder.

 

     6               MS. SMITH:  Objection as to what's

 

     7 in Dr. Almeleh's mind.

 

     8               JUDGE CURRAN:  Sustained.

 

     9               THE WITNESS:  Okay.

 

    10               JUDGE CURRAN:  I am going to

 

    11 strike the last part of that answer.  You may

 

    12 continue questioning.

 

    13               MR. BEVERE:  Sure.

 

    14 BY MR. BEVERE:

 

    15        Q      Doctor, what is your understanding

 

    16 based upon the review of Dr. Almeleh's records

 

    17 as to what condition Mr. deVries was being

 

    18 treated for up until April 25th, 2004?

 

    19 A      Major depressive disorder recurrent

 

    20 severe.

 

    21        Q      Now, Doctor, in addition to

 

    22 reviewing Dr. Almeleh's records you also

 

    23 reviewed the records of Dr. Pumill that were for

 

    24 treatment that occurred before April of 2004,

 

    25 correct?


 

 

                                                   162

 

 

     1 A      Correct, yes.

 

     2        Q      What, if anything, did Dr.

 

     3 Pumill's records indicate about either weight

 

     4 gain or weight loss?

 

     5 A      He writes in the notes that on the

 

     6 visit -- the visit 7 -- July 13 of '03 he had

 

     7 put on weight and he was not exercising and he

 

     8 was -- that -- that is not a good thing for

 

     9 somebody that has a heart disease, that had

 

    10 surgery, that is being monitored.  He was -- so

 

    11 far he was stable.

 

    12          He also suffered -- he also had

 

    13 hypertension.  So he had a heart that was

 

    14 working well, blood vessels that were working

 

    15 well; but is something that his heart was still

 

    16 sick.  So it's a good idea not to force the

 

    17 heart by being overweight, to help the heart by

 

    18 being lean or by being -- by exercising and so

 

    19 on.  And that was one of the things that he

 

    20 noticed and that he suggested that he do, that

 

    21 he exercise and that he lose weight.

 

    22        Q      Now, in Doctor -- I believe you

 

    23 testified earlier about something in Dr.

 

    24 Almeleh's notes regarding smoking.  Did Dr.

 

    25 Almeleh indicate anything in his notes prior to


 

 

                                                   163

 

 

     1 April 25th, 2004 about smoking?  Dr. Almeleh,

 

     2 not Dr. Pumill, Dr. Almeleh.

 

     3 A      If he indicated before when?

 

     4        Q      April 25th, 2004.

 

     5 A      Yes, yes, it was in February that Dr.

 

     6 Almeleh wrote down that he had a relapse,

 

     7 smoking relapse and that he had been smoking ten

 

     8 cigarettes every day.

 

     9        Q      Now, and did Dr. Almeleh's notes

 

    10 before April 25th of 2004 indicate any problems

 

    11 that Peter and Tim may have been having?

 

    12 A      Yes.

 

    13        Q      Can you tell us about those?

 

    14 A      Okay.  One thing I want to mention -- and

 

    15 I -- on the -- when I received the records for

 

    16 both, I received also the records of Dr.

 

    17 Almeleh's treatment with Mr. Carter and their

 

    18 reference of Mr. deVries and -- in both.  So I

 

    19 know some aspects from the treatment of

 

    20 Mr. Carter about some -- some of the

 

    21 circumstances about the Adderall and so on.

 

    22          But from the very beginning there

 

    23 was -- there was some bickering.  There was

 

    24 disagreement.  There -- there were issues

 

    25 between Mr. Carter and Mr. deVries primarily


 

 

                                                   164

 

 

     1 coming from Mr. deVries feeling very upset that

 

     2 he was not contributing financially, that

 

     3 Mr. Carter was not working.  And from the very

 

     4 beginning he felt that was --

 

     5               MS. SMITH:  Objection to what Dr.

 

     6 Almeleh felt.

 

     7               JUDGE CURRAN:  Sustained.

 

     8 A      Okay.  He noted that there were problems

 

     9 in their relationship from the very beginning.

 

    10        Q      Now, Doctor, you also reviewed the

 

    11 treatment records of Dr. Almeleh from the first

 

    12 visit following April 25th, 2004 going forward

 

    13 up until, I believe it was, early 2006?

 

    14 A      Yes.

 

    15        Q      Now, based upon your review of Dr.

 

    16 Almeleh's records do you know when the first

 

    17 time -- let me ask you this -- this question.

 

    18          Do you know whether Mr. deVries sought

 

    19 any emergency medical treatment following the

 

    20 April 25th, 2004?

 

    21 A      Yes I know based on the records that I

 

    22 have he did not seek out any emergency medical

 

    23 treatment.

 

    24        Q      Okay.  When was his first visit

 

    25 with Dr. Almeleh after April 25th, 2004?


 

 

                                                   165

 

 

     1 A      It was on April 30th, 2004.

 

     2        Q      Do you know as you are sitting

 

     3 here today whether that was a regularly

 

     4 scheduled appointment?

 

     5 A      I don't know.

 

     6        Q      With what frequency had

 

     7 Mr. deVries been seeing Dr. Almeleh prior to

 

     8 April 25th, 2004?

 

     9 A      Generally speaking, every other week,

 

    10 twice a month.

 

    11        Q      And when was the -- and the last

 

    12 time he had seen him prior to April 30th was?

 

    13 A      Was April 9th.

 

    14        Q      And then when was the next time

 

    15 that Mr. deVries saw Dr. Almeleh after

 

    16 April 30th?

 

    17 A      It was on May 21st, three weeks later.

 

    18        Q      Now, do you have an understanding

 

    19 as you're sitting here as to whether the

 

    20 frequency of Dr. -- of Peter deVries' visits

 

    21 with Dr. Almeleh changed after April 25th, 2004?

 

    22 A      I would say no, it was loosely described

 

    23 every other week.  Sometimes it's every three

 

    24 weeks, sometimes there is a month in between;

 

    25 but it's about every two to three weeks.


 

 

                                                   166

 

 

     1        Q      And would that be true through the

 

     2 end of 2004?

 

     3 A      Yes, uh-huh, yes.

 

     4        Q      Now, Doctor, as you're sitting

 

     5 here do you have an understanding as to when

 

     6 Mr. deVries' antidepressant medication was

 

     7 reinstituted?

 

     8 A      It took a while.  He was not -- he stayed

 

     9 on Adderall for all this time.  And what was

 

    10 added to that was medication like Provigil.

 

    11 Provigil is another medication that has to do

 

    12 with helping people be alert.  Those people that

 

    13 feel sleepy or tired during the day, this

 

    14 medication tends to help them be up.  So it was,

 

    15 again, something to help him deal with that

 

    16 lethargy that he has been suffering all along.

 

    17          If I'm correct, he gave -- he

 

    18 prescribed Adderall -- I'm sorry, Lexapro, which

 

    19 is, again, an antidepressant, the following

 

    20 year, in April of '05.

 

    21        Q      Now, Doctor, I want to talk about

 

    22 in addition to seeing Dr. Almeleh after

 

    23 April 25th, 2004, it's your understanding that

 

    24 he also saw Barbara Hines, as well?

 

    25 A      Yes.


 

 

                                                   167

 

 

     1        Q      Okay.  And what was Barbara Hines?

 

     2 A      Barbara Hines was a psychotherapist.

 

     3        Q      Is that different than a

 

     4 psychiatrist?

 

     5 A      Yeah, it's -- a psychiatrist can also

 

     6 perform psychotherapy -- I mean provide that

 

     7 modality of treatment that --

 

     8        Q      Well, what is psychotherapy?

 

     9 A      It's basically understood as talk

 

    10 treatment, talk therapy, helping, again,

 

    11 understand what makes us do certain things or

 

    12 what makes us feel certain things.  And if it is

 

    13 not related to a brain disease, it's very

 

    14 effective and can treat without the use of

 

    15 medication.

 

    16          Generally speaking, the best treatment

 

    17 approach is a combination of medication and

 

    18 psychotherapy.  That, generally speaking, works

 

    19 best.  And this was the case here.  He was

 

    20 referred for psychotherapy after this event

 

    21 while he continued treating.

 

    22        Q      As you are sitting here do you

 

    23 have an understanding of what -- from reviewing

 

    24 Dr. Hines's records --

 

    25 A      Yeah.


 

 

                                                   168

 

 

     1        Q      -- what she was treating him for?

 

     2 A      Yes, I don't believe that he went to see

 

     3 her by recommendation of Dr. Almeleh.  He

 

     4 just -- he decided to start psychotherapy, and

 

     5 he found her.  She was -- after her evaluation

 

     6 she was treating him for two conditions as she

 

     7 saw it.  The first one is called dysthymia or

 

     8 dysthymic disorder.

 

     9        Q      Which is what?

 

    10 A      Which is a mild form of depression,

 

    11 depressive disorder.  It has pretty much -- some

 

    12 people call it "minor depression."  It's pretty

 

    13 much like a major depressive disorder that I

 

    14 mentioned earlier, being deep in -- there is

 

    15 lack of energy, lack of ability to plan and lack

 

    16 of projecting into the future and all that.  In

 

    17 dysthymia that really is not as strong, as

 

    18 intense.  The patient tends to feel down,

 

    19 depressed but can pull himself or herself

 

    20 together without -- generally speaking, without

 

    21 the need of medication.  Sometimes medication

 

    22 helps, but it's -- it's not as mandatory as a

 

    23 major depressive disorder in which we do have to

 

    24 try medication.

 

    25          So she thought that his depression was


 

 

                                                   169

 

 

     1 really not all that bad, basically.  And this is

 

     2 why she called him -- called it dysthymia.

 

     3          And the second diagnosis that she gave

 

     4 was based on his history more than what she

 

     5 found, was anxiety, general anxiety disorder.

 

     6 In other words, a state of being nervous all the

 

     7 time about anything.  And that was mainly by

 

     8 history.

 

     9          He did mention that he had -- he felt

 

    10 awkward in -- in -- in open -- open places, he

 

    11 was not a sociable person, he felt very awkward,

 

    12 he felt very uncomfortable.  So he was general

 

    13 anxious.  General anxiety disorder refers to

 

    14 anxiety related to any aspect of one's life.

 

    15          So she -- she decided on those two

 

    16 diagnoses.  That was her opinion and that was

 

    17 how she treated, based on those two things.  She

 

    18 did not make a diagnosis of major depressive

 

    19 disorder.  She did not make a diagnosis of

 

    20 posttraumatic stress disorder .

 

    21        Q      Now, Doctor, with regard to the

 

    22 treatment records of Dr. Almeleh following

 

    23 April 25th, 2004 through early 2006, what

 

    24 condition is Dr. Almeleh's treatment records

 

    25 consisting of?


 

 

                                                   170

 

 

     1 A      What?

 

     2        Q      What condition, what psychiatric

 

     3 condition are Dr. Almeleh's treatment records

 

     4 consistent with?

 

     5 A      Major depressive disorder, recurrent.

 

     6        Q      Now, Doctor, do you have an

 

     7 understanding as to -- what is your

 

     8 understanding as to when Mr. deVries and

 

     9 Mr. Carter moved from the Town of Secaucus?

 

    10 A      When they moved?

 

    11        Q      Yes.

 

    12 A      They moved in -- I believe was November.

 

    13        Q      Of?

 

    14 A      Of '04, 2004.

 

    15        Q      And when they moved from the Town

 

    16 of Secaucus, was Mr. deVries still working?

 

    17 A      He was still working.

 

    18        Q      And is it your -- do you have an

 

    19 understanding as to whether he was working

 

    20 full-time?

 

    21 A      My understanding was that he was kind

 

    22 of -- he was working full time but without -- he

 

    23 was always thinking of transitioning.  He

 

    24 actually told the psychotherapist that he felt

 

    25 very ambivalent about the job and he really felt


 

 

                                                   171

 

 

     1 stressed or pressed to go to a job that he did

 

     2 not like.  That was in October of '04.

 

     3        Q      All right.  And did -- is there an

 

     4 indication in Dr. Almeleh's treatment records as

 

     5 to what, if anything, happened at work in either

 

     6 end of November, early December 2004?

 

     7 A      Yes, the problem was -- and it was a big

 

     8 upset for him and in the records -- he was not

 

     9 promoted.  He was passed up for a promotion that

 

    10 he was hoping for.  Again, that is in -- in

 

    11 about November of '04.  The previous month he

 

    12 really didn't want the job.  He didn't really

 

    13 like it.  He felt pressured to go and work, as

 

    14 he had felt all along, whenever he was

 

    15 depressed.  But when he did not get this

 

    16 promotion, he felt very big upset.  Dr. Almeleh

 

    17 relates to that as major mood swing or something

 

    18 along these lines.  And I think at that time he

 

    19 readjusted his medication.

 

    20        Q      Do you have an understanding as to

 

    21 whether or not it was following the -- I will

 

    22 rephrase.

 

    23          Do you know whether the antidepressant

 

    24 medication was reinstituted before or after the

 

    25 denial of the promotion?


 

 

                                                   172

 

 

     1               MR. BEVERE:  Your Honor, while he

 

     2 is looking I am going to get a sip of water.

 

     3 A      Yeah, in --

 

     4        Q      I'm sorry, Doctor, you are -- you

 

     5 can answer; I am just getting myself some water.

 

     6 A      Sure.  This -- this visit was December 7,

 

     7 '04 that he describes a really bad mood swing.

 

     8 Patient did not get promotion at work and so on.

 

     9 At that time he decided to try -- to start him

 

    10 again on an antidepressant medication, which was

 

    11 Lexapro.

 

    12        Q      So it was at the same visit at

 

    13 which he reported being passed over for the

 

    14 promotion at work?

 

    15 A      Yes, uh-huh.

 

    16        Q      Now, Doctor, I believe you

 

    17 testified that you had the opportunity to see

 

    18 Mr. deVries' disability application?

 

    19 A      Yes.

 

    20        Q      Okay.  And was there a medical

 

    21 form that was filled out by Dr. Almeleh in

 

    22 connection with Mr. deVries' disability

 

    23 application?

 

    24 A      Yes.

 

    25               MR. BEVERE:  Before you do it,


 

 

                                                   173

 

 

     1 Dave, let me just -- it's P -- I will tell you

 

     2 what it is.

 

     3               MR. PARIS:  P-102.

 

     4               MR. BEVERE:  P-102.

 

     5 BY MR. BEVERE:

 

     6        Q      Dr. Goldwaser, is this a copy of

 

     7 the physician statement that accompanied

 

     8 Mr. deVries' disability application?

 

     9 A      Yes.

 

    10        Q      Okay.  And you reviewed that?

 

    11 A      I did.

 

    12        Q      All right.  And under the

 

    13 diagnosis what does Dr. Almeleh list as

 

    14 Mr. deVries' -- first of all, what's -- what's

 

    15 the date of the -- do you have it in front of

 

    16 you?

 

    17 A      No.

 

    18        Q      I can show it to you.

 

    19 A      Thank you.

 

    20        Q      What's the date of the form?

 

    21 A      The date of the form is November 28,

 

    22 2005.

 

    23        Q      And what diagnosis does Dr.

 

    24 Almeleh list for Mr. deVries?

 

    25 A      Major depressive disorder recurrent


 

 

                                                   174

 

 

     1 severe.  Under two.

 

     2        Q      Excuse me.  Under two?

 

     3 A      Uh-huh.

 

     4        Q      Now, at the top of the form it

 

     5 says, "When did symptoms first appear or

 

     6 accident happen?"  And what does it say?

 

     7 A      And it says, "April 2004."

 

     8        Q      And it says -- well, let's start

 

     9 with that.  That April 2004, is that consistent

 

    10 with Dr. Almeleh's treatment notes?

 

    11 A      Absolutely not.

 

    12        Q      And there is a notation on the

 

    13 side, and what does that say?

 

    14 A      It says, "Patient has been treated for

 

    15 major depression in the past."

 

    16        Q      Now, does Dr. Almeleh, based upon

 

    17 your review of the form, does Dr. Almeleh make

 

    18 the diagnosis of posttraumatic stress disorder

 

    19 anywhere on the disability application?

 

    20 A      No.

 

    21        Q      And there are some medications

 

    22 that are listed on the form under four, "Nature

 

    23 of treatment"?

 

    24 A      Yes.

 

    25        Q      Can you tell us what those


 

 

                                                   175

 

 

     1 medications are?

 

     2 A      Yeah, first he describes a weekly

 

     3 procedure treatment.

 

     4        Q      And what -- what is your

 

     5 understanding of when Dr. Almeleh started to see

 

     6 Mr. deVries on a weekly basis?

 

     7 A      It was in the fall of '05, in September.

 

     8 More -- perhaps -- no, much later, in November.

 

     9        Q      Doctor, check your report because

 

    10 you have it in your report.

 

    11 A      Again, what I have here is it was the end

 

    12 of the year; and I have here as perhaps

 

    13 November 1 that he was -- he has session

 

    14 November 1, the other one, November 7.

 

    15        Q      Of what year?

 

    16 A      2005.

 

    17        Q      Go back to page 14 of your report.

 

    18               MS. SMITH:  Objection, Your Honor,

 

    19 leading.

 

    20               MR. BEVERE:  Judge, all I am doing

 

    21 is asking him to refer to a page in his report.

 

    22               JUDGE CURRAN:  Okay.  I am going

 

    23 to overrule it just in regard to the direction.

 

    24               MR. BEVERE:  Thank you.

 

    25 BY MR. BEVERE:


 

 

                                                   176

 

 

     1        Q      All right. Doctor, does this

 

     2 refresh your recollection as to when -- oh, I'm

 

     3 sorry, the next page, 15.  Does this refresh

 

     4 your recollection as to when Mr. deVries started

 

     5 seeing Dr. Almeleh on a weekly basis?

 

     6 A      In the -- in the month of April, in April

 

     7 '05.

 

     8        Q      Okay.  Now, and it's your -- is it

 

     9 your understanding that Mr. deVries was no

 

    10 longer living in Secaucus at this time?

 

    11 A      That's right; at this time he was not

 

    12 living in Secaucus.

 

    13        Q      Now, we were talking about some

 

    14 medications that were on the attending physician

 

    15 statement; and you started out by telling us

 

    16 about the individual psychotherapy sessions.

 

    17 But what medications are listed?

 

    18 A      Okay.  The first one is Lexapro.

 

    19        Q      And what is the dosage?

 

    20 A      The dosage is 20 milligrams a day.

 

    21        Q      And what is Lexapro?

 

    22 A      Lexapro is an antidepressant medication.

 

    23 He was getting this medication at much lower

 

    24 dose, half this dose, all the while; but now he

 

    25 is taking it at much higher dose.


 

 

                                                   177

 

 

     1        Q      And I'm sorry, did you finish?  I

 

     2 apologize.

 

     3 A      Yes.

 

     4        Q      And the next medication?

 

     5 A      The next medication is Adderall.

 

     6        Q      And what is Adderall?

 

     7 A      Adderall --

 

     8        Q      I think you told us about --

 

     9 A      -- is a stimulant.  And that he is taking

 

    10 at 60 milligrams a day.  And he also takes

 

    11 Provigil, 200 milligrams a day.  And Provigil is

 

    12 also a stimulant.  It's -- it's -- it's a

 

    13 medication aiming at trying to get a person to

 

    14 be more alert.  It doesn't always work that way,

 

    15 but that's the -- that's the idea.

 

    16        Q      On the disability form is there

 

    17 any indication of either a sleep aid or an

 

    18 antianxiety?

 

    19 A      No.

 

    20        Q      And this was as of November 2005?

 

    21 A      That's November 2005, yes.

 

    22        Q      There is another page of the

 

    23 disability application.  It will be P-462.

 

    24 A      Can you give me --

 

    25        Q      I will take that back, and I will


 

 

                                                   178

 

 

     1 show you mine.  Now, Doctor, is it your

 

     2 understanding that this form was also submitted?

 

     3 A      Yes.

 

     4        Q      And on this form there are some

 

     5 doctors listed?

 

     6 A      Yes.

 

     7        Q      Okay.  And there's also a date of

 

     8 the form of what?

 

     9 A      Eleven -- November 28th, '05.

 

    10        Q      And who is the form signed by?

 

    11 A      Peter deVries.

 

    12        Q      Okay.  And there is some

 

    13 medications listed?

 

    14 A      Yes.

 

    15        Q      And I think we have gone over the

 

    16 Lexapro, the Provigil and the Adderall?

 

    17 A      Yes.

 

    18        Q      What are the other three

 

    19 medications listed?

 

    20 A      Basically for -- the first two are for

 

    21 cardiovascular disease.  The first one is for

 

    22 the heart, itself, to help functioning of the

 

    23 heart.  The second one is Altace, the blood

 

    24 pressure, to lower the blood pressure.  And the

 

    25 third one, Lovastatin, is to lower cholesterol


 

 

                                                   179

 

 

     1 levels in the blood.

 

     2        Q      And on that form is there any

 

     3 indication of either a sleep aid or an

 

     4 antianxiety?

 

     5 A      No.

 

     6        Q      Okay.  Thank you, Doctor.  Now,

 

     7 Doctor, after April 25th, 2004 do you know

 

     8 whether Dr. Pumill, Mr. deVries' treating

 

     9 cardiologist, made any reference regarding

 

    10 either weight gain or weight loss?

 

    11 A      Yes, he visited, actually, Dr. Pumill

 

    12 in -- in May.  Actually, in May he visited the

 

    13 three, Dr. Almeleh, Miss Hines and Dr. Pumill.

 

    14 And when he visited Dr. Pumill, he told

 

    15 Dr. Pumill that he was dieting, that he felt

 

    16 well, physically well and that he was doing

 

    17 exercises, that he was taking his two dogs for a

 

    18 walk as a form of exercise.

 

    19        Q      This was in May of 2004?

 

    20 A      This is May 13, 2004.

 

    21        Q      And -- oh, and did Dr. --

 

    22               MS. SMITH:  Your Honor, can we ask

 

    23 what the witness is referring to?  He has been

 

    24 allowed to refer to his report, but it looks

 

    25 like there is another entire document of notes


 

 

                                                   180

 

 

     1 in front of him.

 

     2               JUDGE CURRAN:  Doctor.

 

     3               THE WITNESS:  Yes.

 

     4               JUDGE CURRAN:  What is it to which

 

     5 you are referring?

 

     6               THE WITNESS:  It's my notes on

 

     7 the -- on the --

 

     8               JUDGE CURRAN:  Handwritten notes

 

     9 on a pad?

 

    10               THE WITNESS:  Yes.

 

    11               MR. BEVERE:  I have no problem if

 

    12 counsel sees it, Judge.

 

    13               MS. SMITH:  I don't want to see

 

    14 it.  I don't want him referring to anything but

 

    15 his report.

 

    16               JUDGE CURRAN:  What are those

 

    17 notes, Doctor.

 

    18               THE WITNESS:  The idea is to

 

    19 simplify things; otherwise, it may take me a

 

    20 long time to -- to look at all these things, so

 

    21 I have it here.  That -- if you don't want me to

 

    22 use it, I won't use it.

 

    23                This -- this is the records; but

 

    24 Dr. Almeleh doesn't have necessarily very easy

 

    25 handwriting, not that mine is much better.  But


 

 

                                                   181

 

 

     1 because of that I just took note here on the

 

     2 certain dates to answer fast.

 

     3               JUDGE CURRAN:  So you basically

 

     4 translated onto your --

 

     5               THE WITNESS:  Exactly.

 

     6               JUDGE CURRAN:  -- legal pad is

 

     7 what's on that?

 

     8               THE WITNESS:  Yes.

 

     9               MS. SMITH:  He was just testifying

 

    10 about Dr. Pumill, not Dr. Almeleh.

 

    11               JUDGE CURRAN:  I understand that.

 

    12 If you want to take a look at that --

 

    13               MS. SMITH:  Sure.

 

    14               JUDGE CURRAN:  -- Miss Smith, and

 

    15 we will know what we are arguing.

 

    16               MS. SMITH:  Your Honor, can we be

 

    17 seen at sidebar?

 

    18               JUDGE CURRAN:  Surely.

 

    19               (Whereupon, the following sidebar

 

    20        discussion is held.)

 

    21               MS. SMITH:  Your Honor, basically

 

    22 this witness has made what I would call a cheat

 

    23 sheet, including lots of information in a

 

    24 different way than his report; and he has been

 

    25 sitting here referring to it and testifying to


 

 

                                                   182

 

 

     1 it.  Nobody asked him if he could refresh his

 

     2 recollection.  I have never seen this document

 

     3 before.  It hasn't been marked.

 

     4               MR. MULLIN:  Certainly need copies

 

     5 of it.

 

     6               MS. SMITH:  This is totally

 

     7 outrageous.

 

     8               JUDGE CURRAN:  Well, let's all not

 

     9 fall apart here.  Let's all not fall apart.

 

    10 Okey-dokey.  First of all, Mr. --

 

    11               MR. BEVERE:  Because I will tell

 

    12 you I didn't make any remarks, even though he

 

    13 was looking at --

 

    14               JUDGE CURRAN:  He asked him if he

 

    15 needed to refer to his report to refresh his

 

    16 recollection.  I think he said yes.  And I am

 

    17 assuming that Mr. Bevere thought, when he was

 

    18 looking down, that that's -- that's what I

 

    19 thought when he was looking down, he was looking

 

    20 at his report.  It's clear now he was looking at

 

    21 a note pad, like a legal note pad that's got how

 

    22 many pages, Mr. Mullin?  A lot of pages.

 

    23               MR. MULLIN:  We have legal size

 

    24 and smaller size here.  One, two, three, four --

 

    25 excuse me -- five, six -- six legal size pages.


 

 

                                                   183

 

 

     1 And there is one small blue page.

 

     2               JUDGE CURRAN:  I mean, it appeared

 

     3 to me, when he held it up, Mr. Bevere, he was

 

     4 basically talking about an outline that he had

 

     5 prepared, but not a six-page outline.  I think

 

     6 what he is actually -- what he actually said was

 

     7 it's kind of a translation of Dr. Almeleh's

 

     8 notes.  But if it's a translation and they have

 

     9 never seen it --

 

    10               MS. SMITH:  Go on the record this

 

    11 is not a translation of Almeleh's notes.  This

 

    12 is --

 

    13               MR. PARIS:  You know what --

 

    14               MS. SMITH:  Pumill.  He has

 

    15 relationships.  He has done an outline of his

 

    16 testimony.  This is not what he said it was.

 

    17 This is not a translation of Almeleh's notes.

 

    18               MR. MULLIN:  Your Honor, could we

 

    19 start by --

 

    20               MR. BEVERE:  Judge, I have never

 

    21 seen this, so I don't know what it is, quite

 

    22 frankly.

 

    23               MR. MULLIN:  Can we start by

 

    24 making a copy of it --

 

    25               JUDGE CURRAN:  Sure.


 

 

                                                   184

 

 

     1               MR. MULLIN:  -- take a moment and

 

     2 look at it and read it?

 

     3               JUDGE CURRAN:  We will go off the

 

     4 record for a moment.

 

     5                Off the record, Miss Castelli.

 

     6               (Whereupon, a discussion is held

 

     7        off the record.)

 

     8               JUDGE CURRAN:  Ladies and

 

     9 Gentlemen, we are going to let the jury go

 

    10 inside to take the lunch break.  We have some

 

    11 other matters, that they are sending up the

 

    12 jurors again.  So if you'd like to take 15

 

    13 minutes, that would be great.  Thank you.

 

    14               (Whereupon, the jury is excused.)

 

    15               (Whereupon, a brief recess is

 

    16        taken.)

 

    17               JUDGE CURRAN:  Mr. Paris.

 

    18               MR. PARIS:  Counsel has a copy of

 

    19 the writing.  The witness indicated what he had

 

    20 done.  The writing looks extremely consistent

 

    21 with that.

 

    22               MR. MULLIN:  Excuse me, Your

 

    23 Honor, can we ask the witness to leave the room

 

    24 when we have this argument?

 

    25               JUDGE CURRAN:  Sure.


 

 

                                                   185

 

 

     1               (Whereupon, the witness is

 

     2        excused.)

 

     3               MR. PARIS:  The witness had

 

     4 indicated on the record what he had done.  When

 

     5 I looked back on the transcript, it appears that

 

     6 this document is consistent with that.  It looks

 

     7 like he is -- basically has dates and things

 

     8 that he has noted with regard to those dates.

 

     9 Some of it seems to be organized by subject

 

    10 matter.  But it doesn't seem to be inconsistent.

 

    11                Rule 612 talks about writings

 

    12 used to refresh memory.  Says, "Except as

 

    13 otherwise provided by law in criminal

 

    14 proceeding, the witness while testifying uses a

 

    15 writing to refresh the witness' memory for the

 

    16 purpose of testifying, an adverse party is

 

    17 entitled to have the writing produced at the

 

    18 hearing for use of inspection and

 

    19 cross-examining the witness."

 

    20                I think, if anything, the only

 

    21 thing that's at issue here is that initially the

 

    22 witness was told you can use your report.  He

 

    23 apparently -- his report, and just so Your Honor

 

    24 is aware -- I don't know if you have a copy of

 

    25 the reports there; but the report on


 

 

                                                   186

 

 

     1 Mr. deVries, the report just on Mr. deVries is

 

     2 80 pages.

 

     3               JUDGE CURRAN:  I have the -- Mr.

 

     4 Bevere gave me the report before the witness --

 

     5               MR. PARIS:  I guess I should just

 

     6 put on the record.  But the report on Mr. Carter

 

     7 is 53 pages.

 

     8                So, frankly, when the -- when the

 

     9 witness says that, you know, he doesn't have

 

    10 very good handwriting, because of that I just

 

    11 took note here on certain dates to answer fast,

 

    12 frankly, I'm glad that he did.  But I don't see

 

    13 the problem with this Rule 612 going on.  They

 

    14 have a copy of it.  If they want to

 

    15 cross-examine him on it, that's fine.  But to

 

    16 make a big production in front of the jury as

 

    17 though he has done something wrong here, I think

 

    18 that's inappropriate.

 

    19               JUDGE CURRAN:  Well, frankly,

 

    20 before the plaintiffs speak -- and I'm sure they

 

    21 have other things to indicate -- I've -- I've

 

    22 seen lots of expert witnesses; and most of them

 

    23 know enough to say, "I'm referring to this" or,

 

    24 you know, most of them -- I have had a few who

 

    25 have made their own outlines, if it was a very


 

 

                                                   187

 

 

     1 complicated case.  I could think of one where

 

     2 there was a mold case and it was replete with

 

     3 names of chemicals that were about two inches

 

     4 long.  But he indicated that.

 

     5                I thought -- and I could have

 

     6 been mistaken -- that what the doctor said when

 

     7 I asked him, because I could see from here that

 

     8 he had a -- a legal pad or a -- wasn't really

 

     9 legal size, but it is a lined white pad.  And he

 

    10 had what appeared to be sort of Xeroxed copies

 

    11 that were smaller.  And he had those clipped

 

    12 together.  I thought he said that he had really

 

    13 simply -- I used the word "translate"; he did

 

    14 not -- translated or made notes on Dr. Almeleh's

 

    15 notes because Dr. Almeleh's notes were hard to

 

    16 understand.  This doesn't appear to be that.

 

    17                What it appears to be is, at the

 

    18 very least, an outline that he may have prepared

 

    19 using different headings and topics and then

 

    20 maybe he got the information from Dr. Almeleh's

 

    21 notes.  But it doesn't appear to me that he just

 

    22 basically --

 

    23               MR. PARIS:  Well --

 

    24               JUDGE CURRAN:  -- went through

 

    25 those notes.


 

 

                                                   188

 

 

     1               MR. PARIS:  -- it would appear

 

     2 that what he did was he went through the notes,

 

     3 but he didn't necessarily do it totally

 

     4 chronologically.  What he did was he grouped

 

     5 them.

 

     6               JUDGE CURRAN:  Right, exactly.  So

 

     7 it's different.

 

     8               MR. PARIS:  But again --

 

     9               JUDGE CURRAN:  I thought a

 

    10 translation is --

 

    11               MR. PARIS:  But again, you know,

 

    12 I -- I don't know that that's -- you know, he

 

    13 said, "The idea is to simplify things;

 

    14 otherwise, it may take me a long time to look at

 

    15 all these things, so I have it here.  If you

 

    16 don't want me to use it, I won't use it."

 

    17               JUDGE CURRAN:  Okay.

 

    18               MR. PARIS:  This is the records.

 

    19 But Dr. Almeleh doesn't necessarily -- "have

 

    20 necessarily very easy handwriting, not that mine

 

    21 is much better.  But because of that here I just

 

    22 took notes here on dates to answer fast."  And

 

    23 he grouped it together.

 

    24                But Your Honor said, "So

 

    25 basically you translated onto your" -- and he


 

 

                                                   189

 

 

     1 said, "Exactly" -- "pad" -- the transcript isn't

 

     2 entirely clear at this point.  "Pad" is what's

 

     3 on that.

 

     4               JUDGE CURRAN:  Okay.

 

     5               MR. PARIS:  So I don't really see

 

     6 the horrible transgression here.  He was told he

 

     7 could refer to his report.  Frankly, if counsel

 

     8 said that he is testifying to things that are

 

     9 not in his report, that's a whole different

 

    10 issue.  But so far there has not been one bit of

 

    11 testimony that's been given that anyone has

 

    12 objected to as going beyond the scope of his

 

    13 report.

 

    14                So, you know, to make it -- to

 

    15 make it look somehow that Doctor -- and Your

 

    16 Honor can clearly see the importance of his

 

    17 testimony.  But to take the time to say that

 

    18 this is some horrible transgression, that

 

    19 somehow my witness is now tainted, I don't think

 

    20 that that's fair.  I really don't think that

 

    21 that's fair.  I think that's the impression

 

    22 counsel was trying to give the jury.  "What is

 

    23 he looking at?"  We could have gone to sidebar.

 

    24 I didn't even know it.  I didn't notice it.  I

 

    25 don't think Mr. Bevere noticed it.


 

 

                                                   190

 

 

     1               MR. BEVERE:  Did not.

 

     2               MR. PARIS:  You know, could have

 

     3 gone to sidebar and, "Your Honor, you know, what

 

     4 are we" -- instead, "What" -- "What are you

 

     5 looking at?"  "What is he looking at?"  As if

 

     6 there is something wrong here.  I don't think

 

     7 the witness was trying to do anything wrong.

 

     8               JUDGE CURRAN:  Okay.  Miss Smith.

 

     9               MS. SMITH:  We have an expert

 

    10 witness who's extremely experienced being an

 

    11 expert witness sitting on the witness stand with

 

    12 a script.  This is a script.  It follows Mr.

 

    13 Bevere's direct by topic.  It's a script, and he

 

    14 is sitting there with it.  I have never seen it

 

    15 before.  I don't know if it's things that aren't

 

    16 in his report because I have never seen it

 

    17 before.  He is reading a script.  He is looking

 

    18 at it.

 

    19                And then, when he is asked what

 

    20 it is by the Court, he says, "This is the

 

    21 records by Dr. Almeleh.  He doesn't" -- "Dr.

 

    22 Almeleh doesn't have necessarily very easy

 

    23 handwriting."  And I want to make the record

 

    24 reflect he held up Dr. Almeleh's records in his

 

    25 hand.  So he told this Court under oath that he


 

 

                                                   191

 

 

     1 had just made some notes regarding -- "Dr.

 

     2 Almeleh doesn't have necessarily" -- but that --

 

     3 "mine is not" -- "because of that I just took

 

     4 notes here on the certain dates to answer fast."

 

     5 That's what he told this Court under oath.

 

     6 Instead, he had many things on these notes.

 

     7                Frankly, Judge, in the time we

 

     8 have taken a break I haven't had a chance to go

 

     9 through all -- all the many, many notes on here.

 

    10 But I can tell you this; it's much more than Dr.

 

    11 Almeleh's notes.  It patterns the testimony by

 

    12 topic.

 

    13                It's outrageous.  To say that's

 

    14 not outrageous from somebody who objected to

 

    15 Mr. Carter being shown his own police statement

 

    16 to refresh his recollection, Mr. Paris, it is

 

    17 outrageous to suggest an expert can testify in

 

    18 front of the jury with a script in front of him.

 

    19               JUDGE CURRAN:  Well, as far as the

 

    20 topics that have been covered so far, there were

 

    21 no objections raised that what was asked and

 

    22 answered was not in the report.  I'm not asking

 

    23 you to indicate that all of the notes are

 

    24 complete because I don't think anybody could do

 

    25 that in this amount of time.  I will note that


 

 

                                                   192

 

 

     1 we're talking here about, what is it, six?

 

     2               MR. MULLIN:  612, Your Honor.

 

     3               JUDGE CURRAN:  Not all the pages

 

     4 are completed; but you know, there are a lot of

 

     5 notes here.  And the writing is also not that

 

     6 easy to understand.  So I'm not asking anybody

 

     7 to look at it in the time you've had and comment

 

     8 fully on what's in here.

 

     9                But I will note that one of the

 

    10 pages -- more than one, actually, has -- they

 

    11 all pretty much have dates.  They seem to follow

 

    12 certain topics.  Whether they follow Mr.

 

    13 Bevere's questions or not, I don't honestly -- I

 

    14 couldn't say from having listened and taken some

 

    15 notes that they follow exactly the order that

 

    16 would appear to be a script.  He has listed a

 

    17 number of dates, and it looks like he basically

 

    18 took a certain issue and then went down and

 

    19 listed all the dates.  And he crossed out some

 

    20 things, added some things.  He has got "X"s and

 

    21 arrows and that kind of thing.

 

    22               MR. PARIS:  Frankly, Judge, it

 

    23 appears that some of the pages are almost -- are

 

    24 duplicates of other pages.

 

    25               JUDGE CURRAN:  It does.


 

 

                                                   193

 

 

     1               MR. PARIS:  So whatever we have

 

     2 here, looks like some of it is duplicative.

 

     3               MR. MULLIN:  That is only because

 

     4 your Court aide copied two pages.

 

     5               MS. SMITH:  Because it was cutoff

 

     6 at the top.

 

     7               MR. PARIS:  Okay.  I'm just

 

     8 saying --

 

     9               JUDGE CURRAN:  And I'll also note,

 

    10 in fairness, there is one page that is a tiny

 

    11 little page; and that's put in sideways.  But

 

    12 still --

 

    13               MR. PARIS:  And frankly --

 

    14               JUDGE CURRAN:  -- my concern at

 

    15 this point is you have every right to go over

 

    16 all of these, Miss Smith.  My -- my concern is

 

    17 really practical now.  Normally I would say,

 

    18 "Look, when he comes back tomorrow" or "Come

 

    19 back tomorrow, and you can do your

 

    20 cross-examination."  That is not going to happen

 

    21 with this --

 

    22               MR. BEVERE:  I'm not done with

 

    23 my --

 

    24               JUDGE CURRAN:  -- witness.

 

    25               MR. BEVERE:  I am not done with my


 

 

                                                   194

 

 

     1 direct yet, Judge.

 

     2               JUDGE CURRAN:  I know that.

 

     3               MR. BEVERE:  I have a whole other

 

     4 plaintiff to cover.

 

     5               JUDGE CURRAN:  But my concern

 

     6 is -- forget for a moment about this.  What

 

     7 about scheduling of the doctor?

 

     8               MR. PARIS:  He is apparently

 

     9 giving a presentation in, what is it, Buenos

 

    10 Aires.

 

    11               MR. BEVERE:  He is not going to be

 

    12 here next week at all.

 

    13               JUDGE CURRAN:  I know that.  I

 

    14 know that.

 

    15               MR. BEVERE:  Originally I had --

 

    16 originally I had him lined up for today, but

 

    17 then I changed it to June 3rd.

 

    18               JUDGE CURRAN:  I got that.

 

    19               MR. BEVERE:  Then I made him

 

    20 change it back to today.

 

    21               JUDGE CURRAN:  When is he leaving?

 

    22               MR. BEVERE:  What?

 

    23               JUDGE CURRAN:  When is he leaving?

 

    24               MR. BEVERE:  Want me to find out?

 

    25               COURT CLERK:  Off the record?


 

 

                                                   195

 

 

     1               JUDGE CURRAN:  Thank you.  Off the

 

     2 record.

 

     3               (Whereupon, a discussion is held

 

     4        off the record.)

 

     5               JUDGE CURRAN:  I'm sorry,

 

     6 Mr. Mullin, I didn't mean to ignore you.

 

     7               MR. MULLIN:  That's all right.

 

     8               JUDGE CURRAN:  I knew Miss Smith

 

     9 was handling this.

 

    10               MR. MULLIN:  Just wanted to add my

 

    11 2 cents.

 

    12               JUDGE CURRAN:  This cross --

 

    13               MR. MULLIN:  Rule 612, which is

 

    14 what counsel for the defense relied upon when

 

    15 they successfully prevented me from refreshing

 

    16 my -- Tim Carter's recollection with his police

 

    17 report, does, as the Court pointed out, require

 

    18 a foundation.

 

    19               JUDGE CURRAN:  I just relooked at

 

    20 it inside before just --

 

    21               MR. MULLIN:  And you were right.

 

    22 And of course, the foundation you know; and as a

 

    23 trial lawyer, I certainly know that.  And you

 

    24 ruled that foundation hadn't been laid.  The

 

    25 foundation requires that before document is


 

 

                                                   196

 

 

     1 offered to refresh the recollection of a

 

     2 testifying witness first he has to testify he

 

     3 had prior knowledge of the subject at issue, and

 

     4 then he has to testify that his memory is now

 

     5 impaired.

 

     6                Well, of course, neither of those

 

     7 things were done here.  We have the doctor

 

     8 looking surreptitiously, I would say, looking

 

     9 down at this, what I think is a script.  I don't

 

    10 know how long he was doing it.  It really does

 

    11 pattern what he testified to.

 

    12                The point is the witnesses have

 

    13 to get on the witness stand and testify from

 

    14 their recollection.  And we're allowed to test

 

    15 that recollection, the strength of it, in order

 

    16 to question -- have the jury assess the

 

    17 credibility and value of their testimony.

 

    18                When you have a witness reading

 

    19 from a script and doing it surreptitiously, that

 

    20 completely and materially compromises that --

 

    21 that whole process, the whole spirit of Rule

 

    22 612.

 

    23                Now, the issue of remedy is one

 

    24 thing.  Issue of what should be done is one

 

    25 thing.  The issue of the violation I don't think


 

 

                                                   197

 

 

     1 is -- is unclear.

 

     2                And it's very troubling that the

 

     3 doctor didn't tell the complete truth when he

 

     4 was asked what this was by the Court and that he

 

     5 held up Dr. Almeleh's notes and gave the

 

     6 impression that all he had was a transcription

 

     7 of some notes -- of some of Dr. Almeleh's notes

 

     8 because, as he said, the handwriting is bad.

 

     9                And what he -- what he has been

 

    10 doing for the last hour or so is referring to

 

    11 something that is highly scripted.  It's exactly

 

    12 what he talked about, the diet, cigarettes,

 

    13 relations, work issues, the depression and the

 

    14 dates.  It's exactly as he testified.  So

 

    15 instead of a fella testifying under oath, using

 

    16 his recollection, he is giving the impression to

 

    17 the jury that his recollection is much stronger

 

    18 than it is.  The jury now has that gross

 

    19 misimpression.  And he is not using his mind as

 

    20 an expert in front of the jury to evaluate the

 

    21 evidence.

 

    22                I think it's rather serious

 

    23 violation of Rule 612.  So that -- that's one

 

    24 issue.  And the question is -- and I know Your

 

    25 Honor is trying to strike -- achieve -- to


 

 

                                                   198

 

 

     1 handle this in a balanced way.  And we have a

 

     2 jury.  And the issue is should a curative be

 

     3 issued?  That's one issue.  My -- you know, as

 

     4 an advocate, my gut is, my God, his testimony

 

     5 should be stricken.  But that would be an

 

     6 extreme remedy, and that would require him

 

     7 starting all over.  And I wouldn't -- I wouldn't

 

     8 suggest that.

 

     9                But I think the jury should be

 

    10 told in some form or fashion that it was

 

    11 improper for him to be relying on this document,

 

    12 that no foundation was laid for it, that it

 

    13 hadn't been turned over to counsel, to us

 

    14 beforehand, as the rule requires and -- and

 

    15 that -- that the witness has engaged in -- that

 

    16 that was improper.

 

    17                You can use language you think is

 

    18 appropriate, Your Honor; but I don't want the

 

    19 jury to have the impression that his -- his

 

    20 smooth and flowing testimony was the product of

 

    21 a powerful recollection.  I want them to know

 

    22 that his smooth and flowing testimony is a

 

    23 product of a script.  You don't have to call it

 

    24 a script.  That's what I think it is.

 

    25                But I think clearly Rule 612 was


 

 

                                                   199

 

 

     1 violated.  If a witness is -- first of all, the

 

     2 foundation wasn't laid.  Second of all, we

 

     3 weren't given the document that he was using to

 

     4 refresh his recollection.  And then he -- he

 

     5 made an inaccurate and dishonest statement about

 

     6 what the document was, which really casts doubt

 

     7 on whether this isn't a script or not.  Why

 

     8 would he give such a dishonest answer?

 

     9                And I should say for the record,

 

    10 the railing of the box where he is sitting is so

 

    11 high that it wasn't possible at all for me and

 

    12 Miss Smith to see this document.  I never saw

 

    13 it.

 

    14                So, Your Honor, I think one issue

 

    15 is, well, I'm requesting a strong curative.  I

 

    16 think that would be appropriate.

 

    17                The second issue is we have run

 

    18 into a serious issue with respect to rule

 

    19 4:36-3C concerning adjournments and expert

 

    20 unavailability.

 

    21                Now, Your Honor, with the consent

 

    22 of all counsel, has told this jury that this

 

    23 trial is running until the end of May and -- and

 

    24 you know, there is a rule; and that's the rule

 

    25 on -- on what you do when you think your expert


 

 

                                                   200

 

 

     1 is going to be unavailable.  And what you do is

 

     2 you give a certain amount of notice, and then

 

     3 you do a videotaped dep.  What doesn't happen is

 

     4 you don't create the danger of a mistrial by --

 

     5 by using your expert to run past the end date

 

     6 that the jury is committed to.  That's what you

 

     7 don't do.  That's why this rule is in the books.

 

     8                So as we consider what the

 

     9 problem that's been created by this doctor being

 

    10 unavailable all of next week, I think that it's

 

    11 important that the Court take that rule into

 

    12 account.  It's very important that we don't

 

    13 endanger this trial with -- with scheduling

 

    14 problems created by this expert's

 

    15 unavailability.

 

    16                This Court, Your Honor,

 

    17 respectfully, should not take notice of the

 

    18 unavailability -- unavailability of this expert

 

    19 is the defense's problem.  I'm -- my -- I'm --

 

    20 we are, on this side of the table, ready,

 

    21 willing and able to go with cross-examination of

 

    22 this witness on Tuesday when court reconvenes or

 

    23 tomorrow, if the Court would order it.

 

    24 Absolutely we're ready to go tomorrow.  We

 

    25 cannot endanger, Your Honor, this trial with --


 

 

                                                   201

 

 

     1 with this kind of scheduling problem.

 

     2               JUDGE CURRAN:  No, I couldn't

 

     3 agree with you more about scheduling,

 

     4 Mr. Mullin.

 

     5                I'm going to ask -- if there is

 

     6 no objection all around, I am going to ask if

 

     7 Tracey could go back to the beginning because

 

     8 it's clear nobody knew that this -- you call it

 

     9 a "script."  I will call it an "outline."  It's

 

    10 certainly a very detailed outline, at best.  I

 

    11 think even the defense would agree with that.

 

    12 But it's clear nobody, not counsel nor the

 

    13 Court, knew that he was using this.  I could see

 

    14 him referring, bending his head down; but I

 

    15 couldn't possibly see what he was looking at.  I

 

    16 do, however, believe, because I usually -- I

 

    17 have series of notes I make in the margin, and I

 

    18 do believe Mr. Bevere asked him about did he or

 

    19 did he not.  And I am not -- very specifically

 

    20 he did need to use his notes or report -- I

 

    21 think he said "report" -- to refresh his

 

    22 recollection.

 

    23               MR. BEVERE:  I said, "report,"

 

    24 Judge, because I didn't know he was using notes.

 

    25               MR. MULLIN:  We consented to him


 

 

                                                   202

 

 

     1 using the report.

 

     2               MR. BEVERE:  That's what I said.

 

     3               JUDGE CURRAN:  My concern is the

 

     4 doctor then may have thought --

 

     5               MS. SMITH:  He lied.

 

     6               JUDGE CURRAN:  I got it.  My

 

     7 concern --

 

     8               MR. BEVERE:  Judge, I don't think

 

     9 he lied to this Court.

 

    10               JUDGE CURRAN:  Wait a minute.

 

    11 Wait a minute.  I don't know whether -- frankly,

 

    12 maybe he thought that this outline was okay.  I

 

    13 certainly want to put on the record that I do

 

    14 not in any way think that counsel for the

 

    15 defense knew about this outline or -- or

 

    16 whatever or -- okay.  I will just put that on

 

    17 the record, number one.

 

    18                Number two, maybe he thought that

 

    19 this was okay.

 

    20                Number three, an expert who is --

 

    21 has testified in as many states as he has should

 

    22 have figured out this was not okay.

 

    23                And then we have the problem

 

    24 number four.  I won't use the word "lying"; but

 

    25 he certainly didn't seem to me, when I asked him


 

 

                                                   203

 

 

     1 the question, to respond appropriately.  He

 

     2 never used the word "outline."  He never used

 

     3 the word -- never used the phrase, something

 

     4 like, "these are my notes for court" or

 

     5 whatever.  He basically showed me Dr. Almeleh's

 

     6 notes -- and I could see them from here, not

 

     7 more than, what, six feet away -- and said,

 

     8 "Well, he" -- right, he was trying to --

 

     9               MR. BEVERE:  Judge, I think

 

    10 before -- I think we should question him

 

    11 because -- why don't you question him and find

 

    12 out?

 

    13               JUDGE CURRAN:  I want to see where

 

    14 we're going first.  Frankly, my main concern is

 

    15 not to cause him a problem or not a problem at

 

    16 this point; I'm more worried about the trial.

 

    17 What is his availability?

 

    18               MR. BEVERE:  Judge, he is still

 

    19 available June 3rd.

 

    20               MR. PARIS:  Judge, can I --

 

    21               JUDGE CURRAN:  You know, everybody

 

    22 tried to --

 

    23               MR. PARIS:  Judge.

 

    24               JUDGE CURRAN:  Everybody tried to

 

    25 be accommodating, but that is not really an


 

 

                                                   204

 

 

     1 option anymore.

 

     2               MR. PARIS:  Judge, can I speak to

 

     3 you because we -- early in the day I said we

 

     4 need to talk about scheduling; and the Court

 

     5 said let's do that later, let's do that later,

 

     6 okay.  Today is considered, at least on our

 

     7 transcripts, trial day number nine.  Okay.  Day

 

     8 number one were the openings.  Day number one.

 

     9 We have had days two through nine until, let's

 

    10 say, around noon, whatever and the plaintiff

 

    11 rested.

 

    12                Okay.  We have -- now -- now, we

 

    13 are entitled to put our case on.  We have

 

    14 approximately 14 witnesses without including

 

    15 Dr. -- without including Dr. Goldwaser.  So if

 

    16 we look at our witness list, I wanted to tell

 

    17 Your Honor that I foresaw us having witnesses on

 

    18 June 2nd.  And that's why I was --

 

    19               JUDGE CURRAN:  No, you did

 

    20 indicate that.

 

    21               MR. PARIS:  Yeah, that's why.

 

    22               JUDGE CURRAN:  But that's not my

 

    23 concern, really, going into the week -- the

 

    24 first week in June is not my concern, frankly,

 

    25 just so it's clear, because sometimes is not.  I


 

 

                                                   205

 

 

     1 have cleared my calendar.  I start an

 

     2 environmental trial, but I am not starting that

 

     3 until the 9th.  And if it doesn't start on the

 

     4 9th, the world won't end either.  So that's not

 

     5 a problem.  The jury is my concern.  But also

 

     6 now I am concerned to take him off the stand and

 

     7 to then bring him back, what, eight days later,

 

     8 whenever.

 

     9               MR. PARIS:  The 3rd, I know.

 

    10               JUDGE CURRAN:  Frankly, you know,

 

    11 Mr. -- Mr. Mullin and Miss Smith have requested

 

    12 a strong curative.  We still have to discuss

 

    13 that issue.  You know, that -- that' my main

 

    14 concern here.  It is not just we couldn't fit

 

    15 him in today.  We already knew that.  Frankly,

 

    16 at like 2:30 I was looking at the clock and

 

    17 thought, This is not going to work out well.  We

 

    18 are going to have to feel -- you know, we are

 

    19 going to have to do something because the

 

    20 scheduling is not going as it is.  So we were

 

    21 probably going to reach a scheduling problem

 

    22 with him, anyway.

 

    23               MR. BEVERE:  Judge, this is why I

 

    24 wanted to bring him in on 9:00 in the morning on

 

    25 June the 3rd.


 

 

                                                   206

 

 

     1               JUDGE CURRAN:  Yeah, I know,

 

     2 but --

 

     3               MR. BEVERE:  Judge, just -- in my

 

     4 defense, because it seems like as this trial

 

     5 goes on all the accusations start coming towards

 

     6 me.  But you know, this trial was scheduled to

 

     7 start April the 14th.  Through no one's fault we

 

     8 got pushed to the 21st.

 

     9               JUDGE CURRAN:  Well, not your

 

    10 fault.  I think I had a trial.

 

    11               MR. BEVERE:  Wasn't your fault,

 

    12 Judge.  I am not --

 

    13               JUDGE CURRAN:  Not the parties,

 

    14 okay.

 

    15               MR. BEVERE:  I am not saying

 

    16 anyone's fault.  So now, you know, there --

 

    17 originally when witnesses were told to --

 

    18               JUDGE CURRAN:  I know.

 

    19               MR. BEVERE:  -- give me their

 

    20 availability, we were talking April, early May.

 

    21 Then the trial got pushed; and now I am trying

 

    22 to squeeze people in, you know.  And -- and

 

    23 it's -- you know, they made plans based upon

 

    24 this trial being long done --

 

    25               JUDGE CURRAN:  I know that.


 

 

                                                   207

 

 

     1               MR. BEVERE:  -- by this time.

 

     2               JUDGE CURRAN:  We have gone

 

     3 through this.  And Tracey can reread to us what

 

     4 happened the other morning or not.  You made all

 

     5 the arrangements.  And frankly, I thought we

 

     6 were going with him on the 3rd.  Then the

 

     7 plaintiffs indicated they were not going to call

 

     8 too many witnesses, try to go ahead.  I think it

 

     9 was mutual agreement they would finish today and

 

    10 Dr. Goldwaser would be in.  And I thought

 

    11 Everybody thought, gee, that was a decent

 

    12 resolution.

 

    13               MR. BEVERE:  And I scrambled to

 

    14 get him.  You saw me.  I went out.  I was on the

 

    15 phone.  I was trying to get him.

 

    16               MS. SMITH:  Judge, it was no

 

    17 surprise to defendants because we discussed it

 

    18 on the 14th of April this trial was, in our

 

    19 minds, going until the end of May.  That's

 

    20 why -- what we said to this jury.  The end of

 

    21 May is what we all started this trial with.

 

    22                Last Friday at 5 p.m. I have an

 

    23 e-mail from Mr. Bevere telling me this doctor

 

    24 was available this Thursday.  Even then he did

 

    25 not say until then -- I think he called me about


 

 

                                                   208

 

 

     1 a little after 5, oh, we may have a problem the

 

     2 following week.

 

     3                It was his job -- we -- if he

 

     4 thought it was going late two weeks ago, it was

 

     5 his job to find out this expert's availability;

 

     6 and we could have taken his video dep.  It's not

 

     7 the fact -- it's bad enough that we are going

 

     8 longer than we told this jury, but now they are

 

     9 going to push it even longer by pushing this

 

    10 witness into the future.  I'm prepared to take

 

    11 his videotaped dep tomorrow.

 

    12               JUDGE CURRAN:  The videotaped dep

 

    13 I am perfectly willing to order.  One of my

 

    14 concerns is that means that there can't be jury

 

    15 questions.  And in fairness, there were jury

 

    16 questions asked of the plaintiffs' expert

 

    17 witness.  That is my main concern.  Otherwise,

 

    18 I'd have no qualms about ordering that tomorrow.

 

    19 That would be an easy way out, if everybody

 

    20 agrees on the record that there will not be --

 

    21               MR. BEVERE:  But Judge, Dave is

 

    22 going to go outside and talk to the doctor and

 

    23 find out if he can make himself available

 

    24 tomorrow.  I didn't think we were having court

 

    25 tomorrow, so that's why I didn't tell him


 

 

                                                   209

 

 

     1 tomorrow.

 

     2               JUDGE CURRAN:  Talking about a

 

     3 video dep tomorrow.

 

     4               MR. BEVERE:  I understand that.  I

 

     5 didn't know that when I went outside to the

 

     6 hallway.  You know, Judge, it's now May -- what

 

     7 is it -- 22nd.

 

     8               JUDGE CURRAN:  Yes.

 

     9               MR. BEVERE:  Okay.  This is our

 

    10 first witness.

 

    11               JUDGE CURRAN:  I know.

 

    12               MR. BEVERE:  Was it really

 

    13 expected that we would do all our witnesses in

 

    14 three days?  It's not our fault that it took

 

    15 five days to pick a jury, that it took nine days

 

    16 to get to this point.  I mean --

 

    17               JUDGE CURRAN:  I don't think it's

 

    18 a matter of fault in any regard.  I do not

 

    19 think -- and frankly, sometimes I do think that

 

    20 certain people drag their feet, certain

 

    21 people -- no, no, that certain people are not

 

    22 prepared or whatever.  I think everybody has

 

    23 been working hard.  I think if we can just

 

    24 everybody calm down, we will figure this one

 

    25 out.


 

 

                                                   210

 

 

     1               MR. BEVERE:  And Judge, with no

 

     2 disrespect to you --

 

     3               JUDGE CURRAN:  No.

 

     4               MR. BEVERE:  -- I don't -- I

 

     5 really don't want to be here after the first

 

     6 week in June.

 

     7               JUDGE CURRAN:  I don't blame you.

 

     8               MR. BEVERE:  But I got -- got to

 

     9 make my record and put my witnesses on and put

 

    10 my case in.

 

    11               JUDGE CURRAN:  Absolutely.  Why

 

    12 don't we go off the record.  Might be little

 

    13 easier.

 

    14               (Whereupon, a discussion is held

 

    15        off the record.)

 

    16               JUDGE CURRAN:  What is the

 

    17 request.

 

    18               MS. SMITH:  I'm sorry, do we have

 

    19 a C number yet?  Just so I could put it in.

 

    20               COURT CLERK:  C number?

 

    21               MS. SMITH:  Yes.

 

    22               COURT CLERK:  Yes, C number is --

 

    23               JUDGE CURRAN:  8 maybe?

 

    24               COURT CLERK:  C, Court Number 8.

 

    25               JUDGE CURRAN:  Right, thank you.


 

 

                                                   211

 

 

     1               (Whereupon, Dr. Goldwaser's

 

     2        handwritten notes is received and marked

 

     3        as Court Exhibit C-8 for Identification.)

 

     4               MS. SMITH:  We would like the jury

 

     5 to be advised, Your Honor, that it was improper

 

     6 for a witness to have notes while he testified

 

     7 in front of him, that the notes had been not

 

     8 provided -- had not been provided to counsel for

 

     9 Mr. Carter and Mr. deVries and that they are

 

    10 free to take that into consideration when they

 

    11 assess this witness' testimony.

 

    12               JUDGE CURRAN:  Mr. Paris.

 

    13               MR. PARIS:  I think that's

 

    14 absolutely inappropriate.  It is not improper

 

    15 for a witness to have notes.  A witness can have

 

    16 notes.  The thing that we didn't -- weren't

 

    17 aware of, that he was using his notes to refresh

 

    18 his recollection, instead of his report.  We had

 

    19 mentioned his report.  Whether he was using his

 

    20 report plus notes we didn't know.  So that's --

 

    21 that's the problem is that we didn't know that

 

    22 he was using notes.

 

    23                I don't know what was in the

 

    24 witness' mind.  I don't know if he was trying to

 

    25 be deceptive.  And in fact, under the rule, they


 

 

                                                   212

 

 

     1 wouldn't have been entitled to pretrial

 

     2 production of the notes.  They would have been

 

     3 entitled to the notes when he said, "I am

 

     4 looking at my notes."  And I think the problem

 

     5 is almost like a lack of communication here,

 

     6 rather than an intent to deceive anyone.

 

     7                So if there is going to be a

 

     8 curative instruction, if there is going to be

 

     9 one, which I object to, I think the curative

 

    10 should be such that if a witness is going to use

 

    11 notes to refresh the -- their recollection, that

 

    12 we need to know that and we should have known

 

    13 that he was using the notes in addition to his

 

    14 report and at that moment copies, you know, at

 

    15 that point could have been provided to counsel.

 

    16 They have now been provided to counsel.  And

 

    17 that's where we're at.

 

    18               MS. SMITH:  C-8 is not refreshing

 

    19 your recollection document.  C-8 is an outline

 

    20 of this expert witness testimony.  Refreshing

 

    21 your recollection is what he had in front of

 

    22 him, his report, which we consented to.  But

 

    23 it's certainly not a refresh your -- I can't

 

    24 imagine Your Honor would have said it's okay to

 

    25 refresh your recollection with an outline you


 

 

                                                   213

 

 

     1 made of all the points you want to make on

 

     2 direct.  That's not a refresh your recollection

 

     3 document.

 

     4                And certainly, I can't imagine

 

     5 that Your Honor wouldn't have made them give us

 

     6 a document that he intended to use to refresh

 

     7 his recollection, if it was six very detailed

 

     8 single-spaced with -- the handwriting on C-8

 

     9 will be clear to any court, whoever looks at

 

    10 this in the future.  It's a long document that I

 

    11 have never seen before.

 

    12               JUDGE CURRAN:  No, in fairness, if

 

    13 he had come in with it and told his own counsel,

 

    14 I would have said before -- as soon as they

 

    15 knew --

 

    16               MR. PARIS:  Of course.

 

    17               JUDGE CURRAN:  -- "Please give it

 

    18 to them."  And I don't think they would have

 

    19 objected.  I don't think I would have had to

 

    20 have said that.

 

    21                All right.  I'm not going to use

 

    22 the word "improper."  I will note your objection

 

    23 to that on the record.  I will give a curative

 

    24 indicating that a witness is not allowed to have

 

    25 notes to outline his testimony without making,


 

 

                                                   214

 

 

     1 A, his own attorney and then, B, the other

 

     2 attorneys aware, et cetera.

 

     3                I am not going to use the word

 

     4 "improper."  And then you can fight it out with

 

     5 him as far as what he is or isn't going to use

 

     6 when we get back.  I'm assuming that if he

 

     7 decides to do any other note-taking, he will

 

     8 have those copies Xeroxed and -- and faxed to

 

     9 the plaintiffs.  But I doubt that should be

 

    10 necessary.

 

    11               MR. MULLIN:  And then, Judge, you

 

    12 are going to also ask the jury about the --

 

    13               MR. BEVERE:  Their scheduling.

 

    14               JUDGE CURRAN:  That's main reason

 

    15 for bringing them out, right?

 

    16               MS. SMITH:  And next Friday.

 

    17               JUDGE CURRAN:  Mr. Paris, if you

 

    18 want to let him go, just so that he is not

 

    19 standing out there.

 

    20               MS. SMITH:  In other words, we are

 

    21 not going to stay late today?

 

    22               JUDGE CURRAN:  No.

 

    23               MR. PARIS:  That's fine,

 

    24 absolutely fine.

 

    25               JUDGE CURRAN:  We will bring the


 

 

                                                   215

 

 

     1 jury out.

 

     2               MR. PARIS:  He is going to need to

 

     3 collect his stuff, so --

 

     4               JUDGE CURRAN:  I thought he took

 

     5 his briefcase?

 

     6               MR. PARIS:  No.  Want to let the

 

     7 jury go first?

 

     8               JUDGE CURRAN:  Sure, we will let

 

     9 the jury go first.

 

    10               MR. PARIS:  Is it okay if we bring

 

    11 him in for the instruction or --

 

    12               JUDGE CURRAN:  Sure.

 

    13               MR. MULLIN:  No objection.

 

    14               (Whereupon, the witness re-takes

 

    15        the stand.)

 

    16               JUDGE CURRAN:  Bring out the jury,

 

    17 please.

 

    18               COURT CLERK:  Jurors are

 

    19 approaching.

 

    20               MS. SMITH:  Judge, did you just

 

    21 ask the witness to sit?

 

    22               (Whereupon, the jury is brought

 

    23        into the courtroom.)

 

    24               COURT CLERK:  Jurors are

 

    25 approaching.  Remaining on the record.


 

 

                                                   216

 

 

     1               JUDGE CURRAN:  Thank you.

 

     2                Ladies and Gentlemen, we are back

 

     3 on the record again.  While you were out we had

 

     4 a number of things to do, including some

 

     5 additional jurors who didn't show up.  So, you

 

     6 know, showing them your pictures almost -- not

 

     7 really your pictures, but letting them know you

 

     8 applied and you got here on time.

 

     9                There are a few things I want to

 

    10 go over with you.  The first is in regard to Dr.

 

    11 Goldwaser's testimony.  Witnesses are allowed to

 

    12 bring reports.  They're allowed to have notes,

 

    13 if they give copies of those notes to their own

 

    14 attorneys and to the attorneys for the other

 

    15 side prior to testifying.  That wasn't done

 

    16 here, and that was the issue that was raised.

 

    17 So we are addressing that issue.

 

    18                I wanted to address with you, so

 

    19 we didn't keep you in that lovely jury room any

 

    20 longer than necessary, some scheduling

 

    21 questions.  When we first called the jury, how

 

    22 many of you -- if you could just refresh my

 

    23 recollection, is there anyone who was here from

 

    24 the first day of jury service?  Like -- I don't

 

    25 have it in my notes.  You were, all of you?


 

 

                                                   217

 

 

     1 That many of you from the first day -- you poor

 

     2 things -- from the first panel?  Because we had

 

     3 four panels.

 

     4                Well, then you heard me say that

 

     5 the trial was going to end at the end of May.

 

     6 It is definitely not going to end the end of

 

     7 May.  It is definitely going to go into the

 

     8 first week in June.  The first week in June

 

     9 is -- and I got my calendar out so that I can

 

    10 give you the dates -- those are the days of

 

    11 Monday, June 2nd; Tuesday, June 3rd; Wednesday,

 

    12 June 4th; Thursday, June 5th and Friday,

 

    13 June 6th.  So we just wanted to alert you to

 

    14 that.

 

    15                As far as notifying your

 

    16 employers or anything, be certain we will take

 

    17 care of that with the letters that we promised

 

    18 you just for the regular length of the trial.

 

    19 In order to make sure that this does not create

 

    20 a special problem -- I am not looking to let you

 

    21 out of injury service; but I need to know if

 

    22 there is anyone who, just as you did in the

 

    23 beginning, has a reason to be excused for cause.

 

    24 We will talk with you privately at the end of

 

    25 these comments.


 

 

                                                   218

 

 

     1                Another question I have is we

 

     2 told you that you would not have to report on

 

     3 Fridays, and you have not had to report on

 

     4 Fridays.  In order to, again, just try to be

 

     5 accommodating for your overall schedule, we are

 

     6 asking if it would be a problem for any of you

 

     7 if you had to report for jury service on next

 

     8 Friday, which is May 30th.  Is there any problem

 

     9 if you would have to report here on May 30th?

 

    10 Not that anybody knows right now?  Okay.

 

    11                If -- is there anyone who needs

 

    12 to talk with us about being excused for cause in

 

    13 regard to the overall calendar?  You do?  Okay.

 

    14 Anyone else?

 

    15                Okay.  With that, we are not

 

    16 going to keep you here any longer today.  We

 

    17 will excuse you.  I know for some of you,

 

    18 because you don't have to be here tomorrow, it's

 

    19 kind of the beginning of the Memorial Day

 

    20 weekend.  We don't want to delay you, so we will

 

    21 excuse you for the weekend.

 

    22                I will remind you again, please

 

    23 do not discuss the case among yourselves.

 

    24 Please do not discuss it with anyone else.  And

 

    25 we will ask that you report back here on Tuesday


 

 

                                                   219

 

 

     1 morning.  The courthouse is closed for Memorial

 

     2 Day on Monday at 9 a.m.

 

     3                Just let me double-check.  Did I

 

     4 overlook anything?  Is there anything else

 

     5 counsel wants on the record?

 

     6               MR. BEVERE:  I don't believe so,

 

     7 Your Honor.

 

     8               MS. SMITH:  Thank you, Your Honor.

 

     9               JUDGE CURRAN:  So we will see you

 

    10 on Tuesday at 9 a.m.  I hope you have a

 

    11 wonderful weekend and that the weather is good

 

    12 for you.  Okay.  Thank you.

 

    13                Off the record.

 

    14               (Whereupon, the jury is excused.)

 

    15               (Whereupon, the witness is

 

    16        excused.)

 

    17               JUDGE CURRAN:  We will go back on

 

    18 the record, please.  I will note that Juror

 

    19 Number 2 asked to speak with us in regard to

 

    20 scheduling.

 

    21               (Whereupon, the following sidebar

 

    22        discussion is held.)

 

    23               JUROR NUMBER 2:  I have a trip to

 

    24 Las Vegas for a wedding where I already bought

 

    25 tickets; and I would be leaving Thursday in the


 

 

                                                   220

 

 

     1 afternoon of June 5th -- I believe that is the

 

     2 Thursday -- and returning Monday in the evening.

 

     3 So that is my only conflict with trial going

 

     4 beyond.

 

     5               JUDGE CURRAN:  Okay.

 

     6               JUROR NUMBER 2:  I have already

 

     7 purchased everything for that trip.

 

     8               JUDGE CURRAN:  These destination

 

     9 weddings are becoming quite the thing.

 

    10               JUROR NUMBER 2:  They are quite on

 

    11 the expensive side, but they are fun.

 

    12               JUDGE CURRAN:  Okay.  Let me talk

 

    13 with counsel for a moment, if you don't mind.

 

    14 Okay.  Thank you.

 

    15               MS. SMITH:  Your Honor, basically

 

    16 this witness has made what I would call a cheat

 

    17 sheet, including lots of information in a

 

    18 different way than his report; and he has been

 

    19 sitting here referring to it and testifying to

 

    20 it.  Nobody asked him if he could refresh his

 

    21 recollection.  I have never seen this document

 

    22 before.  It hasn't been marked.

 

    23               MR. MULLIN:  Certainly need copies

 

    24 of it.

 

    25               MS. SMITH:  This is totally


 

 

                                                   221

 

 

     1 outrageous.

 

     2               JUDGE CURRAN:  Well, let's all not

 

     3 fall apart here.  Let's all not fall apart.

 

     4 Okey-dokey.  First of all, Mr. --

 

     5               MR. BEVERE:  Because I will tell

 

     6 you I didn't make any remarks, even though he

 

     7 was looking at --

 

     8               JUDGE CURRAN:  He asked him if he

 

     9 needed to refer to his report to refresh his

 

    10 recollection.  I think he said yes.  And I am

 

    11 assuming that Mr. Bevere thought, when he was

 

    12 looking down, that that's -- that's what I

 

    13 thought when he was looking down, he was looking

 

    14 at his report.  It's clear now he was looking at

 

    15 a note pad, like a legal note pad that's got how

 

    16 many pages, Mr. Mullin?  A lot of pages.

 

    17               MR. MULLIN:  We have legal size

 

    18 and smaller size here.  One, two, three, four --

 

    19 excuse me -- five, six -- six legal size pages.

 

    20 And there is one small blue page.

 

    21               JUDGE CURRAN:  I mean, it appeared

 

    22 to me, when he held it up, Mr. Bevere, he was

 

    23 basically talking about an outline that he had

 

    24 prepared, but not a six-page outline.  I think

 

    25 what he is actually -- what he actually said was


 

 

                                                   222

 

 

     1 it's kind of a translation of Dr. Almeleh's

 

     2 notes.  But if it's a translation and they have

 

     3 never seen it --

 

     4               MS. SMITH:  Go on the record this

 

     5 is not a translation of Almeleh's notes.  This

 

     6 is --

 

     7               MR. PARIS:  You know what --

 

     8               MS. SMITH:  Pumill.  He has

 

     9 relationships.  He has done an outline of his

 

    10 testimony.  This is not what he said it was.

 

    11 This is not a translation of Almeleh's notes.

 

    12               MR. MULLIN:  Your Honor, could we

 

    13 start by --

 

    14               MR. BEVERE:  Judge, I have never

 

    15 seen this, so I don't know what it is, quite

 

    16 frankly.

 

    17               MR. MULLIN:  Can we start by

 

    18 making a copy of it --

 

    19               JUDGE CURRAN:  Sure.

 

    20               MR. MULLIN:  -- take a moment and

 

    21 look at it and read it?

 

    22               JUDGE CURRAN:  We will go off the

 

    23 record for a moment.

 

    24                Off the record, Miss Castelli.

 

    25               (Whereupon, a discussion is held


 

 

                                                   223

 

 

     1        off the record.)

 

     2               MR. PARIS:  I'm hoping we can get

 

     3 done by the 5th.

 

     4               MR. MULLIN:  I would think we are

 

     5 done by the 5th.

 

     6               MS. SMITH:  If the 3rd is our last

 

     7 witness --

 

     8               JUDGE CURRAN:  If the 3rd is the

 

     9 last witness, let's just say the jury charge

 

    10 conference takes most of the next day, the

 

    11 charge is going to be long, that only gives the

 

    12 5th, really, for the jury to deliberate.

 

    13               MR. BEVERE:  We may be able to

 

    14 squeeze the charge conference in on that Friday.

 

    15 Maybe we have a half day of testimony and we do

 

    16 the charge conference.

 

    17               MS. SMITH:  Sometimes we do it

 

    18 after court over a series of days.

 

    19               MR. BEVERE:  I have no problem

 

    20 doing that.

 

    21               JUDGE CURRAN:  That's fine too;

 

    22 but we don't want to waste our time going

 

    23 through, okay.

 

    24               MR. BEVERE:  Judge.

 

    25               JUDGE CURRAN:  We have to resolve


 

 

                                                   224

 

 

     1 that when we, you know, are finished or when we

 

     2 have got all the evidence in or whatever.

 

     3               MS. SMITH:  We might be able to

 

     4 get a lot of it done, Judge, in advance and have

 

     5 intense one.

 

     6               MR. MULLIN:  I think, Judge, it's

 

     7 very important to --

 

     8               JUDGE CURRAN:  I'm sorry?

 

     9               MR. MULLIN:  It's very important

 

    10 to avoid a cascading event that comes from

 

    11 releasing a juror in the middle of a trial.

 

    12 Release one, and it's a signal to the others.

 

    13 So, Your Honor, I would urge --

 

    14               MR. BEVERE:  Leave him on now.  If

 

    15 something happens and he has to go, then --

 

    16               JUDGE CURRAN:  I am cognizant of

 

    17 the fact that this fellow is the one who is the

 

    18 teacher of the special ed. kids; but you know,

 

    19 maybe if we get to next Friday and we realize

 

    20 the schedule --

 

    21               MS. SMITH:  That would be fair.

 

    22               JUDGE CURRAN:  Okay.  Every

 

    23 agrees?

 

    24               MS. SMITH:  Yes.

 

    25               JUDGE CURRAN:  Sir, at this point


 

 

                                                   225

 

 

     1 we really believe the trial will be over.  We

 

     2 are not going to be at the gates at the airport

 

     3 dragging you away from the plane.  You know,

 

     4 that is not our intention.

 

     5               JUROR NUMBER 2:  Okay.

 

     6               JUDGE CURRAN:  So I think it is

 

     7 fair to keep you on the jury right now --

 

     8               JUROR NUMBER 2:  Okay.

 

     9               JUDGE CURRAN:  -- because we do

 

    10 believe that the trial should be over by then.

 

    11               JUROR NUMBER 2:  Okay.

 

    12               JUDGE CURRAN:  Okay.  We just

 

    13 wanted to give all the dates of that week.

 

    14 Okay?

 

    15               JUROR NUMBER 2:  Okay.  Great.

 

    16 Sounds good.

 

    17               JUDGE CURRAN:  Now, are you in

 

    18 this wedding?

 

    19               JUROR NUMBER 2:  I actually am,

 

    20 yes.  It's a friend of mine that I have known

 

    21 since I was ten years old, so getting married.

 

    22 So should be a fun time.

 

    23               JUDGE CURRAN:  Well, we could not

 

    24 in good conscience have anything to do with you

 

    25 missing that weekend.  Have a nice weekend.


 

 

                                                   226

 

 

     1               MR. MULLIN:  Can we just stay

 

     2 sidebar for a minute, Judge.

 

     3               JUDGE CURRAN:  Yes.

 

     4               MR. MULLIN:  Let me go on the

 

     5 record to the curative, Your Honor.  You know we

 

     6 wanted it to be declared inappropriate that he

 

     7 had been using it before it came to our

 

     8 attention, that he did make a statement that

 

     9 wasn't accurate about what it was and that it

 

    10 did, in my opinion, violate Rule 612.  I

 

    11 understand Your Honor's ruling.  I just want to

 

    12 preserve -- take issue with Your Honor.

 

    13                The other issue, in order to

 

    14 expedite this --

 

    15               JUDGE CURRAN:  Can we go back to

 

    16 that issue first?

 

    17               MR. MULLIN:  Sure.

 

    18               JUDGE CURRAN:  Frankly,

 

    19 Mr. Mullin, you're right.  I made the curative

 

    20 as mild as I could because I'm always concerned

 

    21 about the court trying to find a balance between

 

    22 what has to be said and tainting the issues.

 

    23 However, that does not mean in any way that the

 

    24 plaintiffs are not free to cross, to question

 

    25 him under, you know, whatever circumstances you


 

 

                                                   227

 

 

     1 think fair and, obviously, proper in regard to

 

     2 those notes.  I did not mean to --

 

     3               MR. MULLIN:  No, I understand.

 

     4               JUDGE CURRAN:  Just because I

 

     5 wouldn't say, "improper" doesn't mean that you

 

     6 all are not free to question him.

 

     7               MR. MULLIN:  Thank you, Your

 

     8 Honor.

 

     9               JUDGE CURRAN:  That's certainly

 

    10 clear.

 

    11               MR. MULLIN:  The other thing is,

 

    12 of course, you know, I -- we -- we have agreed

 

    13 to disagree on what the standard is for this

 

    14 case.  And I know you've gone with the

 

    15 defendants on this deliberate indifference

 

    16 standard.  Well, it seems to me in order to

 

    17 expedite this --

 

    18               JUDGE CURRAN:  Gee, they don't

 

    19 think so.

 

    20               MR. BEVERE:  Note our strong

 

    21 disagreement with that.

 

    22               MR. MULLIN:  Well, my impression

 

    23 is I lost that battle because I lost the LAD

 

    24 charge.  But anyway, in order to expedite this

 

    25 thing, if defendants will send me over the next


 

 

                                                   228

 

 

     1 few days their proposed jury charge.

 

     2               MS. SMITH:  Yeah.

 

     3               MR. MULLIN:  It may be we are not

 

     4 worlds apart.

 

     5               MR. BEVERE:  It's no problem.

 

     6               MR. MULLIN:  Because it's a charge

 

     7 I am not going to agree with, but I understand

 

     8 Your Honor's ruling.

 

     9               MR. BEVERE:  You know that Neil.

 

    10               MR. MULLIN:  Because it's going to

 

    11 be -- it's going to be a charge on the 42

 

    12 U.S.C., which every day I look at the complaint,

 

    13 every night; and I can't find it but --

 

    14               JUDGE CURRAN:  How many times has

 

    15 he said that at sidebar?  "This is not a

 

    16 1983" --

 

    17               MR. MULLIN:  I say it often.  I

 

    18 say it often.

 

    19               MS. SMITH:  And I think we'll try

 

    20 to come in Tuesday having conferred about what's

 

    21 going on.

 

    22               MR. PARIS:  Oh, the --

 

    23               MS. SMITH:  Consent and the

 

    24 stipulations.

 

    25               MR. PARIS:  We do need to make a


 

 

                                                   229

 

 

     1 motion.

 

     2               MS. SMITH:  We can really try to

 

     3 move things along this weekend.

 

     4               MR. BEVERE:  Are you going to be

 

     5 down the shore?  I will be in Bradley Beach.

 

     6               MS. SMITH:  Come on down.  I will

 

     7 make you a cosmo, get you to agree to a lot of

 

     8 things.

 

     9               JUDGE CURRAN:  Tracey won't be

 

    10 here.

 

    11               MR. PARIS:  Very fair resolution

 

    12 with this witness to put it off until the 3rd.

 

    13 I don't mean the instruction.  I appreciate the

 

    14 fact we are able to schedule him off to the 3rd,

 

    15 thank you.

 

    16               JUDGE CURRAN:  Yeah, it will work

 

    17 out.  Of course, when he said today he is

 

    18 basically going down there as a do-gooder, I

 

    19 thought, Oh, the plaintiffs are going to object

 

    20 to that.  I didn't know what he was doing, where

 

    21 he was going or what he was doing but --

 

    22               MS. SMITH:  He is going to visit

 

    23 his family pretax is what he is doing.

 

    24               JUDGE CURRAN:  Exactly right.

 

    25               MS. SMITH:  Let's be real.


 

 

                                                   230

 

 

     1               JUDGE CURRAN:  It sounds

 

     2 do-gooderly.  So you can ask him that.  You can

 

     3 ask him about his family, if you like.

 

     4               MR. PARIS:  Thank you, Judge.

 

     5               JUDGE CURRAN:  Have a very good

 

     6 weekend, very safe weekend.

 

     7               COURT CLERK:  Off the record.

 

     8               (Whereupon, the proceeding is

 

     9        concluded at 4:20 p.m.)

 

    10

 

    11

 

    12

 

    13

 

    14

 

    15

 

    16

 

    17

 

    18

 

    19

 

    20

 

    21

 

    22

 

    23

 

    24

 

    25


 

 

                                                   231

 

 

     1               C E R T I F I C A T E

 

     2

 

     3      I, TRACEY R. SZCZUBELEK, a Certified Court

 

     4 Reporter and Notary Public of the State of New

 

     5 Jersey, do hereby certify that the foregoing is

 

     6 a true and accurate transcript of the

 

     7 stenographic notes as taken by and before me, on

 

     8 the date and place hereinbefore set forth.

 

     9

 

    10

 

    11

 

    12

 

    13

 

    14

 

    15

 

    16

 

    17

 

    18           ________________________________

 

    19           TRACEY R. SZCZUBELEK, C.C.R.

 

    20           LICENSE NO. XIO1983

 

    21

 

    22

 

    23

 

    24

 

    25


 


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