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 15
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Tuesday, June 3, 2008
Commencing 9:40 a.m.
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B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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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
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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.
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9 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
10 Attorneys for the Defendants
11 360 Passaic Avenue
12 Nutley, New Jersey 07110
13 BY: DANIEL R. BEVERE, ESQ.
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1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 ALBERTO GOLDWASER, M.D.
5 By: Mr. Bevere 85
6 By: Ms. Smith 202
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8 E X H I B I T S
9 NUMBER DESCRIPTION PAGE
10 C-10 Affidavit for copying of caucus
11 tape 201
12 C-18 E-mail to Judge Curran from Ms. Smith
13 dated Thursday, 5/29/08, 7:44 p.m. 38
14 C-19 E-mail, dated 5/31/08, 7:15 p.m. 39
15 C-20 Mr. Leanza's deposition of 6/2/08 39
16 C-21 E-mail from Mr. Paris and Ms. Smith's
17 response 42
18 C-22 E-mail to Mr. Paris from Ms. Smith
19 dated 6/1/08, 2:30 p.m. 42
20 C-23 E-mail to Mr. Paris from Ms. Smith
21 dated 6/1/08, 3:36 p.m. 43
22 C-24 E-mail to Mr. Paris from Ms. Smith
23 dated 6/1/08, 3:55 p.m. 44
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1 E X H I B I T S
2 NUMBER DESCRIPTION PAGE
3 D-313 Written list of complaints prepared
4 for Dr. Goldwaser by Mr. deVries, consent
5 form for examination signed by Mr. Carter,
6 a consent form for examination signed by
7 Mr. deVries, and Dr. Goldwaser's
8 Handwritten notes regarding examination 88
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1 JUDGE CURRAN: We are on the
2 record, thank you.
3 MR. MULLIN: Your Honor, I have a
4 couple applications to make about Frank Leanza.
5 And to assist Your Honor I just this morning got
6 a copy of the deposition of Frank Leanza, which
7 I am going to hand to the Court, with the
8 Court's permission.
9 JUDGE CURRAN: I believe I have a
10 copy. I believe they left a copy on my desk and
11 I have it, thank you.
12 MR. MULLIN: Mr. Leanza was not
13 listed in Answers to Interrogatories as a person
14 with knowledge. To the contrary, in answer to
15 Interrogatory number 50 inquiring about
16 communications among the Town concerning this
17 case, as the Court already knows, the Town
18 asserted the attorney-client privilege with
19 respect to any communications that Mr. Leanza
20 may have made.
21 And then counsel's position was
22 that through some passing reference, I believe
23 in the Iacono deposition, sometime, I guess, in
24 2006, 2007 -- I don't have the exact date -- we
25 should have concluded, we, the plaintiffs,
6
1 should have concluded from that passing
2 reference to something Mr. Leanza might have
3 said that now they had retracted the waiver in
4 their Interrogatory answers, now Mr. Leanza's
5 attorney-client communications were open game.
6 And of course, at that time they
7 provided no -- they, the defendants, provided no
8 discovery. So we asked for it with respect to
9 statements, admissions made by Mr. Leanza, to
10 Mr. Leanza in the course of his providing his
11 attorney-client advice. We have, pursuant to
12 our application and the Court's order on
13 Saturday at 5:00 gotten a -- what seems to be a
14 portion of these communications in the form of
15 his -- Mr. Leanza's legal bills, minutes of
16 public meetings. But where the advice is given
17 centrally in the executive sessions. Well, we
18 have only been given one tape from -- for the
19 last four years, and that's a tape of
20 April 27th, 2004. Mr. Leanza does probably what
21 he does at every executive session, giving legal
22 advice.
23 So we have noncompliance with the
24 Court's discovery order even right now. We have
25 been given no e-mails. We have been -- I won't
7
1 say no. We have been given, I believe, one
2 e-mail between Mr. Leanza and somebody else. No
3 e-mails otherwise. No notes for four years. No
4 notes at all reflecting any advice or meetings.
5 No notes. So there were six e-mails from Mr.
6 Bevere but one from Leanza in 2008.
7 Then we have -- so we have a
8 massive discovery abuse because all the
9 information we got at Saturday 5 p.m., plus the
10 information that's missing, should have been
11 turned over during discovery when they claim we
12 should have gleaned from a passing line in a
13 deposition of Mr. Iacono that what the answer to
14 Interrogatory said was no longer in effect. We
15 should have guessed that and -- but if that was
16 true, then all these documents should have been
17 turned over.
18 We have been scrambling,
19 literally scrambling through the weekend and
20 last night to try to get through these
21 documents, to understand them and for me to get
22 through a deposition I didn't attend of Mr.
23 Leanza.
24 So -- so that's the -- the mess
25 that the defendant has created through a gross
8
1 and massive discovery violation, if we were even
2 to believe that they waived the privilege.
3 Which brings me to the second question. The way
4 the Town acts -- certainly heard it from Mr.
5 Bevere and from his witnesses. And we know
6 this. The way the Town acts is through its Town
7 Council and Mayor, not Town Council or Mayor, as
8 I have been corrected on that when I was
9 cross-examining on Chapter 12. Town Council and
10 Mayor.
11 The way the Town does something,
12 the Town of Secaucus does something is they pass
13 a resolution, and then the Mayor signs off on
14 it. So if the Town and -- and the privilege,
15 the attorney-client privilege, it belongs to the
16 Town and the Mayor as an entity, as the
17 governing body. It's theirs to waive. It's not
18 Mr. Iacono's to stumble -- stumble about and
19 waive. It's not Mr. Leanza's to waive. It's
20 not Mr. Bevere's to waive. It's the Town's to
21 waive.
22 So then the question has to be
23 did the Town waive the privilege; and if so,
24 when? And now let's look at a passage in the
25 deposition of Mr. Leanza, which was taken
9
1 yesterday. And I'll draw the Court's attention
2 to page 103, line 18.
3 Question. This is Miss Smith
4 questioning Mr. Leanza.
5 Question: You already said this,
6 but I just want to repeat it. The Mayor and
7 Council act on behalf of the Town of Secaucus,
8 right? That's the governing body?
9 Answer: Correct.
10 Question: The answer to the
11 Interrogatories served in this matter
12 at Leanza-14 was, at -- at the end of number 50,
13 "Any other meetings would have occurred in the
14 presence of counsel and, accordingly, are
15 subject to the attorney-client privilege; and
16 the contents thereof are nondiscoverable," end
17 quote. You had that answer and you reviewed
18 that answer before it was served, right?
19 Answer: That's right.
20 Question: So the Town asserted
21 the attorney-client privilege with regard to
22 meetings in which you attended, correct?
23 Answer: On the advice of our
24 counsel in this matter.
25 Question: You're pointing to
10
1 Mr. Paris?
2 Answer: Mr. Paris and Mr. Paris'
3 office.
4 Question: That's the Town's
5 privilege, right?
6 Answer: Yes.
7 Question: I had the Town Council
8 minutes from 2004 through 2008. When did Town
9 Council vote to waive the attorney-client
10 privilege?
11 Answer: I don't recall.
12 Question: Did you have a
13 conversation with the Town Council, with the
14 governing body with regard to waiving the
15 privilege?
16 Answer: Not that I could recall
17 at this time. I don't know if Mr. Paris or Mr.
18 Bevere did.
19 Question: You have no
20 recollection at this time of any conversation
21 with the governing body regarding waiving the
22 attorney-client privilege?
23 Answer: I know it must have
24 happened because I was told someplace along the
25 line that I will become a witness.
11
1 Question: When were you told?
2 Answer: I really don't recall.
3 Probably sometime in 2008. I'm not exactly
4 sure. To tell you the truth, which I was
5 surprised about but --
6 Question: You don't know how
7 that decision was communicated?
8 Answer: I didn't know how that
9 decision was communicated to the Mayor and
10 Council or to the Town Administrator.
11 Question: And at the time that
12 you learned that the Town had, according to the
13 current counsel, waived the attorney-client
14 privilege, did you immediately turn over your
15 documents which would be responsive to
16 Interrogatory number 50?
17 Answer: I believe I had turned
18 over the bulk of my documents even prior to that
19 to Mr. Bevere in the beginning of this
20 litigation.
21 Question: My question is at some
22 point after answering Interrogatories the claim
23 now is the Town waived the attorney-client
24 privilege. You don't recall how you learned
25 that any -- how you learned that or any
12
1 discussions about that, correct?
2 Answer: Correct.
3 At the time you learned that --
4 at the time that you learned that the Town had
5 waived the attorney-client privilege did you
6 provide any documents responsive to
7 Interrogatory number 50?
8 I believe -- Answer: I believe
9 that Mr. Bevere already had everything in my
10 file. There was nothing I was aware of in my
11 file that hadn't already been turned over to our
12 litigation counsel.
13 So here we have the Town counsel,
14 the legal adviser to the governing body. He
15 doesn't know when the privilege was waived. He
16 doesn't know how the privilege was waived. The
17 first time he hears that he is going to have to
18 testify is sometime in 2008, and he was
19 surprised to learn that.
20 He says he turned over all of his
21 documents, all of his privilege documents to Mr.
22 Bevere at the beginning of this litigation. Mr.
23 Bevere never turned those documents over to us
24 when Mr. Iacono made a passing phrase that
25 they -- that counsel now claims amounted to a
13
1 waiver of the Town's privilege.
2 What we have here, Your Honor, is
3 the absence of waiver. I've personally reviewed
4 all the ordinances that were given to me from
5 2004 to 2008. I have not seen any resolution
6 waiving the attorney-client privilege in this
7 litigation in those resolutions. I personally
8 and Miss Smith have reviewed all the documents
9 handed over to us in connection with this
10 waiver. I have not seen any e-mail, letter,
11 memo or document of any nature waiving the
12 privilege of the Town in this case to maintain
13 the confidentiality of communications here.
14 I submit to Your Honor that there
15 has been no waiver of the privilege here, that
16 this is a last minute scramble to create a
17 defense. And it's wrong. If the privilege had
18 been waived, what we have is a gross and willful
19 and massive discovery violation, abuse of
20 discovery because here I am and here Miss Smith
21 is at the very end of this case, during the
22 critical final moments, scrambling to go through
23 documents that should have been provided a
24 couple years ago, if Mr. Iacono's passing
25 statement waived the privilege.
14
1 So for these reasons, Your Honor,
2 Mr. Leanza's testimony should be barred. And I
3 would ask the Court at a -- a later date after
4 the verdict to take up some serious issues that
5 are in connection with this case, including what
6 appears to be gross and intentional discovery
7 abuse and mistatements to the Court about the
8 waiver of the privilege. I believe those
9 matters are serious and should be taken up after
10 any verdict in the case so as not to waste time.
11 But right now this witness should be barred.
12 JUDGE CURRAN: Thank you.
13 Mr. Paris or Mr. Bevere.
14 MR. PARIS: Thank you, Your Honor.
15 Number one, in terms of the waiver of a
16 privilege, we -- we made our argument last week.
17 We made our argument last week with regard to
18 the two areas where it would appear that the
19 privilege had been waived essentially de facto,
20 and we had cited case law on this subject. And
21 that was with regard to both Mr. Iacono's
22 testimony at deposition, which went in without
23 objection and also with regard to communication
24 between Town counsel and the Mayor and Council
25 with regard to his advice directly. That was
15
1 the letter I believe dated April 28th of '04,
2 which again provided Plaintiffs' counsel with
3 direct evidence of what Mr. Leanza was advising
4 the governing body at that point in time.
5 With regard to the waiver of a
6 privilege, the waiver of the privilege took
7 place during the litigation. It was clear that
8 the privilege had been waived, as we argued
9 before, in Mr. Iacono's deposition and then
10 through the production of the letter through the
11 Attorney General on page one and then through
12 our -- our office through the counsel, I guess,
13 on page two. That was the argument that was
14 made.
15 Since that point in time, Your
16 Honor -- in addition -- and I should say in
17 addition, when Mr. Iacono was testifying, Mr.
18 Elwell was testifying, et cetera -- and again,
19 this is all on the record from, I guess it was,
20 Friday and then maybe before Friday -- there
21 were objections made during their testimony.
22 The objection was made with regard to hearsay
23 from Mr. Leanza.
24 Your Honor said we are not going
25 to hear hearsay from Mr. Iacono or Mr. Elwell as
16
1 to what Mr. Leanza said. Mr. Mullin, himself,
2 said Mr. Leanza is going to come in and testify
3 as to that. We don't need to hear it from them;
4 we're going to hear it from Mr. Leanza. Court
5 said that's right.
6 We proceeded on that basis. We
7 didn't ask any additional questions from Mr.
8 Iacono. We didn't ask any additional questions
9 from Mr. Elwell or anyone else because at that
10 point in time the plaintiffs indicated that they
11 understood that Mr. Leanza was going to come to
12 court and Mr. Leanza was going to testify
13 himself.
14 Mr. Leanza was listed as a
15 witness from the pretrial submission that was
16 made. His name was mentioned to the jury, et
17 cetera. Everyone knew that we were intending to
18 call him as a witness when this trial started.
19 And in fact, on the record Plaintiffs' counsel
20 himself said we're going to hear from Mr. Leanza
21 with regard to that issue.
22 What happens in the case is the
23 next day, I believe it was, or the day after
24 that, counsel comes in and now makes a motion to
25 the Court Mr. Leanza cannot come in and testify.
17
1 This is after it's already been on the record
2 that he can testify. And we -- we skirted
3 around Mr. Leanza with witnesses based upon a
4 hearsay objection. That's number one.
5 There doesn't need to be a
6 resolution of the governing body with regard to
7 litigation. The bottom line is that when the
8 letter was produced and when Mr. Iacono
9 testified and gave information as to what he was
10 advised, it wasn't a question of let's have a
11 resolution waiving a privilege. The privilege
12 was waived at that point in time. Privilege was
13 waived at that point in time. And I would dare
14 say if at that point in time counsel for the
15 plaintiffs wanted to determine what Mr. Leanza
16 had said, they would have asked follow-up
17 questions, if they sought to. Now, that's
18 number one.
19 Number two, since Friday
20 afternoon we have been attempting to gain the
21 information that we were required to produce,
22 items one through seven. We have produced
23 minutes where we have minutes. Your Honor may
24 recall that when we were talking about trying to
25 do this, I indicated it's going to be very
18
1 difficult over the weekend. Your Honor said
2 they scrambled for a meeting on Sunday morning,
3 let them scramble; and they did on Saturday.
4 They provided us with minutes of
5 the meetings as had been requested. They
6 provided us with the billing records from Mr.
7 Leanza. Mr. Leanza came with his file. We
8 copied his file. There were -- there was
9 material, I believe, from a very small file Mr.
10 Iacono had. We copied that material. And I
11 think there may have been also material from
12 Mayor Elwell. We copied the material, and we
13 provided them with material. And I followed up
14 in an e-mail saying you have material, here is
15 the material that we could find from those
16 files.
17 Initially when we were discussing
18 this I had said, you know, do we really need
19 minutes going all the way up to the present
20 time? Miss Smith said, well, they're in a book.
21 And you know, I said, yeah, you know, they're in
22 a book, that's no big deal, copying a book. The
23 minutes -- there are no minutes of caucus
24 meetings in a book.
25 Instead, what we have are tapes.
19
1 Are tapes. I scrambled to try to get the tapes,
2 okay. They tried to get the clerk on Saturday.
3 Couldn't get the clerk on Saturday. All we have
4 are original tapes. I provided Miss Smith on
5 Sunday evening after I had gotten them, okay,
6 with original tapes from April 27th. That was
7 the meeting that Mr. Leanza had written about in
8 his letter and was the meeting, the first
9 meeting of the governing body after this
10 occurred. There was a caucus meeting, caucus
11 meeting tape; and then I believe they went into
12 executive session. And they continued the tape
13 running during executive session. And
14 Miss Smith has the entire tape of the governing
15 body and Mr. Leanza's discussion of April 27th
16 at that executive session meeting.
17 Since then I'm trying to get more
18 tapes. I have got three more tapes. They're
19 copying tapes as we speak. There are apparently
20 130 hours of caucus tapes.
21 Now, you know, we'll continue to
22 get tapes, if that's what Your Honor directs us
23 to do. I will continue to provide tapes. I
24 have got tapes of June 22nd, two tapes. There
25 is a tape of July 27th, '04. I had a tape -- I
20
1 am going to say I had a tape for May. I am
2 looking for it. I knew I had it yesterday. I
3 probably put it in one of my briefcases. I will
4 give them that tape, if that's what Your Honor
5 wishes me to do.
6 You ordered that Mr. Leanza's
7 deposition be taken. His deposition was taken
8 from 10:00 yesterday morning. Counsel concluded
9 the deposition at 4:30 in the afternoon. That
10 deposition went on all day long. I objected to
11 one question -- I objected to him answering one
12 question, which we brought to Your Honor. Your
13 Honor ruled on it, and he answered the question
14 until counsel concluded.
15 This isn't a vote that has to be
16 ruled on by a governing body. They didn't vote
17 on our witness list, our charge, et cetera, et
18 cetera. And we represent the client. And when
19 we looked and saw what had transpired, it became
20 clear to us that the attorney-client privilege
21 had been waived. Had been waived. And
22 certainly, again, if counsel on the other side
23 was seeking to obtain information, they would
24 have send been able to obtain information
25 because once it's waived on a particular -- in a
21
1 particular area, I don't know that you can pull
2 that back.
3 With regard to discovery, okay,
4 Mr. Leanza did not provide us with an extensive
5 file. We looked for e-mail. What I -- the
6 information -- I'm sorry.
7 JUDGE CURRAN: That's --
8 MR. PARIS: The information that
9 came back to us from the Town -- and I had
10 Mr. Drumeler working with the Town. Our contact
11 was Mr. Drumeler from the Town, trying to gather
12 information on Saturday and Sunday -- was that
13 Mr. Iacono, when he left his employ, did not
14 have any e-mails on his computer. Essentially,
15 he left Mr. Drumeler a clean computer. He
16 indicated, apparently, to Mr. Drumeler because,
17 you know, we continued to ask, you know, were
18 there e-mails? He said that he did not have
19 e-mails regarding this case on his computer.
20 The court wants him to come to
21 court, he would testify to that. That's
22 according to what Mr. Drumeler told me.
23 I have asked Mr. Drumeler,
24 because Miss Smith raised a question with regard
25 to -- she raised a question with regard to
22
1 whether or not there were any notes of executive
2 sessions that may have been taken by the clerk.
3 I asked Mr. Drumeler to ask the clerk, "Do you
4 have any notes from executive sessions?" The
5 answer was, "No."
6 So I believe that's where we
7 stand. Mr. Leanza testified that he provided
8 his file to our office. He indicated that he
9 also provided his file to Julien Neals' office
10 with Chasan Leyner. He was with Chasan Leyner.
11 We have provided what we had. Mr. Bevere can
12 talk to that issue. He handled the discovery as
13 the discovery was going on.
14 I don't know what else I can say.
15 Since Friday afternoon essentially a hundred
16 percent of my time -- and I am not talking about
17 my professional time; I am talking about my
18 time -- has been trying to resolve this issue,
19 get this deposition done so Mr. Leanza can come
20 to court and testify. And that's where we're
21 at. That's where we're at, Your Honor.
22 JUDGE CURRAN: What was the date
23 of Mr. Iacono's deposition?
24 MR. PARIS: Mr. Iacono's
25 deposition was taken on --
23
1 MR. BEVERE: July of 2006, Your
2 Honor.
3 JUDGE CURRAN: Is the theory that
4 the privilege was waived there a theory that
5 says Mr. Iacono made these statements and the
6 defense did not object, therefore, by mistake it
7 was waived or there had been discussions ahead
8 of time and we knew that the privilege was
9 waived and that's an example of the fact that it
10 was waived?
11 MR. PARIS: I -- I -- I don't
12 know. I don't know offhand. I could tell you
13 this. The question was asked. The question was
14 asked. There was no objection made to the
15 question. Mr. Iacono testified as he did. I
16 don't think that there was ever -- I don't know
17 that any other witness was questioned with
18 regard to Mr. Leanza. But there certainly --
19 there wasn't even an objection made at the time
20 the question was asked --
21 JUDGE CURRAN: Right.
22 MR. PARIS: -- telling that --
23 there was no instruction to -- either by Mr.
24 Neals or by Mr. Bevere saying, "Do not answer
25 that question if it has anything to do with
24
1 advice counsel may have given." That -- and
2 that was on July 7th of 2006.
3 JUDGE CURRAN: But what's the
4 theory?
5 MR. PARIS: The theory is that
6 what -- that -- and --
7 JUDGE CURRAN: Is the theory that
8 that was a per se --
9 MR. PARIS: Yeah.
10 JUDGE CURRAN: -- waiver and
11 therefore the plaintiff should have been on
12 notice?
13 MR. PARIS: Yeah.
14 JUDGE CURRAN: Okay. Then what
15 happened to the discovery that would have
16 naturally followed?
17 MR. PARIS: Your Honor, I -- with
18 regard to some of the discovery in items one
19 through seven -- and again, I didn't handle the
20 original discovery; and I think Dan can direct
21 himself to that. Many of the items from one
22 through seven I don't think were necessarily
23 requested in initial discovery. I don't want --
24 I don't want to make representation to say that
25 but --
25
1 MR. BEVERE: Judge, let me say
2 this.
3 MR. PARIS: Excuse me, I just want
4 to refer back to the matter of a Grand Jury
5 subpoena issued to Amato Galasso. That was what
6 we indicated last time. It basically says once
7 the holder discloses privileged communications,
8 he has waived the privilege with respect to
9 related privileged information pertaining to the
10 same subject. And that you know very well may
11 have been the basis for Your Honor's ruling
12 going forward with Mr. Leanza's deposition, you
13 know.
14 And we've done this on the basis
15 that Mr. Leanza's deposition would be taken in
16 order that he could be a witness. But they
17 wanted a discovery deposition. We had given
18 them the discovery deposition. And you know,
19 now we're revisiting an issue that we argued
20 about last week. And I thought we had gotten
21 over that issue and that the Court's remedy for
22 the situation was, you know, let's -- let's move
23 forward with his discovery dep so you could take
24 the discovery, when Mr. Leanza comes in to
25 testify, you are going to have a discovery
26
1 deposition.
2 JUDGE CURRAN: Okay. If you will
3 give me the cite on that.
4 MR. PARIS: Sure.
5 JUDGE CURRAN: I don't have my
6 notes from Friday.
7 MR. PARIS: The cite on that is
8 389 New Jersey Super at 290.
9 JUDGE CURRAN: And Galasso is
10 spelled?
11 MR. PARIS: G-a-l-a-s-s-o. I have
12 a copy of it, if you would like, Your Honor.
13 JUDGE CURRAN: Thank you.
14 MR. PARIS: And the --
15 JUDGE CURRAN: I apologize. My
16 law clerk is out ill again today.
17 MR. PARIS: I am just going to --
18 I am just going to put -- if you don't mind, I
19 am just going to put a checkmark on the places
20 where I was just essentially referring to. And
21 that's at page five of the printout.
22 JUDGE CURRAN: Thank you. I read
23 it on-line the other day, but I didn't get it
24 printed. I don't want to take your only copy.
25 We can make --
27
1 MR. PARIS: No, no, this is not my
2 only copy.
3 JUDGE CURRAN: Okay. Great.
4 Thank you.
5 MR. PARIS: So that's -- that's
6 the argument. Honestly, I thought that we had
7 gone beyond that on Friday. And essentially
8 what we have been doing ever since then has been
9 trying to do what we can do. I mean, I will
10 continue to have tapes made.
11 Mr. Leanza had not even listened
12 to the tape from April 27th when he testified.
13 If he is going to testify -- Miss Smith has the
14 only -- she has -- it's the original of the
15 tape. I would ask that we have it so we can now
16 duplicate it because I tried to get it to her
17 without taking the time to duplicate it. So I
18 would like to get it back this morning so we can
19 duplicate it. I would like Mr. Leanza to be
20 able to listen to it before he testifies. And I
21 don't see any reason at this point, considering
22 what we have done, that he can't go forward and
23 testify on the areas as Your Honor had ruled
24 yesterday.
25 JUDGE CURRAN: Mr. Paris, my last
28
1 question is in regard to page 105, where there
2 is a discussion of the decision. I think it's
3 undisputed that the privilege belongs to the
4 Mayor and Council.
5 MR. PARIS: Well --
6 JUDGE CURRAN: No, is that
7 disputed?
8 MR. PARIS: Well, Your Honor, we
9 say that a privilege belongs to a client to
10 invoke, okay. In this particular -- and when
11 you're talking about a piece of litigation, the
12 client acts through counsel, legal counsel,
13 s-e-l. Now, I don't know how the governing body
14 after Mr. Iacono testifies, after there is a
15 letter out written by counsel to the Mayor and
16 Council providing them with legal advice -- it's
17 not just a letter that says, hi, you know,
18 we're -- you know, I'm your attorney. It's not
19 even a retainer agreement. It's a letter that
20 outlines the legal advice that he provided to
21 the governing body, not just -- at a caucus
22 meeting. He indicates at a caucus meeting they
23 went into executive session. That's what it is;
24 it is a letter outlining the advice he gave to
25 the Mayor and Council in executive session.
29
1 JUDGE CURRAN: Okay. So --
2 MR. PARIS: So how -- what does --
3 JUDGE CURRAN: What I'm trying to
4 find out is who made the decision? Is the
5 theory that he made the decision when he sent
6 that letter to them and then when the letter was
7 sent to the Attorney General's Office? Is it
8 that -- what's the --
9 MR. PARIS: Honestly --
10 JUDGE CURRAN: Who made the
11 decision?
12 MR. PARIS: I think we made the
13 decision. I will be honest with you. I think
14 legal counsel representing the Town in this case
15 made the decision.
16 JUDGE CURRAN: But then why
17 doesn't he just say that?
18 MR. PARIS: Well, because -- I
19 don't mean Mr. Leanza made the decision.
20 JUDGE CURRAN: I'm sorry.
21 MR. PARIS: Because Mr. Leanza
22 indicated throughout his deposition that he was
23 not involved in the litigation.
24 JUDGE CURRAN: So you mean
25 litigation counsel?
30
1 MR. PARIS: Litigation counsel.
2 JUDGE CURRAN: I'm not trying to
3 blame anybody.
4 MR. PARIS: No, no, no.
5 JUDGE CURRAN: This is a matter of
6 just tracking it down. So the theory is that
7 litigation counsel --
8 MR. PARIS: Sure.
9 JUDGE CURRAN: -- made the
10 decision?
11 MR. PARIS: And --
12 JUDGE CURRAN: Which is
13 understandable.
14 MR. PARIS: Sure. And frankly --
15 frankly, if there was going to be a claim of
16 privilege at that point in time, it probably
17 could have been stated when we were asked for a
18 second page of a letter between attorney and
19 client. We were asked for a copy of the second
20 page, and we provided it. Okay. It could have
21 been, you know, again raised as an issue.
22 Mr. Iacono -- and it happens at
23 depositions where counsel says, "You could
24 testify, but don't testify about anything that
25 may have occurred in the presence of counsel"
31
1 or, "Don't testify about what you may have been
2 told by the attorney." You know, we have seen
3 that countless times at depositions. That
4 wasn't done with Mr. Iacono.
5 So, you know, again, I look at it
6 the other way. If they had come forward to the
7 court and said, "You know, Your Honor they have
8 waived the privilege," we'd be hard-pressed to
9 say that we hadn't because of an answer to an
10 Interrogatory when document had been provided
11 and witness was allowed to testify as to what
12 the advice was given.
13 And you know, when you look at
14 the Glasso case, it seems to indicate that you
15 can't pull it back on that same subject when --
16 once it's been done.
17 No, I don't think it's
18 something -- regardless of Mr. Leanza's
19 testimony, I don't think it's something that had
20 to go to a vote of the Mayor and Council to make
21 that kind of a decision. You know, they're not
22 present at depositions or deciding who's going
23 to testify in a case or anything like that.
24 So -- and that's why I understood
25 as of Friday that Your Honor was trying to work
32
1 out some sort of an equitable balance here, in
2 view of the fact that counsel had indicated
3 during direct testimony that Mr. Leanza would --
4 that Mr. Leanza would be testifying as to these
5 subjects, Your Honor had confirmed, yes, we know
6 he is on the witness list, he is going to be
7 testifying. That happened during the trial
8 while we had our witnesses on the stand. And
9 then, you know, the next day, after the
10 witnesses are gone, now counsel comes and says,
11 wait a minute, now Mr. Leanza is not allowed to
12 testify. And that became their position. And I
13 think Your Honor was trying to work out some
14 sort of a balance here. And that's what we've
15 tried to do.
16 JUDGE CURRAN: Thank you.
17 Mr. Mullin.
18 MR. MULLIN: Your Honor, again,
19 his explanation given is very disappointing, to
20 put it mildly. I hear two statements, two
21 different statements about when counsel now
22 contends the privilege was waived. They contend
23 the privilege was waived when that Leanza letter
24 of April 28th was turned over to us. And then I
25 hear them answer your direct question and they
33
1 say the privilege was waived in the July '06
2 Iacono dep.
3 Here is the problem with this
4 kind of game-playing. We got the letter, the
5 April 28th letter in which Leanza purports to
6 give some sort of advice to the Town counsel
7 through the Attorney General. We got page one
8 of it. We served that letter on the defendants
9 in a document production request on
10 September 19th, 2005. After that, on
11 January 6th, 2006 we got Defendant's Answers to
12 Interrogatories asserting the privilege.
13 How could it be that the Attorney
14 General serving the substantive page of that
15 exhibit on September 19th, '05 waived the
16 privilege? And why should we have considered
17 that to be a waiver of the privilege when, A, it
18 wasn't turned over by the Town, it was turned
19 over by the Attorney General and, B, after that,
20 at least three months after that the attorney
21 asserted the privilege in answer to
22 Interrogatories?
23 JUDGE CURRAN: All of this factual
24 information we argued on Friday.
25 MR. MULLIN: We argued it. It is
34
1 in the record.
2 JUDGE CURRAN: It is.
3 MR. MULLIN: I am referring to all
4 record material which was not disputed and is
5 not disputable. Then counsel says, oh, the
6 privilege was waived. Now we're told by
7 litigation counsel in this courtroom that they
8 made a decision to waive during the Iacono dep.
9 JUDGE CURRAN: That's why I asked
10 the date of that, because, obviously, it's after
11 the assertion.
12 MR. MULLIN: It's after the
13 assertion of the privilege. Well, first of all,
14 now we have shifting stories about when the
15 privilege was waived. You're told it was waived
16 when the April 28th letter was given to us, and
17 you were told it was waived when -- when the --
18 when Iacono mentioned it.
19 I don't know how litigation
20 counsel gets to waive the Town's privilege. The
21 litigation counsel doesn't have the power to
22 waive the Town's privilege. Litigation counsel
23 equates waiving the privilege with reviewing, I
24 don't know, Answers to Interrogatories or
25 reviewing a jury charge. That is not true. The
35
1 law is clear that the right of the -- of waiver
2 is the client's right. Mr. Leanza's client was
3 the governing body, the Mayor in tandem with the
4 Town Council. They didn't waive the privilege.
5 We know they didn't waive the
6 privilege because there is no resolution to the
7 effect of waiving the privilege. There is no
8 conversation about waiving the privilege. They
9 never amended their Interrogatories to say they
10 waived the privilege. They never went through
11 the extraordinary steps one has to take when you
12 try to waive -- amend Interrogatories consistent
13 with 4:17-7 in the middle of trial or near trial
14 with the statement about due diligence, et
15 cetera. There is no waiver because they didn't
16 amend their Interrogatories, because the Town
17 Council and Mayor never waived it.
18 It is -- it is not an accurate
19 representation to this Court that they waived
20 the privilege. Town Council did not have that
21 power. I don't have the power to waive
22 attorney-client privilege for my clients. I
23 must get permission from my clients, like every
24 other attorney in the State of New Jersey. That
25 is a very important moment, when you ask a
36
1 client to waive the privilege. Counsel is
2 required to advise his client about the import
3 of that. It's an extremely important step. It
4 has -- it has tremendous gravity and
5 significance.
6 Now, even if -- if the
7 attorney-client privilege was waived by the
8 September '05 delivery of the first page of the
9 April 28th letter from Leanza, then why didn't
10 we get all these Council executive session tapes
11 back then? If it was waived in July '06, when
12 the Iacono dep was taken, then why didn't we get
13 all the tapes of Council executive session
14 meetings then? This is where Leanza gives his
15 advice.
16 We have gotten to hear some, only
17 some because time is running out. We got the
18 sample through the April 27th tape. And I can
19 tell you Mr. Leanza speaks a lot and purports to
20 give legal advice. That's clear. Well, that's
21 what we would expect at executive sessions.
22 Your Honor is familiar with these things.
23 Now, there are 130 hours. We are
24 on the last day of trial -- maybe the last day
25 is tomorrow. And I'm -- and we still don't have
37
1 130 hours of attorney-client privilege
2 conversations turned over to us, and they want
3 to put Mr. Leanza on the stand. He can say
4 anything he wants about what happened or didn't
5 happen at those caucus meetings. I have no way
6 to effectively cross-examine him. I have no way
7 at all to cross-examine him. I have no -- I
8 don't have 130 hours to put aside between today
9 and this afternoon or today and tomorrow to
10 listen to those tapes, to have transcripts made,
11 to have them analyzed. They have completely and
12 utterly destroyed my ability to effectively
13 cross-examine Mr. Leanza. And they have done so
14 in gross violation of the discovery rules.
15 Your Honor, I want to move
16 certain documents into the record and make court
17 exhibits out of them at this point, so the
18 record on this is clear.
19 JUDGE CURRAN: Miss Castelli, we
20 are moving court exhibits in.
21 MR. MULLIN: I will let Miss Smith
22 do it.
23 MS. SMITH: Your Honor, I would
24 like to move into -- as Court exhibits my e-mail
25 to Your Honor of Thursday May 29th, 2008,
38
1 7:44 p.m. during which we list the seven kinds
2 of discovery we would have asked for off the top
3 of my head that afternoon, which Your Honor
4 ordered to be delivered to me by Saturday at 5.
5 The items which were not, where we have no
6 minutes or tapes or anything from executive
7 sessions. Yesterday Mr. Leanza and I agreed
8 executive is the same as closed sessions, and
9 that's where he gives -- gives legal advice.
10 JUDGE CURRAN: What is the Court
11 number, Miss Castelli?
12 COURT CLERK: It's the e-mail, you
13 said?
14 MS. SMITH: Yes, I am moving it in
15 now, so whatever the next number --
16 JUDGE CURRAN: What is the next
17 Court number?
18 COURT CLERK: The next Court
19 number is C-18.
20 JUDGE CURRAN: 18.
21 COURT CLERK: C-18.
22 JUDGE CURRAN: Thank you.
23 (Whereupon, e-mail to Judge Curran
24 from Ms. Smith, dated Thursday, 5/29/08,
25 7:44 p.m. is received and marked as
39
1 Court's Exhibit C-18 for Identification.)
2 MS. SMITH: As C-19, Your Honor,
3 on Saturday May 31st at 7:15 p.m. I had -- had
4 the documents for about an hour-and-a-half and
5 already realized that we didn't have any
6 documents responsive to number one, executive
7 sessions; number three, e-mails to and from the
8 Town attorney and the Council members; number
9 six, notes or memoranda or documents reflecting
10 research and meetings.
11 (Whereupon, e-mail, dated 5/31/08,
12 7:15 p.m. is received and marked as
13 Court's Exhibit C-19 for Identification.)
14 MS. SMITH: I'm going to ask Your
15 Honor as Exhibit C-20 if we can move in the
16 entire Leanza dep.
17 (Whereupon, Mr. Leanza's
18 deposition of 6/2/08 is received and
19 marked as Court's Exhibit C-20 for
20 Identification.)
21 MS. SMITH: He testifies, I must
22 say, with all due respect, rather incredibly
23 that as an attorney for the past four years he
24 never took one note, none. He takes no notes.
25 He bills up to $200,000 to the Town of Secaucus
40
1 for numerous meetings on all of his bills, and
2 he doesn't take one note.
3 They purported to turn over his
4 file. When I looked at his billing and said,
5 "Where is this correspondence? Why isn't that
6 in your file," repeatedly in his deposition he
7 couldn't tell me where it was. Maybe he gave it
8 to somebody else. Maybe he gave it to
9 Mr. Neals. At some point he claimed he -- they
10 threw out documents. He couldn't --
11 JUDGE CURRAN: I'm sorry, who is
12 Mr. Neals?
13 MS. SMITH: Mr. Neals used to
14 represent the individual defendants, Your Honor.
15 JUDGE CURRAN: Thank you. Thank
16 you.
17 MS. SMITH: He claimed he gave
18 Mr. Neals his entire original file. Now, once
19 he claimed that, if Defendants knew that, they
20 should have Friday afternoon gotten Mr. Neals to
21 give them Mr. Leanza's original file in
22 accordance with your Court order.
23 C-20, Your Honor, I would like
24 to -- again, I got --
25 JUDGE CURRAN: Excuse me one
41
1 second, Ms. Smith. C-19, is that an e-mail?
2 What is --
3 MS. SMITH: C-19 I requested the
4 entire Leanza dep be put in the Court's record.
5 JUDGE CURRAN: No, that's C-20.
6 C-19.
7 MS. SMITH: I'm so sorry, Your
8 Honor. C-19 is an e-mail that --
9 JUDGE CURRAN: E-mail. That was
10 the only question.
11 MS. SMITH: Yes. C-20 is
12 the Leanza dep. We will make a copy.
13 C-21, Your Honor, is that I ask
14 for -- that's when I got a response from
15 Mr. Paris that -- regarding certain things. And
16 I asked for a statement from the Town about the
17 policy and procedures of the maintenance of
18 public records.
19 JUDGE CURRAN: So that is also an
20 e-mail?
21 MS. SMITH: C-21, it's an e-mail
22 to Mr. Paris and my response. It's particularly
23 in response to the claim that during the
24 pendency of this litigation Mr. Iacono, the Town
25 Administrator of Secaucus, deleted all of his
42
1 e-mails.
2 (Whereupon, e-mail from Mr. Paris
3 and Ms. Smith's response is received and
4 marked as Court's Exhibit C-21 for
5 Identification.)
6 MS. SMITH: C-22, Your Honor, is
7 an e-mail dated Sunday, June 1st at 2:30,
8 when -- in response to Mr. Paris saying, "Where
9 are the audios?" "Where are the audios? You
10 said you had audios."
11 Yesterday my office called
12 Kinko's, and they said that they could copy a
13 tape for me in half-an-hour. They have had
14 since Friday afternoon, and Sunday at 8 p.m. I
15 got one tape. Nothing to play it in. I had to
16 drive around in my car Sunday night.
17 (Whereupon, e-mail to Mr. Paris
18 from Ms. Smith, dated 6/1/08, 2:30 p.m.
19 is received and marked as Court's Exhibit
20 C-22 for Identification.)
21 MS. SMITH: C-23 is an e-mail
22 dated June 1st at 3:36 p.m. asking, again, where
23 are the caucus records? If Mr. Leanza is unable
24 to find his e-mails, give me his e-mails to and
25 from the other Council members and the Mayor.
43
1 And you asked them to find Mr. Leanza's e-mails.
2 And they did. They provided me the most
3 innocuous e-mails you could imagine from 2008
4 between Mr. Bevere and Mr. Leanza. Obviously,
5 they e-mail one another from March of 2008.
6 They produced six e-mails only going one
7 direction. Not Mr. Leanza's responses.
8 (Whereupon, e-mail to Mr. Paris
9 from Ms. Smith, dated 6/1/08, 3:36 p.m.
10 is received and marked as Court's Exhibit
11 C-23 for Identification.)
12 MS. SMITH: And C-24 is, finally,
13 I just wanted to confirm at 3:55 p.m. on Sunday
14 night that the purpose of the discovery was to
15 get to what legal advice did he give because he
16 was allegedly waiving the privilege and was
17 going to testify about his legal advice. I said
18 that's given during caucus meetings. Also
19 yesterday was clarified with Leanza -- and I'm
20 sure counsel knows this -- they're called
21 "executive meetings." Sometimes they are called
22 "closed meetings."
23 For the last four years they
24 turned over at 8:00 Sunday night one tape of one
25 meeting.
44
1 (Whereupon, e-mail to Mr. Paris
2 from Ms. Smith, dated 6/1/08, 3:55 p.m.
3 is received and marked as Court's Exhibit
4 C-24 for Identification.)
5 MS. SMITH: Should I hand these --
6 JUDGE CURRAN: To the Court clerk,
7 thank you.
8 MS. SMITH: Thank you, Your Honor.
9 JUDGE CURRAN: Mr. Bevere or
10 Mr. Paris, who wishes to --
11 MR. PARIS: You know, again, just
12 to put some of these dates out there,
13 February 22nd, 2006 we had gotten a supplemental
14 request for production of documents.
15 Supplemental document request item number one,
16 "Provide a true and accurate copy of Mr.
17 Leanza's letter dated April 28th, '04 to Mayor
18 Elwell. Only the first page of the letter is
19 included in the documents produced by the
20 Attorney General's Office, AG docs." And that
21 document was completed. In other words, we
22 provided it. It was obviously after
23 February 22nd of '06.
24 Their -- and again, maybe you
25 want to address this; but according to -- I
45
1 haven't reviewed the documents, but
2 apparently -- excuse me, can we get a copy of
3 that C-8 document so that I can send someone?
4 MS. SMITH: I gave it to the
5 clerk. I had to personally make it, Your Honor.
6 It was full of my notes.
7 JUDGE CURRAN: Thank you.
8 Miss Castelli, do you have C-8
9 now?
10 COURT CLERK: Excuse me?
11 JUDGE CURRAN: Do you have C-8?
12 COURT CLERK: I have everything
13 now.
14 JUDGE CURRAN: Did you make the
15 copies of C-8?
16 COURT CLERK: I am making them
17 now.
18 JUDGE CURRAN: Please make --
19 MS. SMITH: I made a copy. I just
20 had to personally make it, Your Honor; as I
21 said, it was full of my notes. That's a copy.
22 I don't know whether the Court has a copy.
23 COURT CLERK: No, I have the copy
24 that Miss Smith just gave me.
25 JUDGE CURRAN: That is a copy or
46
1 the only copy?
2 COURT CLERK: The only copy I
3 have.
4 JUDGE CURRAN: Right. If you
5 would be kind enough to make two copies, Miss
6 Castelli. We will have to talk about that
7 afterwards.
8 Make two copies. Give one to
9 Mr. Paris when you are finished, Shirley. Thank
10 you. And you can keep the other copy until we
11 can discuss it. Thank you.
12 Mr. Paris, when the court clerk
13 comes back, if you'd like her just to hand it to
14 that gentleman, I will ask her to do that.
15 MR. PARIS: I would appreciate
16 that.
17 JUDGE CURRAN: Does he need any
18 instructions on that?
19 MR. PARIS: No, he knows what to
20 do.
21 JUDGE CURRAN: Thank you.
22 MR. PARIS: Your Honor, through
23 the course of the week -- well, that you have --
24 February 22 --
25 JUDGE CURRAN: 22nd.
47
1 MR. PARIS: -- of '06 we get a
2 request for that letter, okay.
3 MR. MULLIN: Second page of the
4 letter.
5 MR. PARIS: Second page. It says,
6 actually, the whole letter. Says they only got
7 the first page from the Attorney General. When
8 did we respond to that?
9 MS. SMITH: They sent only the
10 second page.
11 MR. BEVERE: Because that's all
12 that was requested, Your Honor. They already
13 had the first page.
14 JUDGE CURRAN: Okay. I got it.
15 Is the theory -- okay. Is the theory on that
16 that letter, because they got it from the AG,
17 the privilege was waived or because you sent the
18 second page the privilege was waived?
19 MR. PARIS: I think it's because
20 we sent the second page.
21 JUDGE CURRAN: The second page is
22 just a signature page.
23 MR. PARIS: No, I don't think --
24 MR. BEVERE: Judge, the second
25 page is just a signature page.
48
1 JUDGE CURRAN: Right, it is.
2 MR. BEVERE: But the point is I
3 didn't take the position at that time --
4 JUDGE CURRAN: I understand that
5 argument.
6 MR. BEVERE: -- it was privileged.
7 JUDGE CURRAN: I'm just cutting a
8 fine line.
9 MR. BEVERE: And in fact, Your
10 Honor, I answered all of their document requests
11 with everything that I had. I took objection --
12 exceptions to certain things. One of them was
13 personnel files. We had a motion on it. Your
14 Honor made an order. I complied with the order.
15 I objected to producing certain
16 things from the State Police about off-line
17 print searches, absent a court order. I said I
18 would do it with a court order but I wouldn't do
19 it without a court order. No court order was
20 sought, so I didn't produce those things.
21 Other than that I didn't take
22 exception to any other -- any other document.
23 And when I got that request for Iacono, the
24 second page of Leanza's letter, I didn't say,
25 "Oh, by the way, I will give you the second
49
1 page; but we are asserting attorney-client
2 privilege" or, "That's attorney-client
3 privilege. You shouldn't have had it." All I
4 said was, "Enclosed please find a copy of the
5 second page of" --
6 JUDGE CURRAN: Okay. Then what
7 about caucus either transcripts of the tape --
8 it appears there is no -- there are no minutes.
9 What about transcripts of the tapes?
10 MR. BEVERE: Judge, those were
11 never -- those were never requested of me. Had
12 they been, I would have addressed it. There is
13 no request in the documents for that
14 information.
15 JUDGE CURRAN: But doesn't number
16 50 say --
17 MS. SMITH: Yes.
18 JUDGE CURRAN: -- say, "all"?
19 MS. SMITH: "Every meeting that
20 has occurred from the years 2003 to the present
21 in which any employee or agent of Defendant
22 discussed any and all complaints made by the
23 plaintiffs."
24 JUDGE CURRAN: So it would go back
25 to 50. Okay.
50
1 MR. BEVERE: Judge, I -- I
2 understand that. I understand that.
3 JUDGE CURRAN: Excuse me one
4 second.
5 Shirley, if you can do us a
6 favor, please, and give one copy of that --
7 Mr. Paris will -- he can give it to the
8 gentleman. Thank you. I'm sorry.
9 MR. BEVERE: No, you're absolutely
10 right, Your Honor. That was an Interrogatory
11 that I had answered in December. And in a
12 supplemental document request after answering
13 that Interrogatory I provided the second page of
14 Frank Leanza's letter without objection. And
15 then Anthony Iacono testified in deposition
16 after that about advice from -- he received from
17 the Town attorney not to do anything during the
18 pendency of the Attorney General's investigation
19 without objection or an assertion of the
20 privilege by me.
21 I -- I will acknowledge that I
22 did not give them caucus minutes and meeting
23 minutes. I did not go back and amend
24 Interrogatory answer number 50. I will admit
25 that, Your Honor, and simply, you know --
51
1 JUDGE CURRAN: Was it an
2 oversight, or was it a --
3 MR. BEVERE: No, it certainly
4 wasn't intentional. I can tell you right now it
5 wasn't an intention.
6 JUDGE CURRAN: So the -- it is
7 an --
8 MR. BEVERE: I just never went
9 back and looked at my Interrogatory answers
10 again. During the course of -- a lot of
11 discovery took place. A lot of things came out
12 in depositions. I didn't go back and amend
13 Interrogatory answers. People's names came out
14 that ended up on witness list, wound up
15 testifying in the trial. I didn't go back and
16 amend Interrogatory answers. I wasn't thinking
17 about question number 50. All I was thinking
18 is, when I received a request for Frank Leanza's
19 second page of his letter, I obtained it from
20 Frank Leanza and it turned over without
21 objection.
22 And when Frank Leanza testified,
23 he said, "I received this advice from the Mayor
24 and Council." And that was -- and I didn't -- I
25 didn't object. I didn't stop anyone from asking
52
1 any follow-up questions. I didn't say, "Don't
2 tell us what counsel told you." I didn't say
3 anything of that.
4 And honestly, Your Honor, I just
5 was not thinking about -- I will be candid with
6 the Court; I was not thinking about
7 Interrogatory number 50. If they had sent me a
8 request for, let's say -- let's say, open
9 meetings, just say the regular -- the regular
10 Town meetings, you know, anything, I would have
11 addressed that issue. But I wasn't thinking
12 Interrogatory answer number 50 in my head; I
13 really wasn't.
14 But certainly, with regard to the
15 supplemental discovery requests I never said
16 "I'm not going to give you this because of an
17 attorney-client privilege." The only thing I
18 objected to were personnel files. We resolved
19 that issue in a motion before the Court. And
20 the issue with regard to the State Police
21 off-line vehicle searches, which I said I would
22 produce with a court order.
23 JUDGE CURRAN: Excuse me one sec.
24 Is there a problem on the document, Mr. Paris?
25 MR. PARIS: No, I just wanted to
53
1 see the second page, Your Honor, because
2 somebody said it was only a signature and I --
3 JUDGE CURRAN: No, no, I'm talking
4 about the court aide document.
5 MR. PARIS: No, I don't think so.
6 He took it and went with it. Thank you very
7 much.
8 JUDGE CURRAN: Okay. I apologize,
9 I thought the gentleman in the navy was waiting.
10 MR. BEVERE: Judge, just so the
11 record is clear, I certainly did not go back and
12 amend Interrogatory answer number 50 and give
13 them all the executive -- I certainly didn't do
14 that. But that was just because I wasn't
15 thinking Interrogatory number 50. I mean, I
16 wasn't. And -- and had I received a request,
17 had I received a request, I would have complied.
18 MS. SMITH: Your Honor, he did
19 receive a request in the form of Interrogatory
20 number 50. But let me -- we have not put this
21 on the record, and then I am going to be quiet.
22 Page -- document -- request number 51, "Describe
23 in detail every conversation, including
24 telephone calls, that has occurred since" --
25 "from the year 2003 to the present at which any
54
1 employee or agent of any defendant discussed
2 Plaintiffs' complaints against the members of
3 Engine Company Number 2, including" and the same
4 A through F. Not one telephone conversation,
5 not one -- it incorporates 50's answer.
6 MR. BEVERE: It does, Your Honor.
7 I will acknowledge that it does. I will
8 acknowledge that. But then, again, like I said,
9 Your Honor, there were certain things that were
10 provided and certain things that were testified
11 to. And I will be candid with the Court. I
12 wasn't thinking about going back and amending
13 Interrogatories that had already been answered
14 when this information came out. There were a
15 lot of things that came out during the course of
16 the discovery in this case that were not
17 mentioned in Interrogatory answers that had
18 become evidential in this trial.
19 JUDGE CURRAN: All right.
20 Basically, the other day, in fairness, I think
21 that Mr. Paris is right; I was trying to see if
22 we could balance the equities here and
23 accomplish what needed to be accomplished. It
24 seems to me that either way is a very -- either
25 saying Mr. Leanza may not testify is a severe
55
1 remedy and allowing him to testify fully is
2 also, I think, unfair to the plaintiff.
3 In this regard there certainly
4 has been an enormous amount of discovery
5 requested. I can honestly understand the
6 arguments of the plaintiff very well. We
7 already -- I already raised the question of Mr.
8 Leanza's been on the witness list since I saw
9 the witness list. What did the plaintiffs think
10 were going to be testified to? And Miss Smith
11 indicated the other day that she thought he was
12 going to testify to the letter, simply the
13 letter that was received from the Attorney
14 General's Office, at least page one. And that's
15 a reasonable explanation.
16 Additionally, we do have the
17 problem that the issue was raised at sidebar.
18 As I indicated, I didn't realize this was a
19 problem. And the issue was raised as to
20 hearsay. And I think in the heat of the trial
21 the plaintiffs did say, yes, okay. And I
22 certainly said yes, okay. That doesn't
23 necessarily mean that that is an acceptance by
24 the plaintiff that the privilege was waived.
25 It seems to me that the fairest
56
1 way to try to proceed is to allow Mr. Leanza to
2 testify but not to anything for which the
3 plaintiffs do not have the information. For
4 instance, if they don't have the information in
5 regard to the caucus meetings -- and my guess is
6 that's where virtually all of this took place --
7 he can't say, "I advised them at the caucus
8 meetings to do X, Y, Z" because, in absolute
9 fairness, as plaintiffs pointed out, they can't
10 cross-examine him on that.
11 I am not going to get into who
12 did what or -- I'm going to assume for the
13 purposes of this decision that everybody this
14 weekend -- everybody in this Court -- I'm not
15 extending that necessarily to the municipal
16 officials because I just don't know, but
17 certainly that the attorneys worked as
18 professionals, as members of the bar and tried
19 to provide the information.
20 I will say right now I find it
21 incredible, but it's not my decision, that Mr.
22 Leanza would testify that he never took any
23 notes. But if that's his testimony, that's his
24 testimony.
25 In regard to the caucus meetings,
57
1 there can be no questions and certainly no
2 information as to what he did or didn't advise.
3 I think it would help if we got
4 more specific here now. I will note the
5 objection to the denial of the motion not to
6 allow Mr. Leanza -- it is preserved -- not to
7 allow Mr. Leanza to testify. It is preserved
8 for the record.
9 I think right now it would be
10 helpful if we could identify, other than the
11 caucus meetings, any other specifics that the
12 plaintiffs are proffering should not be the
13 subject of questions; and then, certainly, the
14 defense will be allowed to argue.
15 MS. SMITH: Certainly in response
16 to their answer to number 51, he can't talk
17 about any telephone conversations or
18 conversations because they prohibited discovery
19 on that in pleading the privilege.
20 With regard to executive caucus
21 meetings are also -- some of them are open to
22 the public, so excuse me for not always using
23 the right words. But we confirmed on the record
24 yesterday closed and executive sessions and
25 caucus meetings are the same thing.
58
1 JUDGE CURRAN: Yes. And you put
2 that on the record earlier this morning.
3 MS. SMITH: Yes, I'm sorry. I did
4 receive one tape. That's 4/27/04. I have that
5 one tape of one caucus meeting, Your Honor.
6 JUDGE CURRAN: Which is, frankly,
7 it looks like, the key question, anyway, the key
8 meeting; but maybe not. So that will be fair
9 game.
10 MS. SMITH: Okay.
11 JUDGE CURRAN: Anything else,
12 Mr. Paris?
13 MR. PARIS: Yes.
14 JUDGE CURRAN: I'm sorry.
15 MR. PARIS: I want to be clear.
16 He cannot testify regarding advice he gave
17 during caucus meetings; however, Mr. --
18 JUDGE CURRAN: Except the 27th
19 because they have got the tape.
20 MR. PARIS: Except the 27th, okay.
21 Okay. That's fine. Now the question I have, I
22 would like to get that tape back because,
23 frankly, before Mr. Leanza testifies I want him
24 to hear the tape. I would like to refresh his
25 recollection. They only have the original. I
59
1 have a gentleman from Secaucus who is here who
2 will take it back.
3 JUDGE CURRAN: I thought he was
4 waiting for something. I just had the wrong
5 item. Got it.
6 MR. PARIS: That is what he is
7 waiting for, he will take it back. He will have
8 it duplicated.
9 MS. SMITH: Your Honor, yesterday
10 they asked for a mistrial. They are going to
11 get their ruling yesterday because we know we
12 are going to lose Juror Number 2 on Thursday --
13 JUDGE CURRAN: I think we are
14 going to lose him today but --
15 MS. SMITH: We are going to start
16 losing jurors. They want a mistrial. They
17 created this problem. You told them on Friday
18 to produce this. I got it Sunday night. And
19 nobody thought, "Let me stop at Kinko's first"?
20 Maybe I could -- maybe I could have gotten it at
21 9:00, instead of 8:00 on Sunday night. They
22 made no effort to copy it.
23 Yesterday Mr. Paris didn't say,
24 "Give me the tape; I'm going to copy it tomorrow
25 for Mr. Leanza's testimony." We need to move
60
1 this trial along. We are going to lose jurors
2 or we're going to have a mistrial, which is what
3 they want. They moved for one --
4 JUDGE CURRAN: Well, with all due
5 respect, I don't know why you didn't copy it
6 before this Mr. Paris.
7 MR. PARIS: I will tell you why.
8 I will tell you why. Number one, I have no idea
9 that Kinko's makes copies of tapes. Now that I
10 know what they can do in a half hour, I'm
11 delighted to learn that.
12 JUDGE CURRAN: Probably any
13 teenager can make copies of tapes.
14 MS. SMITH: Exactly.
15 MR. PARIS: I don't have any
16 teenagers in my house.
17 JUDGE CURRAN: You're lucky.
18 MR. PARIS: Now they are 20s, but
19 whatever.
20 The point is I had no idea that
21 we could do that, okay.
22 I turned the tape over; and
23 Miss Smith said, "You mean you listened to the
24 tape?" She sent me an e-mail saying, "You mean
25 you listened to the tape before you turned it
61
1 over to me?"
2 MS. SMITH: No, I didn't.
3 MR. PARIS: "I could have had it
4 and hour ago."
5 MS. SMITH: That's false.
6 MR. PARIS: She said, "How do you
7 know what I want? How do you know what I want?"
8 I'm trying not to get engaged in that, Your
9 Honor. And frankly, after all the accusations
10 that came through the e-mails over the course of
11 the weekend, I finally shut it down and I said
12 I'm not responding to this anymore. I'm tired
13 of the accusations. I'm tired of being accused
14 of ethical violations on my behalf and Mr.
15 Bevere's behalf. I am not going to be
16 communicating by e-mail unless there is a Court
17 order.
18 I received demands for affidavits
19 over the weekend. I received a demand for a
20 deposition last night of labor counsel. I am
21 receiving all sorts of demands from Miss Smith;
22 and frankly, I'd rather take it up with Your
23 Honor. I have had enough of that. We will take
24 it up with Your Honor.
25 I didn't ask for the tape. I
62
1 gave it to them on Sunday when -- after I had
2 listened to it without copying it. I told
3 Miss Smith it was the original. And I didn't
4 take it back yesterday after Mr. Leanza's dep
5 because I didn't think about it until last
6 night. And last night I sent Miss Smith an
7 e-mail saying, "Could you please bring it in
8 this morning?"
9 So that's where we're at. That
10 is not going to delay Mr. Leanza's testimony.
11 That's not going to delay Mr. Leanza's
12 testimony.
13 JUDGE CURRAN: Okay. Why don't --
14 MR. PARIS: But here is the other
15 problem.
16 JUDGE CURRAN: Let me just -- and
17 I apologize. I don't know the name of the
18 company; and I certainly am not casting any
19 aspersions on this poor man, who has been here
20 all morning, who was just worried about his car
21 being illegally parked. I would just appreciate
22 it if, whoever copies it -- I don't know by whom
23 he is employed -- would simply attach some --
24 not an affidavit but some sort of a document
25 that says this is a true and accurate copy of --
63
1 however we're going to identify that tape. And
2 it's got to have a signature and a title on it.
3 It's got to be -- I am casting no aspersions
4 because I don't even know the name of the
5 company.
6 MS. SMITH: If it's not going to
7 delay Mr. Leanza, no problem.
8 JUDGE CURRAN: Are those two
9 tapes?
10 MS. SMITH: Yes.
11 JUDGE CURRAN: One meeting, but
12 two tapes?
13 MR. PARIS: One is the regular
14 meeting.
15 JUDGE CURRAN: I want to make sure
16 for the record.
17 MR. PARIS: One is the regular
18 meeting; one is the caucus meeting.
19 JUDGE CURRAN: I want to make sure
20 we are copying two tapes.
21 MS. SMITH: The record should
22 reflect I just handed the originals -- I hope we
23 are going to have a copy, as well, not just you.
24 MR. PARIS: You know what's a
25 shame, Judge, the gentleman who left here with
64
1 the -- with the documents to blow up, he is
2 going to Kinko's. I had no idea. I had no
3 idea. But maybe when he comes back I will send
4 him back to Kinko's, if they can do it in a half
5 hour. I would be happy to get two copies made.
6 Kinko's can do it in a half hour.
7 JUDGE CURRAN: Just so it's clear,
8 they're going to be back here, so they're not
9 interfering with Mr. -- we are not delaying Mr.
10 Leanza's testimony.
11 MR. PARIS: Fine, okay.
12 JUDGE CURRAN: You had another
13 point to make, and I interrupted you.
14 MR. PARIS: I have to say it for
15 the record. I said it before. I said it
16 before. The defense in this case have had four
17 days of testimony. We had three days last week,
18 okay, Tuesday, Wednesday, Thursday. Those were
19 full days. We had a half of a day when Dr.
20 Goldwaser testified. We had a half of a day
21 from 1:30 until, I guess, whenever yesterday for
22 two witnesses.
23 We have had four days to put on
24 our case. Every time the plaintiff gets up and
25 starts screaming that somehow we're looking to
65
1 delay the case, that's absolutely incorrect. We
2 are not going to be rushed through our case. We
3 have an application to make this morning because
4 we have taken so far four days to put in a case
5 that, when we started and we were asked how long
6 do we think it's going to go in, we said five to
7 eight days.
8 Okay. We have not been anything
9 but diligent putting witnesses on. We haven't
10 wasted the Court's time. Any breaks we have
11 tried to utilize and the Court has tried to
12 utilize. So for the counsel for the plaintiff
13 to get up here and somehow say that we have got
14 a deadline to finish our case is really
15 repugnant. Okay. My understanding is they
16 have -- they had seven days to put on witnesses;
17 and now we're going to be told that we had four
18 days but we better be done now? That's
19 appalling.
20 JUDGE CURRAN: I appreciate that
21 that's on the record. There will be no effort
22 to in any way rush the plaintiff. We try very
23 hard not to do that. In fact, we discussed that
24 yesterday.
25 In that regard, we may as well
66
1 get the easy things out of the way right now. I
2 don't think there is any reason not to excuse
3 Juror Number 2 at the end of today. He is
4 coming in today. With all due respect, he is
5 going to a wedding he probably leaves tomorrow.
6 There is no way in the world that we are going
7 to be able to keep him on Thursday.
8 I will, as I said yesterday,
9 excuse him at the end of the day. I will ask
10 him not -- if he happens to see any of jurors,
11 not to talk about it. And then the jurors will
12 come in on Wednesday.
13 We can raise the issue now, if
14 you'd like, of bringing the jurors back on
15 Friday, rather than Monday. My guess is that
16 that is not the best possibility, but we can ask
17 the jurors. My guess was because Juror Number 1
18 talked about how she needed to make arrangements
19 if she was going to have to be here on Friday.
20 It is -- you know, either way is fine with me.
21 And we don't need a decision now, but I just
22 think we have to raise that question because I
23 don't think there is really any question at this
24 point that the jurors will be in either Friday
25 or Monday or maybe both.
67
1 MR. PARIS: Your Honor.
2 JUDGE CURRAN: I will note -- I
3 apologize -- for the record, even with losing
4 Juror Number 2, we still have nine jurors. So
5 my belief is that we still will be safe, if the
6 decision of the plaintiff is to go with six
7 jurors. I always ask the parties at the --
8 pretty much close to the end of the case do you
9 want to go with whomever we have, or do you want
10 to go with six?
11 MR. PARIS: Couple things. Number
12 one.
13 MR. MULLIN: Your Honor, I just
14 want to say for the record I don't want to waste
15 any time; I want to get the witnesses. I don't
16 want time wasted. I disagree with almost
17 everything Mr. Paris just said. Let me say for
18 the record --
19 JUDGE CURRAN: It's on the record.
20 MR. MULLIN: -- he made numerous
21 inaccurate statements. He misstated how many
22 hours of trial time, how many witnesses he told
23 us, how many witness he has planned to call. We
24 planned accordingly. He said he was going to
25 call 14 witness. I haven't kept count. My
68
1 guess is we must be close to 14 with the next
2 witness, but I just haven't kept count. We
3 planned a trial accordingly. So, Your Honor, I
4 just -- I just don't want my silence to be
5 misunderstood.
6 JUDGE CURRAN: Thank you.
7 Mr. Paris.
8 MR. PARIS: And again, only
9 suggestion; I honestly -- if -- don't see the
10 point of keeping Juror Number 2 around today.
11 In other words, if we know -- we know we are not
12 going to be done today --
13 JUDGE CURRAN: I know that. Maybe
14 we could -- I doubt we could reach him. But my
15 problem is, as we said the other day, we don't
16 want to start a run on the jury. So I think as
17 long as he is here today, with all respect to
18 him, I think it's probably better to keep him
19 around all day until the other jurors --
20 MR. BEVERE: Judge, I am going to
21 step out, see if I see Dr. Goldwaser.
22 JUDGE CURRAN: Mr. Paris, is there
23 another motion?
24 MR. PARIS: Wait a second, Dan.
25 Yeah, we do have a motion.
69
1 MR. BEVERE: Judge, let me see if
2 my witness is here, then I will come back.
3 MR. PARIS: I will go look for the
4 witness.
5 JUDGE CURRAN: Mr. Bevere.
6 MR. BEVERE: Yes, Judge, at this
7 point, you know, yesterday you denied my motion
8 for mistrial without prejudice. At this time I
9 review the motion.
10 And I will go back to what I said
11 yesterday, which is if Your Honor is inclined in
12 this case to charge supervisory sexual
13 harassment liability standards, then the
14 testimony in this case, Your Honor, would have
15 been different. I would have called -- had on
16 my witness list every fireman at the North End
17 Firehouse that night. I would have asked those
18 firemen what, if any, supervisory authority
19 Chuck Snyder, Jr. was exercising over them at
20 the party that night. I would have asked them
21 what, if any, supervisory authority he exercises
22 over them when they're not working. I would
23 have asked them what authority Chuck Snyder, Sr.
24 exercises over them in his capacity as a
25 supervisor for the Secaucus DPW. I would have
70
1 asked every firefighter these questions. And it
2 will now -- and -- and you know, quite frankly,
3 Your Honor --
4 COURT STAFF: Jurors approaching.
5 JUDGE CURRAN: Thank you.
6 (Whereupon, three jurors enter the
7 courtroom.)
8 JUDGE CURRAN: Good morning.
9 Mr. Bevere.
10 MR. BEVERE: My point is, Your
11 Honor, Your Honor asked me how would the
12 questioning -- how would the witnesses and how
13 would the questioning have been different? I
14 thought about it last night as I was going
15 through transcripts again, because I know Your
16 Honor had given me a limited amount of time to
17 go through the transcripts and determine how the
18 questioning would have been different, although
19 I do have to say that I can't say that list of
20 reasons is now exhaustive. It was a significant
21 reason that I wanted to bring to the Court's
22 attention.
23 Quite frankly, Your Honor, I
24 don't know what I could do now to avoid the
25 prejudice to my client. I don't know what I
71
1 could do as far as bringing witnesses back,
2 asking them questions.
3 I renew what I said yesterday.
4 The simple virtue of the fact that I would have
5 to call witnesses back and re-ask them questions
6 would certainly -- as I said before, no matter
7 what this Court does or no matter what this
8 Court says, the legal theory has now changed;
9 and what is going to be signified -- what is
10 going to be signaled to this jury is that the
11 Court believes in the plaintiffs' case. And
12 there is no way for me to avoid the prejudice no
13 matter what happens.
14 But I am responding specifically
15 to Your Honor's specific question as to how the
16 questioning of the witnesses may have been
17 different, and I wanted to make that point.
18 JUDGE CURRAN: Thank you.
19 Mr. Mullin.
20 MR. MULLIN: Why counsel would not
21 have put in a defense to the Lehmann standard,
22 as he now claims he didn't, when this Court had
23 the Lehmann standard as -- as a possibility in
24 connection with the State Constitutional claim,
25 when I signaled to the Court repeatedly that not
72
1 only that but I would ask the Court to
2 reconsider the LAD issue -- and I asked it
3 before the trial and in many points during the
4 trial -- is beyond me. But that's what counsel
5 is now saying on the record.
6 He is saying he and his -- his
7 co-counsel failed to put in defenses to the LAD
8 claim, when that was an unresolved issue and
9 still an open issue in this case. That's
10 Defense Counsel's fault. That's a risk they
11 chose to take. I can't imagine why they would
12 choose to take it, but Plaintiff should not be
13 penalized because of that failure of Defense
14 Counsel now admitted on the record.
15 Plaintiff severe -- Plaintiffs,
16 severely injured people, should not be penalized
17 by not having a jury verdict in this case.
18 There is absolutely -- there is no grounds for a
19 mistrial. The fact that they made some sort of
20 choice not to pursue evidence or defenses with
21 respect to legal issues that were clearly still
22 in this case, they made a strategic choice. I
23 don't understand why on earth they made it, but
24 now they have conceded to it. They have
25 admitted it.
73
1 Now, let me say this also. As I
2 said yesterday, there is plenty of evidence that
3 Defense Counsel put in this case, plenty of
4 evidence from which they can argue exactly what
5 counsel just said. They can argue, if they
6 want, that Chuck Snyder, Jr., Sr. exerted no
7 official supervisory authority that night. They
8 opened to the jury on that point. They said it
9 wasn't official. They said it wasn't
10 authorized. They say it was spontaneous. They
11 have argued that to the jury already in
12 connection with the Civil Rights case. So the
13 evidence is there for them to argue.
14 This idea that now they have to
15 call back all the firemen to get on the stand
16 and say, "Chuck Snyder, Sr., Jr. and Mutschler
17 were not supervising us that night," that's not
18 necessary. And if they wanted to do it, they
19 should have done it. They should have done it
20 on one of these days when, with their consent,
21 we came in later, rather than earlier.
22 They should have argued -- they
23 should have argued that we needed a Friday for
24 them to do that. There has been times -- there
25 has been plenty in the time in the past for them
74
1 to say, "We have to call in a string of
2 firemen." Probably sounds like a short
3 testimony, and -- and they're going to say Chuck
4 Snyder wasn't supervising. But they can argue
5 that. They can argue it from the facts in this
6 case. That's -- they opened on it. I expected
7 them to argue that in their closing.
8 They say -- they have said to the
9 jury that night Chuck Snyder, Jr. was not in a
10 supervisory role with respect to these
11 individuals, they were not acting under color of
12 State law, they were not cloaked with the mantel
13 of authority given to them as captains. That's
14 what they argued. That's what they opened on.
15 So this is -- this is the same as
16 yesterday. This is -- they're telling you,
17 they're telling the Court, they are putting on
18 the record that they failed to put in defenses
19 to the LAD and, I would add, to the State
20 Constitutional claim, which has always been
21 alive and well, which has the LAD standard.
22 That's what they're saying on the record.
23 That's not -- I believe an unfortunate thing for
24 them to say on this record.
25 But that's not my fault. That's
75
1 not the fault of the Court. The Court didn't
2 cause that situation. The Court has reserved on
3 certain issues, as courts do all the time in
4 trials, saving these issues for the charge
5 conference or for -- for motions. And the Court
6 ruled, as I had urged the Court many, many times
7 before the trial, during the early stages of the
8 trial and throughout the trial.
9 This is not a surprise. Counsel
10 essentially is saying this comes as a complete
11 surprise. What standard did they think was
12 going to come under the State Constitution?
13 Counsel knew there was a debate about that,
14 whether it should be the 1983 standard or the
15 LAD standard. Why did they rule out the
16 possibility that Your Honor would reinstate the
17 LAD claim, when I specifically said on the eve
18 of trial I'm going to ask you to reconsider?
19 And I said it several times.
20 And what did they imagine they
21 were going to put in their own charge, the 42
22 U.S.C. 1983 charge, when this asks the Court to
23 describe in detail, to define what specific
24 rights were being violated by this Federal
25 Constitutional standard? And they left this
76
1 blank in their jury form, in their -- in their
2 proposed form.
3 COURT STAFF: Jurors approaching.
4 (Whereupon, three jurors enter the
5 courtroom.)
6 JUDGE CURRAN: Good morning.
7 MR. MULLIN: If we use Defense
8 Counsel's reasoning under 10:6-2 adopted by Your
9 Honor, then what I have to prove is that through
10 threats or coercion or under color of State law
11 substantive or due process Constitutional rights
12 were violated.
13 Well, what Constitutional rights
14 were violated? The rights specified in the LAD.
15 The right not to be discriminated against or
16 harassed or abused as the -- under the State
17 Constitution, as enacted by the LAD. We have to
18 fill it in. How could counsel possibly have
19 imagined that even under their standard the LAD
20 standard would not find its way into a jury
21 charge?
22 So there is no surprise here,
23 Your Honor. Your Honor's ruling did not take
24 anybody by surprise. It shouldn't have
25 reasonably, let's put it that way. Counsel
77
1 should have tried this case under both
2 standards. I had hopes that we would get --
3 Your Honor would restore the LAD or that Your
4 Honor would accept my argument that the State
5 Constitutional claim uses the LAD standard
6 because the LAD enacts the State Constitution.
7 I had hopes of that.
8 I also knew Your Honor had -- had
9 imposed the State Constitution -- the 1983
10 standard or that you seemed inclined that way
11 because, frankly, until you ruled on the
12 directed verdict, where I fought hard on that
13 issue, Your Honor hadn't finally ruled on that
14 issue. I wasn't sure Your Honor was going to
15 agree with counsel on the interpretation of
16 10:6-2. So what I did is what reasonable
17 counsel do. I tried this case under all
18 possible standards that might go to the jury in
19 a jury charge. That's what reasonable counsel
20 does in that situation. So there was no
21 surprise. Counsel has everything he needs --
22 MR. BEVERE: Your Honor.
23 MR. MULLIN: -- to argue this
24 point to the jury.
25 MR. BEVERE: Your Honor, can I
78
1 just talk to Dr. Goldwaser? Thank you. I'll be
2 back.
3 MR. PARIS: I am going to call
4 Mr. Drumeler.
5 JUDGE CURRAN: Go off the record
6 for a moment. Thank you.
7 (Whereupon, a brief recess is
8 taken.)
9 JUDGE CURRAN: Mr. Bevere.
10 MR. BEVERE: I'm sorry. Your
11 Honor, so in response to Mr. Mullin, Judge, once
12 again -- and I know we argued this yesterday,
13 but I have to say this was a motion that was
14 granted in November. Motion for leave to appeal
15 was filed, Your Honor's ruling. It was denied.
16 Another motion was made before we started the
17 trial. It was denied.
18 To say that I should somehow have
19 anticipated that Your Honor was going to put
20 back into this case midway through the trial a
21 claim that was out of the case, that's what's
22 unreasonable.
23 This case was a Monell case. I
24 tried this case, as I said before, based upon
25 decisions of high-level, policy-making
79
1 officials, persons acting under color of law,
2 municipal custom, practice and policy. I was
3 entitled to rely that that was going to be the
4 theory in the case because that was what the
5 pretrial rulings were and that's what everybody
6 opened on. And to somehow say that I should
7 have anticipated that a Lehmann case was going
8 to somehow be injected back into this case
9 midstream, Judge, that's what's unreasonable.
10 And Your Honor -- and Your Honor
11 asked me to provide how questioning would have
12 been different; and I think that I have done
13 that, like I said. Can I say it's exhaustive
14 with the amount of time I have had to digest it?
15 Remember, this was a decision that was made
16 Friday afternoon at 4:00. I can't say it's
17 exhaustive. I was giving Your Honor an example.
18 JUDGE CURRAN: No, I appreciate
19 that. And I did indicate yesterday that I was
20 denying your motion without prejudice. I
21 certainly appreciate that the arguments that you
22 have just put forward are certainly ones that
23 you did not make yesterday.
24 Nonetheless, I still find that it
25 is appropriate to deny the motion, again,
80
1 without prejudice, because the defense's
2 standards here had always been at issue here;
3 but I can certainly understand your argument.
4 What I will say, Mr. Bevere, is,
5 again, not rushing the jury, not trying to give
6 you extra work, but there certainly is the
7 opportunity to bring in, at the very least, the
8 firemen who testified here. Frankly, I don't --
9 if we were starting clean I don't think you
10 would need every fireman. But if -- if it -- it
11 is within your purview at this point to decide
12 to bring in the firemen who have testified.
13 We already had Officer Malanka
14 come in a second time yesterday. I don't think
15 the jury would in any way think that there was
16 some reason why the Court favored -- well, we'll
17 get to that -- the Court favored the plaintiff
18 and therefore automatically they would accept
19 that view. First of all, we tell them even if
20 you think that the Court feels one way, that's
21 not proper for you to consider.
22 But the firemen can certainly be
23 brought in. I realize they're volunteers. I
24 realize that that would be a difficult
25 undertaking from a scheduling standpoint. But
81
1 there weren't that many that would have to be --
2 COURT STAFF: Jurors approaching.
3 (Whereupon, two jurors enter the
4 courtroom.)
5 JUDGE CURRAN: Good morning.
6 COURT STAFF: I think we need one
7 more.
8 JUDGE CURRAN: There aren't that
9 many firemen who would have to be brought back
10 in. I don't think, frankly, that the jury would
11 cast any aspersions in regard to the firemen
12 being recalled. As I said, we've already had
13 Officer Malanka come back in. And this was an
14 unusual case in that the plaintiff called so
15 many defense -- what would normally be defense
16 witnesses, not that the jury even understands
17 that. So, certainly, you have the ability to
18 put them on notice now and try to get them in.
19 And we will accommodate the schedule however we
20 can.
21 I will note your objection. It's
22 again preserved for appeal.
23 Any other issues? Any other
24 motions? No?
25 MR. BEVERE: Not at this time,
82
1 Your Honor.
2 JUDGE CURRAN: How many jurors do
3 we have, Miss Castelli?
4 COURT CLERK: Nine.
5 JUDGE CURRAN: Okay. If you want
6 to take a break while we are waiting for the
7 tenth juror, that's fine.
8 MR. BEVERE: And for the doctor.
9 JUDGE CURRAN: And for the doctor,
10 exactly.
11 (Whereupon, a brief recess is
12 taken.)
13 MR. PARIS: I just want to
14 understand Your Honor's ruling. My
15 understanding was Mr. Leanza cannot testify
16 about any advice that he gave during caucus
17 meetings.
18 JUDGE CURRAN: Except 4/27.
19 MR. PARIS: Except 4/27. But if
20 he discussed things outside of caucus meetings,
21 he can testify to that?
22 JUDGE CURRAN: No, because that
23 then goes to question number 51 --
24 MR. PARIS: So he could testify --
25 JUDGE CURRAN: -- which said any
83
1 conversations, discussions, et cetera.
2 MR. PARIS: So he can testify
3 about what he thought, what he did, et cetera
4 but not what he said to anyone else?
5 JUDGE CURRAN: Well, basically. I
6 mean, at that -- that really depends on the
7 question. If he is testifying as to what he
8 thought, he can indicate whether -- I don't know
9 why that would be germane, if he didn't
10 communicate it; but it might be. I -- I don't
11 want to put too broad a prohibition at this
12 point; but if he thought it and he never
13 communicated it, I don't know what the relevance
14 would be. But there may be something that,
15 because I'm not familiar as you and Miss Smith
16 are with all the detail, there may be something.
17 If there is a question, maybe we
18 should go to sidebar first or whatever. But he
19 cannot testify as to anything in regard to the
20 caucus meetings or any conversations inside or
21 outside or during the caucus meetings except for
22 that one 4/27 meeting.
23 Off the record.
24 COURT CLERK: Off the record.
25 (Whereupon, a discussion is held
84
1 off the record.)
2 COURT STAFF: Jurors are ready.
3 JUDGE CURRAN: Thank you.
4 COURT STAFF: Jurors approaching.
5 (Whereupon, the jury is brought
6 into the courtroom.)
7 JUDGE CURRAN: Good afternoon --
8 or good morning, I guess, still. Thank you,
9 Ladies and Gentlemen. We appreciate your being
10 here. Please be seated.
11 Please, Doctor, please stand.
12 COURT STAFF: Please raise your
13 right hand.
14 A L B E R T O G O L D W A S E R, M.D. is duly
15 sworn by a Notary Public of the State of
16 New Jersey and testifies under oath as
17 follows:
18 COURT STAFF: State your name for
19 the record and spell your last name.
20 THE WITNESS: Alberto Mario
21 Goldwaser, G-o-l-d-w-a-s-e-r.
22 COURT STAFF: State your full
23 address.
24 THE WITNESS: 24 Bergen Street,
25 Hackensack, New Jersey, 07601.
85
1 COURT STAFF: Have a seat.
2 JUDGE CURRAN: Thank you.
3 COURT STAFF: The witness is
4 sworn.
5 JUDGE CURRAN: Thank you.
6 Sir, you are under oath. All
7 your testimony must be truthful and accurate to
8 the best of your ability. Do you understand?
9 THE WITNESS: Yes, I do.
10 JUDGE CURRAN: Thank you.
11 Mr. Bevere.
12 MR. BEVERE: Thank you, Your
13 Honor.
14 CONTINUED DIRECT EXAMINATION BY MR. BEVERE:
15 Q Dr. Goldwaser, when we last left
16 off, I was about to ask you whether you
17 performed an in-person examination of
18 Mr. deVries?
19 A Yes, I did.
20 Q Where did that examination take
21 place?
22 A It was in my office in Hackensack.
23 Q And when did that examination take
24 place?
25 A It was -- the examination took place
86
1 September 29.
2 MS. SMITH: Your Honor --
3 A '06.
4 MS. SMITH: -- if the witness is
5 going to refer to a report, can we please ask
6 counsel to put in the proper foundation?
7 JUDGE CURRAN: Mr. Bevere, if you
8 would ask the foundation questions --
9 Q Doctor --
10 JUDGE CURRAN: -- please.
11 Q -- do you need to refer to your
12 report to refresh your recollection --
13 A Just to be accurate.
14 Q -- in your examination?
15 A Just to be accurate about some dates,
16 yeah, or some other aspects I'm not sure.
17 JUDGE CURRAN: All right. Because
18 the question has been raised I'm going to ask
19 the doctor -- first of all, if you would take a
20 look at the document, Mr. Bevere, and give us
21 the number --
22 MR. BEVERE: Sure.
23 JUDGE CURRAN: -- of the document
24 to which he is referring.
25 MR. BEVERE: Judge let me get my
87
1 exhibit numbers.
2 MS. SMITH: I think it's D-311.
3 MR. BEVERE: D-311 was, I believe,
4 the deVries report.
5 I believe D-312 was the report
6 for Mr. Carter.
7 In addition, there is a letter
8 from me to Dr. Goldwaser enclosing Dr.
9 Bursztajn's report for Mr. deVries, medical
10 records of Dr. Pumill provided by Plaintiffs'
11 counsel. And I believe that that is their P-38.
12 Medical records provided by
13 Plaintiff regarding Barbara Hines, the
14 therapist, that would be their P-100.
15 There is a written -- there is a
16 written list of complaints prepared for
17 Dr. Goldwaser by Peter deVries, which is
18 referenced in his report. There is the consent
19 form for the examination signed by Timothy
20 Carter, a consent form for the examination
21 signed by Peter deVries, the doctor's
22 handwritten notes regarding the examination,
23 itself.
24 JUDGE CURRAN: Is there a number
25 on that?
88
1 MR. BEVERE: I do not believe
2 there is a number, but I will put a number on
3 them. They were provided in discovery.
4 JUDGE CURRAN: Okay.
5 MR. BEVERE: So it would be P -- I
6 think we are at 313.
7 MR. MULLIN: You mean D?
8 MR. BEVERE: D, D-313, I
9 apologize.
10 (Whereupon, written list of
11 complaints prepared for Dr. Goldwaser by
12 Mr. deVries, consent form for examination
13 signed by Mr. Carter, a consent form for
14 examination signed by Mr. deVries, and
15 Dr. Goldwaser's handwritten notes
16 regarding examination are received and
17 marked as Defendant's Exhibit D-313 for
18 Identification.)
19 MR. PARIS: And then the medical
20 records of Dr. Almeleh, which are P-101.
21 JUDGE CURRAN: And C-8 is not
22 included, correct?
23 MR. BEVERE: C-8 is not included,
24 Your Honor.
25 JUDGE CURRAN: Okay. If -- just
89
1 so the doctor understands.
2 Mr. Bevere is going to ask you
3 some questions. If you can answer the question
4 from memory, then please do. If not, please say
5 you are going to refer to your notes. Thank
6 you.
7 THE WITNESS: Absolutely.
8 JUDGE CURRAN: Mr. Bevere.
9 MR. BEVERE: Thank you, Your
10 Honor.
11 BY MR. BEVERE:
12 Q I apologize. Did you answer the
13 question, the date of your examination?
14 A Yes, it was in September '06.
15 Q September of?
16 A '06.
17 Q And why -- what is the function of
18 your examination?
19 A Basically to learn as much as possible
20 from the person that I'm examining. Before I do
21 that, before I conduct examination I review as
22 many records as are available as much as I can
23 in order to familiarize myself, in order to
24 become -- to know about the problem, to know
25 about what was said, what wasn't said, what was
90
1 found and so on, so when I meet with him I have
2 a background, I am familiar through all these
3 indirect sources. Then I try to learn directly
4 from the person to corroborate, to confirm, to
5 see if they exist, they don't exist, in what
6 degree.
7 Q How long did your examination,
8 your in-person examination of Mr. deVries take?
9 A I think it was between three,
10 three-and-a-half -- three-and-a-half hours. I'm
11 not totally certain. Within three,
12 three-and-a-half hours.
13 Q And just generally, what did your
14 examination consist of?
15 A To learn as much as possible from him
16 about primarily he is concerned, his complaint,
17 whatever happened to him and in what way
18 whatever happened to him on April 25th, 2004
19 affected him. My --
20 Q Well, how did you go about doing
21 that?
22 A I met with him. We discussed what was
23 the reason -- that I wanted to make sure he
24 understand what was the reason we were meeting.
25 I handed to him a form for him to review. I --
91
1 I went over that form with him. He was quite
2 aware of the reasons for our meeting. I asked
3 him, as I do with all -- in all these
4 examinations, I asked him if it was okay for me
5 to tape it, audiotape it. I audiotape all of my
6 examinations of this type.
7 And then, again, I asked him to tell
8 me. Through allowing him, encouraging him to
9 tell me as much as possible about what happened
10 and for me to -- I will learn about the
11 complaint, I will learn about what he reports is
12 bothering him, what he reports he can do, he
13 cannot do and so on. And at the same time I pay
14 attention to what he says, how he says it, the
15 style, the mode of relating.
16 And through that I'm doing what we do
17 in psychiatry, which is a mental status
18 examination. Like in -- in other branches of
19 medicine, the patient goes to the doctor and the
20 first thing is to listen to the complaints and
21 what happened and the second part would be a
22 physical examination.
23 In here we follow the same format of
24 asking questions and while the person is telling
25 us, we are assessing all different ways of
92
1 functioning, how they -- how they speak, whether
2 they speak too fast or -- or too slow or whether
3 they miss words, how they think, the form of
4 their thoughts, whether they make sense how they
5 talk or not or whether they talk in a roundabout
6 way or whether they don't answer the question.
7 So we are paying attention to the way
8 they are dressed, to the way they behave, the
9 way -- their mannerisms, whether they can focus,
10 whether they can pay attention, whether they can
11 maintain concentration in -- in the topic that
12 we're dealing with. So as I'm listening, I'm at
13 the same time trying to assess how the mind of
14 this person works and then correlate or compare
15 that to what a person that has these complaints
16 ought to -- ought to be, ought to behave or the
17 mental status ought to be, should be when
18 somebody complains of certain things.
19 So that is how we -- we arrive at what
20 we call "differential diagnosis," meaning there
21 are different possibilities and we're trying to
22 put one diagnosis or no diagnosis or one, two,
23 three diagnoses, rule out another one. It's
24 based on what we hear and how coherent it is or
25 incoherent it is, how much sense it makes or how
93
1 little sense it makes.
2 So I ask a lot of questions, starting
3 with the reason why he is seeing me. And then I
4 try to cover as much as possible in terms of the
5 life, life history, circumstances and as far
6 back as I can. If there are medical issues, I
7 ask about the medical issues. I try to focus
8 on -- to cover as much as possible, so I have a
9 good idea of what the person -- who the person
10 is, what the person is like, what type of
11 personality characteristic, meaning habitual
12 ways of relating to people to the world one has.
13 We tend to apply the same type of style
14 when we solve problems, regardless of what the
15 problem is. Little problem, big problem, we all
16 have our own particular individual way of
17 approaching issues; and most of the time it
18 works. Sometimes it doesn't work, if the
19 stimulus -- if the -- if what bothers us is too
20 big. Sometimes what we're using normally
21 doesn't work. We have to use other things or we
22 have to go to a doctor or we have to use
23 medication or whatever. So that is what
24 basically I was trying to do, meeting with him.
25 Q Now, Doctor, do you rely upon your
94
1 observations and your findings during your
2 in-person examination in formulating your
3 opinions?
4 A Yes.
5 Q You talked about audiotaping the
6 examination. Did you audiotape Mr. deVries'
7 examination?
8 A Yes.
9 Q All right. And can you tell us
10 why it was that you audiotaped the examination?
11 A Several reasons. One is that I take some
12 notes, but there are moments in which I prefer
13 not to take notes and pay attention and look at
14 the person. As I said earlier, I want to see
15 how the patient -- the patient -- the person
16 behaves. In this case he is not a patient; it
17 is an examinee we call it. How the person that
18 is examined behaves, the gestures, the
19 mannerisms, the mode of sitting or not, relaxed
20 or crossing legs or whatever. So there are many
21 times in which I do not take notes, and then
22 probably I scribble something.
23 Since in three-and-a-half hours we say
24 a lot, I cannot take down everything. So one of
25 the things is for me to be able to listen to
95
1 that and get a great deal of information that
2 otherwise I would have forgotten in
3 three-and-a-half hours spending with him.
4 It is important because it is also a
5 better document than -- than my notes that
6 sometimes, as I said, I -- because I write too
7 fast, I don't understand them, let alone when I
8 make copies of these -- of these notes and send
9 it to somebody else. And I ran into those
10 difficulties, as well. So it is a very
11 objective, very clear, very faithful way, very
12 trustworthy way of knowing what happened
13 during -- during the examination. Sometimes
14 there are misunderstandings. So the examination
15 will show whether it, indeed, it happened like
16 this or not and so on.
17 Q Now, Doctor, did you document the
18 results of your examination in your report?
19 A Yes.
20 Q Do you need to refer to your
21 report -- report, I'm sorry, to tell us about
22 those results?
23 A As we go along, probably, yes. The
24 overall result I don't need to, no.
25 Q Okay. When you need to refer to
96
1 your report, just tell us you're going to refer
2 to your report?
3 A I will.
4 Q Let the judge know, so that she
5 knows and that counsel knows, as well.
6 JUDGE CURRAN: Thank you.
7 A Yes.
8 Q Now, Doctor, let's go through your
9 examination of Mr. deVries. Can you tell us how
10 you started out your examination with
11 Mr. deVries?
12 A Well, he came to my office at the
13 appointed time when we decided to meet. He sat
14 on the chair. He brought with him a cup of
15 coffee and a bag with material that eventually
16 some -- some documents, some papers that
17 eventually he showed me.
18 And I handed him the form. It's called
19 a "consent form." It's a form. It's a two-page
20 form with, I think, four or five different
21 paragraphs describing what -- what is going to
22 take place. And then I want to know that he
23 understands that this is, what's going to take
24 place. And basically what -- what the form
25 says -- and we reviewed later -- is that even
97
1 though I am a doctor, I'm a psychiatrist and I
2 treat patients that suffer mental illnesses,
3 that is not the purpose of -- for our
4 examination, that I was meeting with him to be
5 able to obtain as much information as I could
6 about his complaints, about his circumstances
7 and then perhaps to write a report.
8 And it -- I -- he knew that it was Mr.
9 Bevere, the one that asked me to do this
10 examination. And I mentioned that that was the
11 important aspect of it, that I was not going to
12 provide any kind of advice or medication or help
13 in any way. It was primarily for me to obtain
14 information from him, rather than to at the end
15 provide some kind of relief, some kind of help
16 or advice or anything like that. That was
17 pretty much what it was.
18 There were moments -- part of that was
19 that if there were questions he did not want to
20 answer, it was fine for him not to answer. And
21 that I will make, perhaps, a notation that he
22 declined to answer something. But he was
23 entitled to do it. That some questions were
24 going to be difficult, some questions were going
25 to be easier.
98
1 That my report would have -- may have
2 some -- some influence in the outcome of the
3 case that would be adverse or -- or for him or
4 no -- no real outcome that we can -- that we can
5 know whether it had any influence whatsoever.
6 And we discussed these topics.
7 And also, if he wanted to stop at some
8 point to use the bathroom or have something to
9 drink or whatever, we could stop and then
10 continue.
11 Q And what did you and Mr. deVries
12 discuss during the examination?
13 A Well, he -- we discussed -- I mean, most
14 of the examination was related to the complaint
15 of what -- what happened, what was reported that
16 had happened in -- on April -- on April 25th,
17 '04 and how it affected him. And in detail we
18 went into a lot of issues about that.
19 He had pictures that he showed me
20 about -- of -- of the premises and described in
21 detail exactly what happened and where his
22 property ended and the other property started
23 and where were -- where were the -- the
24 firefighters, where were he, where he was and so
25 on. It was a picture depicting everything.
99
1 There were pictures that were well prepared on a
2 cover with cellophane and so on.
3 He also showed me, I think, some paper
4 clipping, I believe, of the event.
5 And he came to me and showed me. I
6 have -- between his chair and my chair I have a
7 footrest that sometimes I put my -- my feet on,
8 my foot on. And he laid the -- these -- these
9 items there for me to see, for us to talk about
10 and discuss. So that was one aspect.
11 We talked about his medical problems.
12 We talked about his psychiatric
13 problems, those that he had from before and what
14 he thought had to do with new psychiatric
15 problems that happened after year-end of
16 April 2004.
17 Q Now, Doctor, what, if anything,
18 did you and Mr. deVries discuss about the events
19 of April 25th, 2004? And you could tell us
20 generally. Obviously --
21 A Generally what he said was that he was
22 not aware of anything happening until Mr. Carter
23 went up to his room and woke him up, telling him
24 that something was going on on the other side of
25 the -- in the parking lot, that he thought it
100
1 had to do with they were playing a baseball game
2 or something like that, they were yelling at one
3 another or something like that. That was what
4 he understood when he woke up.
5 And then he explained that there were
6 -- they were very loud, they did not want to --
7 to stop this loudness, even after Mr. Carter
8 went through the back, I think, through the --
9 the garden area of -- of their house to tell
10 them to -- to stop. And that was when,
11 according to the narrative, what he told me, the
12 firemen started yelling and threatening and
13 banging the side of -- of the house.
14 And he assessed the situation and
15 decided that he had to call the police. And the
16 police came right away, perhaps because somebody
17 else called the police, another neighbor,
18 because they came very, very rapidly.
19 He spoke with, I believe it was, a
20 sergeant that was in charge. There was another
21 police officer. The sergeant sent the police
22 officer to take the name of all the
23 firefighters. And he, all along, felt very
24 comforted by the sergeant that behaved very
25 nicely and very understanding and all that; but
101
1 he believed nothing was going to happen. As he
2 put it, it was going to fall on dry land or
3 whatever.
4 So after about -- and I'm not totally
5 certain. After about an hour of this
6 conversation he felt very frustrated, thinking
7 nothing was going to happen, things were not
8 even moving that night, what was it, 1, 1:30.
9 So he decided to leave Mr. Carter with the
10 sergeant, if I'm -- I think it was a sergeant.
11 The police officer. And he went up to his room
12 to -- to sleep.
13 Q Now, Doctor, what was Mr. deVries'
14 demeanor as he was relating to you the events of
15 April 25th, 2004 as you perceived it?
16 A He was reminiscing. He was remembering
17 everything that happened. The only effective
18 tone, the only sense, the only feeling that I --
19 I could sense while he was telling me all this
20 was he was angry. He was bitter about what
21 happened, what he was telling me. He was very
22 focused. He knew exactly what happened, the
23 sequence was, as I read it in many other
24 reports.
25 And basically, again, he was upset.
102
1 But he was not particularly upset while -- I
2 mean, he was not reliving it and getting very
3 upset. He was upset all throughout. Even when
4 he started seeing me, he was of the idea that I
5 was kind of the enemy, that -- he said it in not
6 exactly those words but similar. "You are here
7 to destroy whatever it is that the other expert
8 says" or something like that. He knew it. He
9 was -- that was how he started the meeting with
10 me.
11 So tell me all this, he was not in any
12 more upsetting, more -- mood than he was when we
13 started.
14 Q When you say, "upset," what do you
15 mean by, "he was upset"?
16 A The tone of his voice, he was stern while
17 describing all this. It was, well, this
18 happened and then this happened and so on. He
19 wanted to convey to me; he wanted me to -- to
20 recognize that it was upsetting, what happened
21 there.
22 At that point there was nothing else in
23 terms of any other symptom, any other feeling,
24 anything -- anything that was collapsing or
25 paralyzing or overwhelming, nothing while he was
103
1 telling me this part or any other, for that
2 matter, throughout the entire three-and-a-half
3 hours.
4 Q How was his focus and his
5 concentration as he was telling you about the
6 events of April 25th, 2004?
7 A He was at all times well focused,
8 concentrated. His attention was placed there.
9 He was very appropriate when he decided to take
10 out the pictures and the -- the article in the
11 paper; the timing was correct. He approached
12 me, got very close to me. We were very close
13 looking at the pictures. We laid it out on
14 the -- on the -- on my footrest. And we were --
15 he was just telling me, "This is our house.
16 This is the fence. This is the back" -- "the
17 back" -- "the back, our backyard."
18 And the terms, the words that he used
19 were, again, very, let me say, erudite. "Our
20 house abutted" or, "The north portion of the
21 firehouse." I mean, he was very precise, not
22 saying, "This is our house, and this is their
23 house. You figure it out" or -- or, "This is in
24 the back" or, "This is in the front." It was --
25 it was very precise, very appropriate.
104
1 Q What, if any, difficulties did he
2 have in telling you the story?
3 A He didn't have any difficulty. He
4 remembered the story and remembered details of
5 the story. And whatever happened afterwards in
6 terms of the complaint here, the complaint
7 there, what he went -- what he did, he and
8 Mr. Carter, the reports that he reviewed, the
9 people from the press that he met with, the --
10 he is trying to get the -- the gay community
11 together to get a vigil, to protest this, all
12 these things, again, show, that all along he was
13 very focused, he was very prepared, he was
14 from -- from that day on he -- I think it was
15 the following morning he and Mr. Carter, he
16 said, sat down and wrote down the events.
17 Pretty much they remember it the same way, that
18 night and so on.
19 Q Now, you said that you also
20 discussed with Mr. deVries his prior psychiatric
21 conditions?
22 A Yes.
23 Q What did you discuss with
24 Mr. deVries in regard to any prior psychiatric
25 issues that he had?
105
1 A Well, he had -- he had started seeing a
2 psychiatrist, the same psychiatrist he had seen
3 all along, I guess, up until today, although I
4 don't know for sure now, but up until
5 September 29th, '06. He had started seeing him
6 in 1985 about. And it was shortly after he
7 stopped drinking. He considered himself an
8 alcoholic. He had been drinking for while, a
9 number of years. Decided to stop at that time
10 and also decided to stop smoking back then in
11 '85.
12 And stopping these two things, these
13 two -- these two substances made him feel very
14 unhappy. And he went to see Dr. Almeleh for
15 treatment. And he was at that time also in
16 therapy with somebody else. And during that
17 time what came through was that he was suffering
18 from a depressive disorder.
19 If I'm correct, it was in August of '94
20 that he described that he didn't think that life
21 was worth living, he didn't see any future in
22 his life, which is, again, one of the symptoms
23 we talked weeks ago -- week-and-a-half ago about
24 major depressive disorder. It's not just
25 feeling down or dressed; it's a major problem
106
1 that really stops us from planning, from moving
2 ahead, from -- from living our lives. And that
3 was what he was manifesting.
4 He wanted to retire. He didn't want to
5 continue working. This is in '94. His
6 relationship with Mr. -- Mr. Carter were also
7 rocky. And it had to do with the fact that --
8 and all along that was an issue; and it had to
9 do with the fact that he felt Mr. Carter was not
10 as productive, financially productive as he
11 should have been, working and so on.
12 And medication was prescribed at the
13 time, antidepressant medication. I believe was
14 Zoloft. Without looking I'm not totally sure;
15 but I think it was Zoloft, which is an
16 antidepressant medication. And from then on
17 there was that cycle that -- those waves of
18 depression that would overwhelm him.
19 Q Now, Doctor, how did your
20 discussion with Mr. deVries regarding his prior
21 psychiatric condition compare with the notes
22 that you reviewed from Dr. Almeleh?
23 A Some of them coincided and some of them
24 were totally different than what he told me and
25 what I read that he told other people. I mean,
107
1 currently to the notes that Dr. Almeleh wrote --
2 Q Can you give us some examples?
3 A For example, one thing that he did
4 mention was that at the time that the
5 April 25th, 2004 came by, he said that the
6 treatment with Dr. Almeleh was insignificant,
7 was primarily just for checkups, it was
8 maintenance, as he called it, that he was not
9 taking any medication, was not taking
10 antidepressant medication, he was just fine; and
11 then, after that he started going down.
12 He also told me that after April 25th,
13 2004 he started smoking. He was smoking ten
14 cigarettes a day. And the fact is that, by
15 reviewing the notes of Dr. Almeleh, meaning at
16 the time, it's very clear that from November of
17 2003, which is about seven months before this
18 reported incident of April, Dr. Almeleh
19 recognized he had a relapse of depression, he
20 wrote. And Dr. Almeleh recognized that he was
21 very sick at the time with depression.
22 He went back to the same topics of life
23 is not worth living, I don't like my job, I want
24 to retire, all these kind of things. His
25 relationship with Mr. Carter went downhill, and
108
1 they were arguing again. All this happened in
2 November.
3 And it's interesting that he -- and
4 also Mr. -- Dr. Almeleh during -- in the
5 disability forms that they filled out, they both
6 placed November of '03 as the time when he
7 became sick with major depressive disorder, that
8 eventually he became disabled from that. That
9 was in -- in May '05 he became disabled with
10 that. And then, in December '05 he applied for
11 long-term disability; and both said the time
12 when all this started was November.
13 But this, he told me he was just fine,
14 he was not on medication. The reason why he was
15 not on medication at that time, antidepressant,
16 was because there was a conflict because he
17 started feeling light-headed with Lexapro. I
18 mean, he was taking Zoloft, which is an
19 antidepressant. He was transferred to Lexapro,
20 which is another antidepressant, hoping that
21 that would help better.
22 And then Dr. Almeleh, the psychiatrist,
23 noticed several things that happened at that
24 time. One of them about this is that he started
25 having side effects from the medication. So Dr.
109
1 Almeleh had actually a conference. This is
2 before. This is in -- if I'm not wrong, it's in
3 March of '04, a month before all this happened.
4 Had a conference with -- it was in January or
5 March of '04 with Dr. Pumill, the cardiologist,
6 because he was also taking other medication that
7 can take -- can put down the -- the mood of
8 somebody, can make him fatigued, lethargic,
9 which was medication for the heart.
10 The cardiologist said that medication
11 cannot be stopped. I will reduce it a little
12 bit but cannot be stopped. So they decided to
13 stop Lexapro to see if the side effects were
14 going to improve. And that was the only reason
15 why he stopped taking the antidepressant
16 medication, not because he was well.
17 At the same time he started smoking.
18 He started smoking in February of '04, which is
19 about two months before this event. And he, Dr.
20 Almeleh, wrote a note saying that he had a
21 smoking slip or something like that; and then he
22 said for some days he had been smoking ten
23 cigarettes a day, which is something that,
24 again, Dr. Pumill in December said that he was
25 still -- he was smoking ten cigarettes a day.
110
1 So that never changed, although there
2 is something interesting Dr. Almeleh wrote in
3 December. December 4 of 2004 he wrote that for
4 the first time he started smoking after the
5 event of April. That was a contradiction to
6 what he said in February, that he was already
7 smoking ten cigarettes a day. And that -- that
8 never -- never changed. And that Dr. Almeleh
9 and him discussed the problems on the -- on
10 the -- on the -- on the lungs, coughing and all
11 that. And apparently, he had some -- some
12 symptoms of that. And then he went to see a
13 specialist on -- on respiratory diseases.
14 So what he told me and what he told Dr.
15 Bursztajn and what he talked in the deposition
16 that he was just fine really was not accurate.
17 He was not fine in November '03. He had a
18 relapse of this serious major depression. And
19 Dr. Almeleh was trying to -- to change it.
20 The other thing interesting at that
21 time is that he started taking Adderall --
22 Adderall is a mixed amphetamines; it is a
23 stimulant -- just for him to feel better, feel
24 energetic. And he started taking it on his own,
25 even though Dr. Almeleh wrote -- I'm sorry,
111
1 Mr. deVries told me and also other people that
2 he started taking -- and to me was very, very
3 clear -- he started taking a Adderall by
4 recommendation of Dr. Almeleh.
5 And Dr. Almeleh actually was surprised.
6 He said he started taking Adderall because his
7 partner gave him the Adderall in December. And
8 that was during the time when they were having a
9 difficult relationship, the two of them. And
10 the good thing was that Mr. Carter was losing
11 weight on Adderall, which was something he was
12 looking forward to do. And Mr. deVries needed
13 to lose weight, wanted to lose weight. Dr.
14 Pumill had told him in July of '03, a few months
15 earlier, that he was not exercising and he
16 needed to loose weight. So that was something,
17 again, that was new to him to try to jump-start
18 him.
19 But all this happened some months
20 before this, even though when he described it to
21 me he said that nothing like this actually
22 happened. But the notes of all these doctors
23 indicate otherwise, indicates that he was not
24 like that.
25 Q Now, Doctor, you said that you and
112
1 Mr. deVries also testified about his -- I'm
2 sorry, I apologize. You and Mr. deVries also
3 testified -- discussed his psychiatric condition
4 after April 25th of 2004. And what I would ask
5 you is what did you and Mr. deVries discuss
6 about his psychiatric condition after that date?
7 A He said -- he told me that his diagnosis
8 was major depressive disorder. That was the
9 diagnosis that he told me that was the diagnosis
10 for disability that was the diagnosis currently.
11 And he also then, as an afterthought -- and
12 it's -- it was -- I -- exactly, I don't
13 remember; but I have it here. He said something
14 like I have also been told that I have PTSD or I
15 was described to have PTSD, posttraumatic stress
16 disorder.
17 But when I asked him to describe it,
18 what he really described were symptoms of severe
19 depression, that he cannot get out of bed, that
20 he stares into -- into -- into wall. That for
21 most people would feel soothing, a way of
22 breaking from reality for a moment and relaxing
23 on that. But in his case was creating a great
24 deal of angst. He actually would say, look --
25 he would go to the toilet and wouldn't feel like
113
1 getting up from it or -- I mean, that was his
2 description.
3 That is a typical description of
4 patients suffering from major depressive
5 disorder. And that was -- that came about while
6 he was telling me about what posttraumatic
7 stress disorder is.
8 Q What, if anything, did you and
9 Mr. deVries discuss about the treatment he
10 received from Dr. Almeleh after April 25th?
11 A He did not report many changes about the
12 treatment, itself. He was very determined for
13 me to recognize, for me to accept that after
14 April 25th, '04 everything changed in his life.
15 And he did tell that to other -- to other
16 people. And the fact is that really nothing
17 changed in his life.
18 He was working 12 to 13 hours a day
19 afterwards, which is plenty. And he was working
20 that way before April, the same way. He did not
21 like the -- the job after April, the job he had.
22 But he did not have -- he did not like the job
23 before either. In fact, he changed jobs in
24 November or December of previous year. And then
25 he had problems, he was chastised, whatever
114
1 happened, he had to work more; he wanted to go
2 back to an old job that I don't think it
3 happened.
4 And then, afterwards, he was even more
5 upset because even though people at work knew
6 about this event, he felt they were not really
7 all that supportive. And eventually what
8 happened was that he was passed -- he was not
9 given a promotion that he -- he wanted to have.
10 So things kept on -- kept on going, but
11 there was nothing different than the way he was
12 before. Even though he told other people that
13 he always loved his job, that he was in -- was
14 never a problem with his job, he was very
15 productive and all that. But definitely from
16 November of '03 he started to decline his
17 performance at work, and it showed.
18 Q Now, Doctor, did you and
19 Mr. deVries discuss his treatment with Barbara
20 Hines?
21 A We discussed it, yes. He -- well --
22 Q Let me -- what, if anything, did
23 you discuss with Mr. deVries about his treatment
24 with Barbara Hines?
25 A I'm sorry. One of the things he told me
115
1 was that he felt she was good, that she helped
2 him. One of the things that called my attention
3 was that while she was helping him, he decided
4 to stop the treatment when he applied for
5 disability, which is -- it should be a time in
6 which one feels terrible. I mean, one is
7 depressed but -- one is depressed and disabled,
8 one needs more psychiatric and psychotherapeutic
9 help. That was when he decided to stop it.
10 According to the note, it was because
11 the insurance wasn't going to pay or something
12 like that. That was the reason that he gave
13 Miss -- Miss Hines for stopping abruptly the
14 treatment when he decided to apply for
15 disability. And he never resumed it with her.
16 Q And I maybe should have asked this
17 before. What, if anything, significant did you
18 note in regard to Barbara Hines's notes from May
19 of '04 until he stopped treating with her?
20 A Yeah, he treated with her for about a
21 year.
22 MS. SMITH: Objection. This has
23 been testified to at length regarding
24 Miss Hines' notes the last time.
25 JUDGE CURRAN: I don't know if I'd
116
1 call it "at length." Is the objection asked and
2 answered as to all of the testimony?
3 MS. SMITH: I believe we covered
4 Dr. Hines completely, Your Honor. If there is
5 some proffer that there is something knew that
6 we didn't cover, we all have the transcript,
7 so --
8 JUDGE CURRAN: Is there a --
9 MR. BEVERE: Well, Judge, let me
10 see if I can be more specific in my question.
11 BY MR. BEVERE:
12 Q What, if anything, did Dr. Hines
13 note in regard to Mr. deVries' employment?
14 A He started treating her -- I think he was
15 referred by Dr. Almeleh or he found from
16 referral from somebody else. He thought it was
17 helpful to him. Treatment started in May, right
18 after --
19 MS. SMITH: Objection. This is
20 not responsive to the question. This is going
21 back to exactly what was discussed about why he
22 started seeing Dr. Hines.
23 MR. BEVERE: Judge, I think he is
24 getting to the -- I won't put words in his
25 mouth.
117
1 BY MR. BEVERE:
2 Q But Doctor, with regard to my
3 question, what, if anything, did Dr. Hines note
4 in her records in regard to Mr. deVries'
5 employment?
6 A Okay. One thing is I started the way I
7 started is because I have to go back into --
8 JUDGE CURRAN: Sir, please don't
9 explain it. Be kind enough to please answer
10 Mr. Bevere's question.
11 THE WITNESS: Okay.
12 BY MR. BEVERE:
13 A During the treatment it became clear that
14 Miss Hines, the psychotherapist, did not believe
15 that he was suffering from posttraumatic stress
16 disorder.
17 MS. SMITH: Objection.
18 JUDGE CURRAN: Basis?
19 MS. SMITH: What -- that's not
20 clear, for one thing. But two, as to what
21 Dr. Hines was thinking.
22 JUDGE CURRAN: Sustained.
23 BY MR. BEVERE:
24 Q What, if anything, did Dr. Hines
25 note -- Doctor, just answer --
118
1 A Yes, yes.
2 Q -- what, if anything, did Dr.
3 Hines notes --
4 A Okay.
5 Q -- with regard to Mr. deVries'
6 employment?
7 A Okay. The notes never made that
8 diagnosis. Made different diagnosis, anxiety
9 disorder, in this time where he is --
10 MS. SMITH: Objection. This has
11 been -- this is exactly what was already been
12 testified to, Your Honor, pages 147, 166, 167.
13 JUDGE CURRAN: I'm sorry?
14 MS. SMITH: I'm sorry. Dr. Hines
15 starts at page 143 of his prior --
16 JUDGE CURRAN: On which trial?
17 I'm just trying --
18 MS. SMITH: I'm sorry, Your Honor,
19 trial day nine. Starts at page 143.
20 JUDGE CURRAN: All right.
21 MS. SMITH: 141, 142, Your Honor.
22 Then it goes on at --
23 JUDGE CURRAN: Do you mean the
24 deposition, Mr. Bevere; do you want to go off
25 the record?
119
1 MR. BEVERE: Judge, let me see if
2 I can avoid all this --
3 JUDGE CURRAN: Okay.
4 MR. BEVERE: -- and move on.
5 JUDGE CURRAN: Thank you.
6 MR. PARIS: Let me -- Your Honor,
7 can I -- can I ask to see the transcript that
8 counsel is looking at? This is from --
9 JUDGE CURRAN: Sure.
10 MR. PARIS: -- trial day nine.
11 MS. SMITH: Trial day nine, isn't
12 that Dr. Goldwaser?
13 MR. PARIS: Page 143?
14 MS. SMITH: You want to have a
15 sidebar?
16 MR. PARIS: Yeah, if we can have a
17 sidebar.
18 (Whereupon, the following sidebar
19 discussion is held.)
20 MR. PARIS: Just want to double
21 check that we're looking at the same transcript.
22 MS. SMITH: 141, it starts with,
23 "Miss Hines said."
24 MR. PARIS: You mentioned page
25 143.
120
1 MS. SMITH: Well, he goes -- there
2 are numerous references to Dr. Hines not
3 diagnosing PTSD; and he described, I think, the
4 word -- I'm not going to -- I mean, you know
5 this, right? You're not disputing that he
6 testified about Dr. Hines?
7 MR. BEVERE: I'm not disputing
8 that, no, no, no, no.
9 MS. SMITH: He used a word that
10 meant depressed, mild depression. We have been
11 there, so --
12 MR. BEVERE: Yeah.
13 MS. SMITH: Okay.
14 MR. BEVERE: Judge, I'm going
15 to -- I'm going to ask him about a specific -- I
16 would have done it when I was there.
17 JUDGE CURRAN: Right, exactly. No
18 problem. Thank you.
19 (Whereupon, sidebar discussion is
20 concluded.)
21 BY MR. BEVERE:
22 Q Okay. Doctor --
23 JUDGE CURRAN: Excuse me one sec.
24 I notice that at least one of the jurors is kind
25 of covered up there. Is the air conditioner too
121
1 strong? The jury is free to do whatever you can
2 to adjust the weather in the jury box. I just
3 want to make that clear.
4 Sorry, Mr. Bevere.
5 MR. BEVERE: Judge, no apologies.
6 BY MR. BEVERE:
7 Q Doctor, do you have Barbara
8 Hines's notes --
9 A Yes, I do.
10 Q -- in front of you? Can you go to
11 her note of 4/20/05?
12 A Yes, I have her notes.
13 Q And that would be Plaintiff's
14 Exhibit 100, and it would be Bates stamp
15 P-00417. Doctor --
16 MR. BEVERE: It's P-100 and would
17 be Bates stamp 417.
18 Q Doctor, give them a second to get
19 the document out, so we can be fair.
20 MR. MULLIN: What was the Bates
21 again?
22 MR. BEVERE: 417, P-00417.
23 BY MR. BEVERE:
24 Q Do you have the note in front of
25 you?
122
1 A Yes.
2 Q Okay. Can you tell us what it was
3 that Dr. Hines noted on 4/20/05 in regard to
4 Mr. deVries's condition?
5 A Yes, that she found him to be compliant,
6 seems stable, despite anniversary of event. He
7 is working. Client indicated some problems at
8 work. Discussed possible disability. Feels
9 depression has returned.
10 Q And then what, if anything, did
11 Dr. Hines note on May 4th, 2005?
12 A Yeah, that Mr. deVries is compliant, did
13 file for disability through psychiatry or
14 psychological issues, psychiatric issues.
15 Indicated his displeasure with work environment.
16 Will use time to job hunt and to shift his
17 medication. Feels that New York City setting
18 would be much more positive and supportive.
19 Q Now, Doctor, we were talking about
20 your discussions with Mr. deVries. And did you
21 discuss with Mr. deVries his treatment with any
22 other physicians besides Dr. Almeleh and
23 Dr. Hines?
24 A We discussed the treatment, yeah, with
25 the cardiologist, as well, Dr. Pumill.
123
1 Q And what, if anything, did you and
2 Mr. deVries discuss in your meeting with regard
3 to the cardiologist?
4 A He was telling me that he was -- he --
5 well, he described a -- surgeries that he had,
6 the operation, the heart surgeries that he had
7 and the treatments that he is conducting, the
8 medication that he was taking and which
9 medication is for what purpose and what they do
10 and which one he cannot change, he should
11 continue and so on. And that the tests were
12 okay, that the valve -- they changed a valve in
13 his heart or at the end of his heart -- was
14 working well. And he was taking tests
15 periodically and that there was some issues,
16 wondering maybe there -- there is something
17 discongenital, some -- he was warning his
18 siblings and -- and nephews and so on about --
19 to see if they -- they had similar problems but
20 that he was -- his cardio condition was okay.
21 He did not have any symptoms of cardiac disease.
22 Q Now, Doctor, I want to talk --
23 well, and what, if anything, did you and
24 Mr. deVries discuss about how he was feeling
25 generally at the time of your examination in
124
1 September of '06?
2 A Physically he was generally feeling well.
3 There was no particular complaint on any -- of
4 any physical ailment, any physical illness,
5 primarily his heart. It was -- it was
6 functioning well. His arteries were clean,
7 were -- were fine. There was no problem doing
8 that. His blood pressure was controlled. There
9 was no real concern about anything impending,
10 anything that will cause him death or anything
11 like that about his physical condition.
12 Q Let's talk about his psychiatric
13 at the time.
14 A He was all along concerned about these
15 bouts of major depression that will paralyze
16 him, that will render him totally unable to do
17 anything, would push him to be in bed. He
18 even -- again, going to bathroom was a major,
19 major project for him to do. And that was
20 something that was his concern and what he spent
21 all the time talking.
22 Q Now, Doctor, you -- can you go --
23 well, let me ask it this way. What, if
24 anything, do you -- did you observe during your
25 meeting with Mr. deVries -- well, let me --
125
1 strike that. Let me ask it this way.
2 What is a mental status examination?
3 A It's the assessment or it's -- it's
4 looking for everything, so looking for signs.
5 The first part what the -- what the person tells
6 us are primarily what we consider symptoms,
7 meaning they're self-report. We report certain
8 things.
9 What we do during the mental status
10 exam, which is something we do from beginning to
11 an end, is to find what -- to see if that
12 correlates with signs, meaning what the
13 person -- the person is telling us we actually
14 can see it, can see it either in the way they
15 are functioning in general based on the records
16 we review or they're functioning with us in --
17 in the -- in the interview with me.
18 Q What, if anything -- well, I'm
19 sorry, what does affect mean, a-f-f-e-c-t?
20 A Affect -- affect is the quantity of an
21 emotion. The emotion, defined as mood, the
22 feeling state, the -- that would be the quality
23 of the feeling state. Affect would be the
24 quantity of that feeling state.
25 Q What, if anything, did you note in
126
1 regard to Mr. deVries' affect during your
2 examination?
3 A May I refer to the -- to my report?
4 Q If you need to refresh your
5 recollection, just let us know you're doing so.
6 A Generally speaking, it was not -- it did
7 not stand out as -- I wrote here that his affect
8 was not constricted, not -- stayed within one
9 emotion only, was not intense. It was
10 appropriate to the situation and to the
11 ideation. He was appropriate to the meeting.
12 He was somewhat guarded.
13 And I wrote here that Mr. deVries did
14 not describe or display -- did not show me
15 presently during the meeting with me any
16 disabling psychiatric symptoms. He describes
17 psychiatric symptoms, but at that time he was
18 not going through that bought of depression. He
19 was -- he was better from that bought of
20 depression.
21 He did report feeling very anxious,
22 that he cannot get it out of his mind what
23 happened a couple of years earlier. He did
24 mention that he had nightmares.
25 So he reported all that, but there was
127
1 no effect to any of this. There was nothing
2 different, as we always see in people or
3 patients suffering from PTSD. So what I said
4 here is he did not describe or display at that
5 time any debilitating psychiatric symptoms, so
6 no quantifiable alteration of his affect was
7 expected. So what he described was nothing
8 debilitating. He described he was debilitated
9 during the severe bouts of depression; but when
10 he saw me he was not there, so I didn't observe
11 any of that.
12 Q What, if anything, did you observe
13 in regard to Mr. deVries' mood?
14 A For the most part, I wrote here, was
15 neutral. He displayed or he showed no signs of
16 depression or anxiety the entire time that our
17 meeting lasted. He appeared bitter when
18 describing his not having gotten validity and
19 justice or validation and justice concerning the
20 events of April.
21 Q And what, if anything, did you
22 note in regard to his speech?
23 A Was clear, was coherent, was not
24 pressured and was relevant. He was spontaneous.
25 He was articulate. He was fluent and vivacious.
128
1 Mr. deVries was quite engaging in his
2 descriptions, including showing me the pictures
3 and making sure I understand the configuration
4 of their house and the firehouse and so on.
5 Q What is sensorium?
6 A Sensorium relates to our capacity to --
7 to perceive what's around us, to be oriented,
8 to -- to know where one is, to know who he --
9 who one is and where we are and so on. So the
10 idea is to see how alert we are, basically.
11 It's a state of alertness.
12 Q What did you note in regard to
13 Mr. deVries' sensorium?
14 A He was oriented to time, person and
15 place. He drove himself to my office.
16 Q And what, if anything, did you
17 note in regard to Mr. deVries' memory?
18 A That his recent memory, remote memory and
19 immediate memory were intact as tested
20 throughout the interviewing period. All the
21 dates and the connections and comparison in
22 terms of time and people and names, they were
23 all accurate in terms of the general review that
24 I -- that I made of records before I met with
25 him.
129
1 Q And Doctor, what, if anything, did
2 you note in regard to Mr. deVries' attention and
3 concentration?
4 A I found it to be intact. He was quite
5 able to participate, to handle 210-minute
6 interview without becoming distracted,
7 inattentive or losing his concentration. I did
8 not have to repeat a question or bring him back
9 to any subject because of distractibility or
10 inattentiveness. He didn't say, "What did you
11 ask me" or anything like that, unless it was
12 something that I was not clear when asking. Not
13 once did he lose the thread of his thinking.
14 And he was able to calculate in a timely
15 fashion.
16 Q And how did you find Mr. deVries'
17 intelligence level to be?
18 A To be average or above.
19 Q And what do you mean by "insight"?
20 A Insight refers to our capacity to
21 recognize that we have psychological problems,
22 that our problems are our own and not caused by
23 somebody else, the capacity to -- to recognize
24 that, well, we have a problem and perhaps we
25 need to go and see a doctor for that problem.
130
1 That is the capacity to look inside. It's
2 insight.
3 Q And what, if anything, did you
4 note in regard to that?
5 A Mr. deVries reported symptoms of a
6 recurrent psychiatric illness, which is major
7 depressive disorder. He also mentioned he was
8 given the diagnosis of posttraumatic stress
9 disorder. He added that he was aware he needed
10 to be in psychiatric treatment.
11 Q And what does the term "judgment"
12 mean in the psychiatric sense?
13 A In the psychiatric sense it's being able
14 to predict the consequence of our actions, be
15 able to predict the outcome of our actions. If
16 I do this, this will happen. And in this case
17 there were no gross deficits of judgment. His
18 judgment was fine.
19 Q Now, Doctor, why was it important
20 that you noted all of the things that we just
21 discussed with regard to the mental status
22 examination?
23 A Because the mental status examination
24 gives me a -- a good measure of -- that I use
25 to -- to accept or -- or -- or wonder about what
131
1 I'm told. Because what I'm told is something
2 that could be right or wrong. It's somebody is
3 telling me that.
4 When I see a patient, a patient comes
5 to me, I have no reason, in principle, to
6 distrust. I have no reason, in principle, to --
7 to wonder why is this person asking for an
8 appointment, telling me that they feel he or she
9 feels badly, pays for the appointment and all
10 that and comes and doesn't tell me the truth?
11 It's a different phenomena. It's a different
12 procedure.
13 In these cases which I am just an
14 examiner and this is related to litigation, we
15 have to wonder what the person is telling us.
16 And this is why we need to look at all these
17 records that normally in a clinical setting we
18 don't do. We don't use any of this. We use
19 primarily the patient and immediate records,
20 perhaps, like hospitalization or something like
21 that.
22 Q Now, Doctor, did you also receive
23 some correspondence from Mr. deVries?
24 A Yes.
25 Q What did you receive from
132
1 Mr. deVries?
2 A After our meeting ended, he sent me a
3 letter with very long list of symptoms and
4 problems that he has now.
5 Q And how did that come about?
6 A I just got it in the mail. I was not
7 aware he was going to send me anything, but a
8 few days later I received this -- this typed
9 letter, several pages. I can refer to it, if
10 you want.
11 Q Well, if you need to use it to
12 refresh your recollection.
13 A Yes, please. Yes, it's -- it's a
14 four-page letter, typed letter with a yellow
15 Post-It from him saying, "Dr. Goldwaser,
16 enclosed is a longer list. Regards, Peter."
17 And it says, "physical" -- "Peter deVries,
18 physical and mental symptoms." And then there
19 are bullets for a lot of them.
20 Q And what, if any, consideration
21 did you give to that letter that you received
22 from Mr. deVries?
23 A Highly. I read it. I read it through,
24 and I made notations on things that he told me
25 and compared to everything that I read before
133
1 from all the legal issues but also the medical
2 and the cardiological, the psychotherapeutic and
3 the psychiatric records at the -- at that time.
4 Compare all that, and also compared it to my
5 finding during these three-and-a-half hours that
6 we met.
7 MR. BEVERE: Judge, I can finish.
8 It's 12:35. I would like to finish with
9 Mr. deVries.
10 JUDGE CURRAN: Sure.
11 MR. BEVERE: I don't know when
12 Your Honor plans on breaking.
13 JUDGE CURRAN: If you could finish
14 with Mr. deVries, that would make sense.
15 MR. BEVERE: Okay. I could do
16 that.
17 BY MR. BEVERE:
18 Q I just want to step back for a
19 second, Doctor, to -- to two more notes of
20 Barbara Hines.
21 A Yes.
22 Q Do you have those in front of you?
23 A Yes.
24 Q P-100. And I'm going to go to
25 Bates stamp P-407.
134
1 A Yes.
2 Q Okay. Doctor, I'm sorry. What,
3 if anything, did Barbara Hines note on July 8th,
4 2004 as to Mr. deVries' condition?
5 A Yes, it's -- I'm going to read it.
6 It's -- it's much easier to read. States that,
7 "He is somewhat more productive." This is in
8 July, July 8th, '04. "He is somewhat more
9 productive this week, working hard. Attempting
10 to prioritize. He is at peace that" -- "at
11 peace that everything that can be done is with
12 the law" -- "is with the lawsuit. Has began
13 creative activity, movie, about the incident.
14 Showed" -- "showed me in session. This
15 brought" -- "brought joy." That is the note of
16 July 8th.
17 And July 22nd, the next meeting,
18 "Client talked about relationship, as well as
19 case. Woman knocked on their door last week to
20 offer help at 6 in the morning. Tim started
21 therapy. Peter feeling more productive at work,
22 I think, though affected by reading description
23 of events in newspaper, angry, good week,
24 cheerful, working on movie."
25 Q What, if any, significance did you
135
1 find to the fact that -- I'm sorry. What, if
2 any, significance did you find to the notation
3 by Dr. Hines about a movie?
4 A In principle, it's a --
5 Q I'm sorry, Doctor, you can talk
6 without me.
7 A Well, it shows that he is productive, he
8 is creative, he is pulling together the idea of
9 creating a movie that describes the events of
10 April 25th, '04 as -- as they described it
11 before. And he is going along the entire month
12 with this project. This is a project that,
13 again, is -- it's a terrific thing to do, but
14 it's not something that we will ever see a
15 patient suffering from posttraumatic stress
16 disorder --
17 Q And what is that?
18 A -- doing? Because one major criteria,
19 one major aspect of posttraumatic stress
20 disorder is avoidance, meaning staying away from
21 anything that would remind us of an incident
22 that was so overwhelming that paralyzed us and
23 didn't make us respond, didn't make us move. I
24 mean, overwhelmed the capacity of our mind to
25 respond.
136
1 So we tend to -- if we were, indeed,
2 suffering from this disease, the first thing
3 that happens is one escapes, tries to be away
4 and tries not to -- again, avoids. Avoidance is
5 one of the symptoms, one of the characteristics.
6 One avoids it because any recollection, any
7 reference to something that created that trauma
8 immediately creates an enormous amount of
9 anxiety and paralyzes us, meaning puts us right
10 back to the -- the trauma. And that is one of
11 the things that happens.
12 So this is 7/08, meaning July 8th,
13 which is barely about two-and-a-half months
14 after this -- this incident or little less than
15 that. I would not expect -- this is very
16 atypical. I mean, we -- I wouldn't expect
17 something like this to -- to take place.
18 Q Now, Doctor, based upon your
19 review of the medical records, the disability
20 records and the other documents that you
21 reviewed, your examination, did you form an
22 opinion within a reasonable degree of medical
23 probability as to whether Mr. deVries is
24 suffering from posttraumatic stress disorder as
25 a result of the incidents of April 25th, 2004?
137
1 A Yes, I did form an opinion.
2 Q What is that opinion?
3 A My opinion is that he was not suffering
4 at any time from then until the time that I saw
5 him in September, the end of September of '04 --
6 of '06 from posttraumatic stress disorder. That
7 was not -- I did not find anything that would
8 support that diagnosis.
9 Q Would you please give us the
10 reasons and the basis for that opinion?
11 A One of them I mentioned earlier,
12 avoidance, is a major, major characteristic. In
13 this case he did -- not only did not avoid it,
14 but even after he moved out of the Town, he
15 would go back to the same Town just to do odds
16 and ends, as he put it to me. And he would go
17 to -- to shop. He would go to the pharmacy. He
18 would walk around.
19 He told, actually, in May of '04, just
20 a month -- less than a month after this event he
21 told the cardiologist that he was walking his
22 two dogs as a form of exercise to lose weight.
23 And he was also dieting and taking care of
24 himself and, again, walking around the Town.
25 Again, that is one of the things that we see not
138
1 happening in people suffering from this
2 disorder.
3 The -- the level of -- the other thing
4 is hyperalertness. One is very hyperalert. Any
5 noise will remind us of -- any noise similar to
6 whatever caused the trauma will remind us of
7 that. The best example is 911; whenever one
8 would hear something or see any kind of
9 explosion, the first thing we think is something
10 like that. That is a collective thing. That
11 doesn't mean the entire population of New York
12 or New Jersey or the United States go to see a
13 doctor for that. But a substantial number of
14 people that were there stopped really
15 functioning well, and a lot of them actually
16 left Town all together.
17 That is what we see, reexperiencing.
18 We see hyperalertness. We see avoidance. And
19 we don't see any of this in this -- in this
20 person. I did not find anything whatsoever.
21 And even in the descriptions he was telling the
22 other -- the other doctors.
23 And the psychotherapist back then --
24 the anniversary reaction is always very, very
25 important. It was not here either. And
139
1 Miss Hines, the psychotherapy, also made a note
2 on that. And she had been working with him for
3 about a year now by then. So she knew him and
4 could not find it. And she was alert for that,
5 if there was some displacement.
6 MS. SMITH: I -- objection. I
7 would like to strike --
8 JUDGE CURRAN: Sustained. Please
9 strike the last comment. You cannot comment on
10 someone else's opinion.
11 THE WITNESS: I'm sorry.
12 BY MR. BEVERE:
13 Q Doctor you can tell us what
14 another physician noted --
15 JUDGE CURRAN: Correct.
16 Q -- but you can't give us their --
17 their state of mind.
18 A I apologize.
19 Q I'm sorry, Doctor, I had asked you
20 for the basis of your opinion; and you were
21 answering that. And I'll ask you to complete
22 your answer, please.
23 A Yeah, there are no signs of posttraumatic
24 stress disorder. There are symptoms. He refers
25 that he has all these, but his actions that will
140
1 show us the -- the signs really don't go along
2 with the symptoms that he reports even at that
3 time.
4 Q Now, Doctor, based upon your
5 review of all the information that you were
6 provided do you have an opinion within a
7 reasonable degree of medical probability as to
8 whether Mr. deVries is suffering from any
9 permanent psychiatric condition as a result of
10 the events of April 25th, 2004?
11 A Yes, I do have an opinion.
12 Q What is that opinion?
13 A My opinion is that he does not suffer
14 from any psychiatric illness as a result of
15 that. He is bitter, but bitterness is not a
16 psychiatric symptom. Bitterness or frustration
17 is not something that people will come to -- to
18 us and become patients to treat. So he is -- he
19 is angry at what happened, and he is entitled to
20 be angry for whatever happened back then. But
21 in terms of suffering from a psychiatric
22 illness, something that we have to use time,
23 effort, medication, perhaps hospitalization and
24 so on and so forth, I don't see it, no.
25 Q Doctor, how do you explain
141
1 Mr. deVries' permanent disability in May of
2 2005?
3 MS. SMITH: Objection, Your Honor,
4 this goes way beyond the report, I believe. To
5 point out something where his report has
6 anything about that, I would be happy to look at
7 it.
8 MR. BEVERE: Well, Judge,
9 certainly his report refers to the application
10 for the permanent disability.
11 MS. SMITH: Can we go to sidebar?
12 MR. BEVERE: Sure, sure.
13 (Whereupon, the following sidebar
14 discussion is held.)
15 JUDGE CURRAN: If I remember
16 correctly, the application had not been acted
17 upon by the time he saw the doctor. Is that
18 correct, or is that wrong?
19 MR. BEVERE: He obtained --
20 JUDGE CURRAN: He knew he had it.
21 MR. BEVERE: The doctor had the
22 application in his hands when he did the
23 examination and did the report.
24 JUDGE CURRAN: And there had been
25 a decision by the government by that time?
142
1 MR. BEVERE: There had been a
2 decision by -- let me see. I probably have to
3 get the other part of the file, but --
4 MS. SMITH: Your Honor, I'm not
5 going to object if -- if you're going to say
6 that all the disability records are -- we can
7 cross him with all the disability records.
8 MR. BEVERE: Meaning all the
9 disability -- ones I wasn't provided with?
10 MS. SMITH: No, just disability --
11 all the -- I believe you were provided with all
12 the disability records.
13 MR. BEVERE: I think we should
14 make sure.
15 MS. SMITH: Social Security
16 disability records.
17 MR. BEVERE: I have -- let me get
18 my binder and make sure that I have --
19 JUDGE CURRAN: In principle you
20 could agree that if you've got them, they can
21 cross on them and then everybody can look at the
22 exact documents?
23 MS. SMITH: I believe someone
24 provided after this report, but if you're
25 saying --
143
1 JUDGE CURRAN: Do you want to
2 check to see what you have or -- I'm just
3 worried about letting the jury go.
4 MS. SMITH: I want to finish at
5 least this one person.
6 MR. BEVERE: Let me see if I can
7 rephrase the question. Let me try to formulate
8 one here, so we don't have to come back again in
9 30 seconds, okay.
10 What I will do is I will ask him,
11 "Do you have an opinion as to whether
12 Mr. deVries' major depressive disorder was
13 aggravated by the events of April 25th, 2004?"
14 MS. SMITH: I have no problem with
15 that question.
16 JUDGE CURRAN: Thank you.
17 (Whereupon, sidebar discussion is
18 concluded.)
19 BY MR. BEVERE:
20 Q Doctor, do you have an opinion
21 within a reasonable degree of medical
22 probability as to whether Mr. deVries' major
23 depressive disorder was exaggerated or
24 exacerbated by the events of April 25th, 2004?
25 A Yes, I do.
144
1 Q What is that opinion?
2 A My opinion is that it did not cause any
3 further damage, based on the history of his
4 illness and how he responded when he was in the
5 throws of a major depression and how he responds
6 when he is not.
7 For example, there was a period of
8 almost a whole day, 23 hours, divided in four
9 sections of -- of a deposition. He was able
10 to -- to withstand it, to -- to put up with it,
11 to talk and talk and talk and really be very
12 focused, very -- his concentration, everything
13 was fine. He wouldn't have been able to do it
14 while he was depressed and not planning his life
15 in the future and not being able to function and
16 all that. But during that time he was not. The
17 same applied to me.
18 So when he is not in the throws of the
19 depression, he is doing fine. When he is in the
20 throws of the depression, he is doing very
21 poorly. And that goes on a cyclical basis. And
22 these, let's say, are -- this bitterness for
23 what happened, what he thinks is not being
24 vindicated by what happened is not really
25 altering anything throughout the entire year
145
1 that he saw Miss -- the psychotherapist. There
2 is nothing there that indicates that he is
3 suffering because of that.
4 He was suffering because of the
5 problems at work. And actually, he started
6 feeling better when he applied for disability in
7 May. And he was feeling so much better that he
8 did not require further treatment with the
9 psychotherapist. So really, the -- the -- the
10 curve, the wave is -- is independent to this
11 bitterness, this -- this -- of what happened.
12 Q And Doctor, just one quick
13 question. Have all your opinions today been
14 within a reasonable degree of medical
15 probability?
16 A Yes.
17 MR. BEVERE: I have no further
18 questions at this time, Your Honor. I don't
19 know if we want to take a lunch break, if we
20 want to --
21 JUDGE CURRAN: Sure.
22 MR. BEVERE: I will leave it in
23 Your Honor's good hands.
24 JUDGE CURRAN: Any objection to
25 taking a break before cross?
146
1 MS. SMITH: Not at all, Your
2 Honor.
3 JUDGE CURRAN: Ladies and
4 Gentlemen, we will take the lunch break. If you
5 will be back in an hour, we would appreciate it.
6 Thank you very much.
7 Please don't discuss the case
8 among yourselves or with anyone else. Thank
9 you.
10 (Whereupon, the jury is excused
11 for lunch.)
12 MR. BEVERE: Your Honor, just --
13 not for the jury, but so the record is clear, I
14 am going to proceed with the examination of
15 Mr. Carter, if I'm not --
16 JUDGE CURRAN: Yes, I made a
17 mistake by asking Plaintiff. I have written
18 right down here, "end of deVries"; but I --
19 MR. BEVERE: In my anxiousness to
20 take lunch.
21 MR. PARIS: What time are we
22 coming back?
23 JUDGE CURRAN: By 1. An hour we
24 told them.
25 MR. BEVERE: So come back at 2?
147
1 JUDGE CURRAN: Yeah.
2 (Whereupon, a luncheon recess is
3 taken.)
4 A F T E R N O O N S E S S I O `N
5 (Whereupon, the jury is brought
6 into the courtroom.)
7 JUDGE CURRAN: Thank you. We are
8 back on the record. I will note the jury has
9 returned to the jury box. Counsel are present.
10 And Dr. Goldwaser has taken his seat in the
11 witness box.
12 It's my obligation to remind you,
13 sir, that you are still under oath.
14 THE WITNESS: Yes.
15 JUDGE CURRAN: Thank you. Mr.
16 Bevere.
17 MR. BEVERE: Your Honor, and I
18 apologize, but when I said, "No further
19 questions" before, I meant no further questions
20 in regard to the examination of Mr. deVries. I
21 do have to ask more questions in regard to --
22 JUDGE CURRAN: Understood. It was
23 my mistake asking Miss Smith if she objected to
24 the lunch break. No question that the questions
25 have only been completed in regard to
148
1 Mr. deVries.
2 MR. BEVERE: Thank you, Your
3 Honor.
4 BY MR. BEVERE:
5 Q Doctor, at my request did you
6 perform a forensic examination of Mr. Timothy
7 Carter?
8 A Yes.
9 Q And in connection with your
10 examination did you review any documentation?
11 A Yes, I did.
12 Q Doctor, once again, do you have
13 your report in front of you?
14 A I do have it, yes.
15 Q Do you need to refer to your
16 report?
17 A From time to time I may.
18 Q Okay. When you are going to refer
19 to your report, if you would just let us know
20 that you are referring to the report?
21 A Yes.
22 Q Okay. And you'll let the Court
23 know, so the judge and counsel can be advised,
24 as well?
25 A Yes.
149
1 JUDGE CURRAN: Thank you, Mr.
2 Bevere.
3 MR. BEVERE: Thank you.
4 BY MR. BEVERE:
5 Q Doctor, tell us what you have
6 reviewed in connection with your examination of
7 Mr. Carter.
8 A I reviewed the complaint, the Answers to
9 the complaint. I reviewed the medical records
10 from Dr. Almeleh, the psychiatric treatment of
11 Mr. Carter. I reviewed his deposition -- I will
12 refer to the records to -- to date -- of
13 July 19, '06, three hours of testimony. And I
14 also reviewed the psychiatric report prepared by
15 Dr. Bursztajn.
16 Q Now, Doctor, did you rely upon the
17 records that you reviewed in reaching your
18 ultimate opinions and conclusions in regard to
19 Mr. Carter?
20 A Yes, they were part of what I relied on.
21 Q Now, you mentioned a Dr. Almeleh.
22 And what I would like to know is what is your
23 understanding of the relationship between
24 Mr. Carter and Dr. Almeleh, if any?
25 A There was a doctor-patient relationship.
150
1 He started treating him -- at least the notes
2 that I reviewed, the medical records I
3 reviewed -- 1989, if I'm correct.
4 Q What type of treatment was
5 Mr. Carter receiving from Dr. Almeleh, based
6 upon your review of the records?
7 A He was being treated for a number of
8 issues. He was being treated for attention
9 deficit disorder. He was being treated for
10 anxiety, intense anxiety, sense of inadequacies,
11 sense of feeling not good enough to face the
12 world -- the world, to perform, conflicts about
13 his sexual orientation. All that is the
14 original records I reviewed. As I said, it is
15 anxiety and also insomnia, difficulty falling
16 asleep and staying asleep.
17 Q When did Mr. Carter first start
18 treating with Dr. Almeleh?
19 A According to the records, medical records
20 I reviewed, '89, 1989.
21 Q Now, you mentioned some
22 conditions. What is attention deficit disorder?
23 A It's a psychiatric condition that has the
24 neurological basis for it. Originally it was
25 treated primarily by neurologists. And it
151
1 became the domain or field of psychiatry that
2 took over. It's a medical condition,
3 psychiatric disorder that is characterized by
4 difficulty to -- that goes all the way to
5 inability to stay focused on something the
6 patient -- and usually is -- it starts earlier
7 in life, during childhood and moves on.
8 Sometimes it presents itself also in -- in
9 adults.
10 But the ability to concentrate, to pay
11 attention, to remain focused is -- is not
12 present. So the patient that suffers from this
13 condition changes their -- their attention can
14 be talking about one thing and suddenly talks
15 about something else or -- usually is found in
16 schools, the children are looking out the
17 window, rather than looking at the teacher or
18 they become --
19 And there is a -- a type of --
20 attention deficit disorder, that diagnosis
21 describes the illness. Says attention deficit;
22 there is a deficit for attention. There is a
23 type of it that is attention deficit
24 hyperactivity disorder, ADHD. That, along with
25 this lack of ability to concentrate or stay on
152
1 task, the patient is also very restless, usually
2 gets in trouble in school, again, is described
3 as having conduct disorder and is on -- and is
4 part of this -- this illness.
5 Q What type did Mr. Carter suffer
6 from?
7 A It's described here primarily as ADD,
8 attention deficit disorder.
9 Q When did Dr. Almeleh diagnose
10 Mr. Carter with ADD to your understanding?
11 A At the -- as the treatment progressed --
12 it was not diagnosed at the beginning, I don't
13 believe. At the beginning the -- the main
14 reason why he is -- he is -- he looked for
15 treatment, he went to treatment is because of
16 intense anxiety, intense sense of not being able
17 to put things together, to be productive and
18 difficulty sleeping, problems in relationship
19 and problems with his own sexuality or sexual
20 orientation.
21 And then, as the treatment progressed,
22 well, he developed panic attacks and other
23 disorders that were treated. And then he became
24 more clear that he was suffering from ADD. And
25 he was treated for that, for attention deficit
153
1 disorder, with specific medications like Ritalin
2 and eventually Adderall.
3 Q I want to talk about that for a
4 second. Doctor, based upon your review of the
5 treatment records from Dr. Almeleh, what was the
6 course of treatment that was rendered to
7 Mr. Carter in regard to the ADD prior to
8 April 25th, 2004?
9 A He was on Ritalin, which is medication
10 that is -- it's a stimulant but a different
11 type. It's not like Adderall or amphetamines,
12 but it's -- the idea is that the brain -- in the
13 brain these stimulants have a -- what we call a
14 "paradoxical effect," a contra -- an effect that
15 is contrary to what it would do to anyone that
16 is not suffering from this disorder. It -- it
17 slows down the -- the brain, so the person, the
18 child, then the adult can focus, can concentrate
19 taking medication that, if we take it, will make
20 us much more excitable and -- and unable to
21 focus. In a way, although feeling that we can
22 concentrate more, in reality we are not
23 concentrating as well. People that suffer from
24 the condition, they -- they do concentrate
25 better.
154
1 Q And what was the condition of
2 Mr. Carter's ADD, let's say, within the year
3 leading up to April 25th, 2004?
4 A He had problems holding on to jobs. He
5 had problems finding jobs. He -- he had
6 problems being productive. And that was -- that
7 was a source of friction, of problems in his
8 relationship, as well. And was -- primarily
9 presented itself as enormous anxiety, fears,
10 fears of being in an -- in an enclosed space,
11 like -- like a coffin, fear -- a lot of
12 different fears. Fears of, because he was
13 homosexual, he was going to contract AIDS,
14 regardless whether there was any real reason for
15 that. And there was no, apparently, any real
16 reason for that, according to his behavior.
17 He was afraid -- he was having -- he
18 was moving from one fear to another to another
19 to develop panic attacks. And he was treated
20 with Lexapro. Is an antidepressant medication
21 that is also medication that treats anxiety.
22 Q I want to talk about anxiety for a
23 moment. What is anxiety?
24 A Basically we can describe it as an
25 unpleasant emotion, just to -- to put it very
155
1 mildly, an unpleasant emotion related to an
2 idea -- an idea that something bad is going to
3 happen, so we better do something to prevent
4 something bad will happen. That is what anxiety
5 is. It's an emotion that is intense and
6 unpleasant, highly unpleasant. Can be related
7 to the idea that something bad is about to
8 happen.
9 Q What, if any, indications did you
10 see in Dr. Almeleh's notes as to anxiety in
11 regard to Mr. Carter?
12 A His anxieties were related, again, to
13 being buried alive. Anxieties to being punished
14 for being homosexual. Anxieties related to
15 having AIDS. I am going to refer to my record.
16 Q If you want -- absolutely.
17 A It is curious from the very beginning in
18 '89 Mr. Carter did express to Dr. Almeleh
19 problems about feeling lazy, feeling scattered,
20 unable to concentrate. Those are symptoms of
21 ADD. However, there is no diagnosis of ADD at
22 that time; and there is no specific treatment
23 for ADD at that time.
24 Again, fears, the next -- the next
25 visit that I have here, which is in the year
156
1 1990, fears of being buried alive or being
2 confined in jails, handcuffs, of driving a car,
3 of God punishing him for doing feminine things
4 like flower arrangements, the punishment with
5 AIDS, all these are his description to his
6 doctor, Dr. Almeleh, his psychiatrist.
7 Eventually these escalated to feeling
8 panic attacks -- that is in the year 2003, in
9 July -- for which he was treated first with
10 Paxil and then -- Paxil is an antidepressant
11 that also treats panic disorder and also treats
12 anxiety.
13 Q Doctor, if I can stop you for one
14 second, what is a panic attack?
15 A Well, a panic attack is a -- is a
16 sensation, is a feeling that something bad is
17 going to happen to us, primarily our bodies not
18 going to function well. For example, panic
19 attacks is a disorder -- is -- is an attack in
20 which we -- we feel very intensely our body.
21 For example, palpitations. We feel that we are
22 going to have a heart attack because our heart
23 is -- is beating out of control, we feel.
24 Shortness of breath. We feel that we have an
25 asthma attack and we won't be able to breathe,
157
1 okay. So those are the -- the classical
2 symptoms of a panic attack.
3 Feeling, people rush to usually
4 emergency rooms saying, "I am having a heart
5 attack. My heart is pumping out of control."
6 So it's anxiety that manifests through the body,
7 rather than through emotions, that one can put
8 into words. It's so intense that it manifests
9 through one's body.
10 Q What, if anything, did Dr. Almeleh
11 note in regard to panic attacks?
12 A In -- in -- I'm referring to the -- to
13 the -- to my report in July -- on July 17th,
14 '03, 2003. He talked about he is having --
15 receiving Paxil for panic attacks and then
16 changed to -- to Lexapro. Following to that --
17 of that was -- sleep is disturbed at night,
18 which is something that he has all the time
19 manifested.
20 Q Now, Doctor, how does Lexapro
21 treat a panic attack?
22 A Basically, that's like a sedative of
23 sorts. It's primarily an antidepressant
24 medication. It -- what it does is it helps the
25 brain accumulate the substance that is called
158
1 "serotonin"; and that substance relates to
2 feeling more -- feeling calmer and feeling a
3 little more upbeat. It's primarily for
4 treatment of depression; but it was found that,
5 all these problems, also sedates someone. It's
6 also used as an antianxiety. It's also used for
7 social anxiety disorder, meaning people that
8 feel very anxious in the presence of other
9 people or a party or meeting or something.
10 Q Now, Doctor, I cut you off; but I
11 had asked you what, if any, notations did you
12 find in Dr. Almeleh's records regarding anxiety.
13 And if you continue on with your answer, unless
14 you're complete?
15 A Well, from the very beginning, the very
16 first meeting that I have here, the very first
17 visit anxiety is a prominent feature.
18 MS. SMITH: Can we have the date?
19 Q I'm sorry, what is the date of
20 that, Doctor?
21 A Yes, 8/1/89. He doesn't feel he has
22 control over his life, lacks discipline.
23 The second visit is April of 1990; and
24 starts out with in my notes here, "Fears of
25 being buried alive," what I said before.
159
1 The third one I have here, note that
2 relates to that, is the panic attacks in July of
3 2003.
4 And by July 2003 he was started on
5 Adderall. Adderall is the medication for
6 attention deficit disorder. That worked well in
7 terms of helping him lose weight. And to that
8 Ritalin was also added. So he was on both
9 medications.
10 Q Doctor, I will ask you about
11 medication. I'm really --
12 A Oh, I see.
13 Q Want to focus on issues of anxiety
14 that you found in Dr. Almeleh's notes.
15 A Okay. In October of '03 the same fears,
16 fears of being alone and of -- and of being in
17 wide open spaces. And describing about very
18 disorganized and distracted.
19 In November of '03 he describes also
20 that he can get anxious and depressed on
21 medication, and more medication was added. His
22 sleep was still disturbed. Could not fall
23 asleep until 4 in the morning because he was too
24 restless. Fear of dying, of being alone, fear
25 of abandonment, fear of hell, panic, afraid of
160
1 being buried in ground. This is in November
2 '03.
3 In February, February -- on
4 February 12th of '04, in February it says that,
5 "Patient always had a sleep disturbance and fear
6 of death in a coffin" -- "in a coffin alone
7 (claustrophobic)." I don't know if I defined it
8 or it was in the notes of Dr. Almeleh.
9 Q All right. Doctor, let me ask you
10 about what was the course of medication that Dr.
11 Almeleh was prescribing for Mr. Carter between
12 July of 2003 up through April of 2004.
13 A First he started with anti -- antipanic
14 medication, antianxiety medication of the type
15 that is also antidepressant medication, Lexapro,
16 Paxil. Paxil is specific for panic disorder.
17 And then he added, once it was clear that he had
18 ADD, attention deficit disorder, he added
19 Adderall to that. And the first time he did
20 that was in September of '03, of 2003. Then he
21 substituted or changed one of them to the
22 present Lexapro for Prozac, which is another
23 antidepressant of similar function, similar way.
24 And he added Ritalin. That was in November,
25 November of 2003 he added to Adderall and
161
1 Prozac. He added Ritalin, which is another
2 medication to control ADD.
3 And the fears were manifested there, as
4 well, November 6, 2003. So primarily they were
5 down to the present time for anxiety and panic
6 and Adderall and Ritalin for ADD. That was
7 primarily the medication.
8 Q What, if any, notation did Dr.
9 Almeleh make before April of 2004 regarding any
10 sleep issues for Mr. Carter?
11 A Well, as I mentioned earlier, in
12 February -- on February 12th, 2004, two months
13 before April, he pointed out that patient always
14 had a sleeping disturbance -- sleep disturbance
15 and also fear of death in a coffin, alone and
16 all that, which is what he said in 1989, when he
17 started, or in 1990.
18 Q Now, Doctor, what, if any,
19 notation did Dr. Almeleh make in regard to
20 depression prior to April 25th, 2004?
21 A He mentioned that in 1999 -- this is on
22 July 13 -- July 31, I think, 2003 he mentioned
23 that in 1999 he started taking Paxil for
24 depression in 1999. He started taking Paxil for
25 depression, not sleeping with Lexapro, less
162
1 sedated on Paxil. So he was trying to adjust,
2 to find the right product to help him. He
3 was -- it was hard to manage his symptoms.
4 Q What, if any, notations did you
5 find in Dr. Almeleh's notes in regard to
6 relationship issues between Mr. deVries and
7 Mr. Carter?
8 A I'm trying to find a specific date, but
9 there were several notations in which there was
10 a problem between -- between them. And one
11 particular issue had to do with his lack of
12 productivity and his lack of financial
13 contribution to the -- to how they -- they live.
14 For example -- one example I find right
15 now is -- I believe it's 12/19/03, December 19,
16 2003. "Patient is upset that lover,
17 Mr. deVries, is upset with him for not working."
18 And that was something that I noticed before
19 April of '04 on more than one occasion.
20 Q What, if any, references were made
21 in Dr. Almeleh's notes before April 2004 in
22 regard to firefighters or the firehouse?
23 A None. In any of these -- of the
24 treatments I didn't find anything in any -- this
25 treatment, I did not find any -- any reference
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1 to the firefighters before April of '04.
2 Q What, if any, reference did you
3 find in Dr. Almeleh's notes prior to April 2004
4 in regard to Town of Secaucus?
5 A I did not read anything.
6 Q Now, based upon your review of Dr.
7 Almeleh's records, what was your understanding
8 of any psychiatric conditions which he was
9 suffering from in April of 2004 prior to the
10 events in question?
11 A He was suffering primarily of -- from
12 attention deficit disorder. And there was a sub
13 or background or situation here that may or may
14 not be related to ADD, which is the anxiety,
15 depression, panic, the sense of inadequacy, the
16 sense of not being able to be productive, not
17 staying in one job long enough and so on. But
18 it was, I would say, first ADD and second
19 anxiety and depression -- anxiety that reached
20 levels of panic.
21 Q What is your understanding as to
22 any medications Mr. Carter was taking in and
23 around April of 2004 prior to the firehouse
24 incidents?
25 A He was taking Adderall and Ritalin, I
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1 believe, and also -- I'm not sure if it was
2 Prozac -- one of the antidepressants. I don't
3 know if it was Prozac. Let me see.
4 MR. BEVERE: Judge --
5 A Lexapro. Lexapro.
6 Q I'm sorry, Doctor, when you're
7 going to -- to read from your note, please --
8 A I'm sorry.
9 Q -- let the Court know and counsel,
10 so we can be aware.
11 A Yes, I'm looking at my notes. He started
12 on Lexapro on April 9, 2004. He was described
13 as being more impatient, involved with ADD
14 projects and also working in a department store
15 at that time and -- and Dr. Almeleh was
16 exploring restarting him on Lexapro.
17 Q All right. Now, Doctor, did you
18 also have an opportunity to review Dr. Almeleh's
19 treatment records for Mr. Carter after April
20 25th, 2004?
21 A Yes.
22 Q And what is your understanding of
23 the treatment that was received by Mr. Carter
24 from Dr. Almeleh after April 25th of 2004?
25 A Really, the treatment did not change
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1 much. On the first time after April 25th -- 25,
2 2004, the first visit that he had with Dr.
3 Almeleh was in May -- on May 13th -- May 13th,
4 in which he made reference to the firefighters
5 and being afraid of them. And Dr. Almeleh
6 writes here that, "Patient is afraid of being in
7 the street and meeting people that may have been
8 related to these. And also, patient seems to be
9 having symptoms of PTSD." That is in May.
10 Q What -- what is your understanding
11 of that notation?
12 MS. SMITH: Objection, Your Honor.
13 I don't even know what that means. Your
14 understanding of what another doctor -- is that
15 something for what's in the doctor's mind? If
16 that's the case, I object.
17 JUDGE CURRAN: I will sustain the
18 objection. If you want to rephrase your
19 question.
20 MR. BEVERE: Judge, I will -- I
21 will rephrase it, but I was asking for what his
22 understanding of the notation.
23 JUDGE CURRAN: I understand that;
24 but in regard to another doctor's note, it's not
25 as if it's a -- an MRI report or something of
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1 that nature.
2 BY MR. BEVERE:
3 Q What, if any, symptoms of PTSD
4 were noted in Dr. Almeleh's note of 5/13/2004?
5 A He is mentioning that his patient,
6 Mr. Carter, told him that he was afraid of
7 firefighters getting drunk and hurting him,
8 hurting Peter and/or the dogs.
9 He also described having trouble
10 sleeping. He mentioned to Dr. Almeleh that the
11 previous night he had told Peter -- I am saying,
12 "Peter" because this is how it was --
13 Mr. deVries, that last night he was scared and
14 thought he saw and heard someone in the bushes.
15 And then that he told Dr. Almeleh that
16 he is afraid of being in the street and meeting
17 with someone who was involved in the incident or
18 a relative of somebody involved in the incident.
19 He also said, "I'm very scared of these people.
20 I'm afraid they are going to hurt my dogs or
21 Peter." That was a quote.
22 And then Dr. Almeleh wrote, "Patient
23 seems to be having symptoms of PTSD."
24 Q What, if any, other conditions
25 would those reported symptoms be consistent
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1 with?
2 A Medical conditions? None.
3 Q Psychiatric conditions?
4 A Yeah, I consider psychiatric and medical
5 condition -- yeah, no, being afraid, even being
6 scared is not a psychiatric disorder. It's not
7 a symptom. It's -- it's not per se something
8 that tells us it's a psychiatric disorder.
9 These are symptoms of anxiety that he has been
10 having or had been having all along since 1989.
11 Perhaps even more intense than this, being
12 afraid of being buried alive, in a coffin and
13 all that, to the -- to the point of reaching
14 panic. In this case it's not a description of
15 panic. It's a description