00001

  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 16

           Vs.

  6  

      THE TOWN OF SECAUCUS,

  7   Defendant.

      - - - - - - - - - - - - - - - -

  8  

      HUDSON COUNTY COURTHOUSE

  9   595 Newark Avenue

      Jersey City, New Jersey  07306

 10   Wednesday, June 4, 2008

      Commencing 9:50 a.m.

 11  

      B E F O R E:

 12             HONORABLE BARBARA A. CURRAN

 13                       TRACEY R. SZCZUBELEK, CSR

                          LICENSE NO. XIO1983

 14  

 15  

 16  

 17  

 18  

 19  

 20            SCHULMAN, WIEGMANN & ASSOCIATES

 21             CERTIFIED SHORTHAND REPORTERS

 22                   216 STELTON ROAD

 23                       SUITE C-1

 24             PISCATAWAY, NEW JERSEY  08854

 25                  (732) - 752 - 7800


 

00002

  1   A P P E A R A N C E S:

  2  

  3  

  4   SMITH MULLIN, ESQS.

  5   Attorneys for the Plaintiffs

  6        240 Claremont Avenue

  7        Montclair, New Jersey  07042

  8   BY:  NEIL MULLIN, ESQ.

  9        NANCY ERIKA SMITH, ESQ.

 10  

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

 12   Attorneys for the Defendants

 13        360 Passaic Avenue

 14        Nutley, New Jersey  07110

 15   BY:  DANIEL R. BEVERE, ESQ.

 16        DAVID M. PARIS, ESQ.

 17  

 18  

 19  

 20  

 21  

 22  

 23  

 24  

 25  


 

00003

  1                       I N D E X

  2   WITNESS      DIRECT VOIR CROSS REDIRECT RECROSS

  3                       DIRE

  4   ALBERTO GOLDWASER, M.D.

  5   By:  Mr. Bevere                117, 192

  6   By:  Ms. Smith               7          178, 198

  7  

  8   FRANK LEANZA, ESQ.

  9   By:  Mr. Paris  220

 10  

 11                    E X H I B I T S

 12   NUMBER    DESCRIPTION                       PAGE

 13   P-404     Transcription of the IME of Mr.

 14             deVries, conducted by Dr. Goldwaser

 15             on 9/29/06                           5

 16   P-405     Transcript of the IME of Mr. Carter

 17             conducted by Dr. Goldwaser on.

 18             10/13/06                             5

 19  

 20  

 21  

 22  

 23  

 24  

 25  


 

00004

  1                 JUDGE CURRAN:  We are on the

  2   record, please.

  3                 MS. SMITH:  Judge, I just want the

  4   record to reflect that I am giving to Defense

  5   counsel a copy of the certified shorthand

  6   transcription of the independent medical exam of

  7   Peter deVries conducted by Alberto Goldwaser on

  8   September 29th, 2006.  And I'm giving them a

  9   certified transcript of the IME, independent

 10   medical exam, of Mr. Carter conducted by

 11   Dr. Goldwaser on October 13th, 2006.

 12                 MR. PARIS:  Thank you very much.

 13   I appreciate it.

 14                 JUDGE CURRAN:  Are they marked?

 15                 MS. SMITH:  I was going to mark

 16   them, Your Honor; and I had a number.  It's

 17   P-404, please, for Peter, for Mr. deVries.

 18                 MR. PARIS:  P-404.

 19                 MS. SMITH:  And P-405 for

 20   Mr. Carter.

 21                 JUDGE CURRAN:  Thank you.

 22                 MR. PARIS:  Thank you very much.

 23                 JUDGE CURRAN:  Thank you.

 24   Anything else, Mr. Paris, that you wish to put

 25   on the record?


 

00005

  1                 MR. PARIS:  No, thank you.

  2                 JUDGE CURRAN:  Thank you go off

  3   the record.

  4                 (Whereupon, a discussion is held

  5          off the record.)

  6                 (Whereupon, transcription of the

  7          IME of Mr. deVries, conducted by Dr.

  8          Goldwaser on 9/29/06 and transcript of

  9          the IME of Mr. Carter, conducted by Dr.

 10          Goldwaser on 10/13/06 are received and

 11          marked as Plaintiff's Exhibit P-404 and

 12          P-405 for Identification.)

 13                 JUDGE CURRAN:  Thank you.  We will

 14   bring out the -- never mind.

 15                 MS. HAWKS:  You said to wait a

 16   minute?

 17                 JUDGE CURRAN:  I just want to wait

 18   until Mr. Paris and Mr. Bevere are here, thanks.

 19                 (Whereupon, a discussion is held

 20          off the record.)

 21                 JUDGE CURRAN:  Any objection to

 22   bringing out the jury?

 23                 MS. SMITH:  No objection.

 24                 MR. BEVERE:  No.

 25                 JUDGE CURRAN:  Thank you.  We will


 

00006

  1   bring out the jury.

  2                 COURT CLERK:  On the record.

  3                 MS. HAWKS:  Jurors are

  4   approaching.

  5                 (Whereupon, the jury is brought

  6          into the courtroom.)

  7                 MS. HAWKS:  Stand up, please.

  8   Raise your right hand.  Where is the Bible?

  9                 THE WITNESS:  Here, sorry.

 10                 MS. HAWKS:  Place your left hand

 11   on the Bible.

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

 13        sworn by a Notary Public of the State of

 14        New Jersey and testifies under oath as

 15        follows:

 16                 MS. HAWKS:  For the record, please

 17   state your full name and spell your last name,

 18   please.

 19                 THE WITNESS:  Alberto Mario,

 20   G-o-l-d-w-a-s-e-r, Goldwaser.

 21                 MS. HAWKS:  Thank you.  You may be

 22   seated.

 23                 JUDGE CURRAN:  Thank you.  Please

 24   be seated.  And move a little closer to the

 25   microphone, if you can.


 

00007

  1                 THE WITNESS:  Yes.

  2                 JUDGE CURRAN:  We will continue

  3   now with the cross-examination by Miss Smith.

  4                  Miss Smith.

  5                 MS. SMITH:  Thank you, Your Honor.

  6   CONTINUED CROSS EXAMINATION BY MS. SMITH:

  7          Q      Dr. Goldwaser, yesterday we were

  8   talking about Dr. Almeleh's notes, just to go --

  9   to refresh where I'm going to start.  And we --

 10   I was discussing with you the 24 times that Dr.

 11   Almeleh noted that Mr. deVries had nightmares,

 12   and you said that was just a self-report.  Do

 13   you recall saying that?

 14   A      I said that, yes.

 15          Q      You said that, right?  Do you know

 16   how many hours Dr. Almeleh spent with

 17   Mr. deVries just up until the time of the

 18   records you got in February of 2006?

 19   A      No, I don't.

 20          Q      Okay.  If I tell you it's 69

 21   entries that you had, do you have any reason to

 22   dispute that?

 23   A      No.

 24          Q      Okay.  So 69 visits up until

 25   February of 2006.  Let me show you what's been


 

00008

  1   marked P-30 for Identification.  Now, this is a

  2   report by Dr. Almeleh, right?

  3   A      No, this is not a report; it's a

  4   letter --

  5          Q      Okay.

  6   A      -- to you.

  7          Q      This is a letter --

  8   A      Yes.

  9          Q      -- by Dr. Almeleh, right?

 10   A      Yes.

 11          Q      And at the very bottom of P-30 Dr.

 12   Almeleh, who is his treating psychiatrist,

 13   writes, "Mr. deVries' diagnosis is posttraumatic

 14   stress disorder and major depression."  That's

 15   what he says, right?

 16   A      Yes.

 17          Q      He says, "Prior to the firehouse

 18   events of the spring of 2004 Mr. deVries was

 19   doing well and was taken off his antidepressant

 20   medication"?

 21   A      One second.  No, it doesn't say that.

 22          Q      It doesn't say that --

 23   A      I read --

 24          Q      -- on paragraph three?

 25   A      Oh, on paragraph three, yes.


 

00009

  1          Q      Doesn't it say -- okay.  Then it

  2   says, "Since the firehouse events of the spring

  3   of 2004 there has been a dramatic deterioration

  4   in Mr. deVries' functioning.  He has disturbed

  5   sleep with recurrent nightmares.  He has become

  6   hypervigilant and diffusely anxious, and his

  7   concentration has deteriorated."  That's what

  8   Dr. Almeleh said, right?

  9   A      Yeah, it is what he wrote here.

 10          Q      "And Mr. deVries used to be an

 11   avid reader, but he is no longer engaged in

 12   leisure reading."  That's what Dr. Almeleh said,

 13   right?

 14   A      That is what he wrote, yes.

 15          Q      And that is what Mr. deVries told

 16   you, right?

 17   A      Not exactly that, no.

 18          Q      Mr. deVries didn't tell you that

 19   he had a severe lack of concentration since

 20   April of 2004?

 21   A      He said that his concentration was not

 22   good.  I don't remember exactly since when.  He

 23   said that he was not reading primarily when he

 24   was feeling very poorly, very badly.

 25          Q      He -- wait a minute.  My question


 

00010

  1   was simple.  Are you testifying in front of this

  2   jury today --

  3   A      Yes.

  4          Q      -- that Mr. deVries did not tell

  5   you that he had difficulty reading after the

  6   events of April of 2004?  Is that your

  7   testimony?

  8   A      From then on every single day to today is

  9   what you are saying?

 10          Q      No, I'm just saying what I said.

 11   A      Oh, he had difficulties concentrating and

 12   reading, yes, he had.

 13          Q      And he used to love reading,

 14   right?  He told you that too?  He loved reading,

 15   didn't he?

 16   A      I think he did.  He did tell that to Dr.

 17   Almeleh.  I'm not sure if he told that to me.  I

 18   know he used to -- he loved to collect these

 19   first editions, and reading was part of it.  But

 20   I don't remember if he told it to me.  I do

 21   remember that Dr. Almeleh wrote that.  Maybe he

 22   did --

 23          Q      Dr. Almeleh wrote, "Mr. deVries

 24   works as an editor where concentration is

 25   crucial, and his work performance has suffered,"


 

00011

  1   didn't he, in January of 2005?

  2   A      This is in this letter?

  3          Q      "This is particularly troubling

  4   since" --

  5   A      What paragraph?

  6          Q      -- "Mr. deVries" -- the next line.

  7   The only --

  8   A      Yes, uh-huh.

  9          Q      Isn't it true that Dr. Almeleh

 10   wrote, "This is particularly troubling, since

 11   Mr. deVries has always been and continues to be

 12   the primary breadwinner in his household"?

 13   Isn't that true?

 14   A      He wrote that, yes.

 15          Q      Yes.  "And since the firehouse

 16   events of the spring of 2004 Mr. deVries has

 17   lost 40 pounds."  Dr. Almeleh wrote that, right?

 18   A      Dr. Almeleh wrote that, yes.

 19          Q      And the last paragraph, Dr.

 20   Almeleh writes, "Prior to the firehouse events

 21   of the spring of 2004 Mr. deVries was treated by

 22   me once every two weeks.  Since he worked long

 23   hours and it was a long commute to my office, I

 24   suggested that he get into more intense

 25   treatment with a psychotherapist near his home,


 

00012

  1   which he did."  That was Miss Hines, right?

  2   A      Yes, I assume.

  3          Q      She is not a doctor, right?

  4   A      She is not a physician, no.

  5          Q      She is not a doctor of any kind?

  6   She doesn't have a Ph.D., right?

  7   A      No, she is a non-physician therapist.

  8          Q      She is not a doctor, right?

  9   A      She is not a doctor, no.

 10          Q      So when you were talking yesterday

 11   with Mr. Bevere about Mr. deVries only going to

 12   therapy every other week or so, you were only

 13   talking about Dr. Almeleh, right?

 14   A      Can you repeat the question?

 15                 MR. BEVERE:  I am going to object

 16   to the grounds that it mischaracterizes my

 17   question.  My question was specifically with

 18   regard to Dr. Almeleh.

 19                 JUDGE CURRAN:  Miss Smith.

 20   BY MS. SMITH:

 21          Q      Okay.  It wouldn't -- it certainly

 22   wouldn't be fair to characterize Mr. deVries as

 23   being lackadaisical about trying to get

 24   treatment, would it?  He wasn't lackadaisical

 25   about trying to get treatment, was he?


 

00013

  1   A      No.

  2          Q      Now --

  3   A      Do you want this back?

  4          Q      You can leave it up there.

  5   A      Okay.

  6          Q      I'll get it later, thank you,

  7   Doctor.  You have written, haven't you, that

  8   depression frequently co-occurs with PTSD?

  9   A      Yes.

 10          Q      So the fact that Mr. deVries has

 11   major depression doesn't preclude him from also

 12   having PTSD, does it?

 13   A      No, it does not.

 14          Q      Now, yesterday you talked about --

 15   you said that Mr. -- in Miss Hines' notes

 16   Mr. deVries said that he stopped treating with

 17   her because his insurance ran out.  Do you have

 18   any evidence that that's not why he stopped

 19   treating with her?

 20                 MR. BEVERE:  Judge, I'm going to

 21   object.  I think that the question is confusing;

 22   and I think you're asking about evidence, which

 23   I think is a legal term.

 24          Q      Have you --

 25                 JUDGE CURRAN:  Please rephrase.


 

00014

  1                 MS. SMITH:  Yeah, I'll rephrase

  2   it, thank you, Your Honor.

  3   BY MS. SMITH:

  4          Q      You said yesterday in front of the

  5   jury, you made the point that Mr. -- that Miss

  6   Hines said that Mr. deVries said he stopped

  7   treating with her after a year because his

  8   insurance ran out.  That's true, isn't it, that

  9   his insurance ran out?

 10   A      I don't know if that's true.

 11          Q      You have -- do you have any

 12   evidence that you have reviewed, any document,

 13   anything at all to indicate that that's not

 14   true?

 15   A      Neither way.  Either way; I don't have

 16   any evidence that it is true or it is not true.

 17          Q      Now, you had Dr. Hines' records in

 18   front of you yesterday?

 19   A      Yes, I think I have them today too.

 20                 MS. SMITH:  And that's P-100, Your

 21   Honor, for the record.

 22          Q      Mr. deVries went less than a month

 23   after the incident to -- to try to get more

 24   therapy, didn't he?

 25   A      I think so, yes.


 

00015

  1                 MR. BEVERE:  Can we have the Bates

  2   stamp number that counsel is referring to,

  3   Judge, because they are Bates stamped?

  4                 MS. SMITH:  398.

  5                 MR. BEVERE:  Thank you.

  6                 JUDGE CURRAN:  Thank you.

  7   BY MS. SMITH:

  8          Q      Let's look at Bates stamp 399.

  9   You see the little numbers in the corners?

 10   Those are called "Bates stamps," Doctor.

 11   A      Yes.

 12          Q      You didn't tell the jury when you

 13   testified about Dr. -- Miss Hines' checklist

 14   when you reviewed this record, did you?

 15   A      I believe I addressed this.  We can have

 16   it -- I did mention.  I think I did mention.  I

 17   did talk about this.

 18          Q      On the checklist Mr. deVries

 19   indicated that he could indicate recently or

 20   ever for various problems and symptoms, right?

 21   A      Right.

 22          Q      And he indicated that he recently

 23   had excessive and uncontrollable anger, right?

 24   A      Yes.

 25          Q      I think the one that you mentioned


 

00016

  1   to the jury -- correct me, if I'm wrong.  I

  2   think the only one you mentioned to the jury was

  3   agoraphobia and extreme social isolation, which

  4   he both said recently and ever, right?

  5   A      Yes, this -- this is what it says here.

  6   Your question -- what did you ask me?

  7          Q      That is the one you discussed with

  8   the jury in your testimony last week, right,

  9   agoraphobia and social isolation?

 10   A      Not the only one, no.

 11          Q      Okay.  Did you tell the jury that

 12   he put -- that he recently has frequent crying

 13   and sadness?

 14   A      Yes, and I -- I mentioned that is not --

 15   sadness is not depression.  Sadness is --

 16          Q      No, no, my question is did you

 17   tell the jury when you were discussing the Hines

 18   checklist that Mr. deVries checked off that he

 19   has frequent crying and sadness?  Yes or no or

 20   you don't recall?

 21   A      Yes, I mentioned -- I mentioned the

 22   depression.  I mentioned the work stress that

 23   was also -- certainly I mentioned the -- the

 24   conflicts over his sexuality.  All those things

 25   I believe I mentioned when I testified


 

00017

  1   one-and-a-half, two weeks ago.

  2          Q      You mentioned everything on this

  3   checklist; that's your testimony today?

  4   A      I'm not sure if I mentioned everything.

  5   I don't think -- I mentioned the -- the tobacco

  6   and alcohol.  I remember mentioning that, as

  7   well.  Yes, I did.

  8          Q      Okay.  On this checklist,

  9   Mr. deVries, the area where it says, "problems

 10   with a partner or spouse," it only checks off

 11   recently, right?

 12   A      It only checks off recently, yes.  What

 13   number is this?

 14          Q      Nineteen.

 15   A      Yes, it only is -- yeah, he does suggest

 16   recently; that is what he checked.

 17          Q      And, "other," he checks recently

 18   mood -- he writes in -- he hand writes in, "mood

 19   swings, lack of concentration, paranoia and

 20   anhedonia," which means lack of pleasure, right?

 21   A      That's right.  Which is not true,

 22   according to the records.

 23          Q      I'm going to ask you questions

 24   that mostly have yes or no answers.

 25   A      I'm sorry.


 

00018

  1          Q      Okay?

  2   A      You're right.

  3          Q      Good.

  4   A      Yeah.

  5          Q      Now -- and you noted when you were

  6   testifying that there was nothing in Dr. -- in

  7   Miss Hines' records about the anniversary of the

  8   attack on Mr. deVries, right?

  9                 MR. BEVERE:  Judge, I am going to

 10   object.  That is absolutely a

 11   mischaracterization of his testimony.

 12                 JUDGE CURRAN:  Do you want to

 13   rephrase?  Otherwise --

 14                 MR. BEVERE:  The -- the question

 15   was, was there any reference to the anniversary

 16   of the attack?  That's a mischaracterization.

 17                 JUDGE CURRAN:  Thank you.

 18   Sustained.  Would you rephrase?

 19                 MS. SMITH:  Okay.  Thank you, Your

 20   Honor.

 21   BY MS. SMITH:

 22          Q      You didn't note that on Dr. -- on

 23   Miss Hines' notes, that she found Mr. deVries to

 24   be compliant and stable, despite the anniversary

 25   of the event?  Did you note that yesterday for


 

00019

  1   the jury?  My testimony is about -- my question

  2   is about yesterday's testimony.  It's not in

  3   your notes?

  4   A      Okay.

  5          Q      Yesterday did you tell this jury

  6   that in Miss Hines' notes that she found my

  7   client, Mr. deVries, to be compliant and stable,

  8   despite the anniversary of the event?  Did you

  9   say that yesterday?

 10   A      Don't remember exactly my words, but I

 11   did talk about it.  I don't remember my words.

 12          Q      That was notable, right?

 13   A      That there was no symptomatology related

 14   to the anniversary reaction to this assault?

 15   Yeah, I did mention that, and that was --

 16          Q      In Dr. Almeleh's notes the day

 17   after the anniversary, on 4/26/05, Dr. Almeleh

 18   notes, "Patient feeling very tired and fatigued.

 19   Patient explained to employer he is unable to

 20   work."  That's the first such record of the

 21   patient saying -- of Mr. deVries saying he is

 22   unable to work, isn't it?

 23   A      This is in May of '05?

 24          Q      No, this is in April 26th.  The

 25   event happened on April 25th, 2004?


 

00020

  1   A      Uh-huh.

  2          Q      You want to look at Dr. Almeleh's

  3   notes of April 26th, 2005?

  4   A      Yeah, I remember he saw him the day

  5   after.  Yes, I have it.

  6          Q      April 26 -- you have that?

  7   A      Uh-huh.

  8          Q      On April 26, 2005 Dr. Almeleh

  9   notes, "Patient feeling very tired and fatigued.

 10   Patient explained to employer he is unable to

 11   work.  Today he has severe psychomotor

 12   retardation.  Concentration and memory are very

 13   poor.  Remembers only one out of three in five

 14   minutes.  Will increase Lexapro.  Patient trying

 15   to repair relationship with Tim."  That's Dr.

 16   Almeleh's notes on April 26th, 2005, is it not?

 17   A      Yes.

 18          Q      Now, yesterday you testified with

 19   regard to Dr. Almeleh's records regarding what

 20   happened at Peter's work in November and

 21   December of 2004.  Do you recall that testimony?

 22   A      What happened at his work?

 23          Q      Yeah, do you want me to -- let me

 24   refresh your recollection, Doctor.  Question,

 25   "Is there an indication in Dr. Almeleh's


 

00021

  1   treatment records as to what, if anything,

  2   happened at work in either end of November or

  3   early December 2004?"

  4            And your answer was, was it not, "Yes,

  5   the problem was -- and it was a big upset for

  6   him and in the records -- he was not promoted.

  7   He was passed up for a promotion that he was

  8   hoping for.  Again, that is in -- in about

  9   November of '04.  The previous month he really

 10   didn't want the job.  He didn't really like it.

 11   He felt pressured to go and work, as he had felt

 12   all along, whenever he was depressed.  But when

 13   he did not get this promotion, he felt very big

 14   upset.  Dr. Almeleh relates to that as major

 15   mood swing or something along these lines.  And

 16   I think at that time he readjusted his

 17   medication"?  That was your testimony to this

 18   jury about November of two -- of 2004; is that

 19   correct?

 20   A      You are reading it, so I did that, I did

 21   say that.

 22          Q      Question -- and then you talked

 23   about specifically -- you talked about the

 24   promotion, some more with regard to

 25   December 7th, 2004.  Do you recall that?


 

00022

  1   A      It should have been 2005.  That was --

  2   that -- the promotion, being passed for

  3   promotion happened to him in '05.

  4          Q      This is what you said yesterday.

  5                 MR. BEVERE:  Judge, can we have a

  6   page and line?  I'm sorry.

  7                 MS. SMITH:  Page 172, top of the

  8   page.

  9   BY MS. SMITH:

 10   A      Yeah, and I was actually reading from the

 11   notes of --

 12          Q      Well, I'm going to ask questions,

 13   Doctor, all right.  And this is a yes or no.

 14            Yesterday did you testify under oath to

 15   this jury this visit, December 7th, '04, he

 16   describes a really bad mood swing, patient did

 17   not get a promotion at work and so on.  At that

 18   time he decided to try to start him again on an

 19   antidepressant medication, which was Lexapro.

 20   You said that yesterday in front of this jury,

 21   right?

 22   A      Yes.  You are reading the transcript, so

 23   yes.

 24          Q      Now, let's start with your claim

 25   that the month before he didn't like the job


 

00023

  1   very much, the previous month he really didn't

  2   want the job.  Let's start with October 1st,

  3   2004.  There is no notation October 1st, 2004

  4   that Mr. deVries didn't want his job, is there?

  5                 MR. BEVERE:  Judge, I'm sorry,

  6   could he have time to look at Dr. Almeleh's

  7   notes, please?

  8                 JUDGE CURRAN:  Yes.

  9                 MR. BEVERE:  Thank you.

 10   BY MS. SMITH:

 11   A      On October 1st, '04?

 12          Q      Yeah, the question is this.

 13   A      Pain --

 14          Q      Is there any notation in Dr.

 15   Almeleh's notes that he didn't want the job?

 16                 MR. BEVERE:  Are we looking for a

 17   note dated October 1st, 2004?

 18                 MS. SMITH:  We're going to go

 19   through all of October because the statement

 20   that the month before he didn't want the job.

 21                 MR. BEVERE:  Okay.

 22   BY MS. SMITH:

 23          Q      So there is nothing in

 24   October 1st, Dr. Almeleh's notes, to support

 25   that statement?  Can we agree to that, Doctor?


 

00024

  1                 MR. BEVERE:  Judge, my question is

  2   I don't see a visit for October 1st, 2004 in Dr.

  3   Almeleh's notes.  I see one for October 8th,

  4   2004.

  5   A      I don't see one.

  6                 MS. SMITH:  Go back a page.

  7                 JUDGE CURRAN:  I think, Mr.

  8   Bevere, that would be the page you have on the

  9   bottom, the other way.

 10                 MR. BEVERE:  Judge, I'm looking at

 11   Bates stamp 426, which is the visit of 9/13/04;

 12   and I'm --

 13                 MS. SMITH:  It's 4/27.

 14                 MR. BEVERE:  4/27.

 15                 MS. SMITH:  Top left corner,

 16   "Patient has trouble sleeping and nightmares."

 17   Right here.

 18                 JUDGE CURRAN:  Mr. Bevere, maybe

 19   you can look at --

 20                 MR. BEVERE:  Mine is cut off.

 21   That's why.  Mine was cut off, Judge.  It

 22   appeared to be a nine to me, I apologize.

 23                 JUDGE CURRAN:  Thank you, no

 24   problem.

 25   BY MS. SMITH:


 

00025

  1          Q      All right.  Let's look at

  2   October 8th, 2004, Doctor.  On October 8th, 2004

  3   Dr. Almeleh notes, "Patient continues upset and

  4   frustrated over the firefighter incident.

  5   Continues disturbing dreams and general

  6   fearfulness when he walks the streets of

  7   Secaucus.  Planning to move to Jersey City.

  8   Eager to move.  Also upset about the effects of

  9   the incident on Tim."  It doesn't say he doesn't

 10   want his job, does it?

 11   A      No, it doesn't.

 12          Q      And you didn't tell the jury

 13   anything that was said by Dr. Almeleh on

 14   October 8th, 2004, did you?

 15   A      No, I did not read that note.

 16          Q      Okay.  And on October 22nd, 2004

 17   Dr. Almeleh notes, "Patient planning to move."

 18   Now, let me stop for a minute.  Yesterday you

 19   said that my clients didn't even think that up

 20   themselves, that Dr. Almeleh had to suggest that

 21   they move?

 22   A      Yes, that's correct.  And it's on

 23   June 4th, 2004.  On June 4th, 6/4/04, it says,

 24   "I suggested patient move to another Town."  And

 25   over there on June 4th it starts by saying that,


 

00026

  1   "Patient has trouble sleeping, disturbed sleep,

  2   nightmares and restlessness."  That same time he

  3   was mobilizing the gay community.  And also at

  4   the same time he was planning to make a movie on

  5   June -- on July.  The following month he was --

  6   already on July 8th he told the therapist he was

  7   planning to make a movie on July 22nd or 24th.

  8   He told her that was bringing him joy, to

  9   prepare a movie about all these events.  And on

 10   June 4th he said, "I suggested" -- I continue

 11   reading -- "patient move to another Town."  And

 12   then it says, "to decrease anxiety and symptoms

 13   of PTSD."  So it was his suggestion on June.  He

 14   didn't run from the Town.  He didn't escape.  It

 15   was not his idea.  It was his therapist's idea,

 16   Why don't you move?  I suggested to do it; and

 17   then he went, yes.

 18          Q      Okay.  I'm going to come back to

 19   that.

 20   A      Please, yeah.

 21          Q      All right.  We're -- let -- we're

 22   talking about right now October 8th, 2000 --

 23   let's go to October 22nd, 2004.

 24   A      Give me just a second.

 25          Q      You know what, I'm sorry, Doctor.


 

00027

  1   I'm really sorry.  I just had to get my partner

  2   to help me to find something that I knew was

  3   there, and he helped me find it.  On May 21st,

  4   2004, can we agree that's before June 1st, 2004?

  5   A      Yes.

  6          Q      June 4th?

  7   A      Yes.

  8                 MR. BEVERE:  Bates stamp 425, Your

  9   Honor.

 10                 JUDGE CURRAN:  Thank you.

 11   BY MS. SMITH:

 12          Q      Doesn't Dr. Almeleh note that

 13   Mr. deVries said, "Feels very uncomfortable

 14   living next to the firehouse.  Feels they will

 15   have to move.  Feels very distraught, as well as

 16   angry.  Feels sense of humiliation.  Patient

 17   can't concentrate on reading anymore"?  You see

 18   that on May 21st, 2004?

 19   A      Yeah, that was the second visit after the

 20   event.

 21          Q      No, Doctor, it says that, right?

 22   Okay.  And May is before June, right?

 23   A      Yes.

 24          Q      Okay.  All right.  Let's go back

 25   to October of 2004.  October 22nd, 2004, that's


 

00028

  1   the last visit in October, right?

  2   A      Appears to be.

  3          Q      Can we agree that October 22nd,

  4   2004 it doesn't say anywhere that he didn't want

  5   his job anymore?  Let's go through it.

  6   A      Yeah.

  7          Q      "Patient planning to move.  Very

  8   upset that he has been forced to leave."

  9   "Forced" in quotation marks, right?

 10   A      Yes.

 11          Q      "Very anxious and nervous about

 12   the move.  Will prescribe Valium.  His

 13   neuromotor was not strong enough"?

 14   A      You missed something there.

 15          Q      Uh-huh.

 16   A      Oh, okay.

 17          Q      "Patient states" -- something --

 18   "was not strong enough to help him calm down."

 19   Can you figure out what that word is?

 20   A      Which word?

 21          Q      Some kind of a -- of a drug I

 22   think.

 23   A      Oh, Neurontin.

 24          Q      That wasn't enough -- strong

 25   enough to help him calm down.  Then he talks


 

00029

  1   about he would prescribe something else, but he

  2   is always concerned about the heart, right?

  3   A      Yeah, something -- an anti -- an

  4   antidepressant medication, antianxiety,

  5   tranquilizing, antidepressant medication.

  6          Q      So that's October.  That's all of

  7   October 2004.  And nowhere in the Almeleh notes

  8   does it say that he didn't want the job?  We can

  9   agree to that, can't we?

 10   A      Yeah, they are talking about his med --

 11   his psychiatric condition here.

 12          Q      No, you testified yesterday that

 13   based on the Almeleh notes in October of 2004 he

 14   didn't want the job?  Didn't we start there?

 15   Don't you remember that a few minutes ago?  Do

 16   we have to do it again?  Didn't you --

 17   A      Yes.

 18          Q      Okay.  Now, these -- we just went

 19   through the Almeleh notes of October of 2004.

 20   This is my question.  Nowhere in the Almeleh

 21   notes of October of 2004 does it say Mr. deVries

 22   didn't want the job, does it?

 23   A      No, I mentioned --

 24          Q      That's it, thank you.  All right.

 25   Now let's go on to what else she said.  The


 

00030

  1   really big upset in November of 2004 was not

  2   getting a promotion; that's what you told this

  3   jury yesterday under oath, right?  Is that what

  4   you said?

  5   A      That is what you said I said, and I will

  6   take it.  That was -- it's '05, instead of '04.

  7   But if I said '04 --

  8          Q      Well, we'll go through it because

  9   you make a very specific reference to a very

 10   specific date.  So we'll see what you were

 11   telling the jury yesterday.

 12   A      Okay.

 13          Q      October of -- in November 5th of

 14   2004, "Patient was very upset."  And there is no

 15   comment about work, November 5th, 2004, is

 16   there?  "Patient very upset.  Closed on new

 17   apartment today, but patient and lover are

 18   bickering attributed to the stress they are

 19   undergoing.  Tried to calm patient down.  Takes

 20   Valium and Adderall."  That is the note on

 21   November 5th, 2004, right?

 22   A      That is not the entire note.

 23          Q      November 5th, 2004, that's not the

 24   note?

 25   A      That's not the entire note, no.


 

00031

  1          Q      "Patient very upset.  Closed on

  2   new apartment today, but patient and lover are

  3   bickering attributed to stress they are

  4   undergoing.  Tried to calm patient down.  Takes

  5   Valium and some p.m." or --

  6   A      Prn, meaning as needed.  If -- if he

  7   needs it, he will take it.

  8          Q      "Prn, Adderall 20 milligrams TID?"

  9   A      That is mandatory.  "TID" means he has to

 10   take it every day.  The other one is if and when

 11   he feels.

 12          Q      That's what I just read?

 13   A      No, "prn" you didn't say.  You didn't

 14   read, "prn," which, medically speaking, is very

 15   important.

 16          Q      October -- November 19th, 2004.

 17   You didn't mention this to the jury yesterday

 18   when you talked about him being upset about a

 19   promotion?  You did not mention what Dr. Almeleh

 20   wrote on November 19th, 2004; isn't that true,

 21   Doctor?

 22   A      I did not?

 23          Q      You didn't mention to this jury

 24   yesterday after you testified under oath that my

 25   client, Mr. deVries, was upset about not getting


 

00032

  1   a promotion in November of 2004, you didn't

  2   mention what Dr. Almeleh said in November 19th,

  3   2004; isn't that true?  Yes or no?  You didn't

  4   mention November 19th, 2004; isn't that true?

  5   A      I don't remember if I did or not.

  6          Q      You don't remember --

  7   A      I do remember it was '04 --

  8          Q      -- for the jury, "Patient had a

  9   severe emotional breakdown, laying down on the

 10   floor in a ball crying during the move from

 11   Secaucus.  Patient cried during the session.

 12   States that, 'the pressure has been too much.'

 13   Having disagreements with lover, feels like a

 14   victim.  Nightmares continue."  He didn't

 15   mention a promotion, did he, Doctor?

 16   A      No.

 17          Q      Now, you specifically mention --

 18   you're telling the jury today, apparently, that

 19   you were in the wrong year?  Is that what you

 20   are telling the jury, that you were in the wrong

 21   year when you were testifying yesterday?

 22   A      Yes.

 23          Q      So when you talked about the

 24   promotion and you specifically quoted

 25   December 7th, 2004, you weren't talking about --


 

00033

  1                 MR. BEVERE:  Judge.

  2          Q      -- December 7th, 2004?

  3                 MR. BEVERE:  I am -- I am going to

  4   object.  I would like the witness to be able to

  5   read the note for December 7th, 2004.

  6                 MS. SMITH:  Why?  This is

  7   cross-examination.

  8                 MR. MULLIN:  And he is reading the

  9   note now, Your Honor.

 10                 JUDGE CURRAN:  You mean read it as

 11   to himself?

 12                 MR. BEVERE:  Yes.

 13                 THE WITNESS:  Okay.

 14                 MR. BEVERE:  Because Your Honor --

 15                 JUDGE CURRAN:  It is

 16   cross-examination.

 17                 MR. BEVERE:  Yes, I understand

 18   that.  I understand that.  But I believe that

 19   there is --

 20                 MS. SMITH:  He has read it.

 21                 MR. BEVERE:  -- confusion about

 22   the dates, and I want him to read the note

 23   before he answers the question to refresh his

 24   recollection.

 25                 JUDGE CURRAN:  Doctor, have you


 

00034

  1   read the note?

  2                 THE WITNESS:  I am reading it

  3   right now, and I -- I recognize the -- that

  4   there was now mistake --

  5                 JUDGE CURRAN:  Sir, there is no

  6   question.  Have you read the note?

  7                 THE WITNESS:  Let me read it.

  8                 JUDGE CURRAN:  When you have read

  9   the note, let me know, please.

 10   BY MS. SMITH:

 11          Q      You weren't mistaken --

 12                 JUDGE CURRAN:  Hold on.

 13                 MS. SMITH:  I'm sorry, I thought

 14   he said he finished.

 15                 JUDGE CURRAN:  Have you finished

 16   reading the note?

 17                 THE WITNESS:  No, just a second,

 18   please.

 19                 JUDGE CURRAN:  Off the record for

 20   a moment.

 21                 MS. HAWKS:  Off the record.

 22                 (Whereupon, a discussion is held

 23          off the record.)

 24   BY MS. SMITH:

 25          Q      Doctor, you were talking about --


 

00035

  1                 JUDGE CURRAN:  Hold on one second.

  2                 MS. SMITH:  Oh, I'm sorry, Your

  3   Honor.

  4                 JUDGE CURRAN:  I apologize.  Sorry

  5   for delaying you.

  6                 MS. SMITH:  Thank you, Your Honor.

  7   BY MS. SMITH:

  8          Q      Dr. Almeleh, have you had an

  9   opportunity to review the note from Dr. Almeleh

 10   of December 7th, 2004?

 11   A      You made a confusion; I'm Dr. Goldwaser.

 12          Q      I'm so sorry.  Dr. Goldwaser --

 13   A      Yeah.

 14          Q      -- have you had a -- an

 15   opportunity to review Dr. Almeleh's note of

 16   December 7th, 2004?

 17   A      Yes.

 18          Q      Okay.  So -- and can we agree now

 19   that you actually were talking about November

 20   and December of 2004?

 21   A      Yes, I was.

 22          Q      You were not --

 23   A      No.

 24          Q      -- talking about 2005, right?

 25   A      No.


 

00036

  1          Q      Because there is a mention --

  2   A      Yes.

  3          Q      -- of not getting a promotion on

  4   December 7th, 2004, right?

  5   A      Yes.

  6          Q      Mr. -- Dr. Almeleh writes, "real

  7   bad mood swings" in quotes, right?

  8   A      Yes.

  9          Q      "Doesn't know what precipitates

 10   them.  On Adderall and Propovil"?

 11                 MR. BEVERE:  Provigil.

 12   A      Provigil.

 13          Q      I'm sorry?

 14   A      Provigil.  It's fine.

 15          Q      Provigil?

 16   A      Yes.

 17          Q      "Patient has not" -- something?

 18   A      Has not added to -- has not -- "added"

 19   maybe?  I'm not sure -- "to take Altace," which

 20   is for blood pressure.

 21          Q      Then it has his blood pressure

 22   reading.  And then there is the note, "Patient

 23   did not get promotion at work," right?

 24   A      Yes.

 25          Q      And then it says, "Patient has


 

00037

  1   lost 40 pounds," right?

  2   A      Yes, it says that, yeah.

  3          Q      And then it says, "To treat mood

  4   swings will try Lexapro"; and then there is some

  5   more discussion about his meds, right?

  6   A      Yes.

  7          Q      In November and December of 2004

  8   that's the only mention of not getting a

  9   promotion at work, isn't it?

 10   A      Now I need to find December.  If you have

 11   the number at the bottom, I can find it for the

 12   December.

 13          Q      I think that he is the only

 14   December, Your Honor -- Doctor; but if you find

 15   another one, I stand corrected.  I think that's

 16   the only December.

 17   A      Oh, okay.

 18          Q      Okay.  So can we agree that that's

 19   the only reference in October, November or

 20   December to his work?

 21   A      Yes.

 22          Q      I think yesterday you testified to

 23   the jury that hypervigilance is a symptom of

 24   PTSD, right?

 25   A      Yes.


 

00038

  1          Q      And the startle reflex is also a

  2   symptom of PTSD, right?

  3   A      Yes, it is.

  4          Q      And Peter told you about his

  5   startle reflex, didn't he, when he met with you?

  6   A      I believe he did.

  7          Q      In fact, he told you that the

  8   hypervigilance combined with the startle

  9   reflux -- reflex, it's just awful?  Didn't he

 10   tell you that?

 11   A      This is what he said, yes.

 12          Q      And he said, "Any expected noise

 13   or whatever, the phone sort of -- I jump.  It

 14   even happens in my sleep, for heaven's sakes; I

 15   will jerk.  I feel it's not like the startle

 16   reflex years ago, which, you know, everyone has.

 17   I mean, it's like I -- I mean, like a really --

 18   it's -- it's an overreaction.  It's an

 19   overreaction to noise and anything unexpected."

 20   He told you that when he met with you, right?

 21   A      He talked about the startle reflex, and

 22   he -- he mentioned it in those words, "startle

 23   reflex."

 24          Q      Now, yesterday you pointed out

 25   that you thought it was unusual that Mr. deVries


 

00039

  1   knew the terms associated with posttraumatic

  2   stress disorder.  Do you remember saying that?

  3   A      Yes.

  4          Q      Okay.  Did -- Mr. deVries for his

  5   entire working life has been a medical editor,

  6   hasn't he?

  7   A      Correct, yes.

  8          Q      It wouldn't be unusual for a

  9   medical editor to be aware of medical terms,

 10   would it?

 11   A      Well, actually, yes, according to what he

 12   told me, he was doing medical editing and not

 13   psychiatric editing.  In fact, the magazines

 14   that they were publishing were not psychiatric

 15   magazines.  And he actually mentioned the name

 16   of some of those journals, and he said that I

 17   would not be familiar with those because were

 18   for general hospital settings and things like

 19   that.  I remember he said that.

 20          Q      So regular medical journals don't

 21   discuss PTSD; is that your testimony?

 22   A      They -- they may, but that is a

 23   particularly important psychiatric diagnosis,

 24   psychiatric entity.

 25          Q      Well, he had been discussing PTSD


 

00040

  1   with Dr. Almeleh, wasn't he?  It's in the

  2   records, isn't it?

  3   A      Yes.

  4          Q      And when he met with you,

  5   Mr. deVries also discussed his recurring

  6   thoughts, reliving the attack, didn't he?

  7   A      Yeah, he mentioned that.  He went through

  8   the list of symptoms that --

  9          Q      He didn't just go through a list

 10   of symptoms; he told you that sometimes he would

 11   drive really fast and turn the radio really loud

 12   to try to block out of his head we, "Will kill

 13   you.  We will kill you.  We will kill you";

 14   didn't he tell you that?

 15   A      Yes, he did say.  He did actually said --

 16   sorry.

 17          Q      It's a yes or no answer; it's

 18   cross.

 19   A      Yes, he did say that.

 20          Q      And in fact, Dr. Almeleh noted

 21   that he was having flashbacks in his records,

 22   didn't he?

 23   A      Yes, he mentioned that.

 24          Q      Let's talk about the criteria for

 25   PTSD, Doctor.  The Diagnostic and Statistical


 

00041

  1   Manual --

  2                 MR. BEVERE:  Judge, can we just

  3   have five seconds while I get my checklist?

  4                 JUDGE CURRAN:  Sure.

  5                 MR. BEVERE:  Thank you.

  6                 JUDGE CURRAN:  Go off the record

  7   for a moment.

  8                 MR. BEVERE:  You don't have to go

  9   off the record, Judge; it's right here.

 10                 JUDGE CURRAN:  It's okay.

 11                 (Whereupon, a discussion is held

 12          off the record.)

 13                 JUDGE CURRAN:  Back on the record.

 14   BY MS. SMITH:

 15          Q      The Diagnostic and Statistical

 16   Manual, it's a reference guide for doctors with

 17   regard to diagnosing illnesses and diseases; is

 18   that correct?

 19   A      Yes.

 20          Q      Okay.  Now, when we talk about the

 21   diagnostic criteria for posttraumatic stress

 22   disorder, the first criteria is the person has

 23   been exposed to a traumatic event in which both

 24   of the following present.  One, the person

 25   experienced, witnessed or was confronted with an


 

00042

  1   event or events that involved actual or

  2   threatened death or serious injury or a threat

  3   to the physical integrity of self or others,

  4   correct?

  5   A      Yes.

  6          Q      Can we agree that that happened?

  7   A      That there was a threat, yeah, but to --

  8   not -- not entirely, not entirely that there was

  9   a threat.

 10          Q      You don't agree that on

 11   April 24th, 2004 that Mr. deVries and Mr. Carter

 12   experienced, witnessed or were confronted with

 13   an event that involved actual or threatened

 14   death or serious injury or threat to the

 15   physical integrity of self or others?  You don't

 16   agree with that; yes or no?

 17   A      Not entirely.

 18                 MR. MULLIN:  April 25th.

 19          Q      April 25th, I'm sorry.  Okay.  The

 20   second criteria.  The person's response involved

 21   intense fear, helplessness or horror.  Do --

 22   can -- do you -- can we agree at that

 23   Mr. deVries and Mr. Carter felt intense fear,

 24   helplessness and horror or no?

 25   A      Yes, intense fear.


 

00043

  1          Q      They did, okay.  The second

  2   criteria would be the traumatic event is

  3   persistently reexperienced in one or more of the

  4   following ways.  One, recurrent or intrusive or

  5   distressing recollections.  Isn't it true that

  6   Dr. Almeleh's records note that both Mr. deVries

  7   and Mr. Carter have recurrent and intrusive

  8   distressing recollections?

  9   A      That is the report of these two

 10   individuals, yes.

 11          Q      Number two, current and

 12   distressing dreams.  We went through that

 13   yesterday?

 14   A      That is the report.

 15          Q      A lot of evidence in Mr. -- there

 16   is a lot of notation in Dr. Almeleh's records of

 17   nightmares.  And Mr. deVries told you very

 18   specifically about his nightmares, didn't he?

 19   A      Yes.

 20          Q      Okay.  Number three, persistent

 21   avoidant -- C, persistent avoidance of stimuli

 22   associated with the trauma and numbing of

 23   general responsiveness as indicated by three or

 24   more of the following.  One, efforts to avoid

 25   thoughts, feelings or conversations.  Can we


 

00044

  1   agree that sleeping all the time might be an

  2   effort to avoid?

  3   A      Might be.

  4          Q      Yeah, can we agree that

  5   sleeping --

  6   A      In this particular case or in general?

  7          Q      No, just in general.

  8   A      Yes, in general, yes.

  9          Q      And Mr. deVries -- we will just

 10   talk about Mr. deVries right now.  He described

 11   avoidance for you, didn't he?

 12   A      He reported that.

 13          Q      He reported avoidance, right?

 14   A      He reported that.

 15          Q      And in fact, he told you what I

 16   just mentioned, blasting the music so loud to

 17   get the intrusive thoughts of, "We'll kill you.

 18   We'll kill you" out of his head?  He told you

 19   that when he met with you, right?

 20   A      He reported that.

 21          Q      Okay.  Two, efforts to avoid

 22   activities, places and people that arouse

 23   recollections of the trauma.  Mr. deVries

 24   stopped going to his doctors in Secaucus, didn't

 25   he?


 

00045

  1   A      Eventually he stopped, yes.

  2          Q      And in May 21st of 2004, less than

  3   a month after the attack, he said to his doctor,

  4   Dr. Almeleh, "We know we're going to have to

  5   move," right?  Didn't he?

  6   A      In May he had a feeling he had to move.

  7   He didn't know he had to move.

  8          Q      Let me ask you, Doctor --

  9   A      He had a feeling.

 10          Q      -- is moving your home stressful

 11   and difficult?

 12   A      Yes.

 13          Q      Difficulty concentrating is C.  We

 14   can agree that there is lots of notation in the

 15   record about Mr. deVries' difficulty

 16   concentrating?

 17   A      Yes, all along, since 1985 on.

 18          Q      Hypervigilance.  Mr. deVries

 19   described to you his hypervigilance, didn't he?

 20   A      All along, yes.

 21          Q      And Doctor -- what do you mean?

 22   There is something in the records prior to 1994

 23   about hypervigilance with regard to Mr. deVries;

 24   is that --

 25   A      Yes.


 

00046

  1          Q      -- your testimony?

  2   A      Yes, he -- actually, he told it to me;

  3   and he told it in his deposition.  He grew up in

  4   an environment that was anti-homosexuals; and he

  5   was harassed as a teenager, an older teenager in

  6   Canada because he was homosexual.  And he was

  7   hypervigilant.  He actually said all along,

  8   including when he moved in, that he was in a --

  9   next to a power kick -- this was a bunch of -- I

 10   don't remember what he said.  He expected all

 11   that.  He actually said that he had the antennas

 12   up because of that all along.  He grew up with

 13   the antennas up.

 14          Q      So he wasn't any more

 15   hypervigilant after his house was attacked and

 16   he was threatened to be killed?  That's your

 17   testimony to this jury, right?

 18   A      We have to assume -- we have to accept

 19   that he was threatened to be killed because he

 20   didn't say to Dr. Almeleh --

 21          Q      No, this is my question, Doctor,

 22   are you telling this jury he was -- you're

 23   claiming he was hypervigilant all along, right?

 24   That's your testimony to the jury?

 25   A      Yeah, he was.


 

00047

  1          Q      That's what the records will

  2   reflect?

  3   A      Yes.

  4          Q      Now, are you telling this jury he

  5   was no more hypervigilant after his house was

  6   attacked on April 25th, 2004 than before?  Is

  7   that your testimony?

  8   A      He was probably more, yeah.

  9          Q      Okay.

 10   A      Sure.

 11          Q      And number five, exaggerated

 12   startle response.  We already discussed his

 13   statements to you about his startle response,

 14   didn't we?

 15   A      His report that he had an exaggerated

 16   startle response, like --

 17          Q      He did?

 18   A      -- like the book says, yeah.

 19          Q      There is such a thing as chronic

 20   PTSD, isn't there?

 21   A      Yes.

 22          Q      That is if the symptoms go on for

 23   three months or more, right?

 24   A      Yes.

 25          Q      And you talked to the jury a


 

00048

  1   little bit about how the -- Mr. Carter and

  2   Mr. deVries were so competent after the event

  3   and they just sort of -- their lives didn't

  4   change.  Isn't it true that even the diagnostic

  5   and -- manual, the DSM, says sometimes there is

  6   a delay of the onset -- onset of symptoms of

  7   PTSD?

  8                 MR. BEVERE:  Judge, I want to

  9   object as to the characterization of this

 10   witness' testimony.

 11                 JUDGE CURRAN:  On -- in which way?

 12                 MR. BEVERE:  In other words, the

 13   particular -- we can do it at sidebar.  I will

 14   be happy to do it here.

 15                 JUDGE CURRAN:  Why don't we do it

 16   at sidebar?

 17                 MR. BEVERE:  I don't want to be

 18   accused of --

 19                 (Whereupon, the following sidebar

 20          discussion is held.)

 21                 MR. BEVERE:  Judge, I believe we

 22   had this issue yesterday.  And the question was

 23   that he didn't believe -- his opinion was they

 24   hadn't changed psychiatrically.

 25                 JUDGE CURRAN:  I'm sorry, I


 

00049

  1   couldn't hear.

  2                 MR. BEVERE:  The question was has

  3   their life changed at all; and the question came

  4   down, he clarified --

  5                 MS. SMITH:  Absolutely false.

  6                 MR. BEVERE:  -- psychiatrically.

  7                 MS. SMITH:  Let's get the record.

  8   He said his life hadn't changed.

  9                 MR. MULLIN:  He said the fact is

 10   the event hasn't changed his life.

 11                 MS. SMITH:  That's what he said

 12   yesterday.

 13                 MR. MULLIN:  It's page 101.

 14                 MR. BEVERE:  I'll -- I'll --

 15                 MR. MULLIN:  Get the transcript.

 16                 JUDGE CURRAN:  Do you want to get

 17   101?

 18                 MR. BEVERE:  Just to look at it.

 19                 (Whereupon, a discussion is held

 20          off the record.)

 21                 (Whereupon, sidebar discussion is

 22          concluded.)

 23                 MR. BEVERE:  All right.  Judge, we

 24   don't have to go back to sidebar; but we found

 25   the reference.


 

00050

  1                 JUDGE CURRAN:  Any argument at

  2   sidebar?

  3                 MR. BEVERE:  No.

  4                 JUDGE CURRAN:  Okay.  Sorry.

  5                 (Whereupon, a discussion is held

  6          off the record.)

  7                 JUDGE CURRAN:  Just so the record

  8   is clear, can you give us a page and beginning

  9   line for the reference that you did find that

 10   resolved the issue?

 11                 MR. BEVERE:  I think it was 113.

 12                 JUDGE CURRAN:  113.

 13                 MR. BEVERE:  And it was -- starts,

 14   I believe, on line 8.

 15                 JUDGE CURRAN:  Okay.  Thank you.

 16                 MR. BEVERE:  Okay.

 17                 MS. SMITH:  Tracey, can you read

 18   back the last question, please?

 19                 (Whereupon, the requested portion

 20          is read back by the reporter as follows:

 21                 "QUESTION:  And you talked to the

 22          jury a little bit about how the -- Mr.

 23          Carter and Mr. deVries were so competent

 24          after the event and they just sort of --

 25          their lives didn't change.  Isn't it true


 

00051

  1          that even the diagnostic and -- manual,

  2          the DSM, says sometimes there is a delay

  3          of the onset -- onset of symptoms of

  4          PTSD?")

  5   BY MS. SMITH:

  6   A      Yes.

  7          Q      Now, let me ask you this.  You

  8   keep saying, you know, "This is what Mr. deVries

  9   said," "That's what Mr. deVries told Dr.

 10   Almeleh."

 11            We already established that as of

 12   February of 2006 Dr. Almeleh had spent 69 hours

 13   with Mr. deVries, right?  We talked about that

 14   earlier?

 15                 MR. BEVERE:  Judge, I'm going to

 16   object because I think it was 69 entries.  I

 17   don't think the doctor gave testimony as to how

 18   many hours Dr. Almeleh spent with him.

 19                 JUDGE CURRAN:  Please ask the

 20   doctor --

 21   BY MS. SMITH:

 22          Q      He had 69 visits with Dr. Almeleh,

 23   we agreed to that, by February of 2006, right?

 24   A      I didn't count them.  I agree with you,

 25   but I don't know if it's true.


 

00052

  1          Q      Okay.

  2   A      I think if you say so, I will say yes;

  3   but I --

  4          Q      Okay.

  5   A      -- I didn't count them.

  6          Q      Now, Dr. Almeleh wasn't just

  7   taking dictation, was he?

  8   A      No, he was not.

  9          Q      No, he is a psychiatrist, right?

 10   A      He is a psychiatrist.

 11          Q      He is observing Mr. deVries,

 12   right?

 13   A      Yes.

 14          Q      And you spent three hours with

 15   Mr. deVries, right?

 16   A      Three hours-and-a-half, yes.

 17          Q      Now, you don't disagree, do you,

 18   that Mr. deVries was frightened after the events

 19   of April the 25th, 2004?

 20   A      He must have been.

 21          Q      Another symptom of PTSD is

 22   disturbed sleep, right?

 23   A      Yes.

 24          Q      You didn't tell the jury about all

 25   the entries in Dr. Almeleh's records about


 

00053

  1   disturbed sleep, did you?

  2   A      All along from the very beginning I did

  3   say, actually, from the very beginning that was

  4   one of the problems he was having.

  5          Q      You only mentioned it with regard

  6   to before the attack.  You never mentioned

  7   disturbed sleep to the jury after the attack,

  8   did you?

  9   A      All along he -- even with -- I did

 10   mention, by the way, because I remember when I

 11   met with him he told me that he had to sleep too

 12   much, he couldn't get out of bed.  I remember

 13   him mentioning his example of going to the

 14   bathroom and not being able to get up from the

 15   toilet seat and so on and having to sleep.  The

 16   disturbed sleep, yes, I did mention; I remember

 17   that.

 18          Q      Are you telling the jury that in

 19   all the Almeleh notes you discussed with them

 20   yesterday when Mr. Bevere and -- and the first

 21   time with Mr. Bevere, are you going to tell the

 22   jury today that you talked about the disturbed

 23   sleep references on June 4th, 2005; June 18th,

 24   2004; June 18th, 2004; July 2nd, 2004;

 25   August 13, 2004; October 1st, 2004;


 

00054

  1   February 18th, 2004; September 12th, 2005;

  2   January 23rd, 2006?  You didn't mention one of

  3   those notes of Dr. Almeleh to this jury on

  4   direct examination, did you?

  5   A      I didn't talk about the 69 or 96 visits

  6   or how many visits one by one.

  7                 MS. SMITH:  Judge.

  8          Q      Could you please answer the

  9   question?  The question is about those entries,

 10   not about the number of visits.

 11                 MR. BEVERE:  Judge, the witness

 12   was answering the question.

 13                 MS. SMITH:  No, he wasn't.

 14                 JUDGE CURRAN:  Question was, "You

 15   didn't mention" -- that's how it started, so

 16   it's a yes or no question.

 17                 THE WITNESS:  No.  I'm sorry, Your

 18   Honor.  I'm sorry.

 19   BY MS. SMITH:

 20          Q      Is disturbed sleep --

 21   A      I'm sorry?

 22          Q      Disturbed sleep is a symptom of

 23   PTSD, isn't it?

 24   A      Yes, of course.

 25          Q      Now, back to major depression.


 

00055

  1   You don't disagree, do you, that Mr. deVries

  2   suffers from major depression, do you?

  3   A      I do not.

  4          Q      Now, prior to the events of April

  5   of 2004 Mr. deVries worked full-time and

  6   continuously, did he not?

  7   A      No, not continuously.  He changed jobs

  8   and had problems at work but not continuously.

  9          Q      Wait a minute.  Your testimony

 10   today is that Mr. -- prior -- he had problems at

 11   work other than wanting to change his job in

 12   2003?  He wanted to go back to his old job --

 13   A      At the beginning of 2004 --

 14          Q      -- in Secaucus?

 15   A      I believe was in March or April of 2004

 16   he was having problems at work that he was

 17   admonished or reprimanded, and he had to -- he

 18   decided -- he began working 12 to 13 hours a

 19   day.  That was at the beginning of April he

 20   started doing that.  And he continued doing this

 21   same thing at that job in Montvale.

 22          Q      In the beginning of April of 2004

 23   he was admonished at work?  Where does that say

 24   that?

 25   A      Let me -- let me -- yeah, on March 19th,


 

00056

  1   2004 is where I found that.

  2          Q      Where does it say he was

  3   admonished?

  4   A      "Stopped Lexapro, adjust" -- "as well

  5   adjust Adderall.  Patient having problems at

  6   work, being reprimanded, being" --

  7          Q      Where does it say, "being

  8   reprimanded"?

  9   A      That is what I read, "being reprimanded.

 10   Began working 12 to 13 hours a day.  Old boss

 11   quit, whom patient did not like."  And his --

 12   his difficulty sleeping and how he would take

 13   naps and all that was in March 19, '04.  Then we

 14   will go into April 9th.

 15          Q      Just a second.  One, you're

 16   talking about March 19th of 2000 --

 17   A      Yeah.

 18          Q      March 19, 2004?

 19   A      Yes, that is what I -- my reading of

 20   this.

 21          Q      That's your reading of March 19th,

 22   2004?

 23   A      "Patient having problems" --

 24          Q      Just one second.

 25                 JUDGE CURRAN:  Excuse me one sec.


 

00057

  1   When everybody has found -- do you have the

  2   exhibit number, Mr. Bevere?

  3                 MR. BEVERE:  I do, Judge.  And I

  4   believe it is Bates stamped -- well, I can't

  5   find the Bates stamp on it, one; but I can just

  6   show Miss Smith, if that's easier.

  7          Q      That's "reprimanded"?  That's not

  8   "overworked"?  That word right there?

  9   A      Yeah, that is the one that I said.

 10          Q      You think that says, "reprimanded"

 11   and not, "overworked"?

 12   A      It could be either one.  I -- I

 13   understood it as that, and then that he began

 14   working 12 to 13 hours a day.

 15          Q      "Patient having problems at work,

 16   being overworked, been working 12 to 13 hours a

 17   day."

 18   A      I didn't interpret it as "overworked" but

 19   "reprimanded."  But it could be "overworked"

 20   too.  I don't know.  That never changed, by the

 21   way.

 22          Q      Before the attack of April 2004

 23   Mr. deVries and Mr. Carter traveled, didn't

 24   they?

 25   A      I'm not aware of that.


 

00058

  1          Q      Really?  You're not aware that --

  2   Mr. Carter didn't tell you extensively about

  3   their travels?

  4   A      Perhaps if you found it -- yeah, he did,

  5   I don't remember.

  6          Q      He didn't tell you about being in

  7   the Middle East?  He didn't tell you about all

  8   his travels when he met with you?  He didn't

  9   tell you about where Peter's brother lived --

 10   A      Exactly, that he did.

 11          Q      -- and visiting them?

 12   A      Yes, I remember that.  I remember.

 13   Exactly the traveling as you put it, that I

 14   don't remember.  I know that they went to

 15   Minnesota for work and they stayed there, they

 16   traveled within New York, upstate and all that

 17   for work.

 18          Q      You don't remember them traveling

 19   around the world, do you?  Mr. Carter didn't

 20   tell you about that; is that your testimony?

 21   A      My testimony is I don't remember.  I do

 22   remember his brother living in Jordan and

 23   working there as an anthropologist or

 24   sociologist or something.

 25          Q      And you know that prior to the


 

00059

  1   events of April 25th, 2004 you know Mr. deVries

  2   collected books and enjoyed reading, don't you?

  3   A      Yes.

  4          Q      And you know that -- let me go

  5   back.  Is it your claim to this jury that

  6   Mr. deVries had periods of unemployment?

  7   A      No.

  8          Q      Okay.

  9   A      I -- I am not sure.  I don't know about

 10   that, but I know he changed jobs.

 11          Q      Do you know that he got promoted?

 12   A      Yeah, he was an editor or managing

 13   editor.

 14          Q      He was a manager editor, right?

 15   A      Yes, yes.

 16          Q      And Mr. deVries and Mr. Carter,

 17   they had a home and a life together prior to

 18   April 2004, didn't they?

 19   A      Yeah, all along, up until now.

 20          Q      They decorated and celebrated

 21   holidays together, didn't they?

 22   A      Decorated and celebrated?

 23          Q      Yeah, didn't they talk to you

 24   about that?

 25   A      Yeah, I guess.


 

00060

  1          Q      And Mr. deVries told you how

  2   significantly his job -- his life is now, didn't

  3   he?

  4   A      I'm sorry?

  5          Q      He told you how significantly

  6   different his depression is now, didn't he?

  7   A      No, actually, he didn't say that it was

  8   significantly different.

  9          Q      He didn't?

 10   A      He described very graphically his

 11   depression.  And it was pretty much the same as

 12   he described it in 1990 -- in 1989 or '94 to Dr.

 13   Almeleh.

 14          Q      So your testimony to this jury is

 15   he didn't say before, "I was on maintenance

 16   therapy and in the sense I was seeing him once a

 17   month and he had taken me off all the

 18   medications.  I was off antidepressant

 19   medications.  Now it's different, the depth of

 20   it.  The depth of it.  I feel like I have lost

 21   something permanently"?  He didn't say that to

 22   you?

 23   A      He reported that to me, yes.

 24          Q      "And I know before, you know, the

 25   depression was sort of -- it was not nearly --


 

00061

  1   nearly as severe.  And it would -- it was like

  2   overtime.  I mean, you know, there were periods

  3   even, you know, I was still taking medication,

  4   whatever."  He didn't tell you that?

  5   A      Yes, he did tell me that.

  6          Q      That it was very different?

  7   A      He did report that it was very different

  8   and that he was not taking medication and he was

  9   on maintenance.  He did say that.

 10          Q      All right.

 11   A      Which is --

 12          Q      That's my question.

 13   A      Yes, he did.

 14          Q      Now, you also testified that his

 15   life didn't change.  You said that, his life

 16   didn't change?

 17   A      Clinically speaking, yes.

 18          Q      All right.

 19   A      Psychiatrically speaking.

 20          Q      So are you aware that they stopped

 21   using their backyard?

 22   A      Yeah, living in a -- in a different place

 23   now, is that what you mean?

 24          Q      No.  After the event before they

 25   were able to move in November of 2005 --


 

00062

  1                 MR. MULLIN:  2004.

  2          Q      -- 2004, from April until November

  3   of 2004, are you aware that that whole summer

  4   Mr. deVries and Mr. Carter didn't use their

  5   backyard?

  6   A      I don't think they told me that, but it

  7   wouldn't surprise me.

  8          Q      And they didn't use their kitchen?

  9   A      They didn't use?

 10          Q      Their kitchen.

 11   A      Their kitchen?  I don't think I knew

 12   that.

 13          Q      They didn't use any rooms on the

 14   side of the house next to the firehouse; are you

 15   aware of that?

 16   A      That they reported or that they didn't?

 17   Because nobody is aware of that.  This is what

 18   he -- if he reported that, I don't think he

 19   reported that to me.

 20          Q      But you didn't read all their

 21   depositions, right?

 22   A      I read four -- the 23 first hours of the

 23   deposition, yes.

 24          Q      You didn't read all of their

 25   depositions, did you?


 

00063

  1   A      No.

  2          Q      Now, at the end of your testimony

  3   yesterday you talked about various things, mood,

  4   affect, speech, stuff like that, right, things

  5   that are in your report?  Do you recall

  6   testifying in front of the jury about those

  7   items?

  8   A      I do recall that.

  9          Q      Now, with regard to Mr. deVries,

 10   at page 66 of your report you wrote, "Affect was

 11   not constricted nor intense.  It was appropriate

 12   to the situation and to the ideation" --

 13   ideation or iteation?

 14   A      Ideation.  Ideas, the way of thinking is

 15   ideation.

 16          Q      "Mr. deVries did not describe or

 17   display presently any debilitating psychiatric

 18   symptoms, so no quantifiable alteration of his

 19   affect was expected"; you see that?

 20   A      Yes.

 21          Q      And then on Mr. Carter's page 43,

 22   every -- Mr. Carter is -- I'm sorry,

 23   Mr. Carter's report is D-312, 312.  And

 24   Mr. deVries is 311.  Mr. Carter's affect, word

 25   for word, is exactly the same, right?


 

00064

  1   A      Yes.

  2          Q      Okay.  And Mr. deVries, with

  3   regard to mood, "was for the most part neutral.

  4   Mr. deVries displayed no signs of depression or

  5   anxiety throughout the entire time our meeting

  6   lasted."  Mr. deVries over there, he didn't

  7   express -- he didn't display any signs of

  8   depression when he met with you, right; that's

  9   your testimony?

 10   A      Yes, that's correct, yes.

 11          Q      Throughout the entire time?

 12   A      He reported --

 13          Q      "He appeared bitter when

 14   describing his not having gotten validity and

 15   justice concerning the events of April 24th,

 16   2004," that's what you wrote for Mr. deVries on

 17   page 66, right?

 18   A      Yes.

 19          Q      And you wrote the exact same words

 20   on page 43 for Mr. Carter, right?

 21   A      Correct, yes.

 22          Q      "Speech was coherent, clear,

 23   coherent, not pressured and relevant.  He was

 24   spontaneous, articulate, fluent, vivacious"?

 25   A      Yes.


 

00065

  1          Q      "Mr. deVries was quite engaging

  2   and productive in his descriptives" --

  3   "descriptions," right?

  4   A      Yes.

  5          Q      That's what you wrote about

  6   Mr. deVries?

  7   A      Yeah.

  8          Q      Mr. deVries was vivacious?

  9   A      Oh, yes.

 10          Q      That's your testimony?

 11   A      Yes.

 12          Q      And Mr. Carter was exactly the

 13   same, right?  Same words exactly --

 14   A      Yes.

 15          Q      -- right?  Do you have this on a

 16   form on your computer?

 17   A      No, I don't have a template.  I don't

 18   have a form for my reports.

 19          Q      And then you wrote, "There was no

 20   formal thought disorder or loosening of

 21   associations listed.  Mr. deVries denied all

 22   hallucinations or delusions.  He also denied

 23   current suicidal or homicidal ideation.  There

 24   was no evidence of any symptoms or signs

 25   indicating risk of suicide."  You wrote that on


 

00066

  1   page 67 for Mr. deVries, right?

  2   A      Yes.

  3          Q      And you wrote that on page 43 for

  4   Mr. Carter, right?

  5   A      Exactly, yes.

  6          Q      "Memory, recent, remote and

  7   immediate, were intact, as tested throughout the

  8   interviewing period."  You wrote that for

  9   Mr. deVries; and you wrote the exact same words

 10   for Mr. Carter, right?

 11   A      Yes.

 12          Q      Now, on attention and

 13   concentration for Mr. deVries, you wrote

 14   "Mr. deVries was quite able to participate in a

 15   210-minute interview without becoming

 16   distracted, inattentive or losing his

 17   concentration.  I did not have to repeat a

 18   question or bring him back to any subject

 19   because of distractibility or inattentiveness.

 20   Not once did he lose the thread of thinking.

 21   Mr. deVries was able to calculate in a timely

 22   fashion."

 23   A      Yes.

 24          Q      You wrote that for Mr. deVries,

 25   right?


 

00067

  1   A      Yes.

  2          Q      And except for changing the number

  3   of minutes, you wrote the exact same thing --

  4   A      I also had changed the --

  5          Q      -- for Mr. Carter?

  6   A      -- the names.  The names were different.

  7          Q      Right, you changed the names?

  8   A      Yes.

  9          Q      And the minutes?

 10   A      Yes.

 11          Q      And that's it?

 12   A      Exactly.

 13          Q      And --

 14   A      Yes.

 15          Q      -- you didn't find Tim Carter to

 16   be the least bit distractible, right?  That's

 17   your testimony?

 18   A      Yes.

 19          Q      Okay.  Now, on page 44 of

 20   Mr. Carter's report, where you say, "psychiatric

 21   diagnosis" --

 22   A      Yes.

 23          Q      -- "I found no psychiatric

 24   diagnosis proximally related to Mr. deVries'

 25   reported events"?


 

00068

  1   A      Yes.

  2          Q      Wrong client?

  3   A      I'm sorry?

  4          Q      Wrong person?

  5   A      What do you mean?

  6          Q      You hadn't changed it to

  7   Mr. Carter yet?

  8                 MR. MULLIN:  Which report are you

  9   referring to?

 10          Q      I'm referring to --

 11   A      Oh, here?

 12          Q      Yeah.

 13   A      Yeah.

 14          Q      Also, on your report of

 15   Mr. Carter, page six, you thought that

 16   Mr. Carter had an alcohol problem, right?

 17   A      Wait a minute.

 18          Q      Said he went to AA?

 19   A      He did go to AA, absolutely.  Not because

 20   he had an alcohol problem but because his

 21   partner had an alcohol problem.

 22          Q      Where in the records is that?

 23   A      I believe he told it to me or it was in

 24   Dr. Almeleh's records.

 25          Q      Or it's the wrong person?


 

00069

  1   A      Well, I have to spend the time, then, to

  2   look -- look for it.  Let me see if I can find

  3   it.  I think in Dr. Almeleh's records they are

  4   two -- two mentions of that.

  5                 MS. SMITH:  Well, you know what,

  6   maybe we can take a break and go to the

  7   restroom, Your Honor, if this is a good time.

  8          Q      And you can find where Dr. Almeleh

  9   talks about Mr. Carter going to AA.

 10                 MS. SMITH:  Is that okay, Your

 11   Honor --

 12                 JUDGE CURRAN:  Sure.

 13                 MS. SMITH:  -- to take a break?

 14                 JUDGE CURRAN:  Ladies and

 15   Gentlemen, we will take the morning break.  You

 16   have been here for a while.  If you will be back

 17   in 10 or 15 minutes, we'd appreciate it.

 18                  Off the record.

 19                 (Whereupon, the jury is excused.)

 20                 (Whereupon, a brief recess is

 21          taken.)

 22                 MS. HAWKS:  Jurors are

 23   approaching.

 24                 COURT CLERK:  On the record.

 25                 (Whereupon, the jury is brought


 

00070

  1          into the courtroom.)

  2                 JUDGE CURRAN:  Miss Hawks, if I

  3   can see you for a moment when you're finished.

  4   When you're finished.

  5                 MS. HAWKS:  Oh, all right.

  6                 JUDGE CURRAN:  Thank you.  Please

  7   be seated.  We're back on the record.

  8                  Miss Smith.

  9                 MS. SMITH:  Thank you, Your Honor.

 10   BY MS. SMITH:

 11          Q      Doctor, in Dr. Almeleh's notes for

 12   sometime in 1989 he writes, "When he is meeting

 13   with Mr. Carter, lover -- we have a lot of

 14   ambition, are not here to enjoy own life.

 15   Alcoholic in AA.  Dutch Calvanist.  'There for

 16   him,'" right?

 17   A      Yes.

 18          Q      He is talking -- Mr. Carter is

 19   telling Dr. Almeleh that Mr. deVries is in AA,

 20   right?

 21   A      It's possible.  What I -- what I

 22   understood here, that is this is treatment that

 23   Mr. Carter is having with Dr. Almeleh.  I don't

 24   know --

 25          Q      He is not describing his lover --


 

00071

  1   lover dash -- Mr. Carter is not a Dutch

  2   Calvanist, is he?

  3   A      Mr. Carter?

  4          Q      Yeah.

  5   A      I don't know what he is, but he is a

  6   religious person.  I don't know -- I don't know

  7   what he is.

  8          Q      He didn't -- Mr. deVries didn't

  9   tell you he was Dutch?

 10   A      Yes.

 11          Q      Okay.  Let's talk about weight.

 12   You pointed out to the jury a couple times on

 13   direct that Mr. deVries wanted to lose weight

 14   prior to April of 2004.  Do you recall that you

 15   did that?

 16   A      Yes.

 17          Q      And you pointed out Dr. Pumill,

 18   his cardiologist's records where he was trying

 19   to lose weight and exercise; do you recall doing

 20   that?

 21   A      Yes, he was also advised by the doctor.

 22          Q      You didn't point out to the jury

 23   Dr. Pumill's records, page Bates stamp number

 24   79, did you, where it says, "been under stress,

 25   40 pounds, appetite decrease"?


 

00072

  1   A      This is when?  I'm sorry, I don't have it

  2   here.  I have it in my briefcase.  I don't have

  3   it here.

  4            Okay.  December 2nd, 2004.

  5          Q      You didn't point out to the jury

  6   where it says, "been under stress, 40 pounds,

  7   appetite decrease," did you?  When you read to

  8   them some portions of Dr. Pumill's records, you

  9   did not read that to them, did you?

 10   A      No.

 11          Q      Okay.  Can we agree, Doctor, that

 12   there is a difference between exercising and

 13   trying to lose a few pounds and being unable to

 14   eat and losing 40 pounds?  Can we agree to that?

 15   A      If they are different, yeah, in general.

 16          Q      Different?

 17   A      Not in this case; in general, yeah.

 18          Q      Let's talk about Mr. Carter.  You

 19   didn't do any testing on Mr. Carter, right?

 20   A      You're talking about psychological

 21   testing?

 22          Q      Yes.

 23   A      No.

 24          Q      Okay.  And you didn't even review

 25   the raw data of the testing that Dr. Bursztajn


 

00073

  1   conducted, did you?

  2   A      No, I reviewed all the data that he

  3   shared with us.

  4          Q      No, you didn't review any of the

  5   raw data from all the testing that Dr. Bursztajn

  6   conducted, did you?

  7   A      No.

  8          Q      Okay.  Now, one of your -- correct

  9   me, if I'm wrong; but I think one of your major

 10   arguments with regard to Mr. Carter is he

 11   doesn't have PTSD because he is working

 12   full-time and even overtime at the time of your

 13   interview in October 2006?  Is that a fair

 14   statement?

 15   A      For six months going, yes.

 16          Q      Okay.  In fact, when he met with

 17   you on October 2006, he hadn't even finished the

 18   training for the job you're claiming he did

 19   overtime in?  He hadn't even started it; isn't

 20   that true?

 21   A      Say it again, please.

 22          Q      You told this jury that in October

 23   of 2006 Mr. Carter had for six months been

 24   working full-time and even overtime doing

 25   digital documents retention, right?


 

00074

  1   A      Yeah, that is what he told me.

  2          Q      Well, actually, he told you that

  3   he hadn't even finished his course yet to be

  4   trained to do documents retention?

  5   A      No, that is -- let me just check on that

  6   because I remember even in his deposition he

  7   actually said that he had been working on this.

  8   Since April of 2006 he was working.

  9          Q      He was working?  He said that

 10   on --

 11   A      On these jobs, yes.

 12          Q      You didn't even review the last

 13   two days of his deposition, did you?

 14   A      I reviewed the first one, those three

 15   hours or so.

 16          Q      Those three hours out of -- out

 17   three days, right?

 18   A      That was when he said that he was working

 19   in April of 2006.

 20          Q      Let me -- let me show you what he

 21   told you when you met with him.  Let's look at

 22   page 78, line 13.  Isn't it true that Mr. Carter

 23   tells you --

 24   A      I'm sorry, say it again.  Page 78?

 25          Q      Page 78, line 13.  And this is


 

00075

  1   your interview with Mr. Carter on October 13th,

  2   2006.  Page 78.  Isn't it true that he said to

  3   you, "I am finishing my course, which is very

  4   difficult in this digital imaging thing"?  He

  5   said that to you, didn't he?  Didn't he, Doctor?

  6   A      Yes, he said that.

  7          Q      Okay.  He said that.  And you

  8   said -- you also told the jury that although you

  9   claim that he was working and doing fine working

 10   full-time after the incident, before the

 11   incident he had problems with employment?  You

 12   told them that, right?

 13   A      Yes.

 14          Q      So the incident actually made him

 15   more competent in your view, right?

 16   A      I don't think that he --

 17                 MR. BEVERE:  Judge, I am going to

 18   object to the characterization, "make him more

 19   competent."

 20                 JUDGE CURRAN:  I will sustain

 21   that.  Just rephrase it.

 22   BY MS. SMITH:

 23          Q      Okay.  Do you think that

 24   Mr. Carter did better in his life, specifically

 25   in his work, after the events of April 2004?  Is


 

00076

  1   that your testimony?

  2   A      At the time that I saw him in 2006, yes.

  3          Q      He was doing better than before

  4   the incident; is that's your testimony?

  5   A      He actually completed training in I

  6   believe was 2005, early 2006 completed training.

  7          Q      What kind of training?

  8   A      As a paralegal.

  9          Q      And he never got a job as a

 10   paralegal, right?

 11   A      He never got a job, but he did complete

 12   the training at St. Peter's College by suggested

 13   recommendation and support of his doctor and

 14   that he went --

 15          Q      Isn't it true --

 16                 MR. BEVERE:  Judge, he was

 17   answering it, was in the middle of a question.

 18                 MS. SMITH:  He was not answering.

 19   It was a real simple question, and he was going

 20   on and on.

 21                 JUDGE CURRAN:  Please, if you will

 22   indicate, Doctor, if there is anything else you

 23   wish to say in specific answer to the question.

 24                 THE WITNESS:  Okay.

 25                 JUDGE CURRAN:  Is there anything


 

00077

  1   else, specific answer?

  2                 THE WITNESS:  The question was

  3   about his working.  Whether he was better

  4   because of his work was the question.  And yeah,

  5   I was -- I was specifically answering that.

  6                 MS. SMITH:  That wasn't the

  7   question, actually.

  8                 JUDGE CURRAN:  All right.

  9                 MS. SMITH:  Can I move on?

 10                 JUDGE CURRAN:  Move on to the next

 11   question, then.

 12   BY MS. SMITH:

 13   A      Okay.

 14          Q      Isn't it true, Doctor, that

 15   Mr. Carter had a full-time position as a

 16   permanent substitute teacher for 18 months and

 17   he told you that at your interview prior to

 18   April of 2004?

 19   A      As a substitute teacher?

 20          Q      Permanent substitute teacher.  He

 21   told you that, didn't he?  Yes?

 22   A      That was -- I don't remember exactly, but

 23   that was one of the things he mentioned.

 24          Q      And he also told you about the

 25   charitable work he was doing for people with


 

00078

  1   ADD?  He told you about that, right?

  2   A      He never took off, so he was never --

  3          Q      He never what?

  4   A      He never took off.  He never collected

  5   the funds.  He never did any work on that.

  6          Q      He never did any work on that?

  7   A      He had a plan that was called ADD-UP,

  8   A-D-D up.  And he actually mentioned in his

  9   deposition and to me that it never really took

 10   off.  That was an inaccurate thing or

 11   misunderstanding, what he told the other -- the

 12   other psychiatrist about this.  It never took

 13   off, but the other doctor --

 14          Q      Wait a second.  Are you saying he

 15   didn't do any work with regard to establishing

 16   ADD-UP?  Is that your testimony today; he did

 17   nothing to establish ADD-UP?

 18   A      It never transformed into anything, yes,

 19   yes.

 20          Q      Are you telling this jury that he

 21   didn't do anything to set up a charitable

 22   organization called ADD-UP; is that your

 23   testimony?

 24   A      Did he do something or he had a plan?

 25          Q      Did he do anything?  You're saying


 

00079

  1   he didn't do anything to start it?

  2   A      I said it never took off.  I didn't say

  3   he didn't do anything.

  4          Q      Okay.

  5   A      He never got -- he never had funds.

  6          Q      Let me ask you something else.  He

  7   has his masters degree from Harvard Divinity

  8   School, doesn't he, Mr. Carter?

  9   A      This is what he told me.

 10          Q      Well, he -- are you telling the

 11   jury that he doesn't?

 12   A      I don't know.  This is what he told me,

 13   yes.

 14          Q      And he worked as a pastor, didn't

 15   he?

 16   A      I don't think he worked as a pastor.  He

 17   worked as a fund-raiser for the Divinity

 18   Department at Harvard University.

 19          Q      You are not aware of his working

 20   as a pastor?

 21   A      I'm not aware.  I'm aware only working as

 22   a fund-raiser.  He had an office or he was

 23   working in an office of fund-raising for the

 24   Divinity School or -- or something like that.

 25   And he was eventually transferred from there to


 

00080

  1   New York City to do the same kind of work in

  2   fund-raising.

  3          Q      Now, Doctor, you said that his

  4   affect was fine and everything was fine with

  5   Mr. Carter when he met with you, right?

  6   A      No, I never said, "fine."  What I said is

  7   I did not find a psychiatric condition, an

  8   affect that was related to the debilitating

  9   psychiatric condition that was new or appeared

 10   on April 24th, 2004.

 11          Q      You said, "affect was not

 12   constricted nor intense.  It was appropriate to

 13   the situation and to the ideation.  Mr. Carter

 14   did not describe or display presently any

 15   debilitating psychiatric symptoms, so no

 16   quantifiable alteration of his affect was

 17   expected."  That's in your report of page 43;

 18   isn't that correct.

 19   A      You want me to explain that?

 20          Q      No, I don't.  I want you to answer

 21   my questions.

 22   A      Yes.

 23          Q      Isn't that correct; that's what

 24   you wrote?

 25   A      Yes, this is what I wrote.


 

00081

  1          Q      In fact, he had taken Xanax?  Dr.

  2   Almeleh gave him a Xanax because he was so

  3   anxious about meeting with you, hadn't he?

  4   A      I -- I think he mentioned something like

  5   that with me and with Dr. Bursztajn also.

  6          Q      So is that a yes, he told you that

  7   he had taken -- he actually showed you the

  8   bottle of Xanax, didn't he?

  9   A      I don't remember this.

 10          Q      You don't remember?

 11   A      I don't remember if he showed me a bottle

 12   of Xanax.

 13          Q      And when he visited Dr. Bursztajn,

 14   he told you that he hadn't slept at all prior to

 15   that visit for five-and-a-half days, didn't he?

 16   A      This is what he said.  And that Dr.

 17   Almeleh gave him Paxil at that time to do that.

 18   As a matter of fact --

 19          Q      He said Dr. -- Mr. Carter told you

 20   that it was very hard to relive the events of

 21   April 2004; didn't he say that to you?

 22   A      I have impression he did report that,

 23   that it was very hard, contrary to what happened

 24   in the session.

 25                 MS. SMITH:  Judge, could you ask


 

00082

  1   the witness, please, just to answer the

  2   questions and not give speeches afterwards?

  3                 JUDGE CURRAN:  Thank you.

  4                  Doctor, if you would please

  5   answer the questions, not give editorial

  6   comments.  Thank you.

  7                 THE WITNESS:  Yes.

  8   BY MS. SMITH:

  9          Q      And another example you gave

 10   yesterday to support your opinion that

 11   Mr. Carter doesn't have PTSD, you gave the

 12   example of his ability to sit through

 13   depositions in this court, right, in this

 14   action, right?  You said that yesterday, didn't

 15   you?

 16   A      Yes.

 17          Q      Okay.  Now, you never even

 18   reviewed the last two days of depositions that

 19   were taken of Mr. Carter, did you?

 20   A      No, I did not.

 21          Q      So you don't know how many breaks

 22   he took, right?

 23   A      No.

 24          Q      And you don't know whether he

 25   broke down crying, right?


 

00083

  1   A      No.

  2          Q      You don't know whether he was able

  3   to continue, whether the deposition had to be

  4   stopped, do you?

  5   A      No.

  6          Q      And the last day of Mr. deVries'

  7   deposition, you have no idea whether Mr. deVries

  8   broke down during that deposition, do you?

  9   A      No, I don't.

 10          Q      You don't know how many breaks

 11   were taken, do you?

 12   A      No, I don't.

 13          Q      Even in the three-hour dep that

 14   you did review, how many breaks did Mr. Carter

 15   need?

 16   A      I don't remember.

 17                 MR. BEVERE:  Judge, I'm going to

 18   object to the form because if -- there could be

 19   a lot of reasons for a break in a deposition.

 20   And for this witness to testify as to the

 21   reasons for breaks -- there is a lot of reasons

 22   we break in a deposition; somebody gets a phone

 23   call, somebody has to go to the bathroom --

 24                 JUDGE CURRAN:  I --

 25                 MR. BEVERE:  -- someone needs a


 

00084

  1   break.

  2                 MR. MULLIN:  Your Honor, I object

  3   to the testimony by this lawyer.

  4                 JUDGE CURRAN:  Sustained.

  5                  I am going to overrule your

  6   objection.  The question did not ask him the

  7   reasons for it; just asked him how many.  I

  8   understand your argument that how many is a

  9   function of why, but I'm going to overrule the

 10   objection.

 11   BY MS. SMITH:

 12          Q      Dr. Goldwaser, yesterday you

 13   specifically mentioned breaks, didn't you, with

 14   regard to depositions, didn't you?  Yesterday in

 15   your testimony in front of this jury didn't you

 16   specifically mention breaks?

 17   A      Can you refresh my memory; what did I

 18   say?

 19          Q      Didn't you mention the ability to

 20   sit down and take a deposition and not need

 21   constant breaks?  Didn't you testify that way in

 22   front of this jury?

 23   A      About Mr. Carter?

 24          Q      About Mr. Carter --

 25   A      Both?


 

00085

  1          Q      -- and Mr. deVries, both.  Wasn't

  2   that one of the examples of why they don't have

  3   PTSD?  Don't you remember from yesterday?

  4   A      I said -- I was here the whole day.  If

  5   you can read for me, I will -- I will be able to

  6   remember.

  7          Q      Well, is it your opinion today

  8   that one of the reasons you don't think

  9   Mr. Carter has PTSD was because he was able to

 10   sit through a three-hour deposition?

 11   A      It's one of the components.

 12          Q      Okay.

 13   A      It's not a main reason.  It's one of the

 14   components.

 15          Q      The -- the only deposition that

 16   you read, the three-hour deposition, there were

 17   five breaks during that deposition, weren't

 18   there?

 19   A      I don't remember how many; but if you say

 20   so, yes.

 21          Q      Now, you relied on Dr. Almeleh's

 22   notes, right, with regard to telling this jury

 23   that Mr. Carter was having panic attacks in July

 24   of 2003, right?

 25   A      Yes.


 

00086

  1          Q      You said that yesterday, right?

  2   A      Yes.

  3          Q      Let's look at the notes of

  4   July 17th, 2003.

  5   A      If you can tell me the number, I'd

  6   appreciate it.

  7          Q      You mean the Bates stamp numbers?

  8   A      Yes.

  9          Q      I think it's 448, Doctor.  Okay.

 10   You see that?

 11   A      Yes.

 12          Q      You told the jury yesterday at

 13   page 140 of the transcript that Dr. Almeleh in

 14   July of 2003 noted that Mr. Carter was having

 15   panic attacks?  Didn't you say that yesterday?

 16   Remember your testimony yesterday?

 17   A      Yes.

 18          Q      Didn't you say that yesterday?

 19   A      Specifically about July '03 I think -- I

 20   don't remember exactly I mentioned that as one

 21   of the dates in which is --

 22          Q      Okay.  In fact, what the notes

 23   really say on July 17th, 2003 is, "used to have

 24   storms -- panic attacks.  Would have to leave

 25   work and go home," doesn't it?


 

00087

  1   A      It starts by saying, "Paxil being" --

  2          Q      Doesn't it say --

  3   A      Yeah, because of treatment.

  4          Q      Used to have, "storms/panic

  5   attacks.  Would have to leave work and go home."

  6   Isn't that what it says?  You didn't tell --

  7   A      What you read, yes.

  8          Q      You didn't tell the jury yesterday

  9   Mr. Carter was describing panic attacks in the

 10   past, did you?  This is my question:  Yesterday

 11   you didn't tell the jury that on July 17th, 2003

 12   Mr. Carter was describing having panic attacks

 13   in the past?  You didn't tell them that, did

 14   you?

 15   A      I did say that this is --

 16          Q      In your testimony.

 17   A      As I recall, I did mention that he had

 18   panic attacks not only on one of the entries of

 19   Dr. Almeleh; and actually, this is --

 20                 MS. SMITH:  Judge, can we please

 21   direct the witness.

 22   A      I don't understand.

 23                 MS. SMITH:  My question --

 24                 JUDGE CURRAN:  I will ask if you

 25   will please rephrase it.  The witness has said


 

00088

  1   he can't answer it; he doesn't understand it.

  2   BY MS. SMITH:

  3          Q      Yesterday, when you talked to Mr.

  4   Bevere about Mr. Carter, you didn't specifically

  5   relate that on July 17th, 2003 Mr. Carter

  6   reported having panic attacks?  Are you

  7   telling -- was that your testimony yesterday?

  8   A      That in July he had panic attacks?

  9          Q      Yes.  Yesterday on direct with Mr.

 10   Bevere --

 11   A      Yes.

 12          Q      -- didn't you testify under oath

 13   in front of this jury that in July --

 14   specifically, didn't you tell them that on

 15   July 17th, 2003 Mr. Carter told Dr. Almeleh that

 16   he was having panic attacks?  Didn't you say

 17   that yesterday?

 18   A      I don't remember exactly.

 19          Q      Okay.

 20   A      If you read it, I will be able to

 21   remember it.

 22          Q      Now, again, you relied heavily on

 23   Dr. Almeleh's notes in your direct examination

 24   with Mr. Bevere in formulating your opinions

 25   about Mr. Carter; is that true?


 

00089

  1   A      Not only on Dr. Almeleh.

  2          Q      That's not what I said.  So the

  3   question was:  You relied heavily on Dr.

  4   Almeleh's notes?

  5   A      Yes.

  6          Q      Yes, right?

  7   A      Yes.

  8          Q      All right.  Now, not once in any

  9   of the testimony yesterday did you mention

 10   nightmares with regard to Mr. Carter, did you?

 11   A      I don't recall if I did say, if I said

 12   nothing about that.

 13          Q      You don't recall?

 14   A      I don't recall if I didn't say it or did.

 15          Q      Let's look at the word index of

 16   your testimony.  Are you telling the jury you

 17   told them yesterday that Mr. Carter had

 18   nightmares after --

 19                 MR. BEVERE:  Judge, objection.

 20   That's -- that is a mischaracterization.

 21                 JUDGE CURRAN:  Sustained.  Please

 22   rephrase.

 23   BY MS. SMITH:

 24          Q      Did you tell the jury yesterday

 25   that Mr. Carter had nightmares after April of


 

00090

  1   2004?

  2                 MR. BEVERE:  Objection, asked and

  3   answered.

  4                 JUDGE CURRAN:  Overruled.

  5   BY MS. SMITH:

  6   A      If I tell the jurors if he had nightmares

  7   after 19 -- after 2004?

  8          Q      Yesterday did you tell them that?

  9   A      I don't remember.

 10          Q      Okay.  Well, you didn't mention,

 11   did you, that 45 of Mr. Almeleh's -- Dr.

 12   Almeleh's entries with regard to Mr. Carter, 45

 13   times he noted that Mr. Carter suffers from

 14   nightmares?  We can agree you didn't tell them

 15   that, right?

 16   A      Yeah, I didn't say that.

 17          Q      And nightmares is a symptom of

 18   PTSD, right?

 19   A      Could be a symptom of PTSD, yes.

 20          Q      For instance, on June 25th, 2004,

 21   "Patient still has trouble sleeping,

 22   nightmares," right?

 23   A      What page?  Will you please give it, the

 24   number?

 25          Q      I don't have the Bates stamp


 

00091

  1   numbers.  I have the dates.

  2   A      June -- this is on -- on Mr. Carter,

  3   right?

  4          Q      Mr. Carter, June 25th, 2004.

  5                 MR. BEVERE:  That would be Bates

  6   stamp 445.

  7                 JUDGE CURRAN:  Thank you.

  8   A      Yes.

  9          Q      "Still has trouble sleeping,

 10   nightmares."  June 25th, 2004, it says that,

 11   doesn't it?  Yes or no?

 12   A      June 25th, '04?

 13          Q      Yes.

 14   A      Yes, it says that.

 15          Q      And on July 9th, 2004, it says he

 16   has victimization nightmares, right?

 17   A      Victimization nightmares on which --

 18   when?

 19          Q      July 9th, 2004.

 20                 MR. BEVERE:  Bates stamp 444.

 21   A      The two words exist, but there is a whole

 22   sentence there.

 23          Q      Doesn't say he has nightmares on

 24   July 9th, 2004?

 25   A      "Decreased victimization nightmares."


 

00092

  1          Q      On August 5th, 2005, "Patient

  2   having nightmares of falling."  See that?

  3   A      I'm sorry, 2005?

  4          Q      August 5th, 2004.

  5   A      2004.

  6                 MR. BEVERE:  442.

  7          Q      I'm going in chronological order,

  8   Doctor.

  9   A      That's fine; but as you know, this is not

 10   chronologically, the -- the records here.  Okay.

 11            Once again, you said August?

 12                 JUDGE CURRAN:  Thank you.  With

 13   all due respect, I don't know what Miss Smith

 14   does or doesn't know, so that last comment is

 15   stricken.

 16                  Miss Smith is now saying to you

 17   she is questioning in chronological order.  And

 18   Mr. Bevere is giving you the Bates stamps in

 19   chron -- Bates stamp numbers in chronological

 20   order.

 21          Q      When Mr. Bevere questioned you,

 22   you were able to find the notes, the Dr.

 23   Almeleh's notes by date, right?  Can we agree by

 24   that?

 25   A      Okay.


 

00093

  1          Q      So now we are on September 7th,

  2   2004.  "Still has nightmares," right?

  3   A      Yes.

  4          Q      September 23rd, 2004, "Nightmares

  5   continue," right?

  6   A      Yes.

  7          Q      October 7th, 2004, "Nightmares

  8   continue," right?

  9   A      October 7th, 2004?

 10          Q      Uh-huh.

 11   A      Yes, let me just see.  Yeah, "Nightmares

 12   continue."

 13          Q      "Nightmares continue."

 14   October 21st, 2004, "Nightmares continue,"

 15   right?

 16   A      Yes, at the end of -- yeah, uh-huh.

 17          Q      November 18th, 2004, "Still having

 18   nightmares," right?

 19   A      Yes.

 20          Q      November 30th, 2004, "Patient

 21   still having nightmares.  Nightmares continue,"

 22   right?

 23   A      Yes.

 24          Q      January 13th, 2005, "Nightmares

 25   continue," right?


 

00094

  1   A      January 7th?

  2          Q      January 13th --

  3   A      13th.

  4          Q      -- 2005, "Nightmares continue"?

  5   A      Yes.

  6          Q      February 3rd, 2005, "Frightening

  7   dreams continue"?

  8   A      That is related to something else.  It

  9   says here --

 10          Q      Wait a minute.  Wait a minute.

 11   You're on February?

 12   A      3rd.

 13          Q      3rd.  "Stress, intolerance and

 14   frightening dreams continue"?

 15   A      But that's related to something else.

 16          Q      How do you know that's related to

 17   something else?

 18   A      Well, it says -- this is called the --

 19   his report starts here, "Patient" and so on.

 20          Q      Yeah, he is describing an incident

 21   which, you know, the Court has said is not

 22   admissible.

 23   A      This is what you are addressing.

 24          Q      No, "Patient is extremely

 25   frightened.  Patient wants to leave apartment.


 

00095

  1   Frightened to be there.  Feels torn.  Does not

  2   want to put dogs in kennel.  Stress, intolerance

  3   and frightening dreams continue."

  4            It doesn't say the frightening dreams

  5   are only related to the one thing that, you

  6   know, this jury has been told they can't hear?

  7   A      You brought --

  8                 MR. BEVERE:  Judge, I am going

  9   to -- objection.

 10   A      Leave apartment --

 11                 JUDGE CURRAN:  Sir, just answer

 12   her question.

 13                  Mr. Bevere --

 14                 THE WITNESS:  Okay.

 15                 JUDGE CURRAN:  -- will follow-up

 16   if that's necessary.

 17                  The question is?

 18   BY MS. SMITH:

 19          Q      It says, "frightening dreams

 20   continue," doesn't it?

 21   A      Yes.

 22          Q      February 10th, 2004, "Frightening

 23   dreams continue," right?

 24   A      Yes.

 25          Q      February 17th, 2005, "Frightening


 

00096

  1   dreams continue," right?

  2   A      Yes.

  3          Q      February 24th, 2005, "Patient

  4   continues with nightmares"?

  5   A      Yes.

  6          Q      March 10th, 2005, "Continues with

  7   disturbed sleep and diffuse anxiety.  Nightmares

  8   continue," right?

  9   A      Yes.

 10          Q      March 24th, 2005, "Nightmares

 11   continue," right?

 12   A      The date, please?

 13          Q      March 24th, 2005.

 14   A      Yes.

 15          Q      4/25/05, April 25th, 2005,

 16   "Nightmares continue," right?

 17   A      On the anniversary, yes.

 18          Q      Yeah, and -- and Mr. Carter was

 19   aware of the anniversary, wasn't he?  See how he

 20   says, "Today is anniversary of firehouse event?"

 21   You see where it says that --

 22   A      Yes.

 23          Q      -- in Dr. Almeleh's notes?

 24   A      Yes.

 25          Q      Let's start 4/25/05.  "Patient


 

00097

  1   taking Prozac and Adderall," right?  "Very upset

  2   about Peter, who is a 'basket case,'" right?

  3   A      Yes.

  4          Q      Is that what Dr. Almeleh wrote?

  5   A      Yes.

  6          Q      "Peter is not his old self," in

  7   quotes, right?

  8   A      Yes.

  9          Q      "They are not getting along.

 10   Peter feels overwhelmed.  'He used to be so

 11   meticulous.'  Patient states, 'Peter can't even

 12   concentrate now.'"  You see that?

 13   A      Yes.

 14          Q      "Patient still taking Valium prn

 15   5 milligrams and Adderall.  Discussed his

 16   relationship with Peter."  And then it says,

 17   "Today is anniversary of firehouse event.

 18   Patient very upset how his life has changed so

 19   much since then."  You didn't tell the jury

 20   about that reference yesterday when you were

 21   talking about Mr. Carter, did you?

 22   A      I'm not sure.  Probably -- specifically

 23   this, probably not.

 24          Q      Okay.  And then it says,

 25   "Nightmares continue," right?


 

00098

  1   A      Yeah, at the end of every -- yeah.

  2          Q      And on May 9th, 2005, "Patient

  3   still has nightmares of Secaucus events."

  4   That's what it says, right?

  5   A      Yes.

  6          Q      And on May 17th, 2005, "Feelings

  7   of helplessness and vulnerability has increased

  8   and so has nightmares relating to firehouse

  9   event."  You see that?

 10   A      Yes.

 11          Q      May 23rd, 2005, "Still has

 12   nightmares."  See that?

 13   A      On May 23rd?

 14          Q      May 23rd, 2005.

 15   A      Yes.

 16          Q      June 2nd, 2005, "Has trouble

 17   sleeping and has nightmares," right?

 18            You're reading it.  Let's read it

 19   together.  June 2nd, 2005.  It says, "Patient

 20   accepted for vocational rehabilitation," right?

 21   A      Yes.

 22          Q      "Problems with Peter continue, now

 23   that Peter is now at home, although Peter seems

 24   more relaxed," right?

 25   A      Yes.


 

00099

  1          Q      "PTSD symptoms continue," right?

  2   That's what Almeleh -- Dr. Almeleh wrote, right?

  3   A      Yes.

  4          Q      "Patient hypervigilant, diffusely

  5   anxious and has trouble sleeping and has

  6   nightmares," he wrote that, right?

  7   A      Yes.

  8          Q      June 8th, 2005, "Nightmares

  9   continue," right?

 10   A      Yes.

 11          Q      "Patient remains hypervigilant,"

 12   right?

 13   A      Yes.

 14          Q      June 15th, 2005, the nightmares

 15   are still continuing, right?

 16   A      On when?  June?

 17          Q      June 15th, 2005.

 18   A      June 15th, yes.

 19          Q      Now, June 15th talks about

 20   something else that you didn't mention to the

 21   jury yesterday, an event that Mr. Carter related

 22   to you in great detail when you met with him,

 23   when he was called for jury duty, right?  You

 24   didn't tell the jury about that, did you?

 25   A      June 15th, you said?


 

00100

  1          Q      Don't the notes of June 15th read,

  2   "Patient cried and was totally intimidated when

  3   he reported for jury duty 12/15/04 and was

  4   dismissed"?  You see that?

  5   A      On -- on --

  6          Q      6/15/04.  You see that?  On

  7   June 15th --

  8   A      Yes, yes, I see.

  9          Q      Do you see the last entry?

 10   A      The last?

 11          Q      "Patient cried and was totally

 12   intimidated when he reported for jury duty

 13   12/15/04 and was dismissed," right?

 14   A      Uh-huh, yes.

 15          Q      Mr. Carter told you about that

 16   event, didn't he?

 17   A      Yes.

 18          Q      It was significant to him, wasn't

 19   it?

 20   A      Yes, he reported it.

 21          Q      He told you that he went to the

 22   courthouse and he broke out in a cold sweat,

 23   right?

 24   A      Yes.

 25          Q      And there was a woman there that


 

00101

  1   has a -- supposed to run things and over the

  2   microphone she said his name, right?  Do you

  3   have any recollection of this, Doctor?

  4   A      I recall this document, yes.  Not in

  5   details but --

  6          Q      If you can just pay attention to

  7   my questions, then we'll get through this a lot

  8   more quickly, okay?

  9            And he told you that he was afraid

 10   there were people there from Secaucus in that

 11   jury room, right?

 12   A      I don't remember.  Yes, I read it here.

 13          Q      Okay.  Okay.  And he saw somebody

 14   who he thought lived in Secaucus, right?

 15   A      "I saw or thought I saw people from

 16   Secaucus."

 17          Q      He went to the bathroom and

 18   started vomiting, right?  And someone came to

 19   him and said, "Do I need to call an ambulance,"

 20   right?  And they took him to the court

 21   administrator and the court administrator called

 22   his doctor from the courthouse.  Mr. Carter told

 23   you that, right?

 24   A      I don't recall all those details, but he

 25   did mention this.


 

00102

  1          Q      You didn't tell the jury about

  2   that event yesterday, did you?

  3   A      No.

  4                 MR. MULLIN:  I didn't hear the

  5   answer.

  6                 THE WITNESS:  I said no.

  7   BY MS. SMITH:

  8          Q      June 27th, 2005, "Still has

  9   nightmares of helplessness and vulnerability,"

 10   Dr. Almeleh wrote that, right?

 11   A      Can you tell me the -- give me the date

 12   again?

 13          Q      June 27, 2005.

 14   A      June 27th, what was the question?

 15          Q      The -- Dr. Almeleh noted that

 16   Mr. Carter still has nightmares of helplessness

 17   and vulnerability, right?

 18   A      Yes.

 19          Q      On July 15th, 2005, "Still has

 20   recurrent nightmare of victimization," right?

 21   Recurrent nightmare of victimization?

 22   A      On the --

 23          Q      That's what it says on July 15th,

 24   2005, right?

 25   A      Yes, it does say that.


 

00103

  1          Q      That's -- and on July 21st, 2005,

  2   "Still has nightmares of being chased," right?

  3   A      Yes.

  4          Q      And every visit -- the visit on

  5   August 1st, 2005, "Still has recurrent

  6   nightmares," right?

  7   A      Yes, it says that.

  8          Q      And September 7th, "Nightmares

  9   continue," right?

 10   A      Yes.

 11          Q      September 13th, "Nightmares

 12   continue," right?

 13   A      Right.

 14          Q      September 1, 2005, "Nightmares

 15   continue," right?

 16   A      Right.

 17          Q      October 6th, 2005, "Nightmares

 18   continue," right?

 19   A      When?

 20          Q      October 6th, 2005.

 21   A      Yes.

 22          Q      October 18th, 2005, "Nightmares

 23   continue," right?

 24   A      Which date?

 25          Q      October 18th, 2005.


 

00104

  1   A      If you can tell me the number, it would

  2   be faster.  Okay.  October when?  18?  Yes.

  3          Q      October 25th, 2005, "Nightmares

  4   continue," right?

  5   A      Right.

  6          Q      November 1st, 2005, "Nightmares

  7   continue," right?

  8   A      On November when?

  9          Q      1st.

 10   A      Oh, yes, yes.

 11          Q      November 7, "Patient still has

 12   nightmares," right?

 13   A      Yes.

 14          Q      November 14, again, "Nightmares,"

 15   right?

 16   A      Yes.

 17          Q      November 21st, 2005, Dr. Almeleh

 18   again notes, "Nightmares continue," right?

 19   A      November -- November 21st?

 20          Q      Yes.

 21   A      Yes.

 22          Q      November 28th, 2005, "Nightmares

 23   continue," right?

 24   A      Yes.

 25          Q      November -- December 16th, 2005,


 

00105

  1   "Nightmares continue," right?

  2   A      November -- December 5th you said?

  3          Q      December 16th?

  4   A      I'm sorry.  Yes, it says that.

  5          Q      December 22nd, 2005 the doctor

  6   wrote, "Patient was up all night," right?  You

  7   see that?

  8   A      Yes, I do.

  9          Q      "Very depressed," you see that?

 10   A      Yes.

 11          Q      "Recalls events of the night at

 12   the firehouse," right?  This is --

 13   A      Yes, I see it.

 14          Q      This is December of 2005, right?

 15   A      Right.

 16          Q      "Cried," right?

 17   A      Yes.

 18          Q      Doctor wrote that he cried.

 19   "States he was really scared"?

 20   A      States, yes.

 21          Q      Right?

 22   A      Yeah, he states that.

 23          Q      He states that, right?

 24   A      Yes.

 25          Q      And the doctor didn't say, "I


 

00106

  1   don't believe him" in these notes, did he?

  2   A      No, he writes what his patient tells him.

  3          Q      Do you think he just writes down

  4   whatever his patient tells him?

  5   A      This is actual -- an actual -- yeah, I

  6   said.

  7          Q      Sometimes he puts things in

  8   quotes, right?  And sometimes he says, "Patients

  9   states."  Other times he says that he has PTSD,

 10   right?  It's his opinion?

 11   A      Talks about symptoms of PTSD, not the

 12   diagnosis.

 13          Q      Let's show you what's been marked

 14   P-29.

 15   A      This is not his medical record; this is a

 16   letter to you.

 17          Q      Doctor --

 18                 MS. SMITH:  Your Honor, can we

 19   please?

 20                 JUDGE CURRAN:  There is no

 21   question, Doctor.

 22                  I am going to strike the last

 23   comment.

 24   BY MS. SMITH:

 25          Q      On January 19th, 2005 you want to


 

00107

  1   add up all the hours -- all the visits that

  2   Mr. Carter had or are you going to take my word

  3   for it that he visited with Dr. Almeleh 85

  4   times?

  5   A      I'll -- I'll accept it.

  6          Q      Okay.  And in all the visits that

  7   Mr. Carter had with Dr. Almeleh, Dr. Almeleh

  8   decided that he has all the major symptoms of

  9   posttraumatic stress disorder on January 9th,

 10   2005; and he wrote that, right?  Do you see that

 11   Dr. Almeleh wrote that on January 9, 2005, yes

 12   or no, in what I just gave you, P-29?

 13   A      Oh.  Yes.

 14          Q      It says, "Prior to the firehouse

 15   events in the spring of 2004 Mr. Carter had been

 16   making tremendous progress with the use of

 17   medication to treat his attention deficit

 18   problem, and with psychotherapy his self-esteem

 19   had risen and he had obtained a job."  Do you

 20   see that?

 21   A      Yes.

 22          Q      "After the firehouse events in the

 23   spring of 2004 there has been a dramatic

 24   deterioration in his psychiatric condition."  Do

 25   you see that?


 

00108

  1   A      I did -- I do, yes.

  2          Q      "His sleep is now very poor.  He

  3   has recurrent nightmares."  You see that?

  4   A      Yes.

  5          Q      "His self-esteem has fallen

  6   dramatically, and he is diffusely anxious.  He

  7   has all the major symptoms of posttraumatic

  8   stress disorder," right?  That's what this

  9   doctor wrote, right?

 10   A      That is what he wrote.

 11          Q      "To this date Mr. Carter's

 12   functioning remains very poor."  That's what he

 13   wrote, right?  See the bottom paragraph?

 14   A      Oh.  Yes.

 15          Q      "His symptoms of posttraumatic

 16   stress disorder have not improved," that's what

 17   the doctor wrote, right?

 18   A      Yes.

 19          Q      "He has lost his job.  The stress

 20   of recent events has caused a deterioration in

 21   the relationship with his life partner.  And I

 22   have had to increase the frequency of his

 23   treatment to once a week."  See that?

 24   A      Yes.

 25          Q      And then Dr. Almeleh writes, "At


 

00109

  1   our most recent treatment session I even

  2   entertained the possibility of psychiatric

  3   hospitalization."  That's what his doctor wrote,

  4   right?

  5   A      Yes.

  6          Q      And he spent more than two hours

  7   with him, right?

  8   A      But it is not here.  It's in this --

  9          Q      Doctor, could you please --

 10   A      Okay.  I'm sorry.

 11          Q      -- answer my questions?

 12                 MS. SMITH:  Judge, can we strike

 13   that.

 14                 JUDGE CURRAN:  Stricken.

 15                  Please answer the question.  And

 16   the question is:  And he spent more than two

 17   hours with him, right?

 18                 THE WITNESS:  Yes.

 19   BY MS. SMITH:

 20          Q      And in fact, the -- Dr. Almeleh

 21   notes that he is treating Mr. Carter for PTSD in

 22   his notes, doesn't he?

 23   A      Can you give me the reference?

 24          Q      How about -- the -- let's start

 25   with May 13th, 2004.


 

00110

  1   A      May 13th, yes.

  2          Q      You see that?

  3   A      Okay.

  4          Q      He is continuing to treat him for

  5   PTSD, you see that in the notes?

  6   A      Yes.

  7          Q      And in January of '06, January 3rd

  8   of '06, "Still feels effects of PTSD," you see

  9   that?

 10   A      January of '06?

 11          Q      January 3, '06.

 12   A      Yes.

 13          Q      January he also says, "He feels

 14   people can hurt him, and he is frightened of

 15   them," right?  January 3, '06.

 16   A      "Intimidation," he says, not --

 17          Q      Doesn't say.  "Feels people can

 18   hurt him and is frightened of them" on

 19   January 3rd, 2006?  "Still feels effects of

 20   PTSD."  You see that?

 21   A      Yes.

 22          Q      Okay.  And then it says, "Feels

 23   people can hurt him and is frightened of them."

 24   Do you see that?

 25   A      He says that, yes.


 

00111

  1          Q      Okay.  And on January 11th, 2006

  2   Dr. Almeleh notes, "Anxiety walking the streets

  3   continues, as does nightmares."  You see that?

  4   A      Yes.

  5          Q      January 17th, 2006, "Nightmares

  6   intensify."  You see that right in the middle?

  7   A      Yes.

  8          Q      And on January 24th, 2006 it says,

  9   "Pressure of recent events, firehouse and their

 10   own PTSD causes them to take it out on each

 11   other."  He is talking about his relationships

 12   with Peter -- his relationship with Peter.

 13   "Still anxious when outside.  Nightmares of

 14   vulnerability continue," right?

 15   A      Yes.

 16          Q      And -- and for purposes of this

 17   trial we don't have any records after February

 18   of 2006; is that right?

 19   A      That's right.

 20          Q      That's where they end for us?

 21   A      Yeah, for me too, February 20th, '06.

 22          Q      February of '06, right?

 23   A      Yes.

 24          Q      You said -- you said yesterday Tim

 25   was content with the way his life was going.  Do


 

00112

  1   you remember saying that to this jury?

  2   A      I think so.

  3          Q      Yeah.  And he told you when he met

  4   with you that he had been so scared, didn't he?

  5   A      That he had been scared on -- on that

  6   date?

  7          Q      He said, "I have been so scared,"

  8   didn't he?

  9   A      On April, yes.

 10          Q      Huh?

 11   A      On April '04, April 25th.

 12          Q      And he said that it's difficult

 13   for him to relive the events of April 2004,

 14   didn't he?

 15   A      He probably said that to me.  He

 16   reported.

 17          Q      He told you he has suffered,

 18   didn't he?

 19   A      I'm sorry?

 20          Q      He told you he has suffered?

 21   A      He has suffered, yes.

 22          Q      And he told you that Peter is

 23   broken down, didn't he?

 24   A      Most likely he used that --

 25          Q      And he told you that he was very


 

00113

  1   scared of coming to see you, right, "because

  2   every time -- at least you can understand this.

  3   Every time I have to relive this whole thing"?

  4   He said that to you, didn't he?

  5   A      Most likely he did.

  6          Q      He said that in your testimony --

  7   in your report at page 45 you said the opposite

  8   of people with PTSD.  "Immediately following the

  9   events of April 2004 Mr. Carter acted

 10   appropriately and did not panic."  You said that

 11   in your report, right?

 12   A      What number is this?

 13          Q      I -- page 45.

 14   A      Oh, 45?

 15          Q      Uh-huh.

 16   A      Okay.  I found it, yes.

 17          Q      Okay.  Were you aware that

 18   Mr. Carter put newspaper up to cover the windows

 19   so that the firefighters couldn't see in the

 20   house?

 21   A      I don't think I was -- he didn't report

 22   that to me.

 23          Q      Well, you only had one day of his

 24   deposition, we can agree on that, right?

 25   A      Yes.


 

00114

  1          Q      Were you aware that Mr. Carter put

  2   baking soda down on the porch and steps so that

  3   if somebody left footprints, that he imagined

  4   that he would be able to see the footprints?

  5   Are you aware of that?

  6   A      He didn't tell me that, no.

  7          Q      You are aware that he would tell

  8   Mr. deVries that he thought there was somebody

  9   in the bushes, right?  You're aware of that,

 10   right?

 11   A      Yeah -- I'm sorry, not in the bushes

 12   but -- no, that somebody rang the bell and ran

 13   into the bushes, not that somebody was hiding in

 14   the bushes.

 15          Q      Oh, he did tell you -- he told you

 16   all about the ring and run, that the firemen

 17   would ring their bell and run away?  He told you

 18   all about that, right?

 19   A      Yes, yes.

 20          Q      But you don't know from Dr.

 21   Almeleh's notes or any of the interviews that

 22   Mr. Carter would tell Mr. deVries that there was

 23   somebody in the bushes, that he feared somebody

 24   was right outside their house?  You don't recall

 25   that?


 

00115

  1   A      It wouldn't -- probably.  I don't

  2   remember exactly, but yes.

  3          Q      And you told the jury that Tim was

  4   content with the way his life was going

  5   yesterday, right?

  6   A      Yes.

  7          Q      When Mr. Carter met with you, the

  8   last thing he said to you was, "Like Dorothy

  9   Parker used to say, what fresh hell is this?"

 10   That's what he said to you, didn't he?  "What

 11   fresh hell is this?"

 12   A      Probably.  I remember vaguely.

 13          Q      You don't remember that?

 14   A      No.

 15                 MS. SMITH:  I have no further

 16   questions.

 17                 JUDGE CURRAN:  Thank you.

 18                  Mr. Bevere.

 19                 MR. BEVERE:  Judge, do you want to

 20   take a lunch break?

 21                 JUDGE CURRAN:  Sure.

 22                 MR. BEVERE:  I mean, it might be

 23   appropriate.

 24                 JUDGE CURRAN:  Ladies and

 25   Gentlemen, we will take the lunch break.  Again


 

00116

  1   I will remind you, please do not discuss the

  2   case among yourselves.  Please do not discuss

  3   the case with anyone else.

  4                  Doctor, please sit down.

  5                 THE WITNESS:  Oh, I'm sorry.

  6                 JUDGE CURRAN:  Thank you.

  7                  Ladies and Gentlemen, one thing I

  8   neglected to do earlier, and I apologize.

  9   Obviously, Juror Number 2 is not here.  And I

 10   didn't want you to think anything nefarious had

 11   happened to him.  He has been excused from the

 12   jury.  He indicated to us at the very beginning

 13   an obligation that he had that would preclude

 14   his remaining here beyond, basically, the time

 15   that he had given us.  So he was excused

 16   yesterday.  And again, please don't in any way

 17   speculate on it.  He told us from the very

 18   beginning about an obligation; and he,

 19   therefore, has been excused.

 20                  Okay.  Thank you.  We will see

 21   you at 1:30.  Thank you.

 22                 (Whereupon, the jury is excused

 23          for lunch.)

 24                 (Whereupon, a luncheon recess is

 25          taken.)


 

00117

  1           A F T E R N O O N  S E S S I O N

  2                 MS. HAWKS:  Jurors are

  3   approaching.

  4                 JUDGE CURRAN:  Thank you.

  5                 MS. HAWKS:  You're welcome.

  6                 (Whereupon, the jury is brought

  7          into the courtroom.)

  8                 JUDGE CURRAN:  Back on the record.

  9                 COURT CLERK:  On the record.

 10                 JUDGE CURRAN:  Good afternoon,

 11   Ladies and Gentlemen.  We're going to continue

 12   with the cross -- I'm sorry, the redirect of Dr.

 13   Goldwaser.

 14                  And I am required to remind you

 15   that you are still under oath.

 16                 THE WITNESS:  Yes.

 17                 JUDGE CURRAN:  Thank you.

 18                  Mr. Bevere.

 19                 MR. BEVERE:  Thank you, Your

 20   Honor.

 21   REDIRECT EXAMINATION BY MR. BEVERE:

 22          Q      Dr. Goldwaser, how many pages was

 23   your report for Mr. deVries?

 24   A      For Mr. deVries -- I am going to refer to

 25   it -- it was 80 pages.


 

00118

  1          Q      And how long was your report for

  2   Mr. Carter?

  3   A      Fifty-three.

  4          Q      Now, Doctor, what was the basis

  5   for your understanding that Mr. deVries was on

  6   antidepressant medication during the time that

  7   he was living in Minnesota?

  8   A      For the treatment of mental depressive

  9   disorder recurrent.

 10          Q      No, no, what was -- what was the

 11   basis of your understanding?

 12   A      Oh, I see.

 13                 MS. SMITH:  Objection, asked and

 14   answered.

 15                 MR. BEVERE:  Judge, he was clearly

 16   confused by the question.

 17                 JUDGE CURRAN:  I am going to

 18   overrule the objection.  The witness will be

 19   allowed -- I will ask Mr. Bevere to repeat the

 20   question.

 21                 MR. BEVERE:  Sure.

 22                 JUDGE CURRAN:  Then it will be

 23   allowed.  The objection is preserved.

 24   BY MR. BEVERE:

 25          Q      What was the basis for your


 

00119

  1   understanding that Mr. deVries was on

  2   antidepressant medication while he was living in

  3   Minnesota?

  4   A      He mentioned that.  He actually said it

  5   during his deposition time.  He mentioned that

  6   while he was there he was taking medication.

  7          Q      Did you review an entry in his

  8   deposition to that effect?

  9   A      Yes.

 10          Q      Can you read to us from page 445

 11   at the deposition starting with line 4?

 12                 MR. BEVERE:  Objection.

 13                 JUDGE CURRAN:  Sustained.

 14                  You can ask him a question, see

 15   if he remembers or whatever.  Why are you asking

 16   him to read from --

 17                 MS. SMITH:  Right.

 18                 MR. BEVERE:  From Mr. deVries'

 19   deposition.

 20                 JUDGE CURRAN:  Okay.  Well, you

 21   have to go about that a little different way.

 22                  I'm sorry I interrupted you.  Is

 23   there any other objection?

 24                 MS. SMITH:  I -- I object to the

 25   leading; and I object to the reading of


 

00120

  1   deposition testimony, both, Your Honor.

  2                 JUDGE CURRAN:  Normally is

  3   somewhat different.  I frankly overlooked the

  4   leading.  I should not have.  But you can't have

  5   him read from Mr. deVries' deposition, certainly

  6   not.

  7                 MR. BEVERE:  Can I show him the

  8   deposition to refresh his recollection?

  9                 JUDGE CURRAN:  Any objection?

 10                 MS. SMITH:  Yes, I have an

 11   objection.  This is redirect.  This is beyond

 12   the scope.  Clearly, Mr. -- Dr. Almeleh didn't

 13   claim that he relied on Mr. deVries' deposition

 14   testimony for any specific --

 15                 JUDGE CURRAN:  You mean

 16   Dr. Goldwaser?

 17                 MS. SMITH:  I'm so sorry, thank

 18   you.  Dr. Goldwaser has not claimed to rely

 19   on -- other than that he didn't need to take

 20   breaks, Dr. Goldwaser has not relied on anything

 21   said in a deposition testimony in his testimony

 22   either the Thursday before last or today.  So

 23   this is clearly beyond the scope of cross.  And

 24   there is no foundation either.

 25                  But this is clearly beyond.  The


 

00121

  1   only mention of deposition in the entire case so

  2   far with regard to Dr. Goldwaser's testimony is

  3   with regard to my clients didn't have PT -- one

  4   example of why they didn't have PTSD is because

  5   they could sit through depositions.  Nothing

  6   specific out of any deposition was -- has been

  7   mentioned by Dr. Goldwaser.

  8                 JUDGE CURRAN:  That's my

  9   recollection, Mr. Bevere.  If you want to go to

 10   sidebar, we can go to sidebar?

 11                 MR. BEVERE:  I don't want to go to

 12   sidebar.  He can quote from a deposition, part

 13   of his report, part of the materials he reviewed

 14   in and relied on in coming to the conclusions in

 15   his case.

 16                 JUDGE CURRAN:  What's the proffer,

 17   then?  You asked him a question.  He answered

 18   it.  What's the basis for then having him read

 19   the deposition testimony?  Is it to refresh his

 20   recollection?  Because if so, it's not going

 21   to -- it can't be done that way.

 22                 MR. BEVERE:  I want the jury to

 23   hear the testimony.

 24                 JUDGE CURRAN:  That's what I was

 25   thinking here, Mr. Bevere; but you can't do it


 

00122

  1   this way.

  2                 MR. BEVERE:  All right.  Your

  3   Honor.

  4                 JUDGE CURRAN:  All right.  I will

  5   note your objection on the record.

  6   BY MR. BEVERE:

  7          Q      Doctor, do you recall as you are

  8   sitting here today what Mr. deVries said in his

  9   deposition about medication while he was in

 10   Minnesota?

 11                 MS. SMITH:  Objection, beyond the

 12   scope.

 13                 JUDGE CURRAN:  Want to go to

 14   sidebar?

 15                 MR. BEVERE:  I don't think we need

 16   to go to sidebar.  I will show you the --

 17                 MS. SMITH:  No, no.  Judge, I want

 18   to go to sidebar because I don't like this --

 19                 JUDGE CURRAN:  All right.

 20                 (Whereupon, the following sidebar

 21          discussion is held.)

 22                 JUDGE CURRAN:  What page, Mr.

 23   Bevere?

 24                 MR. BEVERE:  Judge, I'm looking at

 25   page 220 of the transcript.  Miss Smith asks --


 

00123

  1                 JUDGE CURRAN:  I'm sorry?

  2                 MR. BEVERE:  Miss Smith asks, page

  3   220 of the transcript, "You don't have any

  4   medical records whatsoever from 1994 to 2003, do

  5   you?"

  6                  "No, I don't."

  7                  "In fact, on November 7th, 2003

  8   Dr. Almeleh mentions Mr. deVries had been off of

  9   Zoloft for seven years, didn't he?"

 10                  Answer, "Dr. Almeleh said he had

 11   been taking medication and he changed different

 12   medications.  And actually, his deposition,

 13   Mr. deVries said he wasn't" --

 14                  Miss Smith says, "Judge.

 15                  -- "treatment receiving

 16   antidepressant by his internist that his family

 17   physicians all along in Minnesota and here.  And

 18   Dr. Almeleh said the same thing, that he had

 19   been changing Effexor and other

 20   antidepressants."

 21                  He referred specifically to the

 22   deposition.

 23                 MS. SMITH:  I withdraw my

 24   objection, Your Honor.

 25                 JUDGE CURRAN:  Thank you.  We


 

00124

  1   appreciate it.  Thank you.

  2                 (Whereupon, sidebar discussion is

  3          concluded.)

  4                 JUDGE CURRAN:  Mr. Bevere.

  5                 MR. BEVERE:  Your Honor, can I

  6   just look at my last question?

  7                 JUDGE CURRAN:  Surely.

  8   BY MR. BEVERE:

  9          Q      Doctor, as you are sitting here

 10   today do you recall what Mr. deVries said in his

 11   deposition about medication while he was in

 12   Minnesota?

 13   A      Yes, he said that he was taking -- he --

 14   he was taking medication for the treatment of

 15   depression while he was in Minnesota during

 16   those years for several years he said.

 17          Q      Do you know what medication that

 18   was?

 19   A      Zoloft.

 20          Q      Now, Doctor, why did you tell this

 21   jury yesterday that in November -- on

 22   November 7th, 2003 Mr. deVries was in the throws

 23   of a depressive relapse?

 24   A      Because according to the notes of Mr. --

 25   Dr. Almeleh that I reviewed, that was when he


 

00125

  1   resumed, once again, the treatment and Dr.

  2   Almeleh recognized that he had depressive

  3   relapse.  And he was feeling, again, very bad.

  4   He was feeling -- without energy.  He started

  5   going downhill.  And this is why he resumed the

  6   treatment.  He had stopped taking the medication

  7   a few months before, and he suffered a relapse.

  8   And that was the beginning of that relapse.

  9          Q      Now, Doctor, when you testified a

 10   week-and-a-half ago, did you tell us that there

 11   was a period of time between November 2003 and

 12   April 2005 when Mr. deVries was feeling better?

 13   A      Yes, clearly.

 14          Q      And what did you tell us that that

 15   feeling was attributed to?

 16   A      That -- that feeling better, that surge

 17   of energy was related to his having taken, as I

 18   said two weeks ago, a week-and-a-half ago, he

 19   started taking without a prescription a product

 20   that is a combination of different types of

 21   amphetamines, which is a stimulant.  He had

 22   started taking it at -- at around that time, the

 23   beginning of -- middle of -- of December.  And

 24   there was that surge of energy.

 25            And also, at the same time, there was


 

00126

  1   another effect that was positive for him.  He

  2   started losing weight, and his appetite started

  3   to be curbed.  Amphetamines, this particular

  4   product, Adderall, causes stop -- decreases

  5   appetite.  People eat less because of that.  And

  6   the other thing is people have more energy and

  7   they actually lose weight.  And he had started

  8   to lose weight, as his cardiologist had

  9   recommended in July, a few months prior to that

 10   he should do.

 11          Q      And what, if any, adjustments in

 12   Mr. deVries' medication were made in or around

 13   March of 2004?

 14   A      In March the antidepressant medication

 15   was discontinued.  There were -- there were two

 16   issues, two reasons for that.  One is that he

 17   was taking the Adderall, the stimulant and that

 18   provided that surge of energy.  The other thing

 19   is the Lexapro, together with the Toprol --

 20   Toprol is the medication for the heart, for the

 21   heart to beat in the -- regularly.  Dr. Almeleh

 22   was concerned that the Lexapro was causing side

 23   effects.  And one of them was light-headedness

 24   that can cause one to fall and so on and get

 25   hurt.


 

00127

  1            So he had a conference with the

  2   cardiologist, Dr. Pumill -- that was in March --

  3   in which they discussed that.  And Dr. Almeleh

  4   did not want to stop the Lexapro, which at that

  5   time Mr. deVries didn't care much about the

  6   Lexapro because the Adderall was making him feel

  7   good and he was taking rapidly a lot of

  8   medication.  And at that time he felt well, and

  9   he said he -- he liked his job and -- and he

 10   was -- he was feeling good.  The conversation

 11   with Dr. --

 12                 MS. SMITH:  Objection.  I don't

 13   know what question is being answered anymore.

 14   We were starting --

 15                 MR. BEVERE:  Judge, I will be

 16   happy to ask another question.

 17                 JUDGE CURRAN:  Thank you.

 18   BY MR. BEVERE:

 19          Q      Okay.  And what happened after the

 20   Lexapro was discontinued?

 21   A      He started -- his -- his mood, his

 22   depressive mood started to surface again.

 23          Q      Now, Miss Smith asked you to read

 24   a notation on cross-examination of Dr. Almeleh's

 25   from March 19th, 2004.  And I'm going to ask you


 

00128

  1   to -- oh, you have it in front of you?

  2   A      I have it here, yes.

  3          Q      Okay.  If you could read us that

  4   entry from Dr. Almeleh.

  5   A      March 19th, 2004?

  6          Q      Yes.

  7   A      "Patient has stopped Lexapro.  Feels just

  8   as well with just Adderall.  Patient having" --

  9   "patient having problems at work, being" --

 10   either "reprimanded" or "overworked" -- "began

 11   working 12 to 13 hours a day.  Old" -- "Old boss

 12   quit, who patient did not like.  Up at 6 in the

 13   morning.  Goes to sleep at 11, 11:30.  No naps

 14   in the evening.  Adderall he was taking in

 15   divided doses.  He was taking 80 milligrams a

 16   day."  And then there is an aspect here that I

 17   cannot read.  He was -- Dr. Almeleh told the

 18   patient something, but I cannot read it.  It's

 19   cut.

 20          Q      Doctor, how long prior to this

 21   entry had the Lexapro been discontinued?

 22   A      The Lexapro was discontinued either at

 23   the end of February or at the very beginning of

 24   March of 2004.

 25          Q      All right.  Now, Dr. Almeleh also


 

00129

  1   made an entry on April 9th, 2004.  If you could

  2   read us that entry.

  3   A      Yes, "Patient is going for interview with

  4   old job.  Discussed strategy.  Was" -- "want to

  5   go back but would like benefits as before and

  6   higher salary.  Patient" -- "patient" -- "I

  7   think, actually, is feeling more depressed,

  8   sleeping longer.  Is" -- "is this

  9   environmentally" -- "environment" --

 10   "environmentally related to dislike of present

 11   job or biological depression?  Patient will

 12   be" -- "will be encouraged to sleep" --

 13   "encouraged to cut sleep longer," I think it

 14   says, "and hopefully with old job back

 15   Adderall" -- "and Adderall, he'll feel okay."

 16            Problem is the beta-blockers, the

 17   Toprol, the medication for the heart, and

 18   increased Adderall and antidepressants that

 19   would -- antidepressants that would inhibit the

 20   beta-blockers, the medication for the heart.  So

 21   he will -- will await change of job and make

 22   decisions later.

 23          Q      All right.  So what's your

 24   understanding of what was going on at this

 25   visit?


 

00130

  1   A      There was a question whether this was

  2   environmentally related, meaning his dislike for

  3   the job that was causing this depression or it

  4   was the biological, the problem with the brain

  5   that cyclically will trigger depression.  And

  6   Dr. Almeleh did not know for sure which one it

  7   was.  And he was trying -- he was trying to find

  8   out what was the best combination of treatment

  9   to treat his depression without conflicting with

 10   the medication for the heart.

 11          Q      Now, Doctor -- all right.  Now,

 12   Miss Smith asked you some questions on

 13   cross-examination about nightmares?

 14   A      Yes.

 15          Q      And my question to you is:  When

 16   you conducted your examination of Mr. deVries,

 17   were you aware that Mr. deVries had reported

 18   nightmares to Dr. Almeleh?

 19   A      Yes.

 20          Q      And did you discuss the issue of

 21   nightmares with Mr. deVries in your examination?

 22   A      Yes.

 23          Q      What did you discuss with

 24   Mr. deVries about the nightmares?

 25   A      That was a symptom or phenomenon he


 

00131

  1   brought up when I asked him about what problems

  2   he was having.  And he brought up that one of

  3   them was having nightmares.  And in discussion

  4   he really came up with three nightmare or

  5   anxiety dreams that he had.

  6          Q      And did you include those

  7   discussions in your report?

  8   A      Yes.

  9          Q      How do you account for

 10   Mr. deVries' report of nightmares in regard to

 11   your opinions and conclusions in this case?

 12   A      At the time that he was reporting it to

 13   the treating psychiatrist back then, what we see

 14   written here is the report of nightmares,

 15   period.  There is no description of a nightmare.

 16   There is no interpretation of the nightmare.  A

 17   nightmare -- a dream, in general, means many

 18   different things.  It doesn't -- doesn't mean

 19   what we remember.  It means many other things.

 20   There are many distortions in a dream.  There is

 21   no -- and -- and with Dr. Almeleh, he was doing

 22   psychotherapy and medication, he told me.  And

 23   the same he was doing with Miss Hines.

 24            There is no -- there is no exploration

 25   of these dreams, which is one of the aspects


 

00132

  1   that we do when we treat posttraumatic stress

  2   disorder, because we have access to unconscious

  3   processes, processes that we are not aware of,

  4   that only manifest when we are sleeping.  There

  5   is nothing here other than the report of dreams,

  6   including, when he later on went for a -- an

  7   IME, he reported that he was having nightmares

  8   also and he had reported for a long time

  9   nightmares.

 10            and when Dr. Bursztajn asked him for a

 11   nightmare, he couldn't come up with any.  And he

 12   was given a homework assignment to bring a

 13   dream.  When he came to me, he already had three

 14   dreams that he readily -- and one of them was a

 15   classical one, as he saw it and as he defined

 16   it, as he thought it to mean this is a very good

 17   one.

 18          Q      Now, Doctor, you used a term

 19   "self-reporting" in response to one of

 20   Miss Smith's questions.  What does

 21   "self-reporting" mean?

 22   A      Meaning it's -- if it is -- if it is true

 23   or it is not, if it exists or it does not exist,

 24   there is no way of knowing because there is

 25   somebody that is reporting.  In a treatment


 

00133

  1   situation it's different -- different than in a

  2   forensic situation.  In a treatment situation we

  3   trust.  We are supposed to trust because that is

  4   how we build a relationship that is curative.

  5   It helps to heal.

  6            In a forensic setting it's very

  7   different.  It's something that the person tells

  8   us who is in litigation situation.  We need to

  9   be able to -- to find it, to find objectively

 10   what the person or the examinee is reporting

 11   subjectively.  It's totally different than

 12   taking it at face value when we actually treat

 13   somebody.  They are two different procedures.

 14          Q      Now, Doctor, there was also -- I

 15   guess, Doctor, my question was:  How did you

 16   account for the reports of nightmares in

 17   reaching your conclusions and opinions in this

 18   case?

 19                 MS. SMITH:  Objection, asked and

 20   answered.

 21                 JUDGE CURRAN:  I will overrule it

 22   at this point.

 23   BY MR. BEVERE:

 24   A      Based on -- based on what he reported and

 25   based on what at the same time I learn about him


 

00134

  1   from all the other records, including my meeting

  2   with him, but much later, at the time he was

  3   reporting all this I couldn't give to -- to the

  4   report of nightmares of either individual any --

  5   any particular weight.  It is described as in

  6   PTSD, posttraumatic stress disorder, the

  7   possibility they will note it; but it doesn't

  8   happen all the time.  But it does happen, the

  9   presence of nightmares.

 10            In this particular situation, where I

 11   said, I remembered, two weeks ago that we

 12   monitor for feelings, thoughts or thinking and

 13   actions to be able to -- to understand and reach

 14   a conclusion, a diagnosis of treatment.  And is

 15   on -- based on all that I could not give to this

 16   report of dreams -- of anxiety dreams much

 17   weight.

 18          Q      All right.  Now, Doctor, we also

 19   talked about the issue of avoidance.  And

 20   Miss Smith asked you if you were aware that

 21   Mr. deVries stopped seeing Dr. Pumill because he

 22   was in Secaucus.  What, if any, discussions did

 23   you have with Mr. deVries about that issue?

 24   A      Yes, he told me that months later --

 25   right now I don't remember exactly when.  It was


 

00135

  1   after -- I believe after he moved out of

  2   Secaucus he continued seeing his doctors, not

  3   just the cardiologist but other doctors, even

  4   though he was not living in the area anymore and

  5   he was doing a lot of activities in that -- in

  6   that area of Secaucus.

  7            He said that he was in the waiting

  8   room, sharing the waiting room with other

  9   patients waiting for Dr. Pumill and somebody

 10   came in that he thought was a fireman and then

 11   he -- I believe this is what he told me -- I'd

 12   have to read it again -- he went to the bathroom

 13   or he immediately got up and pretended to go to

 14   the bathroom and maybe he went to the bathroom

 15   or maybe not, I'm not sure.  But then he never

 16   went back to that office because he felt very

 17   afraid that that person that came to the office

 18   of the doctor, he thought, was a fireman,

 19   firefighter.

 20          Q      In your report does Mr. deVries

 21   say when that happened?

 22   A      It was sometime months after he had moved

 23   out of there, of Secaucus.  Yes, it was in

 24   January of 2006.

 25          Q      Okay.  Doctor, I'm going to show


 

00136

  1   you what was P-38, Bates stamp 483, and ask you

  2   if you know what this is.

  3                 MS. SMITH:  Sorry, what are you

  4   showing him?

  5                 MR. BEVERE:  Bates stamp 483 from

  6   P -- Dr. Pumill's records, which is P --

  7                 JUDGE CURRAN:  38.

  8                 MR. BEVERE:  -- 38.

  9                 MS. SMITH:  What Bates stamp

 10   number?

 11                 MR. BEVERE:  483.

 12   BY MR. BEVERE:

 13   A      Yes, it's a --

 14                 MR. MULLIN:  Hold it a second.

 15                 THE WITNESS:  I'm sorry.

 16                 MR. MULLIN:  That's okay.

 17                  What was the Bates again?

 18                 MR. BEVERE:  483.

 19                 MR. MULLIN:  In P-38?

 20                 MR. BEVERE:  Yes.

 21                 MR. MULLIN:  Can you show it to

 22   me, please?

 23                 MR. BEVERE:  Sure.

 24                 MR. PARIS:  What's the Bates

 25   stamp, please?


 

00137

  1                 MR. BEVERE:  483.

  2                 MR. MULLIN:  P-104.

  3                 MR. BEVERE:  I'm sorry, P-104,

  4   Bates stamp 483.

  5   BY MR. BEVERE:

  6          Q      Doctor, can you tell us what this

  7   is?

  8   A      Yes, this is -- it's called an

  9   "echocardiogram."  It's a test to see how the

 10   heart is functioning, how the heart looks.  It's

 11   a test done on May 18th, 2006.

 12          Q      Who performed the test?

 13   A      Dr. Pumill.

 14          Q      And what office?

 15   A      In Secaucus.

 16          Q      What --

 17                 MS. SMITH:  Where does it say --

 18   objection.  Where does it say where -- that's

 19   where it was conducted?

 20                 MR. BEVERE:  Office --

 21                 MR. MULLIN:  That is the referring

 22   doctor.

 23                 MS. SMITH:  That is the referring

 24   doctor.  That doesn't say where it was

 25   conducted.


 

00138

  1   BY MR. BEVERE:

  2          Q      Doctor, who conducted the test?

  3                 MS. SMITH:  And how do you know?

  4   I would like foundation, please, Your Honor.

  5   A      This is --

  6                 JUDGE CURRAN:  Well --

  7                 MR. BEVERE:  Judge -- Judge, I

  8   will be happy to come to sidebar, if you want to

  9   do it there.

 10                 MS. SMITH:  I would like to come

 11   to sidebar, Your Honor.

 12                 JUDGE CURRAN:  Thank you.

 13                 (Whereupon, the following sidebar

 14          discussion is held.)

 15                 MS. SMITH:  This is a report from

 16   Cross-Country Cardiology in Edgewater, New

 17   Jersey.

 18                 JUDGE CURRAN:  May I just see it?

 19   Oh, thank you.

 20                 MS. SMITH:  The referring doctor's

 21   office is in Secaucus.  The referring doctor

 22   is --

 23                 MR. BEVERE:  Judge, let me get the

 24   other cardiology records.

 25                 JUDGE CURRAN:  Mr. Bevere, if you


 

00139

  1   look at just the letterhead, forget the legal

  2   aspects, it -- it's signed by Dr. Pumill --

  3   Pumill.

  4                 MR. BEVERE:  Yes.

  5                 JUDGE CURRAN:  He is on the

  6   letterhead, and he is on the letterhead only

  7   with an Edgewater address.

  8                 MR. BEVERE:  Every one of his

  9   records has a heading of an Edgewater address.

 10   And it was the testimony in this case that the

 11   plaintiffs saw him in Secaucus.  And it is --

 12   the plaintiff's testimony was that he never saw

 13   Dr. Pumill again after he saw those people in

 14   the office.  So he ran from his cardiologist.

 15                 JUDGE CURRAN:  So he has more than

 16   one office?

 17                 MR. BEVERE:  Apparently --

 18   apparently, there is an Edgewater office.  But

 19   importance of the testimony is that

 20   Mr. deVries -- Mr. deVries said that he never

 21   saw Dr. Pumill again after he ran out of his

 22   office.  That was the testimony.

 23                 MR. MULLIN:  Who are you saying

 24   did this?

 25                 MR. BEVERE:  Dr. Pumill.


 

00140

  1                 MR. MULLIN:  That's who signs off

  2   on this document.  Who actually did the test?

  3   This is in an Edgewater office.

  4                 MR. BEVERE:  Every --

  5                 MS. SMITH:  There is no good faith

  6   basis for this, Judge.

  7                 MR. BEVERE:  Every one of the

  8   records -- every one of the Cross -- if you

  9   look --

 10                 MS. SMITH:  What does that prove?

 11                 MR. BEVERE:  Go to 12/14/04, when

 12   we know he was seeing Dr. Pumill in Secaucus.

 13                 MS. SMITH:  There is no good faith

 14   basis for this.  He was -- he should have done

 15   this with my client, if he was going to do this,

 16   Your Honor.  There is no good faith basis that

 17   my client went to Secaucus for this test, none.

 18                 MR. MULLIN:  He is confronting

 19   this witness with a prior inconsistent statement

 20   he alleges of Mr. deVries.  He should have

 21   confronted Mr. deVries.  This is an improper use

 22   of a prior inconsistent statement.

 23                 MR. BEVERE:  Judge, Mr. deVries'

 24   statement as reported by this witness was that

 25   he never saw Dr. Pumill -- never went back -- he


 

00141

  1   was my cardiologist; I never went back to Dr.

  2   Pumill again.  That was the witness' testimony.

  3   Now, here it is in May of 2006 --

  4                 MS. SMITH:  That is not his

  5   testimony.  He said, "I had to change

  6   cardiologists."  He said he didn't go back to

  7   Secaucus.

  8                 JUDGE CURRAN:  He said he

  9   basically had to give up his cardiologist.

 10   Whether he said he never went back or not, I

 11   don't know.  You may be right about that.  The

 12   problem is I need a good faith basis for the

 13   fact that there is something that happened in

 14   Secaucus with Dr. Pumill.  Either he did or

 15   didn't do the test.  Maybe the test -- sometimes

 16   people send individuals to cardiac labs or

 17   something for all I know.

 18                 MR. BEVERE:  Judge, let me see if

 19   I can find -- let me see if I can find something

 20   because, first of all, it's signed -- it's

 21   signed by Dr. Pumill.  It's signed by --

 22   Mr. deVries testified that he never went back to

 23   Dr. Pumill, he lost his cardiologist, he had to

 24   find a new cardiologist.  That was his

 25   testimony.


 

00142

  1                 MR. MULLIN:  Is counsel going to

  2   produce Dr. Pumill?

  3                 MR. PARIS:  What difference does

  4   that make?

  5                 MR. MULLIN:  Counsel hasn't listed

  6   Dr. Pumill as a witness.  And why didn't counsel

  7   confront Mr. deVries with this alleged prior

  8   inconsistent statement, so he could explain?  If

  9   he had, Mr. deVries would have testified that

 10   this test was done near the Palisades Hospital

 11   on the Hudson in Edgewater.  This -- I -- I make

 12   that proffer.  Mr. deVries, had he been

 13   confronted, would have straightened this out in

 14   a second.  That's where -- he never went back to

 15   get a test in Secaucus during this time period.

 16                 JUDGE CURRAN:  Do you have

 17   anything?

 18                 MR. BEVERE:  Let me look for

 19   something.  Let me look for something.

 20                 JUDGE CURRAN:  At this point in

 21   the game -- I'm not saying it would be

 22   dispositive; but if we had a Yellow Page ad that

 23   listed a --

 24                 MR. MULLIN:  Interesting.

 25                 JUDGE CURRAN:  -- a Secaucus


 

00143

  1   address currently, at least that would be a -- a

  2   basis.

  3                 MR. BEVERE:  Okay.  Let me go to

  4   the records.  Okay.  Let me go to --

  5                 MR. PARIS:  Your Honor, in fact,

  6   all of the records show an Edgewater address.

  7                 JUDGE CURRAN:  Right, that's what

  8   Mr. Mullin said.

  9                 MR. PARIS:  Even when he was going

 10   to Secaucus.

 11                 JUDGE CURRAN:  I know.  But I

 12   don't know --

 13                 MR. BEVERE:  Here is

 14   echocardiogram report.  Echocardiogram report --

 15                 MS. SMITH:  So what?

 16                 MR. BEVERE:  -- Peter deVries,

 17   dated 7/27/01.

 18                 MS. SMITH:  What does that prove

 19   where it happened?

 20                 MR. BEVERE:  I am going to show

 21   you where it happened.

 22                 JUDGE CURRAN:  Same letterhead?

 23                 MR. BEVERE:  Same letterhead,

 24   okay, Edgewater, New Jersey.  Edgewater, New

 25   Jersey.  Here is Raffaelli.


 

00144

  1                 JUDGE CURRAN:  That is at least a

  2   decent proffer.

  3                 MR. BEVERE:  Raffaelli.

  4   Raffaelli.  Here the office is Edgewater.  Here

  5   the office is Secaucus.  Dr. Raffaelli isn't in

  6   Secaucus.

  7                 MR. MULLIN:  Your Honor, that

  8   doesn't tell us where these tests were done.

  9   You know, there was another office that -- there

 10   was another office --

 11                 MR. BEVERE:  Says, "Office:

 12   Secaucus."

 13                 MR. MULLIN:  Mr. deVries went

 14   to -- to get tests, and that was in Edgewater.

 15                 MS. SMITH:  If they cross-examined

 16   Mr. deVries about this -- they are trying to

 17   impeach Mr. deVries through this witness, and he

 18   doesn't have a chance to answer.

 19                 MR. PARIS:  What they tried to do

 20   is impeach Dr. Goldwaser about his understanding

 21   about losing Dr. Pumill, and Miss Smith

 22   cross-examined extensively about Mr. deVries

 23   walking out of the Secaucus office and losing

 24   his cardiologist and never going back again.

 25                 MS. SMITH:  No, I didn't say,


 

00145

  1   "never going back again."  He said he changed

  2   cardiologists.

  3                 MR. PARIS:  Yeah, and he said he

  4   never went back to Secaucus again.

  5                 MS. SMITH:  Right.  And he will

  6   testify to that again, if you would have

  7   cross-examined him; but you didn't.

  8                 MR. PARIS:  Your Honor, they want

  9   to know a good faith basis for putting this

 10   forward, when there is a echocardiogram

 11   specifically saying Edgewater office and this

 12   one says a Secaucus office.  They want to know

 13   if there is a good faith basis.  They raised

 14   question about Dr. Pumill.

 15                 JUDGE CURRAN:  I mean, that's at

 16   least good faith.

 17                 MR. PARIS:  Of course, it is.

 18                 JUDGE CURRAN:  I have never seen

 19   letterhead -- you know, most of the time

 20   doctors, like lawyers, like to put 14 locations

 21   down; but that doesn't matter.  They --

 22                 MR. MULLIN:  I'm sorry?

 23                 JUDGE CURRAN:  Is that '01.

 24                 MR. PARIS:  The '01 report says

 25   Edgewater.


 

00146

  1                 JUDGE CURRAN:  Edgewater on --

  2                 MR. BEVERE:  '06 report says

  3   Secaucus.

  4                 JUDGE CURRAN:  Poor Tracey, I

  5   don't know how you can type with us waving

  6   things in front of you.

  7                  Certainly, the letterhead on the

  8   '01 and the '06 says, as an address only,

  9   "Edgewater."

 10                  Now, in fairness, the '01 says as

 11   office Edgewater --

 12                 MR. PARIS:  Uh-huh.

 13                 JUDGE CURRAN:  -- and the '06 says

 14   as office Secaucus.  So that's -- it's a --

 15                 MR. PARIS:  Of course.

 16                 JUDGE CURRAN:  -- a fair proffer.

 17                 MR. MULLIN:  Your Honor, can I

 18   make my objection under Rule 613, prior

 19   statements of witnesses.  "613B, Extrinsic

 20   evidence of prior inconsistent statement of

 21   witness.  Extrinsic evidence of a prior

 22   inconsistent statement made by a witness may, in

 23   the judge's discretion, be excluded, unless the

 24   witness is afforded an opportunity to explain or

 25   deny the statement and the opposing parties


 

00147

  1   afford an opportunity to interrogate on the

  2   statement or the interests of justice as

  3   otherwise required.  This rule does not apply to

  4   admissions of a party opponent as defined in

  5   803B."

  6                  Let's start with this is not an

  7   admission of Mr. deVries, so this is extrinsic

  8   evidence.  To -- this is what they claim to be

  9   an inconsistent statement.  What Mr. deVries

 10   claimed, he didn't go back to Secaucus at some

 11   point in time for treatment.  So this is

 12   extrinsic evidence.  They did not afford

 13   Mr. deVries an opportunity to explain or deny

 14   this alleged prior inconsistent statement.  We

 15   did not have an opportunity to interrogate on

 16   the statement.

 17                 MS. SMITH:  Let me tell you

 18   something else.  Doesn't say what they said it

 19   said.  Mr. -- he -- we just heard the question

 20   that he never went back again.  Actually, the

 21   statement was, "That's when I decided I have to

 22   find another cardiologist."

 23                 JUDGE CURRAN:  That -- that's what

 24   Mr. deVries may have said.  I didn't remember

 25   his saying that.  However, I thought you were


 

00148

  1   referring to the question of Miss Smith this

  2   morning about --

  3                 MR. PARIS:  Of course.

  4                 JUDGE CURRAN:  -- not going back

  5   again, not Mr. deVries.

  6                 MS. SMITH:  I don't think I said

  7   not go back again.  He changed cardiologists.

  8                 JUDGE CURRAN:  Well, that I think

  9   is the question.

 10                 MR. PARIS:  Wait a minute.

 11                 MR. BEVERE:  Judge, there is

 12   another issue too.

 13                 MR. PARIS:  Excuse me.  Number

 14   one, that rule does not apply.  This is not an

 15   extrinsic statement of Mr. deVries, so this is

 16   not a prior inconsistent statement of

 17   Mr. deVries, number one.  So that rule doesn't

 18   apply.

 19                  Number two, what Miss Smith seems

 20   to be reading from is the interview between

 21   Mr. deVries and the doctor, okay, not

 22   Mr. deVries' testimony.  This morning Miss Smith

 23   went into great detail about how Mr. deVries

 24   threw up and wouldn't go back again.  And she

 25   was questioning --


 

00149

  1                 MS. SMITH:  No, I didn't.

  2                 JUDGE CURRAN:  I think thrown up

  3   was Mr. Mr. Carter, I think, in the courthouse.

  4   And we can understand that for different reason.

  5                 MR. PARIS:  No, no, she said

  6   Mr. deVries went into the bathroom.

  7                 JUDGE CURRAN:  Yes, she did -- or

  8   headed for it.  And there was a question as to

  9   whether or not he used it.

 10                 MR. PARIS:  Exactly.  And he never

 11   went back again.  Now she is impeaching our

 12   witness, when this is in the file, when this is

 13   there and he has a basis for saying that's not

 14   necessarily true.  Didn't cross-examine him --

 15                 MR. BEVERE:  Judge, there is

 16   another basis too in --

 17                 JUDGE CURRAN:  I'm sorry.

 18                 MR. BEVERE:  In May of '06 there

 19   is a medical record that at least indicates that

 20   Mr. deVries was still going to the cardiologist

 21   in Secaucus.  I think that refutes a claim of

 22   avoidance under PTSD.  I think it's relevant on

 23   that basis.

 24                 MR. PARIS:  On the psychological

 25   issue.  He can give it whatever weight he wants.


 

00150

  1                 JUDGE CURRAN:  I thought it was

  2   being presented in regard to avoidance, but

  3   maybe I'm just slow.  That's what I thought --

  4   that was my understanding.  I will note your

  5   objection on the record.

  6                 MS. SMITH:  Okay, Judge.

  7                 JUDGE CURRAN:  It's preserved, but

  8   I am going to allow them.  I find that -- hold

  9   on.  Just so the record is clear, I find that

 10   there is a basis.

 11                  Can you just put the numbers of

 12   those two documents, Bates stamp numbers, on the

 13   record, so they can be located?

 14                 MR. BEVERE:  P-00108 is the Bates

 15   stamp number.

 16                 JUDGE CURRAN:  And that's for

 17   which date?

 18                 MR. BEVERE:  That's under P-38.

 19   And that is for the November 27 --

 20   November 1st -- November 27th, 2001.

 21                 JUDGE CURRAN:  Okay.

 22                 MR. BEVERE:  And the second

 23   document, which is under P-104, is Bates stamp

 24   483; and it bears a date of May 18th, 2006.

 25                 JUDGE CURRAN:  And the first


 

00151

  1   document is the one that says --

  2                 MR. BEVERE:  Edgewater.

  3                 JUDGE CURRAN:  -- "Edgewater"?

  4   The other document says, "Office:  Secaucus."

  5                 MR. BEVERE:  Secaucus.

  6                 JUDGE CURRAN:  The objection is

  7   preserved.

  8                 MS. SMITH:  Thank you.

  9                 JUDGE CURRAN:  Thank you.

 10                 (Whereupon, sidebar discussion is

 11          concluded.)

 12                 MR. BEVERE:  Judge, I'm sorry, I

 13   need to look at my last questions and see what

 14   was asked and what was answered and what wasn't,

 15   so I won't run afoul.

 16   BY MR. BEVERE:

 17          Q      I'm sorry, Doctor, only one more

 18   question.  Where on the form does it indicate

 19   the test was conducted?

 20                 MS. SMITH:  Don't point.  I

 21   object, Your Honor, to leading.  He is pointing

 22   to the document.

 23                 JUDGE CURRAN:  Sustained.

 24                 MR. BEVERE:  All right.  Judge, I

 25   won't lead the witness.


 

00152

  1   BY MR. BEVERE:

  2          Q      Doctor, Miss Smith asked you

  3   yesterday about Mr. deVries not wanting to take

  4   a job in Secaucus after April 25th, 2004.  And

  5   my question to you is:  How did you account for

  6   that in reaching your opinions and conclusions

  7   in this case?

  8   A      He started a new job a few months prior,

  9   leaving one job for another; and then he did

 10   not -- he was not comfortable in this job,

 11   didn't like that job, wanted to go back to the

 12   previous one and was negotiating, was conducting

 13   some strategies with his psychiatrist.  And he

 14   wanted a better salary, he wanted same benefits

 15   or things like that.  Then eventually he did not

 16   take that job.

 17          Q      I guess my question is, Doctor,

 18   did Mr. deVries tell you in your interview that

 19   he didn't want that job?

 20                 MS. SMITH:  Objection, leading.

 21                 JUDGE CURRAN:  Sustained.

 22                  The last question is stricken.

 23                  Please rephrase.

 24   BY MR. BEVERE:

 25          Q      What, if anything, did Mr. deVries


 

00153

  1   tell you as to the reasons why he didn't want

  2   the job?

  3   A      He actually didn't tell me the reasons

  4   why he didn't want that job.  I don't recall

  5   anything during my interview with him why he

  6   didn't take that job in Secaucus.  He might have

  7   told me.  I don't remember what he told me.

  8            He kept on working at the job that he

  9   had.  And he was working 12 to 13 hours at that

 10   job before the event, and he continued doing

 11   that afterwards.  There was nothing I remember

 12   in the notes from Dr. Almeleh that indicates

 13   that -- any reason why he did not take the job

 14   in Secaucus.  And nothing that I remember he

 15   told me why he didn't take that job in Secaucus

 16   either.

 17          Q      All right.  Now, Doctor,

 18   Miss Smith asked you if there were any notations

 19   in Dr. Almeleh's notes from November 2003 to

 20   April 2004 from Mr. deVries reference --

 21   referencing any relationship issues that

 22   Mr. deVries and Mr. Carter were having.  And my

 23   question to you is:  What, if any, references

 24   did you find in Dr. Almeleh's notes for

 25   Mr. Carter in that period of time?


 

00154

  1   A      I remember reading in December of '03 --

  2   if I'm not wrong, December 17, 18 or 19, one of

  3   those three dates -- that Mr. Carter was upset,

  4   saying that he was upset that Mr. deVries was

  5   upset with him, the reason being because he was

  6   not working, he was not financially productive.

  7   And that was the subject of that visit.

  8          Q      Now, Doctor, I'm sorry; and when

  9   was that again?

 10   A      December -- middle of December of '03.

 11                 MS. SMITH:  What exhibit number?

 12                 MR. BEVERE:  I'm going to tell

 13   you.  It's P-100, and it's Bates stamp 413.

 14                 JUDGE CURRAN:  Can all the jurors

 15   see that?

 16   BY MR. BEVERE:

 17          Q      All right.  Now, Doctor, do you

 18   have the Barbara Hines' notes?  If you can go to

 19   Bates stamp 413.

 20   A      Yes, I have.  413?

 21          Q      Uh-huh.

 22   A      Yes, I do.

 23          Q      Okay.  Do you know what this

 24   document is?

 25   A      I'm sorry?


 

00155

  1          Q      Do you know what this document is?

  2   A      Yes.

  3          Q      What is it?

  4   A      It's a discharge summary.

  5          Q      Okay.  For whom?

  6   A      For Peter deVries.

  7          Q      Prepared by whom?

  8   A      Prepared by Barbara Hines at the end of

  9   the treatment.

 10          Q      Now, Barbara Hines writes some

 11   presenting problems for Mr. deVries.  Could you

 12   read those?

 13                 MS. SMITH:  Objection.  Just

 14   reading something into the record on -- this is

 15   direct.

 16                 MR. BEVERE:  I will rephrase.

 17                 JUDGE CURRAN:  You need to go

 18   back, okay.

 19                  Do you want some water?

 20   BY MR. BEVERE:

 21          Q      Under the outcome of treatment

 22   what, if anything, does Dr. Hines say about

 23   Mr. deVries and Mr. Carter's relationship?

 24   A      She describes that the relationship has

 25   been strained by the partner's, Mr. Carter's,


 

00156

  1   unemployment and severe ADD.

  2          Q      Now -- sorry, Doctor, what was the

  3   date of the discharge summary?

  4   A      May 24, '05.

  5          Q      Now --

  6   A      No, I'm sorry, session ending -- it's

  7   interesting.  Says 5/18/05, May 18th, '05.

  8          Q      Now, Doctor, you testified

  9   yesterday on cross-examination about Mr. deVries

 10   and Mr. Carter calling the police?

 11   A      Yes.

 12          Q      Why did you find that it was

 13   significant that Mr. deVries and Mr. Carter call

 14   the police while -- during the incident?

 15   A      Well, it's significant because they

 16   called for help, to put an end to whatever was

 17   going on that was threatening, frightening them.

 18   They -- Mr. Carter woke up Mr. deVries.

 19   Mr. deVries came downstairs.  I believe this is

 20   how sequence went.  But the assessment was they

 21   are not quieting down or the threats are not

 22   less intense, and they decided that they had to

 23   call the police.

 24          Q      And why was that significant to

 25   you in your ultimate opinions and conclusions in


 

00157

  1   this case?

  2   A      They took the appropriate action.  They

  3   took action.  They did -- they were not

  4   paralyzed with the fear that we would expect

  5   when somebody that is paralyzed by a trauma that

  6   will threaten one's sense of identity, that will

  7   destroy us physically or destroy us mentally.

  8   They were able to assess it and decide that the

  9   proper action was to call the police.  It

 10   appears to be an insignificant event, but people

 11   in the throw -- yeah, people, not patients,

 12   people in the throw of an experience like that

 13   most often don't react appropriately.

 14          Q      Now, Doctor, Miss Smith asked you

 15   about two letters.  One was a letter dated --

 16   and I'll get it.  P-101.  One was a letter dated

 17   January 23rd, 2005.  And the other was a letter

 18   dated January 9th, 2005.  And can you tell us

 19   what these letters are, first, starting with the

 20   one of January 9th and second with the one dated

 21   January 23rd?

 22   A      Yes, the first letter of January 9th,

 23   2005 is a letter from a Dr. Almeleh to Smith

 24   Mullin, to the attorneys, concerning Mr. Timothy

 25   Carter.  And the other letter, couple of weeks


 

00158

  1   later, was also from Mr. -- Dr. Almeleh to the

  2   same, Smith Mullin, attorneys, concerning

  3   Mr. deVries.

  4          Q      And in the letter for Mr. deVries

  5   does Dr. Almeleh -- what -- what does Dr.

  6   Almeleh say about posttraumatic stress disorder?

  7   A      Essentially, he says that Mr. deVries'

  8   diagnosis is posttraumatic stress disorder and,

  9   secondarily, major depressive disorder.

 10          Q      I'm sorry, Doctor, the date of the

 11   letter, again, is?

 12   A      The date of the letter is January 23 --

 13   23rd, '05.

 14          Q      Okay.  Now, Doctor --

 15                 MS. SMITH:  Do you want to tell

 16   me, please, what you have in front of the jury?

 17                 MR. BEVERE:  Yes, this is P -- the

 18   Bates stamp is 461, and the exhibit number is

 19   P-102.

 20                 MS. SMITH:  Thank you.

 21   BY MR. BEVERE:

 22          Q      Doctor, I'm going to show you

 23   what's been marked as P-102, Bates stamp 461 for

 24   Identification and ask you if you recognize

 25   that?


 

00159

  1   A      Yes.

  2          Q      What is that?

  3   A      It's a request for disability benefits.

  4          Q      And what's the purpose of this

  5   form?

  6   A      To describe the --

  7                 MS. SMITH:  Objection.  Objection,

  8   foundation, what the purpose of the form is.

  9                 JUDGE CURRAN:  Sustained.

 10                 MR. BEVERE:  Okay.

 11   BY MR. BEVERE:

 12          Q      Do you know -- from reading this

 13   document do you have an understanding of what

 14   the function of this form is?

 15                 MS. SMITH:  Objection.  It's the

 16   same question.

 17                 MR. BEVERE:  Judge, I asked him

 18   for his understanding.

 19                 JUDGE CURRAN:  I understand that,

 20   but you have to -- good flip.  You have to lay a

 21   more significant foundation.

 22   BY MR. BEVERE:

 23          Q      Doctor, did you review any

 24   disability records for Mr. deVries?

 25   A      Yes.


 

00160

  1          Q      And what -- what did you review?

  2   A      I reviewed form that Mr. deVries filled

  3   out for temporary disability in May of 2005, he

  4   himself did, filled out.  And also this one

  5   that -- another disability form, a form to

  6   request disability completed by Dr. Almeleh.

  7          Q      All right.  And is D -- I'm sorry,

  8   is P -- P-102, Bates stamp 461, a copy of that

  9   form?

 10   A      Yes.

 11          Q      Does that form list a diagnosis by

 12   Dr. Almeleh?

 13   A      Yes.

 14          Q      All right.  And what is that

 15   diagnosis?

 16   A      The diagnosis under number two is major

 17   depressive disorder recurrent severe.

 18          Q      And what is the date of the form?

 19   A      The date of the form is November 28,

 20   2005.

 21          Q      Does Dr. Almeleh list

 22   posttraumatic stress disorder as a diagnosis

 23   anywhere on the form?

 24   A      No.

 25          Q      Now, Doctor, on your


 

00161

  1   cross-examination Miss Smith asked you to look

  2   at a checklist that was in Dr. Hines' records?

  3   A      Yes.

  4          Q      Okay.  What's your understanding

  5   of -- well, let me ask it this way.

  6            Based upon your review of the documents

  7   do you have an understanding as to what the

  8   purpose of that checklist is?

  9                 MS. SMITH:  Objection, no

 10   foundation.

 11                 JUDGE CURRAN:  Sustained.

 12   BY MR. BEVERE:

 13          Q      Doctor, did you review the

 14   checklist?

 15   A      Yes.

 16          Q      Okay.  What -- what's your

 17   understanding as to who filled out that

 18   checklist?

 19   A      I am going to refer to it.  My

 20   understanding is that Mr. deVries filled out the

 21   form, this checklist.

 22          Q      Now -- now, Doctor, we were

 23   talking before about Dr. Hines' discharge

 24   summary?

 25   A      Yes.


 

00162

  1          Q      Okay.  Based upon your review of

  2   Dr. Hines' records do you know whether Dr. Hines

  3   diagnosed Mr. deVries with posttraumatic stress

  4   disorder?

  5   A      Yes, I do know.

  6          Q      And did she?

  7   A      No, she did not.

  8                 MS. SMITH:  Excuse me.  It is not

  9   a doctor.  Dr. Hines is not a doctor.

 10                 MR. BEVERE:  I apologize.

 11   BY MR. BEVERE:

 12          Q      Do you know whether the therapist,

 13   Miss Hines, diagnosed Mr. deVries with

 14   posttraumatic stress disorder?

 15   A      She did not diagnose.

 16          Q      Do you know what, if any,

 17   condition Dr. -- I'm sorry, the therapist,

 18   Barbara Hines, diagnosed Mr. deVries with upon

 19   the completion of the treatment?

 20   A      Yes, there were two diagnosis.  One was

 21   called dysthymia, and the other one was

 22   general -- generalized anxiety disorder.

 23          Q      Now -- and I'm sorry, what is

 24   dysthymia?

 25   A      Dysthymia is a state of low mood and


 

00163

  1   having less energy than usual, being -- feeling

  2   depressed most of the time.  Used to be called

  3   something like "minor depressive disorder," as

  4   opposed to "major depressive disorder."  So she

  5   diagnosed depression, basically, and anxiety as

  6   the diagnosis.

  7          Q      Now, Doctor, you were also asked

  8   by Miss Smith whether you saw any notations in

  9   Dr. Almeleh's records before November of 2004

 10   wherein Mr. deVries expressed displeasure with

 11   his job.  And I'm going to --

 12                 MS. SMITH:  That's absolutely

 13   false.  I asked about October 2004 because

 14   that's what he testified about.  This is beyond

 15   the scope.  I read his testimony.  His testimony

 16   was November, December and a month earlier he

 17   didn't like his job.  A month earlier than

 18   November is October, and we went through every

 19   record of October.

 20                 JUDGE CURRAN:  You want to check

 21   or rephrase?

 22                 MR. BEVERE:  Judge, I will

 23   rephrase the question.

 24                 JUDGE CURRAN:  Thank you.

 25   BY MR. BEVERE:


 

00164

  1          Q      Did you note -- were there any

  2   notations in Dr. Hines' records in October --

  3                 JUDGE CURRAN:  Miss Hines'

  4   records.

  5   A      Miss.

  6          Q      Miss, I apologize.  Were there any

  7   notations in the therapist, Barbara Hines'

  8   records in October of 2004 about Mr. deVries

  9   liking or not liking his job?

 10   A      Yes, from the very beginning --

 11          Q      I'm asking you about October of

 12   2004.

 13   A      Oh, I'm sorry.  October you said?

 14          Q      Yes -- well, Doctor, specifically

 15   I'll draw your attention to the note of

 16   October 13th.

 17                 MS. SMITH:  Objection, leading.

 18                 JUDGE CURRAN:  Sustained.

 19                 MR. BEVERE:  Judge, if I want to

 20   point his attention to a note, that's not

 21   leading.

 22                 JUDGE CURRAN:  Okay.  But frankly,

 23   you have to rephrase it or you have to go about

 24   the whole thing in a different way --

 25                 MR. BEVERE:  Okay.


 

00165

  1                 JUDGE CURRAN:  -- because the

  2   original question was more general.

  3                 MR. BEVERE:  All right.

  4   BY MR. BEVERE:

  5          Q      Doctor, what, if anything, did the

  6   therapist, Barbara Hines, note in her notes of

  7   October 2004 regarding Mr. deVries' employment?

  8                 MS. SMITH:  I need a Bates stamp

  9   number.

 10                 MR. BEVERE:  423.

 11   BY MR. BEVERE:

 12   A      "Feels pressure to stay at a job that he

 13   doesn't like."

 14          Q      And what's the date of that entry?

 15   A      October 13 of 2004.

 16          Q      What year?

 17   A      2004.

 18          Q      Okay.  All right.  Now, Doctor,

 19   Miss Smith asked you some questions about

 20   hypervigilance and startle response.  How, if at

 21   all, did you account for hypervigilance and

 22   startle response in reaching your opinions and

 23   conclusions in this case?

 24   A      Yes, I paid attention to those two and

 25   all the other symptoms and signs of PTSD; and I


 

00166

  1   did not find either one.  I did not find an

  2   exaggerated startle response, and I did not find

  3   the hypervigilance that was not there before the

  4   event of 4/25/2004.

  5          Q      And what did you base that

  6   conclusion on?

  7   A      An increased startle response is -- is a

  8   stimulus or anything that the majority of

  9   people, most people will not even be aware of

 10   that people that are traumatized are so

 11   sensitized to it, so sensitive that something

 12   that for us really doesn't get to our radar, for

 13   the people that were traumatized, that is enough

 14   to trigger a very intense response.

 15            And that goes along with the

 16   hypervigilance, I mean, trying to minimize the

 17   possibility of being subjected to something that

 18   was as traumatic as that, as what -- as whatever

 19   it is that caused the trauma.

 20            That goes along with intrusive

 21   recollections, meaning one is expecting so much

 22   for this to happen that one cannot function

 23   well.

 24            And primarily goes along with

 25   avoidance.  One escapes or tries to avoid being


 

00167

  1   in a situation where this can happen.  Being in

  2   the same place with -- where something happened,

  3   talking about it, discussing about it, hearing

  4   about it will trigger a very dramatic response.

  5            And based on the fact that this

  6   individual soon after the event of April 25th,

  7   2004, he started a whole process of trying to

  8   get people together with him, the gay community,

  9   police and report and other authorities, he

 10   started -- he started a lawsuit, in -- at the

 11   end of June, beginning of July he started

 12   creating a movie -- again, a person that needs

 13   to avoid, a person that has an increased startle

 14   response, a person that is hypersensitive will

 15   not get involved into details of how to

 16   communicate, how to spread it, how to create --

 17   he was, again, as I said at the very beginning,

 18   he was very upset by what happened; but there

 19   was no avoidance.

 20            Actions speak louder than words.  He

 21   says he has an exaggerated startle response.

 22   His behavior throughout showed the opposite.  He

 23   said he could not -- he was a prisoner of his

 24   home -- this is what he told Dr. Bursztajn --

 25   yet he was walking his dogs.  And that is what


 

00168

  1   he told the cardiologist in May, he was walking

  2   his dogs in the Town.  And he was going to work

  3   every day 12 to 13 hours a day, as he had been

  4   doing from before.

  5            Those -- all these facts go against all

  6   the symptoms that DSM-IV TR, the manual, the

  7   psychiatric manual, points to.  And they are not

  8   present here.

  9          Q      Now, Doctor --

 10                 MS. SMITH:  Would you move this?

 11                 MR. BEVERE:  Sure, sure, I'm

 12   sorry.

 13                 MR. PARIS:  I'll get it.  I'll get

 14   it.

 15   BY MR. BEVERE:

 16          Q      Now, Doctor, with regard to the

 17   DSM-IV and the second criteria, which is the

 18   response involving intense fear, helplessness or

 19   horror, how did you account for that criteria in

 20   reaching your opinions and conclusions in this

 21   case?

 22   A      The DSM presents us with a lot of

 23   different symptoms, a lot of different

 24   reactions.  All together will make a diagnosis

 25   or -- or a number of them will make a diagnosis


 

00169

  1   of PTSD.  Would help us arrive at that

  2   diagnosis.

  3            Here we are talking about, I'm sorry,

  4   being faced with threat, helplessness or

  5   horror -- fear, helplessness or horror.  Based

  6   on what I read that happened that night, both

  7   Mr. deVries and Mr. Carter felt fear, intense

  8   fear.  But there was not helplessness or horror

  9   as their behavior.  They went outside.  They

 10   wanted -- they confronted the people that were

 11   causing all this upheaval, all these problems.

 12   They want the police to take the names, to do

 13   this.  They were proactive.

 14            It's very different than what we see --

 15   than what we see in people with PTSD,

 16   posttraumatic stress disorder.  They become very

 17   mute.  They become very shy, very fearful.  They

 18   want to avoid -- they want to escape, actually.

 19   That is the initial response, which in this case

 20   was the opposite.  Mr. deVries went upstairs in

 21   anger, in frustration because he understood that

 22   he was not going to get the apology or they were

 23   not going to be punished and so on.

 24          Q      All right.  Now, Doctor, briefly,

 25   with regard to Mr. Carter, when you saw him in


 

00170

  1   your office, was his level of functioning

  2   consistent with someone who hadn't slept in

  3   five-and-a-half days?

  4   A      No.

  5          Q      Can you explain that?

  6                 MS. SMITH:  Objection.  That's a

  7   complete mischaracterization of the testimony.

  8   Was that Mr. Carter hadn't slept for the

  9   five-and-a-half days before he saw Dr.

 10   Bursztajn.

 11                 JUDGE CURRAN:  You can check, if

 12   you wish, Mr. --

 13                 MR. BEVERE:  No, Judge, then I

 14   must have misunderstood the question and I

 15   will --

 16                 JUDGE CURRAN:  The objection will

 17   be sustained.

 18                 MR. BEVERE:  I will withdraw it.

 19   BY MR. BEVERE:

 20          Q      Doctor, did Mr. Carter report to

 21   you if he was ever mugged?

 22   A      He was ever mugged?

 23          Q      Ever mugged?

 24   A      Yes.

 25          Q      Do you know when?


 

00171

  1   A      I believe it was, if I'm not wrong, in

  2   April of 2005, I think.

  3          Q      Did Mr. Carter relate to you

  4   anything about his feelings about that incident?

  5   A      Yes, he -- he told me that he was mugged

  6   in the street, that he was -- he was afraid, as

  7   naturally, and that he avoided pressing charges,

  8   avoided -- I mean going on with that for fear of

  9   retaliation.  And he actually did not do

 10   anything else about this.

 11          Q      Now, Doctor, when you were

 12   speaking to Mr. Carter, did he have difficulty

 13   in relating the events of April 25th, 2004 to

 14   you?

 15   A      No, he did not have any difficulty

 16   relating that and other events that happened at

 17   that time.

 18          Q      Now, Doctor, I think that

 19   Miss Smith had asked you a question.  Can you

 20   explain what you meant when you said you didn't

 21   find Tim distractible?

 22   A      I'm sorry, say it again.

 23          Q      What did you mean when you said

 24   you didn't find Tim distractible?

 25   A      During the time he spent with me, we met


 

00172

  1   for, as I said, approximately three-and-a-half

  2   hours.  We did not interrupt our meeting at all.

  3   And there were times -- I mean, his style is

  4   to -- to be somewhat, let me use the word,

  5   perhaps, exaggerated.  But to make it clear,

  6   flamboyant.  I mean, he talks, he -- he -- he

  7   adorns his speech in a way.  And that was his

  8   characteristic way.  That is his style, and he

  9   is proud and pleased with it.

 10            There were times, oftentimes he would

 11   look at his watch.  And he explained to me at

 12   some point the reason why he looks at his watch

 13   is because he learned a strategy in his

 14   psychiatric treatment of dealing with his ADD,

 15   attention deficit disorder.  And that was what

 16   pulled him together.

 17          Q      When you -- why did you believe at

 18   the time of your examination that Mr. Carter was

 19   content with the way his life was going?

 20   A      He explained that he was able to -- he

 21   was very pleased of having gone to -- to college

 22   and -- and -- and completed a training as a

 23   paralegal.

 24            He was displeased at the fact that he

 25   could not get a job.


 

00173

  1            And then he went into a different kind

  2   of training, and for about six months at that

  3   time he told me he had been working full-time.

  4   And he mentioned 40 hours and then some overtime

  5   in a job that he told me in a very pleasant tone

  6   of voice he could do in his sleep.  That was

  7   what he told me, that he could do it in his

  8   sleep.

  9            He actually said that he was training

 10   other people in doing this digital -- and he

 11   tried to explain to me.  It was not easy for me

 12   to understand it because it had to do with

 13   numbers and -- and how to -- to put into CDs or

 14   whatever data, primarily library data.

 15            And he said that it was actually all

 16   these developed after 9/11.  9/11 is another

 17   aspect, another trauma in the history of this

 18   country.  He was able to talk about 9/11 and

 19   because of 9/11 and a lot of data was destroyed

 20   was -- the towers were destroyed, that the

 21   government started this -- this program.  That

 22   was my understanding.

 23            And he was very pleased.  And he

 24   explained what he was doing.  And this was going

 25   on for about six months, which goes along with


 

00174

  1   what he said in his deposition, as well.

  2          Q      Okay.  Doctor, I may be done.  Let

  3   me just check one or two more of my notes.

  4            Oh, Doctor, the last question I wanted

  5   to ask you -- let me go back to my -- beginning

  6   of my notes.  Why didn't you do any

  7   psychological testing of Mr. deVries or

  8   Mr. Carter?

  9   A      For more than one reason.  One of them

 10   and the most important one was at the -- both of

 11   them had taken a battery of psychological

 12   testing within four or five months before they

 13   came to see me.  For forensic reasons it is not

 14   advisable to take the same tests and -- and Dr.

 15   Bursztajn administered himself -- not as a

 16   psychologist.  He administered all these tests

 17   about -- probably 13 or more.  And he provided

 18   interpretation of all these tests.  And it was,

 19   again, way below usually what is advisable for

 20   this kind of setting, which is a forensic

 21   setting.

 22            An IME setting it is between six and 12

 23   months.  It is not testing that is done for

 24   medical reasons, for treatment reasons, which

 25   the procedure is different for forensic reasons.


 

00175

  1   It's not visible because the person that -- that

  2   is testing, it all relates to -- to -- to the

  3   honesty of the person that is checking.  This

  4   is -- these are questionnaires, and one checks

  5   yes or no on questionnaires or things like that.

  6   People tend to remember their answers when it

  7   is, let's say, within a lapse of time, which is,

  8   let's say, six months.  So what is advised is

  9   not to do that.

 10            And -- well, the other thing is that,

 11   again, I was able to use everything that I

 12   reviewed, plus my own examination, to arrive at

 13   my conclusions and taking from everything that

 14   Dr. Bursztajn noted in his report.

 15          Q      I have no further questions at

 16   this time.  Thank you, Doctor.

 17                 JUDGE CURRAN:  Thank you.

 18   Miss Smith.

 19                 MS. SMITH:  Could we take a short

 20   break, Your Honor?

 21                 JUDGE CURRAN:  Sure.  We will take

 22   the ten-minute afternoon break, please.  Thank

 23   you.

 24                 (Whereupon, the jury is excused.)

 25                 JUDGE CURRAN:  If I might see


 

00176

  1   counsel at sidebar.

  2                 (Whereupon, the following sidebar

  3          discussion is held.)

  4                 JUDGE CURRAN:  Juror Number 3.

  5                 JUROR NUMBER 3:  I have only one

  6   question.  You don't know how long it's going

  7   to -- to be?  Because I have tickets to do my

  8   closing of my house in Florida in the 11th,

  9   June 11.  I don't see --

 10                 MS. SMITH:  June 11?

 11                 JUDGE CURRAN:  If we are still

 12   here on June 11th, all of us will contribute to

 13   the down payment on your house, okay.

 14                 JUROR NUMBER 3:  Okay.  It's next

 15   week.

 16                 JUDGE CURRAN:  If you would be

 17   kind enough not to discuss -- we have already

 18   been discussing that, and we are going to talk

 19   to all the jurors.  But trust me, if we're here

 20   on June 11th --

 21                 JUROR NUMBER 3:  Okay.  Okay.  I'm

 22   safe, okay.

 23                 MR. BEVERE:  We'll be joining you.

 24                 JUDGE CURRAN:  Okay.

 25                 (Whereupon, sidebar discussion is


 

00177

  1          concluded.)

  2                 (Whereupon, a brief recess is

  3          taken.)

  4                 (Whereupon, the jury is brought

  5          into the courtroom.)

  6                 MR. BEVERE:  Your Honor, we will

  7   not be -- be recalling Mayor Elwell, so can he

  8   stay?

  9                 JUDGE CURRAN:  Just let me go on

 10   the record.  On the record, please.

 11                 COURT CLERK:  Yes.

 12                 MR. MULLIN:  We probably should be

 13   sidebar on that issue.

 14                 COURT CLERK:  On the record.

 15                 JUDGE CURRAN:  Thank you.

 16                 (Whereupon, the following sidebar

 17          discussion is held.)

 18                 MR. BEVERE:  What I was saying,

 19   Your Honor, was we are not going to recall Mayor

 20   Elwell -- we're not going to call Mayor Elwell

 21   in our case.  He has testified.  We want

 22   permission to stay and watch the trial, how

 23   it's --

 24                 JUDGE CURRAN:  Mr. Mullin?

 25                 MR. MULLIN:  I won't oppose.


 

00178

  1                 JUDGE CURRAN:  Thank you.  Thank

  2   you.  There is no -- the sequestration, just so

  3   it's on the record, is lifted in regard to the

  4   Mayor.

  5                 MR. BEVERE:  Him only.

  6                 MR. PARIS:  Thank you.

  7                 JUDGE CURRAN:  Thank you.

  8                 (Whereupon, sidebar discussion is

  9          concluded.)

 10                 MS. SMITH:  I'm sorry, Your Honor.

 11                 JUDGE CURRAN:  Thank you.  You can

 12   proceed.

 13                 MS. SMITH:  Okay.

 14   RECROSS EXAMINATION BY MS. SMITH:

 15          Q      Dr. Goldwaser, in your reports for

 16   either Mr. Carter or Mr. deVries do you cite

 17   even one authority of any kind, treatise,

 18   article, anything for the proposition that

 19   people who call for help in a trauma do not get

 20   PTSD?

 21                 JUDGE CURRAN:  Excuse me.  Mr.

 22   Bevere?

 23                 MR. BEVERE:  My objection is that

 24   he was asked and answered yesterday if he relied

 25   upon any authorities outside his report.


 

00179

  1                 JUDGE CURRAN:  He was.  However,

  2   that question was specifically just asked in --

  3   well, the answer was given in redirect, so I

  4   will note your objection.

  5                 MR. BEVERE:  Thank you, Your

  6   Honor.

  7                 JUDGE CURRAN:  Preserved for

  8   appeal.

  9                  You may answer the question.

 10                 MS. SMITH:  I will ask it again.

 11                 JUDGE CURRAN:  Thank you.

 12   BY MS. SMITH:

 13          Q      In your report, either from

 14   Mr. deVries or Mr. Carter, do you cite any

 15   authority whatsoever, article, treatise, chapter

 16   in a book, anything that says people who call

 17   for help in a trauma don't get PTSD?  Yes or no?

 18   A      No.

 19          Q      Okay.  And do you cite -- you

 20   haven't cited in your -- either one of your

 21   reports any authority for the proposition that

 22   people who file a lawsuit don't get PTSD, right?

 23   A      No, they can.

 24          Q      They can.  In fact, you've

 25   testified that people have PTSD --


 

00180

  1   A      And people don't.

  2          Q      -- that are involved in lawsuits,

  3   haven't you?

  4   A      Yes.

  5          Q      And you think people can get PTSD

  6   from being in a car accident, don't you?

  7   A      Yes.

  8          Q      But after what these men have

  9   witnessed your testimony to this jury is that

 10   they don't have PTSD; is that right?

 11   A      That's right.  They could have had it.

 12          Q      That's your testimony, right?

 13   A      Yes.

 14          Q      And you don't claim that there is

 15   any authority in either one of your reports that

 16   people who reach out to Civil Rights

 17   organizations after they've been victims of a

 18   bias attack for some reason don't get PTSD?

 19   There is no authority in your reports for that

 20   proposition, right?

 21   A      I don't understand the question.

 22          Q      You don't understand the question?

 23   A      Can you -- can you --

 24          Q      You talked about a minute ago

 25   about my clients reaching out to Civil Rights


 

00181

  1   organizations --

  2   A      Yes --

  3          Q      -- after this attack, right?

  4   A      -- among other things.

  5          Q      You talked about that, right?

  6   A      Yes.

  7          Q      There is no authority whatsoever,

  8   none, in either one of your reports for the

  9   proposition that individuals that reach out for

 10   support to Civil Rights organizations don't have

 11   PTSD, that that's evidence that they don't have

 12   PTSD; isn't that true?  There is no such

 13   authority in either report, right?  Yes or no?

 14   A      I don't understand your question.  You

 15   make it shorter, so I can follow.

 16          Q      For the proposition -- you told

 17   this jury just a few minutes ago that one of the

 18   reasons that you -- some of the evidence you

 19   have that Mr. deVries and Mr. Carter don't have

 20   PTSD was the way they acted after the event;

 21   isn't that correct?

 22   A      Yeah, one of them.

 23          Q      And one of the examples you gave

 24   was they reached out to Civil Rights

 25   organizations for gay people; isn't that


 

00182

  1   correct?  Isn't that what you just said a few

  2   minutes ago?

  3   A      One of the examples, yes.

  4          Q      Okay.  My question is:  In either

  5   one of your reports is there any authority of

  6   any kind, any article, any book, any chapter,

  7   any treatise, anywhere to support that

  8   proposition?  Yes or no?

  9   A      Yes.

 10          Q      There is authority in your

 11   reports?

 12   A      I submitted my report with my CV.

 13          Q      There is a treatise in your

 14   report?

 15   A      Yeah, my report comes with my CV.

 16                 MS. SMITH:  Your Honor, can we

 17   order --

 18                 JUDGE CURRAN:  Sir, please listen

 19   to the question.  You're an educated man; you

 20   know the difference between a CV and a reference

 21   to a treatise, a learned report, a book, a

 22   chapter.

 23   BY MS. SMITH:

 24          Q      You do know --

 25   A      I do know, yes.


 

00183

  1          Q      So could you please answer my

  2   question?

  3   A      Your question is whether it happens or it

  4   doesn't happen?  It may happen or not.

  5          Q      No.

  6                 MS. SMITH:  Your Honor --

  7                 JUDGE CURRAN:  Sir, I am going to

  8   ask that the last question be read back.

  9                 THE WITNESS:  Please.

 10                 JUDGE CURRAN:  It's been repeated

 11   now about three times.

 12                 (Whereupon, the requested portion

 13          is read back by the reporter as follows:

 14                 "QUESTION:  My question is:  In

 15          either one of your reports is there any

 16          authority of any kind, any article, any

 17          book, any chapter, any treatise, anywhere

 18          to support that proposition?  Yes or

 19          no?")

 20   BY MS. SMITH:

 21   A      What proposition?

 22                 JUDGE CURRAN:  He wants you to

 23   repeat that part of the question, Miss Smith,

 24   or --

 25                 MS. SMITH:  Sure.  Sure.


 

00184

  1   BY MS. SMITH:

  2          Q      You forget your testimony a couple

  3   minutes ago to this jury that one of the reasons

  4   that you believe that neither Mr. Carter nor

  5   Mr. deVries have PTSD, you just testified to on

  6   redirect, was that they contacted Civil Rights

  7   organizations after the attack of April 25th,

  8   2004?  You just said that --

  9   A      Yes.

 10          Q      -- a few minutes ago?  Okay.  Now,

 11   you don't understand the question when I say

 12   that isn't it true that there is not one

 13   reference to any learned treatise whatsoever,

 14   any publication of any kind that supports that

 15   theory in either the report from Mr. Carter or

 16   the report from Mr. deVries?  Isn't it true that

 17   there is no such reference?

 18                 MR. BEVERE:  I'm going to object

 19   because that wasn't the question.

 20                 JUDGE CURRAN:  It was as close

 21   as -- I'll note your objection, Mr. Bevere.

 22                 MR. BEVERE:  All right.

 23   BY MS. SMITH:

 24   A      It's a complex -- it's -- it's more than

 25   one question.  This is -- I have to explain it


 

00185

  1   to be --

  2                 JUDGE CURRAN:  Sir.

  3                 THE WITNESS:  I don't understand

  4   it.

  5                 JUDGE CURRAN:  The question, I

  6   find, is clear.  It's been repeated.  I would

  7   appreciate it if you would try to answer it.

  8                  As I understand the question, it

  9   is:  Is there any reference in your report to a

 10   treatise, a book, a chapter, anything of that

 11   sort -- anything of that sort, a professional

 12   publication, that indicates that an individual

 13   does not have or could not have PS -- PTSD

 14   because they reached out to Civil Rights

 15   organizations?

 16                  Is that the question?

 17                 MS. SMITH:  Yes, it is, Your

 18   Honor.

 19                 THE WITNESS:  No.

 20                 JUDGE CURRAN:  The answer is no?

 21                 THE WITNESS:  The answer is no.

 22   BY MS. SMITH:

 23          Q      The answer is no, right?  The

 24   answer is not -- that's not in your report,

 25   right?


 

00186

  1   A      Right.

  2          Q      No.  Okay.  Now, in your report do

  3   you cite any authority whatsoever for the

  4   proposition that you should not give

  5   psychological tests four to five months after a

  6   previous administration of a psychological test?

  7   That's -- is that in either one of your reports?

  8   A      No.

  9          Q      Now, you just testified, "He told

 10   the cardiologist in May he was walking his dogs

 11   in the Town."  You just testified to that,

 12   right --

 13   A      Yes.

 14          Q      -- just a couple minutes ago?  You

 15   have Dr. Pumill's notes up there, P-38?

 16   A      No, I have them -- I can bring them.  I

 17   have them in my briefcase.  I don't have it here

 18   with me.

 19                 MR. BEVERE:  He can have my

 20   copies.

 21                 MS. SMITH:  Okay.

 22                 JUDGE CURRAN:  Thank you, Mr.

 23   Bevere.

 24                 MR. BEVERE:  Let me take out my

 25   tabs.


 

00187

  1                 JUDGE CURRAN:  Are you talking

  2   about P-38?

  3                 MS. SMITH:  P-38, Your Honor.

  4                 JUDGE CURRAN:  Thank you.

  5   BY MS. SMITH:

  6          Q      If you can turn to page -- Bates

  7   stamp page 81.  See on page 81 where it says,

  8   "social history"?

  9   A      The page is 00081?

 10          Q      81, right.  Down the bottom it

 11   says --

 12   A      Yes.

 13          Q      -- "social history," right?

 14   A      Yes.

 15          Q      "History" means history, right?

 16   Does "history" mean history?  Can we agree that

 17   "history" means history?

 18   A      Yes.

 19          Q      Okay.  And it says, "walks two

 20   dogs," right?

 21   A      Yes.

 22          Q      Where does it say, "in the Town"?

 23   It doesn't, does it?

 24   A      No, it doesn't.

 25          Q      And that's May of 2004, right?


 

00188

  1   A      May 13th, 2004.

  2          Q      Now, it's your testimony just a

  3   few minutes ago -- just a few minutes ago that

  4   Mr. deVries did not tell you that he didn't want

  5   to go back into Secaucus, that he avoided

  6   Secaucus?  That was your testimony, right?

  7   A      That he told me that he did not want to

  8   work --

  9          Q      Your testimony was that

 10   Mr. deVries did not tell you that he avoided the

 11   Town of Secaucus?  I think you actually used the

 12   words he did a lot of activities there, right?

 13   A      Yes.

 14          Q      Didn't you just testify to that?

 15   A      Yes, I remember.

 16          Q      Lots of activities in Secaucus,

 17   right?

 18   A      Yes.

 19          Q      In fact, Mr. deVries got his old

 20   job back in Secaucus and had to call up and say

 21   he couldn't take it because even though he

 22   wanted that job back, he couldn't take a job in

 23   Secaucus because of what happened to him in

 24   April of 2004 in Secaucus; isn't that correct?

 25   A      I was not aware of that, no.


 

00189

  1          Q      In fact, Mr. deVries -- I'm not

  2   going to reread what we read about what happened

  3   in the cardiologist's office; I'm sure the jury

  4   remembers.  But what we didn't read this morning

  5   is, "We find ourself either alone or Tim, if we

  6   have to drive to Secaucus, it's so

  7   uncomfortable.  It's extremely uncomfortable."

  8   He told you he didn't want to drive in Secaucus

  9   anymore, didn't he?  He told you that?

 10   A      It was uncomfortable he said.  It's

 11   different --

 12          Q      "I could not go back once we left.

 13   It used to be coming home from work I'd get

 14   nervous."  He didn't he tell you that, just

 15   driving home from work, coming into Town, he

 16   would get nervous coming into Secaucus?  He told

 17   you that, didn't he?

 18   A      He reported that, yes.

 19          Q      Now, you talked about disability

 20   records in November of 2004.  You have not

 21   seen --

 22   A      I'm sorry, say it again.  The -- the date

 23   is?

 24          Q      I think -- I think the one you

 25   looked at was November of 2004.  Do you recall?


 

00190

  1   A      I believe it was --

  2                 MR. BEVERE:  It was '05.

  3          Q      Oh, I'm sorry.

  4   A      Yeah.

  5          Q      I'm sorry.

  6   A      That's fine.

  7          Q      So the one we looked at was

  8   November of 2005, right?  Have you seen any

  9   subsequent disability records?  Anything after

 10   that?

 11   A      No.

 12          Q      And you don't disagree that you

 13   can have both PTSD and depression, right?

 14   A      Right.

 15          Q      And you can have different

 16   things -- disabling conditions at once, can't

 17   you?

 18   A      Yes, it's possible.

 19          Q      Now, you were talking about my

 20   client's, Mr. deVries', major depression.

 21   Mr. deVries had never been on disability before

 22   in his life prior to May of 2005; isn't that

 23   true?

 24   A      I -- I cannot tell you for sure.

 25          Q      You have no records whatsoever of


 

00191

  1   him ever being on disability before in his

  2   entire life; isn't that correct?

  3   A      Correct.

  4          Q      And he didn't tell you he was and

  5   it is not in Dr. Almeleh's records or the

  6   cardiologist's records or anything else you

  7   reviewed, right?

  8   A      Right.

  9          Q      Now, the call for help, that was

 10   another example you gave of your evidence of why

 11   Mr. deVries doesn't have PTSD, the fact that he

 12   called for help.  In fact, when he tried to call

 13   the police for help, lying on the floor, crying

 14   in his living room, he dropped the phone and

 15   couldn't complete the call; isn't that correct?

 16   A      I remember reading or hearing that, yeah,

 17   that report, yeah.

 18          Q      And you said before, just on

 19   redirect, that Mr. deVries went upstairs in

 20   anger?  That's what you said just before, right?

 21   A      Yes.

 22          Q      He was told to go upstairs because

 23   he was crying, wasn't he?

 24   A      He was -- he went upstairs.  I remember

 25   him saying he was frustrated, he was angry, he


 

00192

  1   knew that he wasn't -- nothing was going to

  2   happen, as he felt.  And that point he was told

  3   to go upstairs by the police or his partner, I'm

  4   not sure.  But he left Mr. Carter and the

  5   sergeant talking in the house and he went

  6   upstairs, once he realized that there was no use

  7   talking to the sergeant.

  8          Q      Dr. Goldwaser, didn't Mr. deVries

  9   tell you, "I started crying"?  "I started

 10   crying" -- "I started crying.  He suggested I go

 11   inside"; isn't that what he told you?  Didn't we

 12   even read it to the jury earlier today?

 13   A      He said a lot of inaccurate things.

 14          Q      He didn't say, "I went upstairs

 15   angry"; he said, "I was crying."  Didn't he say

 16   that to you?

 17   A      Yes.

 18                 MS. SMITH:  No further questions,

 19   Your Honor.

 20                 JUDGE CURRAN:  Thank you.

 21                  Mr. --

 22                 MR. BEVERE:  Just one quick

 23   question.

 24   FURTHER REDIRECT EXAMINATION BY MR. BEVERE:

 25          Q      Doctor, if you did not cite any


 

00193

  1   treatises in your report, what did you rely

  2   upon?

  3   A      I relied upon my training, my education,

  4   my updating my education constantly.  And when I

  5   said my CV earlier, I was not relying on the CV

  6   as something separate; but I included as part of

  7   my report because it cites --

  8                 MS. SMITH:  Objection, Your Honor.

  9   A      It cites --

 10                 MS. SMITH:  Objection, Your Honor.

 11   He keeps talking.

 12                 JUDGE CURRAN:  I am going to

 13   sustain the objection.

 14                  You can ask him another question,

 15   if you'd like.

 16                  But Doctor, please listen to Mr.

 17   Bevere's question carefully rephrased.

 18                  Mr. Bevere.

 19                 MR. BEVERE:  Okay.

 20   BY MR. BEVERE:

 21          Q      Doctor, if you did not cite any

 22   medical treatises in your report, what, if any,

 23   medical information did you rely upon in

 24   reaching your opinions and conclusions in this

 25   case?


 

00194

  1                 MS. SMITH:  Objection, asked and

  2   answered.

  3                 MR. BEVERE:  Judge, he was

  4   answering the question on the record.

  5                 JUDGE CURRAN:  He was answering

  6   the question.  I am going to allow that question

  7   again.

  8   BY MR. BEVERE:

  9   A      I was relied -- I relied on basically the

 10   DSM, which is --

 11                 MS. SMITH:  Objection, Your Honor.

 12   It's not in his report.

 13                 THE WITNESS:  I do mention the

 14   diagnosis.

 15                 JUDGE CURRAN:  Hold on.  If you

 16   would please include in your question what is in

 17   the report, if you want that to be part of the

 18   question.

 19                  He has a right to ask the

 20   question outside the report.  It's up to what

 21   Mr. Bevere wants to do.

 22                 MR. BEVERE:  Well, Judge, at --

 23   BY MR. BEVERE:

 24          Q      Doctor, did you refer to the DSM

 25   in your report?


 

00195

  1   A      I referred to the DSM when I referred to

  2   the diagnosis.  Those are diagnoses presented or

  3   discussed in the DSM.  The numbers, the codes --

  4   the codes, the diagnostic code is a DSM

  5   diagnostic code, so I have to rely on that.  I

  6   did not --

  7                 MR. MULLIN:  Can we have the page

  8   cite, please?

  9                 JUDGE CURRAN:  Where in the

 10   report, Doctor?

 11                 THE WITNESS:  Major depressive

 12   disorder recurrent severe is a DSM diagnosis and

 13   not any other.  On page eight, for example, of

 14   Peter deVries' report I talked about the

 15   diagnosis, the dysthymia diagnosis, DSM-IV TR

 16   300.4 and generalized anxiety, DSM-IV TR 300.2.

 17                  I used -- I used this concept,

 18   and I used work from people in the field that I

 19   quoted in -- in -- again, in my curriculum that

 20   is a part of it about PTSD, all the different

 21   courses.

 22                 MS. SMITH:  Objection.  Objection.

 23   You have ruled what's in his curriculum vitae is

 24   not in the report, and he keeps referring to it.

 25   He said it again.  Move to strike.


 

00196

  1                 JUDGE CURRAN:  The curriculum

  2   vitae accompanies the report; it is not part of

  3   the report.  It could -- there could be the same

  4   information.

  5                 MR. BEVERE:  Judge, let me ask the

  6   question differently.

  7   BY MR. BEVERE:

  8          Q      Doctor, what, if anything, did

  9   you -- did you use as far as your education,

 10   your background and your training?

 11   A      Okay.  Works prepared by Dr. Philip

 12   Resnick from Case Western Reserve.

 13                 MS. SMITH:  Okay.  This is beyond

 14   the scope of his report.  I wasn't allowed to

 15   cross-examine on this in his dep or do any

 16   research regarding this.  He never cited any

 17   authority whatsoever in his report.

 18                 JUDGE CURRAN:  In fairness, you

 19   can't say what the doctor said, you can't talk

 20   about it in detail.  But I allowed Mr. Bevere to

 21   go beyond the report, which is, I understand, a

 22   little beyond -- or a lot beyond recross.

 23                 MR. BEVERE:  Judge, my question

 24   was very specific.  And that was:  What, if

 25   anything, in his training and experience and


 

00197

  1   education did he use to reach his opinions and

  2   conclusions?

  3                 JUDGE CURRAN:  That is the

  4   problem.  Did you understand the question?

  5                 THE WITNESS:  Yes.

  6                 JUDGE CURRAN:  Thank you.

  7   BY MR. BEVERE:

  8   A      My clinical practice of 31 years treating

  9   patients with posttraumatic stress disorder, my

 10   being professor at NYU, teaching courses on

 11   psychopathology at New York University School of

 12   Medicine, the Department of Psychiatry, the

 13   psychiatric residency training, the Psych One

 14   Institute and also the institute of NYU.  I

 15   teach courses of psychopathology.  I teach

 16   courses on dreams.  And I teach courses on

 17   ethics.  And all my training and education as a

 18   forensic psychiatrist, as well as a clinician

 19   and as a forensic expert.

 20                 MR. BEVERE:  No further questions,

 21   Your Honor.

 22                 JUDGE CURRAN:  Miss Smith,

 23   recross?

 24                 MS. SMITH:  Just a couple, Your

 25   Honor.


 

00198

  1   FURTHER RECROSS EXAMINATION BY MS. SMITH:

  2          Q      You have a copy of -- you actually

  3   referred to Dr. Bursztajn's report in your

  4   report, right, Doctor?

  5   A      Yes.

  6          Q      So you know that he relied upon

  7   Co-morbidity of Psychiatric Disorders and

  8   Posttraumatic Stress by Brady, Killeen and

  9   Brewerton, right?

 10   A      You mean all this -- all these

 11   articles --

 12          Q      Number two on page five, you see

 13   that report?

 14   A      Yes, it's a clinical paper.

 15          Q      Okay.  And that's in -- that's in

 16   the Journal of Clinical Psychiatry, a

 17   peer-reviewed journal, right?

 18   A      It's a clinical paper, yes.  It's not a

 19   forensic paper.

 20                 MS. SMITH:  Your Honor.

 21                 JUDGE CURRAN:  Sir, the question

 22   was:  It's a peer -- or the reference, it's a

 23   peer-reviewed journal, isn't it?

 24                 THE WITNESS:  It is.

 25                 JUDGE CURRAN:  It is, right.


 

00199

  1   BY MS. SMITH:

  2          Q      And recognize -- another relevant

  3   literature cited by Dr. Bursztajn, "Recognizing

  4   Posttraumatic Stress In Patient Care" by Dr.

  5   Bursztajn, right?  You see that?  That's here in

  6   reference in Dr. Bursztajn's report, is it not?

  7   A      Which -- which number?

  8          Q      Number three.

  9   A      Yeah, patient -- yeah.

 10          Q      Okay.  And "Guidelines to the

 11   Evaluation of Permanent Impairment in the

 12   American Medical Association Press," that number

 13   four, that was relied upon by Dr. Bursztajn,

 14   right?

 15   A      It's all reported, enumerated here, yes.

 16                 JUDGE CURRAN:  Sir, it's a yes or

 17   no.

 18   A      Yes, yes.

 19          Q      "Toward a Limited Definition of

 20   Psychiatric Trauma, the Reconstruction of

 21   Trauma, its Significance in Clinical Work" in

 22   the American Psychoanalytic Association meeting

 23   in Madison, number five, that's relied upon by

 24   Dr. Bursztajn, right?

 25   A      He cited it here, yes.


 

00200

  1          Q      Right?  In fact, Dr. Bursztajn

  2   lists 31 separate references of relevant

  3   literature in which he relied making his report,

  4   finding that both Mr. Carter and Mr. deVries

  5   have posttraumatic stress disorder; isn't that

  6   correct?

  7   A      No, not entirely.

  8          Q      He doesn't cite 31 pieces of

  9   relevant literature?

 10   A      It's not relevant, all of it.  He cites

 11   it.  But you ask whether it's relevant, no.

 12          Q      Okay.  You don't have staff

 13   privileges anywhere today, do you, Doctor?

 14                 MR. BEVERE:  Judge, objection.

 15   That is certainly beyond the scope of my

 16   re-redirect.

 17                 MS. SMITH:  No, it's not.  You

 18   asked him what he based everything on, and he

 19   talked about all the patients he treats.

 20   BY MS. SMITH:

 21          Q      You don't have staff privilege

 22   anywhere today, do you, Doctor?

 23   A      Staff privileges?

 24          Q      Yeah, do you know what that means?

 25   A      To admit patients in a hospital, no, I


 

00201

  1   don't.

  2          Q      You don't know what staff

  3   privileges means?

  4   A      Yes, to admit patient in a hospital.  No,

  5   I don't.

  6          Q      You do not have staff privileges

  7   anywhere today; is that right?

  8   A      No, I don't.

  9          Q      That's correct.  Okay.  Dr.

 10   Bursztajn lists 31 pieces of literature that he

 11   refers to as relevant to his diagnosis of

 12   posttraumatic stress disorder in Mr. Carter and

 13   Mr. deVries; isn't that true?

 14   A      He cites all of that, yes.

 15                 MS. SMITH:  No further questions.

 16                 JUDGE CURRAN:  Mr. Bevere?

 17                 MR. BEVERE:  No further questions,

 18   Judge.

 19                 JUDGE CURRAN:  Thank you.

 20                  Is there anyone on the jury who

 21   has a question for this witness?  If so, please

 22   raise your hand or take one of the question

 23   cards.  Anyone on the jury who has a question?

 24                  Thank you.  I see no questions;

 25   therefore, the witness may step down.


 

00202

  1                 (Whereupon, the witness is

  2          excused.)

  3                 JUDGE CURRAN:  Ladies and

  4   Gentlemen, there are a few short issues I have

  5   to discuss with counsel.  If you would just

  6   retire to the beautiful jury room, thank you.

  7                  Off the record.

  8                 (Whereupon, the jury is excused.)

  9                 (Whereupon, a discussion is held

 10          off the record.)

 11                 (Whereupon, the following sidebar

 12          discussion is held.)

 13                 MS. SMITH:  Your Honor, my client

 14   is going to go down and make a police report.

 15   One of the sheriffs in this courthouse called

 16   him a homo.

 17                 MR. PARIS:  A sheriff's officer?

 18                 MS. SMITH:  Yes.

 19                 JUDGE CURRAN:  Out in the hall

 20   here?  Where?

 21                 MS. SMITH:  In this building.

 22                 JUDGE CURRAN:  Do you know where?

 23                 MS. SMITH:  I don't.  I was just

 24   told this second.  I didn't get the details.  I

 25   just wanted you to be aware of it because he is


 

00203

  1   going to leave and make a report of it, and I

  2   didn't want anybody --

  3                 JUDGE CURRAN:  I appreciate your

  4   telling --

  5                 MS. SMITH:  -- not let you know.

  6                 JUDGE CURRAN:  Anything you can

  7   find out, it would just help to make a record,

  8   if nothing else, because he could have been on

  9   first floor, he could have been out of the back

 10   door.  Did he -- did you get any information,

 11   some sort of --

 12                 MS. SMITH:  That is the only thing

 13   I heard.  I just wanted to let you know right

 14   away because I -- I have advised him to go make

 15   a report about it.  I know we want to get Mr.

 16   Leanza on, and I didn't want any time to go

 17   without --

 18                 JUDGE CURRAN:  Just one last

 19   thing.  I'm not cross-examining you --

 20                 MS. SMITH:  Yes.

 21                 JUDGE CURRAN:  -- but it was

 22   reported to you that the sheriff's officer

 23   called him that, not referred -- I'm not saying

 24   referred to would be okay.

 25                 MS. SMITH:  I don't -- I don't --


 

00204

  1   I don't even know.

  2                 JUDGE CURRAN:  Okay.  Thank you.

  3                 MS. SMITH:  It was upsetting.  I

  4   just repeat --

  5                 JUDGE CURRAN:  I appreciate that.

  6   Thank you.  Thank you very much.

  7                  I will note that all counsel are

  8   at sidebar.  Thank you.

  9                 MR. BEVERE:  Thank you, Judge.

 10                 COURT CLERK:  Off the record.

 11                 JUDGE CURRAN:  Off the record.

 12                 (Whereupon, sidebar discussion is

 13          concluded.)

 14                 (Whereupon, a brief recess is

 15          taken.)

 16                 JUDGE CURRAN:  Mr. Paris.

 17                 MR. PARIS:  Your Honor, in

 18   preparation for putting Mr. Leanza on the stand

 19   there are a couple of preliminary matters that I

 20   would like to address, so they don't -- so we

 21   can get rulings on them, so they don't become a

 22   problem later on.

 23                  One of them is with regard to a

 24   document that was within Mr. Leanza's file which

 25   should not -- is not going to be the subject of


 

00205

  1   direct examination, certainly shouldn't be the

  2   subject of cross-examination.  I want to be

  3   clear on that.  There was a letter dated

  4   August 14th of 2006 from Mr. Leanza to Thomas

  5   Cammarata, an attorney with Cammarata, Nulty --

  6                 JUDGE CURRAN:  I'm sorry, what was

  7   the name?

  8                 MR. PARIS:  It's Thomas Cammarata.

  9                 JUDGE CURRAN:  Okay.

 10                 MR. PARIS:  With Cammarata and

 11   Nulty and Garrigan, which confirms that Mr.

 12   Cammarata is representing Charles Snyder, Sr.,

 13   Jr. and Mutschler regarding a notice to be

 14   deposed.  And it refers to a letter of July 10th

 15   from David Grubb of the suburban Essex Joint

 16   Insurance Fund to Mayor Elwell.  And I don't

 17   know whether -- and I'll leave it at that.

 18                  "That the Fund will reimburse for

 19   counsel fees at the rate of $135 per hour up to

 20   four hours"; and it goes on.  It says that, "The

 21   letter provides that my clients must execute a

 22   document indicating that the reimbursement of

 23   legal fees is not a waiver of any disclaimer on

 24   indemnity claim that the Town of Secaucus may

 25   have in this matter."  And that he asked Mr.


 

00206

  1   Leanza to forward an agreement to his office so

  2   that the three clients and Mr. Cammarata could

  3   sign it.

  4                  Mr. Leanza testified at his

  5   deposition that he did not know anything about

  6   this.  He was surprised by it.  He didn't

  7   negotiate it.  It wasn't negotiated with the

  8   Town.  But apparently, Mr. Cammarata dealt

  9   directly with a David Grubb of the Joint

 10   Insurance Fund with regard to this.

 11                  I want to make sure that this

 12   does not become an issue with regard to Mr.

 13   Leanza's testimony, as this certainly is not an

 14   action taken by the Town and it also deals with

 15   the issue of insurance.  Really isn't relevant

 16   to the underlying liability issues or the

 17   underlying legal issues of the case.

 18                 JUDGE CURRAN:  Mr. Mullin.

 19                 MR. MULLIN:  Well, I can say this.

 20   I won't cross-examine on this issue without

 21   alerting the Court that I intend to.  It could

 22   be relevant.  Depends on what Mr. Leanza says on

 23   direct.  But I -- I can commit not to

 24   cross-examine on it without making an

 25   application to the Court out of the jury's


 

00207

  1   hearing.

  2                 JUDGE CURRAN:  Thank you.

  3                 MR. PARIS:  I'm certainly not

  4   going to question him on this issue.

  5                  Next issue is with regard to the

  6   tape of the caucus meeting of April 27th of

  7   2004.

  8                 JUDGE CURRAN:  The ominous

  9   dangerous tape that your law clerk snuck into

 10   this building, that tape?

 11                 MR. BEVERE:  That was the tape

 12   recorder, Judge, not the tape.

 13                 JUDGE CURRAN:  That was the

 14   recorder, right.

 15                 MR. PARIS:  They let you bring in

 16   tapes, as long as you can't do anything with

 17   them.

 18                 JUDGE CURRAN:  That's right.

 19                 MR. PARIS:  In any case, in -- in

 20   listening to the tape, reviewing the tape -- and

 21   I don't know whether or not Mr. Mullin has had

 22   it transcribed, whatever; but there are

 23   references to the Joint Insurance Fund.  It

 24   talks about the training that -- the sensitively

 25   training that was established.  It mentions


 

00208

  1   that, I believe it was, Chief Walters contacted

  2   the safety liaison to the JIF to set up the

  3   sensitivity training.

  4                  There is another reference to a

  5   prior case, which I don't know that anyone knew

  6   anything about it -- it certainly does not

  7   appear to be a similar type of incident -- and a

  8   consent judgment.

  9                 JUDGE CURRAN:  In regard Secaucus?

 10                 MR. PARIS:  Yeah.  There is also a

 11   reference to the discussion about lowering

 12   insurance premiums.  And then there is two more

 13   references to the JIF as to the JIF encouraging

 14   the sensitivity training.

 15                  And -- well, frankly, I would

 16   have no problem playing the tape to the jury.  I

 17   am concerned about those references.  And I

 18   would suggest that if counsel is going to play

 19   part of the tape or intends to play part of the

 20   tape, that we play the entirety of the tape and

 21   basically skip over those references and fast

 22   forward the tape through those references.

 23                 JUDGE CURRAN:  Mr. Mullin -- first

 24   of all, is there a transcript of the tape?

 25                 MR. MULLIN:  I don't have a


 

00209

  1   transcript of the tape.

  2                 JUDGE CURRAN:  Okay.  What about

  3   the second issue?

  4                 MR. MULLIN:  I would have liked to

  5   have a transcript of the tape but --

  6                 JUDGE CURRAN:  I got it.  I didn't

  7   want to come to sidebar with a transcript

  8   either.  It's noted on the record.

  9                 MR. PARIS:  You can go to Kinko's

 10   and get it done in a half hour.

 11                 JUDGE CURRAN:  I knew Mr. Paris

 12   was going to say that.

 13                 MR. MULLIN:  Well, I don't know --

 14   I don't know that -- that the references are --

 15   I think it's relevant.  I think the -- if

 16   they're playing this tape two days after this

 17   incident, I think the jury is entitled to hear

 18   what -- everything what the concerns of the --

 19   of the leadership body are that night.  They are

 20   concerned about the issues that he is raising.

 21   That's -- that's, you might say, right up front

 22   and center.

 23                 JUDGE CURRAN:  Mr. Paris.

 24                 MR. PARIS:  It's not a question of

 25   being concerned about the insurance.  It's a


 

00210

  1   question about the JIF encouraging training;

  2   that's what it's about.  And the questions,

  3   well, who is the JIF?  And it's the Joint

  4   Insurance Fund.  There is a reference to prior

  5   cases; but the prior cases don't have any

  6   relevance back to this, so I would --

  7                 JUDGE CURRAN:  What was the prior

  8   consent judgment?

  9                 MR. PARIS:  I really don't know.

 10   And frankly, when Mr. Leanza testified --

 11                 MR. MULLIN:  Counsel appears to be

 12   referring to a transcript.  Does he have a

 13   transcript?

 14                 MR. PARIS:  I have got notes.

 15                 MR. MULLIN:  Oh, notes.

 16                 MR. PARIS:  That's what I've got.

 17   It's not a verbatim -- I shouldn't say it's not

 18   a verbatim transcript.  It's not by a certified

 19   shorthand reporter.  Somebody listened to it and

 20   tried to write down what was there.

 21                  Okay.  So that's -- so that's the

 22   concern.  In other words, it's not a question of

 23   they said, "Well, gee, what's going to happen to

 24   our insurance as a result of this incident"; but

 25   it's -- it is a reference to the fact that there


 

00211

  1   is insurance, that there is a JIF for the Town.

  2   So that's my concern.

  3                  If they had -- you know, if they

  4   intend to play the tape, I think that those --

  5   those portions of the tape -- I have no problem

  6   playing the tape; but those portions should be

  7   excluded, so that the relevant portions, which

  8   are, you know, what -- you know, what were the

  9   considerations in terms of taking action and,

 10   you know, what -- and again, you know, I'm not

 11   trying to hide the discussion.  But I don't know

 12   whether their intention was to play any portion

 13   of the tape; and if so, I just want to say up

 14   front that we -- you know, we need to be

 15   circumspect about those issues.

 16                 MR. MULLIN:  Well, I don't know

 17   what "circumspect" means.  If they're playing

 18   the tape, under the completeness rule I would

 19   ask they play the whole tape.  If -- if they're

 20   playing the tape, I assume they're offering it

 21   for the concerns that were on the mind of the

 22   leadership body on April 27th.  Well, then the

 23   jury shouldn't be given a misimpression about

 24   the concerns of the leading body.

 25                  Now, as I recall the tape -- and


 

00212

  1   I don't have a transcript -- I don't recall the

  2   word "insurance" being used.  Now, I could be

  3   mistaken; they have -- counsel has listened to

  4   the tape more recently.  But I -- I suspect

  5   there is nobody on this jury that knows what the

  6   JIF is or the MEL is, and so I don't even think

  7   it is an issue.

  8                  Now, if we want to agree on some

  9   explanation, I don't know what we could give.  I

 10   don't know how -- how to word it or whether some

 11   limiting instruction, but counsel isn't

 12   proposing anything.

 13                  I mean, suppose that the concern

 14   of the Council has -- has to do with insurance.

 15   Two gay men are brutally attacked on April 25th,

 16   and the concern of the leading body is

 17   insurance.  I think that's something the jury

 18   ought to know.  Should the jury know that there

 19   is insurance for this case, of course not.  Of

 20   course not.

 21                 MS. SMITH:  Is the witness there?

 22                 MR. MULLIN:  That is not the

 23   witness.

 24                 JUDGE CURRAN:  No.  I started out

 25   not knowing anybody from Secaucus, but I at


 

00213

  1   least know the three gentleman in the front row.

  2                 MS. SMITH:  Thank you.

  3                 JUDGE CURRAN:  In the interest of

  4   full disclosure, I spoke to one of them at

  5   lunchtime because I do answer the phone if no

  6   one else -- I answer it all the time every day.

  7   But we did discuss only what time the session

  8   was starting this afternoon; is that correct?

  9                 MR. BARTOLOZZI:  Correct.

 10                 JUDGE CURRAN:  And the Mayor and

 11   Mr. Drumeler and the individual --

 12                 MS. SMITH:  I'm sorry, Your Honor,

 13   I don't have all their faces -- I just took this

 14   deposition, and I don't distinguish them.  I'm

 15   sorry.

 16                 MR. MULLIN:  I would like an order

 17   that no one in this room discuss what we're

 18   discussing with the witness in the hallway.

 19                 JUDGE CURRAN:  I am sure that no

 20   one, whether -- none of the witnesses observing;

 21   and certainly Mr. Bevere and Mr. Paris would

 22   understand that.  And I know as officers of the

 23   Court they would not.

 24                 MR. MULLIN:  Okay.

 25                 JUDGE CURRAN:  As to the insurance


 

00214

  1   question, the reference to insurance?

  2                 MR. PARIS:  Well, I don't think

  3   the -- I think the only reference is -- is the

  4   JIF.

  5                 JUDGE CURRAN:  Saying, "the JIF";

  6   is that it?

  7                 MR. PARIS:  The JIF.

  8                 JUDGE CURRAN:  I'm fairly certain

  9   they are not going to figure out -- we already

 10   confused them totally with what is or isn't.  I

 11   don't think they will figure out what the JIF

 12   is.

 13                 MR. PARIS:  Then the other

 14   reference is reference to some prior consent

 15   judgment or consent decree, and I think that

 16   clearly should be -- should be deleted.  I mean,

 17   it as absolutely -- to my understanding, has

 18   absolutely nothing to do with this case, has

 19   nothing to do with establishing liability in

 20   this case.  You know, it doesn't --

 21                 JUDGE CURRAN:  Did Miss Smith ask

 22   about the prior consent order at the deposition?

 23                 MR. PARIS:  Yes, she did.

 24                 JUDGE CURRAN:  Miss Smith, do you

 25   remember anymore details about it?


 

00215

  1                 MS. SMITH:  Yeah, he gave us a lot

  2   of details about it.

  3                 MR. PARIS:  What did he say?

  4                 JUDGE CURRAN:  Just what was it?

  5                 MS. SMITH:  Oh, God, Your Honor, I

  6   feel like I don't have one brain cell left after

  7   what I just did.  Please bear with me.  I will

  8   find out.  I -- I don't have an index to this

  9   deposition.

 10                 JUDGE CURRAN:  If it was

 11   questioned --

 12                 MS. SMITH:  Oh, consent order, I'm

 13   so sorry.

 14                 MR. MULLIN:  I have an index to my

 15   version.

 16                 MS. SMITH:  Consent decree, it was

 17   an NAACP matter about no African-American police

 18   officers.

 19                 MR. PARIS:  Oh, there we go.  That

 20   was it.  And it was about hiring.

 21                 JUDGE CURRAN:  Okay.  I -- I am

 22   going to save time right now.  We have already

 23   talked about introducing race into this case in

 24   any way is just going to be more inflammatory

 25   than probative.  So there won't be any reference


 

00216

  1   to that, please.

  2                  Now --

  3                 MR. MULLIN:  So he will skip over

  4   that?

  5                 JUDGE CURRAN:  How we avoid that

  6   in the tape -- everybody know the number, so we

  7   can avoid it?

  8                 MR. MULLIN:  Counsel is playing

  9   it.

 10                 MR. PARIS:  I will play it.  I

 11   will play it.

 12                 JUDGE CURRAN:  Thank you.

 13                 MR. PARIS:  And the only other

 14   thing that -- the only other comment is about --

 15   the only other comment that I am aware of is it

 16   does talk about sensitivity training lowering --

 17   says, "lowering our premiums."  That's a direct

 18   reference to insurance.  And again, you know,

 19   the tape, itself, lasts about 40, 45 minutes, I

 20   think.  I think it's in about that range.

 21                 MR. MULLIN:  Your Honor, I think

 22   it's unavoidable.  This is what's on the mind of

 23   this body two days after this incident.  I want

 24   the jury to know that.

 25                 JUDGE CURRAN:  Well, okay, let me


 

00217

  1   ask you this, to get to the real nub of the

  2   matter.  Are you planning to play the whole

  3   tape?  Mr. Mullin has asked, for completeness,

  4   that the whole tape be played.  That basically

  5   means that just playing the tape will take

  6   really all of the time that the jury has today.

  7   Again, I'm not in any hurry to leave, as we

  8   indicated every day.

  9                 MR. PARIS:  I understand.

 10                 JUDGE CURRAN:  But I don't like to

 11   keep the jury.  And you know, we're kind of

 12   instructed not to keep the juries beyond 4:30,

 13   unless it's essential.

 14                 MR. PARIS:  Your Honor.

 15                 JUDGE CURRAN:  My concern would be

 16   we would have to keep them a lot longer to get

 17   all of Mr. Leanza's testimony in.

 18                 MR. PARIS:  I -- I don't think

 19   that you -- in other words, I can ask Mr.

 20   Leanza -- Mr. Leanza has listened to the tape.

 21   It is the first time he has ever heard it.

 22                 JUDGE CURRAN:  I am not trying to

 23   rush you or exclude whatever you want,

 24   Mr. Paris.

 25                 MR. PARIS:  No, I'm trying to deal


 

00218

  1   with this practically.  Mr. Leanza listened to

  2   the tape.  He could testify as to, you know,

  3   what his refreshed recollection is with regard

  4   to what was discussed at the meeting.  That's

  5   not -- that's not a problem.  But, again, if

  6   portions of the tape are going to be played in

  7   cross, then what I'm going to want to do is play

  8   the rest of the tape.  So you know --

  9                 MR. MULLIN:  You are now saying

 10   you are not going to play the tape?

 11                 MR. PARIS:  No, what I'm saying is

 12   I'm trying to figure out a way to -- I'm trying

 13   to --

 14                 JUDGE CURRAN:  Why don't we go off

 15   the record?  It's always easier to do this off

 16   the record.  We'll put the findings on the

 17   record.

 18                  Off the record, please.

 19                 COURT CLERK:  Off the record.

 20                 (Whereupon, a discussion is held

 21          off the record.)

 22                 JUDGE CURRAN:  Thank you.  We will

 23   bring out the jury.

 24                 (Whereupon, the jury is brought

 25          into the courtroom.)


 

00219

  1                 COURT CLERK:  On the record.

  2                 JUDGE CURRAN:  Thank you.  We are

  3   back on the record.

  4                  Thank you, Ladies and Gentlemen.

  5   We will continue now with the defense case.

  6                 MR. PARIS:  Thank you very much,

  7   Your Honor.  Defense would call Frank Leanza.

  8                 JUDGE CURRAN:  Thank you,

  9   Mr. Paris.

 10                  Sir.

 11                 MR. MULLIN:  Your Honor, I

 12   preserve all prior objections.

 13                 JUDGE CURRAN:  Absolutely.  All

 14   reserved on the record.

 15                 MR. MULLIN:  Just preserved prior

 16   objections.

 17                 JUDGE CURRAN:  Good afternoon,

 18   sir.

 19                 THE WITNESS:  Good afternoon, Your

 20   Honor.

 21                 MS. HAWKS:  Can you -- thank you.

 22   Raise your right hand.  Yes, thank you.

 23   F R A N K   M.  L E A N Z A is duly sworn by a

 24        Notary Public of the State of New Jersey

 25        and testifies under oath as follows:


 

00220

  1                 MS. HAWKS:  For the record, please

  2   state your full name and spell your last name,

  3   please.

  4                 THE WITNESS:  Frank M. Leanza,

  5   L-e-a-n-z-a.

  6                 JUDGE CURRAN:  Thank you, sir.

  7   And will you please give us your professional

  8   address for the record?

  9                 THE WITNESS:  777 Terrace Avenue,

 10   Hasbrouck Heights, New Jersey, 07604, Your

 11   Honor.

 12                 JUDGE CURRAN:  Thank you.

 13                  Your witness, Mr. Paris.

 14                 MR. PARIS:  Thank you very much,

 15   Your Honor.

 16   DIRECT EXAMINATION BY MR. PARIS:

 17          Q      Mr. Leanza, are you a licensed

 18   attorney in the State of New Jersey?

 19   A      Yes, sir.

 20          Q      Okay.  Do you work for the Town of

 21   Secaucus?

 22   A      I am the Town attorney for the Town of

 23   Secaucus.

 24          Q      How long have you been the Town

 25   attorney for the Town of Secaucus?


 

00221

  1   A      Since January 2000, sir.

  2          Q      Okay.  Mr. Leanza, do you have any

  3   other positions with any other public entities?

  4   A      Yes, I have been the municipal court

  5   judge of Guttenberg, New Jersey since 19 --

  6          Q      I'm sorry, I didn't -- go ahead.

  7   A      I have been a municipal court judge of

  8   Guttenberg, New Jersey since 1990.  I have been

  9   the attorney for the North Hudson Sewerage

 10   Authority since 1988.  I have also been the

 11   attorney for the West New York Housing Authority

 12   since 1997 and the Weehawken Housing Authority,

 13   I believe, since 2005.

 14          Q      Mr. Leanza, what's your

 15   educational background?

 16   A      I graduated in 1972 from Newark College

 17   of Engineering with a Bachelor of Science summa

 18   cum laude.  In 1978 I graduated with Rutgers Law

 19   School -- from Rutgers Law School with a doctor

 20   of law cum laude.  In 1979 I graduated from New

 21   Jersey Institute of Technology with a masters

 22   degree.  And in 1984 I graduated from NYU with a

 23   Masters in Law.

 24          Q      Okay.  The NJIT, the masters, was

 25   in what area?


 

00222

  1   A      It was in management science.

  2          Q      What are your duties as municipal

  3   attorney for Secaucus?

  4   A      I have statutory duties, which are to

  5   give advice and counsel to the governing body,

  6   which is the Mayor and the Council.  I also am

  7   required under Department of Community Affairs

  8   regulations to sign off and give opinions with

  9   regard to bond ordinances, bonds that are

 10   issued.  And I also, according to the official

 11   duties, represent the Town in both

 12   administrative and judicial proceedings.

 13   However, lawyers are like doctors now and

 14   sometimes we have different specialists who

 15   handle different proceedings; and somebody else

 16   will handle that other than myself.

 17          Q      Did you -- were you of -- were

 18   you -- did you appear as counsel in this

 19   litigation?

 20   A      No.

 21          Q      Now, are you aware of the incident

 22   that occurred at the North End Fire Company

 23   Number 2 on April 25th, the early morning hours?

 24   A      Yes.

 25          Q      Were you consulted by Town


 

00223

  1   officials from the time that you learned of the

  2   incident until --

  3                 MR. MULLIN:  Objection, leading.

  4                 JUDGE CURRAN:  Sustained.

  5   BY MR. PARIS:

  6   A      Yes, I was aware of it.

  7                 MR. MULLIN:  Your Honor, can we

  8   please have a new question because it was

  9   sustained?

 10                 JUDGE CURRAN:  Thank you.

 11   BY MR. PARIS:

 12          Q      Mr. Leanza, after you learned of

 13   the incident did you play any role in the Town

 14   of Secaucus dealing with the incident?

 15   A      Yes, I did.

 16          Q      Okay.  Can you tell the jury what

 17   your role was from the time that you learned of

 18   the incident?

 19   A      Okay.  As I said, with respect to my

 20   duties as Town attorney, I provided advice,

 21   counsel and direction both to the Mayor and

 22   Council in general, to the Police Department and

 23   to the Fire Department.  I don't know if you

 24   want me to go into details.

 25          Q      Well, I'm going to go through


 

00224

  1   that, so we can go through it in orderly way.

  2   When did you first find out about the incident?

  3   A      I first found out Sunday afternoon, which

  4   was the 25th, probably sometime in the

  5   afternoon.  I received a telephone call from

  6   Mayor Elwell, who informed me that the night

  7   before there had been an incident at the

  8   North -- North End Firehouse.  And he gave me a

  9   brief description of what happened, as well as

 10   mentioned that there had been a meeting that

 11   morning.

 12          Q      Did he mention to you there

 13   already had been a meeting or there was going to

 14   be a meeting?

 15   A      He mentioned there already had been a

 16   meeting.

 17          Q      Were you present at the meeting?

 18   A      I was not present at the meeting.

 19          Q      Okay.  Now, once you found out

 20   what had happened, what was your initial

 21   involvement?

 22   A      My initial involvement was first giving

 23   advice to the Mayor.  And secondly, the first

 24   thing Monday morning, meet with both the Police

 25   Chief and the Detective Captain of Lieutenants


 

00225

  1   to apprize them of my analysis of the

  2   circumstances, that this should be viewed as a

  3   bias crime by the Police Department of the Town

  4   of Secaucus and that no one in the Town should

  5   interfere with their investigation of the same

  6   and that because it would be considered a bias

  7   crime, this should be referred immediately over

  8   to the Hudson County Prosecutor's Office.

  9          Q      Okay.  And when did you have that

 10   discussion?

 11   A      I had that discussion in my initial

 12   telephone call with the Mayor on Sunday

 13   afternoon.  And the first thing, probably 9:00,

 14   on that Monday morning, which must have been the

 15   26th, with the Police Chief and Detective

 16   Captain Buckley.

 17          Q      Now, do you recall any involvement

 18   other than what you have already described to

 19   the jury on April 26th?

 20   A      April 26th was that Monday.  I researched

 21   some of the statutes.  And after I spoke with

 22   the Police Chief and Police Captain, I believe I

 23   spoke with the Mayor and gave him my directions

 24   that, in no uncertain terms, no one from the

 25   Town should interfere with the investigation,


 

00226

  1   should even talk to the firemen or even talk

  2   about the incident that happened.

  3            My concern was all of this talking

  4   among and between people from the Town would

  5   somehow taint the investigation, as somebody

  6   might think they were there but they really

  7   remember what somebody else told me, something

  8   of that nature.

  9            And I was also concerned that if

 10   officials from the Town talked to potential

 11   witnesses or people that might or might not have

 12   been there, they could be accused subsequently

 13   of trying to suggest or change the testimony of

 14   the witnesses.

 15          Q      Now, do you know -- did you

 16   ever -- did you ever find out or learn that

 17   Mayor Elwell, the Police Chief Corcoran --

 18                 MR. MULLIN:  Objection, leading.

 19                 JUDGE CURRAN:  I'll overrule it

 20   for this question.

 21                 MR. PARIS:  Thank you.

 22   BY MR. PARIS:

 23          Q      Did you ever become aware that

 24   Mayor Elwell, Chief Corcoran and Chief Walters

 25   went to the home of Mr. deVries and Mr. Carter


 

00227

  1   on Sunday?

  2                 MR. MULLIN:  Objection, hearsay.

  3                 MR. PARIS:  Your Honor.

  4                 JUDGE CURRAN:  I'm going to allow

  5   the question.  The objections are preserved.

  6   BY MR. PARIS:

  7          Q      My question is yes or no.  Did you

  8   ever find out that they went?

  9   A      Yes.

 10          Q      Okay.  Do you know whether they

 11   went before or after you provided the advice

 12   that you did to Mayor Elwell?

 13   A      They went before I provided the advice.

 14          Q      Now, we've discussed Monday, the

 15   26th.  Is there anything else that you recall

 16   about Monday the 26th?

 17   A      Yes, after I left the Police Department I

 18   went upstairs.  Police Department is on the

 19   first floor.  The Mayor's Office is on the

 20   second floor.  I spoke with the Mayor and -- and

 21   told him basically that the Police Department

 22   was on all fours with mine.  They had already

 23   determined that this would be a bias incident.

 24   They were conducting their investigation.  And

 25   they were pleased that the administration was


 

00228

  1   taking the same tact that, it was going to be

  2   hands off and let the police handle this and --

  3                 MR. MULLIN:  Objection to what

  4   they thought.

  5                 JUDGE CURRAN:  Sustained.

  6   BY MR. PARIS:

  7          Q      Okay.  Don't --

  8                 JUDGE CURRAN:  Strike the last

  9   answer.

 10          Q      Don't tell us what they thought.

 11   Just tell us what you did.

 12   A      Okay.

 13          Q      Okay.  Now, let's go on to the

 14   next day, Tuesday.  Okay.  Do you recall

 15   Tuesday?

 16   A      Yes.

 17          Q      Okay.  Now, there was a Council

 18   meeting Tuesday night, correct?

 19   A      Yes.

 20          Q      Okay.  What do you recall, if

 21   anything -- if anything, that you did before the

 22   Council meeting?

 23   A      I may have brushed up on the New Jersey

 24   antibias statute.  I also looked up the

 25   harassment statute because, in my opinion,


 

00229

  1   that's probably where the initial crime would

  2   have been categorized, had it not been for the

  3   bias.  And with the bias act there is also

  4   another statute that allows the Attorney General

  5   to bring a private civil action seeking damages

  6   against -- against perpetrators of these bias

  7   crimes.

  8          Q      Okay.  Now, in brushing up on

  9   those statutes did you make any notes?

 10   A      No.

 11          Q      Did you put anything in your file?

 12   A      Well, what I put in my file was the

 13   statute.  When I say, "brushing up," like all of

 14   these gentlemen here, I have a laptop computer.

 15   I'm hooked up to WestLaw.  I found the statutes,

 16   printed them out; and they were in my file.

 17          Q      Now, do you recall anything else

 18   that you did before the Council meeting?

 19   A      Well, before the Council meeting we have

 20   what's called a "caucus meeting" --

 21          Q      Okay.

 22   A      -- if that's what you were alluding to.

 23          Q      Okay.  If you can tell us what's

 24   the difference between a regular Council meeting

 25   and a caucus meeting?


 

00230

  1   A      The difference between a regular Council

  2   meeting and a caucus meeting is at the Council

  3   meeting the governing body is allowed to take

  4   action.  They can take votes.  They can pass

  5   resolutions, and they can pass ordinances.

  6            A caucus meeting is for discussion

  7   purposes only.  And we normally have them before

  8   the general regular meetings, so the members of

  9   the governing body have an opportunity to

 10   discuss various items.

 11            And these caucus meetings, as well as

 12   the open public meetings, pursuant to New

 13   Jersey's Open Public Meeting Act, are open to

 14   the public.  And the time, location and nature

 15   of the meeting also has to be published, so the

 16   public is aware of it.

 17          Q      So just so we understand, caucus

 18   meeting is open to the public, correct?

 19   A      Yes.

 20          Q      And the regular Council meeting is

 21   open to the public?

 22   A      Correct.

 23          Q      Okay.  Now, is there something

 24   called an "executive session" or a "confidential

 25   session" of meetings of a governing body?


 

00231

  1   A      Yes, there is.

  2          Q      Can you explain to the jury --

  3   A      Okay.

  4          Q      -- what is an executive session?

  5   A      Okay.  The Open Public Meetings Act

  6   requires that all deliberations and votes of a

  7   governing body be held in public.  However,

  8   there is a recognition that some actions or

  9   deliberations or discussions or considerations

 10   by the governing body may not be in the best

 11   interests of that governing body to be

 12   disclosed.  So you're allowed to have an

 13   executive session, which can be closed to the

 14   public.

 15            And if it's closed to the public, that

 16   discussion can entail and -- items for which

 17   items can be closed are personnel matters,

 18   contract matters, potential litigation matters,

 19   anything where public disclosure of the

 20   discussion may come to the detriment of -- of

 21   the governing body.  And we -- there was an

 22   executive session to discuss the incident, which

 23   was then two days prior.

 24          Q      Okay.  Now, what time is the

 25   caucus meeting?


 

00232

  1   A      Generally the caucus meetings are 5:30

  2   the evening of a Council meeting, and the

  3   Council meetings commence at 7 p.m.

  4          Q      5:30 caucus, 7:00 council?

  5   A      Yes, sir.

  6          Q      Okay.  I want to show you two

  7   documents, D-12 and D-13.  Okay.  I just want to

  8   show you these two documents.  And my question

  9   for you is:  Did you see these documents --

 10   well, let's start with this.

 11            D-12 is entitled, "Supplementary

 12   Investigation Report," correct?

 13   A      Yes, that's what it says.

 14          Q      Okay.  What's the date of the

 15   report?

 16   A      The date of the report is 4/27/04.

 17          Q      Okay.

 18   A      And there is no time listed on here.

 19          Q      And this is -- this was a report

 20   prepared by whom?

 21   A      It was prepared by then Lieutenant

 22   Malanka.

 23          Q      Okay.  And I'm showing you the

 24   D-13, which is also Supplementary Investigation

 25   Report.  And who was that prepared by?


 

00233

  1   A      Also prepared by Lieutenant -- then

  2   Lieutenant Malanka, also dated April 27th, 2004.

  3          Q      Okay.  My question to you is:  Did

  4   you see either of these documents before the

  5   caucus meeting?

  6   A      No.

  7          Q      Now, we're probably not -- I hate

  8   to say it, but we are probably not going to

  9   finish with your testimony today.  And based

 10   upon discussions with counsel I am not going to

 11   go into a lot of detail with regard to the

 12   caucus meeting.  However -- at least at this

 13   point.  However, I asked you, I believe it was

 14   yesterday, to listen to a tape of the executive

 15   session of the caucus meeting from April 27th,

 16   correct?

 17   A      I received the tape in my office probably

 18   around lunchtime yesterday, and I had an old

 19   cassette player and did listen to it.

 20          Q      Okay.  Had you ever listened to

 21   that tape before?

 22   A      Never.

 23          Q      Okay.  Before you listened to the

 24   tape did you have a specific recollection or

 25   complete recollection of what went on at that


 

00234

  1   meeting?

  2   A      I didn't have a complete recollection.  I

  3   had a cursory recollection of what happened four

  4   years previous and mixed up with a lot of other

  5   things that happened between April 27th of 2004

  6   and June 3rd of 2008.

  7          Q      Okay.  Now, can you tell the jury

  8   what was discussed at the April 27th meeting?

  9   A      The discussion was closed session to

 10   discuss the incident at the North End Firehouse

 11   on April 25th.  The Chief of Police was there,

 12   gave a brief overview of -- of what had happened

 13   without going into his detailed investigation.

 14            Then I stressed to the governing body

 15   and other people that were there the severity

 16   and the seriousness of this because it would be

 17   deemed a bias crime under New Jersey State law.

 18   The fact that this is an investigation that's

 19   going to be conducted by the Police Department,

 20   they should be unhampered and unimpeded, which

 21   means no matter how good-willed anybody is,

 22   don't talk to anybody who is a potential witness

 23   with this because you don't want to taint

 24   anything with respect to the investigation.

 25            I also indicated that because of the


 

00235

  1   allegations, whether they were true or not, it

  2   was incumbent upon the Mayor and Council to make

  3   sure that the epithets as to the sexual

  4   preference of the plaintiffs be addressed.  And

  5   we had discussed the idea of sensitivity

  6   training for the volunteers of the fire company

  7   who had not otherwise had that because they were

  8   not Town employees.

  9          Q      Was there any discussion at that

 10   meeting regarding the media?

 11   A      The discussion with respect to the media,

 12   at my direction -- again, I was concerned of,

 13   number one, tainting the investigation and that

 14   a member of the governing body, again, in good

 15   will and good faith, might say something that

 16   would either hurt the investigation or hurt the

 17   Town.  I suggested that -- that the members

 18   there decline from speaking with the media and

 19   that it was determined that I would be the media

 20   spokesman.

 21          Q      Okay.  And were you?

 22   A      Yes, sir.

 23          Q      Okay.  By that point had anyone

 24   been contacted by the media?

 25   A      Yes, I believe someone said at that


 

00236

  1   meeting that there had been at least one contact

  2   from the newspaper.  I believe that was The

  3   Bergen Record.

  4          Q      At the time of this -- at the time

  5   of the executive session what was the status of

  6   the North End Fire Company, the firehouse?

  7   A      The North End Firehouse was closed.

  8          Q      When you say it was closed, what

  9   do you mean by the fact that it was closed?

 10   A      It was closed for all activities except

 11   emergency activities, which would be getting the

 12   engine out to respond to a fire and whatever

 13   equipment there.  And it was closed first by

 14   order of the Police Department, I guess early

 15   morning on the evening of April 25th and then by

 16   concurrence of the Fire Chief.

 17          Q      Was there any discussion with

 18   regard to an administrative investigation?

 19   A      There was a discussion.  And I told them,

 20   as I had stated previously, because it was

 21   important that we not impede, interfere with the

 22   purposes of the then ongoing criminal

 23   investigation, that any administrative

 24   investigation be held over until the criminal

 25   investigation or if there were any criminal


 

00237

  1   proceedings, until they had been terminated.

  2          Q      Was there a discussion as to

  3   whether -- what would happen if people did not

  4   cooperate with the investigation?

  5   A      There were questions asked.  And my

  6   response to them is what was -- excuse me, is

  7   that everybody has a Fifth Amendment right not

  8   to incriminate themselves.  This matter was

  9   going to be sent over to the Hudson County

 10   Prosecutor, who could and did have the power to

 11   subpoena witnesses and make them appear and

 12   testify before a Grand Jury.

 13          Q      Did you explain or did you discuss

 14   the role of the Town, as compared to the role of

 15   the Hudson County Prosecutor?

 16   A      I -- the role of the Town -- the Town

 17   actually had no role in this.  It was the Town

 18   Police Department and the Police Chief -- and

 19   the Town Police Department is also under the

 20   direction of the Hudson County Prosecutor's

 21   Office.  As a matter of fact, the Prosecutor has

 22   the authorities to take over the Police

 23   Department any time it deems it necessary.  And

 24   I told the governing body that this was going to

 25   be an investigation handled by the Police


 

00238

  1   Department, and then everything was going to be

  2   referred over to the Prosecutor's Department.

  3          Q      So when you say the Town had no

  4   role or the Police Department had no role -- I

  5   think those were the words you said -- what do

  6   you mean by that?

  7   A      The Town had no role.  It was the Police

  8   Department basically acting as the initial

  9   investigatory arm of the prosecutor's Office.

 10          Q      Did you discuss the potential for

 11   civil litigation?

 12   A      Well, prior to the meeting, as I

 13   discussed before, I had -- did some research on

 14   the bias statute.  My initial discussion of it

 15   was with respect to the bias statute, which

 16   provided that the Attorney General, itself, was

 17   allowed to bring civil actions on behalf of

 18   victim -- victims of bias crimes against

 19   perpetrators.

 20            And then I also alleded -- alluded to

 21   the potential down the line that the victims, if

 22   the Town didn't act correctly and with proper

 23   dispatch, would also have a cause of action this

 24   time against the -- the Town potentially or the

 25   individual perp -- perpetrators for civil


 

00239

  1   liabilities.

  2          Q      Was -- was there a Councilman

  3   Kickey present at this meeting?

  4   A      Yes.

  5          Q      And was his son a member of the

  6   Volunteer Fire Department at the time?

  7   A      I -- at the time I wasn't aware of it,

  8   but subsequently I found out his son was a

  9   member of the Volunteer Fire Department.

 10          Q      Now, that was on April 27th, which

 11   was a Tuesday, correct?

 12   A      Correct.

 13          Q      Okay.  I want to show you a

 14   document which has been marked D-256 for

 15   Identification, which is on your letterhead, and

 16   ask if you can identify that, please?

 17   A      Yes, this is a letter --

 18          Q      It's actually D -- D-256 and

 19   D-257.

 20   A      Okay.  A letter dated April 28th to Mayor

 21   Elwell, which is basically a follow-up of the

 22   caucus discussion.  I went back to the office.

 23   I made copies of the bias statute.  I made

 24   copies of the harassment statute.  And I made

 25   copies of the Attorney General's power to


 

00240

  1   institute civil liability.

  2          Q      Well, you know what, rather

  3   than -- than paraphrasing the letter?

  4   A      You want me to read it?

  5          Q      Could you read the letter?

  6                 MR. MULLIN:  Objection, Your

  7   Honor.

  8                 JUDGE CURRAN:  Basis?

  9                 MR. MULLIN:  No foundation for

 10   reading a letter.

 11                 JUDGE CURRAN:  Sustained.

 12                 MR. PARIS:  Your Honor --

 13   BY MR. PARIS:

 14          Q      Well, Mr. Leanza did you send this

 15   letter to the entire Mayor and Council?

 16   A      It was addressed to the Mayor with copies

 17   to be distributed to the other Councilmen.

 18          Q      Was anyone copied on it other than

 19   the Mayor and Council?

 20   A      Just to the Mayor and Council.

 21                 MR. PARIS:  Okay.  Your Honor, the

 22   letter -- he has authenticated the letter.  That

 23   is the letter he sent.  I don't see any reason

 24   why, other than paraphrasing the letter, he

 25   couldn't read the letter.


 

00241

  1                 JUDGE CURRAN:  You can question

  2   him on it.

  3   BY MR. PARIS:

  4          Q      Mr. Leanza let's go through the

  5   letter.  You indicated initially this was a

  6   follow-up to the caucus discussion the night

  7   before?

  8   A      Yes.  And as I testified previously,

  9   immediately before the caucus session I did

 10   research on New Jersey antibias statute.  I did

 11   research on the harassment statute, which was

 12   where I felt these violations would fall under.

 13   And also on the legislation that allows the

 14   Attorney General to bring civil action.

 15            So I enclosed in the letter -- with the

 16   letter copies of those various statutes, both

 17   for the Mayor and the other Councilmen, so they

 18   would be apprized of exactly what the law was.

 19            In addition to that, I told them that

 20   this was a matter for the exclusive jurisdiction

 21   and investigation of the Police Department, that

 22   under the bias statute, because this was going

 23   to be an indictable crime, this was -- would be

 24   handled solely by the Hudson County Prosecutor's

 25   Office and no matter how much they thought they


 

00242

  1   were going to help, they should really not put

  2   themselves in the middle, speaking with

  3   witnesses or talking with anybody about this

  4   because it could only hurt the investigation.

  5          Q      Now, did you have a conversation

  6   with Mr. Carter after the caucus meeting of the

  7   27th?

  8   A      Yes, I believe my discussion with

  9   Mr. Carter was not on the 27th but the following

 10   day, the 28th.

 11          Q      Now, can you tell us what you

 12   recall about your conversation with Mr. Carter?

 13   A      Well, first of all, let me say -- let me

 14   correct my answer.  I'm not sure it was

 15   Mr. Carter.  I got a phone number, and I called

 16   it.  And I know it was the phone number of the

 17   two alleged victims.

 18            I called.  I introduced myself as the

 19   Town attorney.  I wanted to assure him on behalf

 20   of the Town that we were taking this seriously,

 21   that there is a police presence, the police

 22   presence was going to keep his house under

 23   surveillance.

 24            I explained to him that in my opinion

 25   New Jersey probably had the strictest bias


 

00243

  1   legislation of any state in the nation, that

  2   these offenses, because of the bias and the

  3   antigay epithets that were said, in my opinion,

  4   now moved up to the level of indictable

  5   offenses.  It was going to be referred to and

  6   handled by the Hudson County Prosecutor's

  7   Office.

  8            The gentleman reiterated to me his

  9   concerns, because these were Town firemen, how

 10   is the Police Department going to do it?  I told

 11   them about the -- the referral that was going to

 12   be the Prosecutor and not the Town.

 13            Then he said he can't live here

 14   anymore, he wants to move out.

 15            I told him there is no need.  Again I

 16   reiterated what I had told him about the police

 17   presence and how the Mayor and Council, everyone

 18   in the Town and the Police Department was taking

 19   this as seriously as possible.

 20            And again he says he can't live here

 21   anymore, he wanted to move away.

 22            And I think that was the essence of

 23   that telephone conversation.

 24          Q      How did you respond when he said

 25   he wanted to move out of Town?


 

00244

  1   A      I believe I told him, "I can't make you

  2   stay here.  If you want to move away, you know,

  3   you have that right."

  4          Q      Did you provide him with any other

  5   information?

  6   A      The only other information I provided him

  7   with, towards the end of the conversation I

  8   wanted to make clear that even though I was the

  9   attorney and the Town attorney, I was not giving

 10   him any independent legal advice.

 11            I suggested that he get his own legal

 12   counsel.  I called him from my office.  While I

 13   was speaking on my office, I had my, you know,

 14   desktop computer on.  I Googled -- Googled the

 15   Lambda Legal Defense Fund, who I had known from

 16   previous experience was a group of attorneys and

 17   a not-for-profit service that specialized in

 18   helping people who were the victims of bias or

 19   harassment because of their sexual preferences.

 20   And I suggested -- I gave him the number, as I

 21   looked it up, and suggested maybe he call them

 22   or some other such group for some help that I

 23   couldn't really give him, private help.  I

 24   just -- my purpose in calling was just to ensure

 25   him that the Town was looking at it seriously.


 

00245

  1          Q      Mr. Leanza, did you tell either

  2   Mr. Carter or Mr. deVries that, if you were

  3   them, you'd leave Town?

  4                 MR. MULLIN:  Objection, this is a

  5   leading question.

  6                 MR. PARIS:  Your Honor, there is

  7   no other --

  8                 JUDGE CURRAN:  Well, it is a

  9   leading question.  It is leading.  There is

 10   another way to approach it.  There is no

 11   question.

 12   BY MR. PARIS:

 13          Q      Let me ask the question a

 14   different way.  Did you -- just tell the jury

 15   what your response was when Mr. Carter and

 16   Mr. deVries said on the 28th of April that he

 17   felt that he had to leave Town.

 18   A      No offense, Mr. Paris; I think I already

 19   answered the question.  When he said that, I

 20   told him about the seriousness which -- with

 21   which the Town, myself and the Police Department

 22   were taking this.  I told him that it was going

 23   to be handled by the Hudson County Prosecutor's

 24   Office.  I told him, "There is no need to leave

 25   Town."  And I told him, "However, I can't stop


 

00246

  1   you from leaving Town, if that's what you want

  2   to do."  I would never tell anybody that they

  3   had to leave Town.

  4          Q      Pardon me?

  5   A      I would never tell anybody they had to

  6   leave Town.  It sounds like high noon in the

  7   cowboy movies, "You have to leave town" or

  8   something like that.

  9          Q      I understand that.  But did you

 10   ever tell anybody that, if you were them, that

 11   you would leave Town?

 12   A      No.

 13                 MR. PARIS:  Okay.  Your Honor, I

 14   think this would probably be a good place --

 15                 JUDGE CURRAN:  Thank you.

 16                 MR. PARIS:  -- for us to do for

 17   the day.

 18                 JUDGE CURRAN:  Okay.  We will end

 19   for today.  The witness may step down.

 20                 (Whereupon, the witness is

 21          excused.)

 22                 JUDGE CURRAN:  Obviously,

 23   everybody is aware of the restrictions on the

 24   witness who is in the middle of direct.

 25                  Ladies and Gentlemen, we will


 

00247

  1   excuse you for today.  Before we do that I just

  2   want to do two things.

  3                  First of all, there was some

  4   interplay this afternoon.  We went to sidebar.

  5   There were some questions in regard to the

  6   doctor as far as a reference made to not

  7   going -- having -- not having the witness or

  8   witness going to areas that the Court doesn't

  9   want the jury to know.

 10                  And I just want to assure you

 11   there are no secrets here.  All of the attorneys

 12   are playing by the rules.  But that's the

 13   question.  There are certain issues -- that's

 14   why we have all these conferences -- that either

 15   are or are not allowed under the rules.  And

 16   each attorney from a very responsible,

 17   professional basis says this is or should be

 18   allowed under the rules; and maybe the others

 19   say it is not.  And I make the call.

 20                  There is nothing secret.  I

 21   didn't want you just to take that phrase and

 22   think there was anything secret in that regard.

 23                  And the other is that some of you

 24   have asked about the continuation of the case.

 25   I have to indicate to you that, as I have said


 

00248

  1   to you before, these attorneys are working

  2   extremely hard.  You weren't here on Friday; but

  3   as I indicated, we were here until late on

  4   Friday.  The attorneys worked all weekend.  It

  5   is a very serious case for both the plaintiffs

  6   and the defendants.

  7                  So I am telling you now, just so

  8   that you can plan.  Juror Number 1 asked the

  9   other day about Friday.  We have indicated to

 10   you that you would not be required to be here on

 11   Fridays, and we are not going to change that.

 12   We will be working on the case on Friday, but

 13   the jury will not be required to be in here on

 14   Friday.

 15                  You will be required to be here

 16   tomorrow starting at 9:30.  You will not be

 17   required to be here on Friday.  But I will tell

 18   you now, for your own planning sakes, you will

 19   be required to be here next Monday and possibly

 20   even Tuesday.  I don't know whether it would go

 21   until Tuesday, but there is that possibility.

 22   So you should plan for that for next week.

 23                  Are there any questions in that

 24   regard?  If not, thank you very much.

 25                  Again, please don't discuss the


 

00249

  1   case among yourselves or anyone else.

  2                  We will see you tomorrow at 9:30.

  3   Thank you.

  4                 (Whereupon, the jury is excused.)

  5                 JUDGE CURRAN:  Off the record.

  6                 (Whereupon, the witness is

  7          excused.)

  8                 (Whereupon, the proceeding is

  9          concluded at 4:45 p.m.)

 10  

 11  

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00250

  1                 C E R T I F I C A T E

  2  

  3        I, TRACEY R. SZCZUBELEK, a Certified Court

  4   Reporter and Notary Public of the State of New

  5   Jersey, do hereby certify that the foregoing is

  6   a true and accurate transcript of the

  7   stenographic notes as taken by and before me, on

  8   the date and place hereinbefore set forth.

  9  

 10  

 11  

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 13  

 14  

 15  

 16  

 17  

 18             ________________________________

 19             TRACEY R. SZCZUBELEK, C.C.R.

 20             LICENSE NO. XIO1983

 21  

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