1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 4
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Tuesday, May 13, 2008
Commencing 9:10 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
2
1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
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1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 TIMOTHY CARTER
5 By: Mr. Mullin 93, 114
6 By: Mr. Paris 36 108
7
8 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
9 DIRE
10 DR. BURSZTAJN
11 By: Ms. Smith 128 289
12 By: Mr. Bevere 245 294
13
14 E X H I B I T S
15
16 NUMBER DESCRIPTION PAGE
17 D-310 Consent form from Dr. Goldwaser's
18 office 43
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4
1 JUDGE CURRAN: On the record,
2 please.
3 COURT CLERK: On the record.
4 JUDGE CURRAN: Thank you. Mr.
5 Mullin.
6 MR. MULLIN: Good morning, Your
7 Honor.
8 JUDGE CURRAN: Good morning.
9 MR. MULLIN: Yesterday Mr. Paris
10 essentially gave the jury a detailed road map
11 for how to get onto a log on NJ.com. In his
12 questions he was very careful to ask the witness
13 exactly how he logs on and what sub -- what
14 subclass -- what subtext to push in order to get
15 into the Secaucus line. He gave them a road
16 map.
17 I understand that on this log,
18 for example, someone has put the number -- a
19 number that we offered in settlement in chambers
20 to Your Honor. I haven't mentioned that number,
21 that we discussed a settlement number, Your
22 Honor, in chambers. This has nothing to do with
23 the Court. I'm not suggesting the Court has
24 anything to do with it.
25 JUDGE CURRAN: No, no, because you
5
1 can tell from seeing me on the computer how
2 really great I am at these electronic things.
3 MR. MULLIN: All I'm saying is we
4 were very private, Your Honor, about our
5 settlement proposals.
6 JUDGE CURRAN: Exactly.
7 MR. MULLIN: I was shocked to hear
8 that a number we just put out in your chambers
9 and only in your chambers and never in writing
10 has made its way to the web site Mr. Paris
11 directed the attorney -- the jury's attention
12 to.
13 I suspect -- I would like to know
14 how that happened. That -- that I -- that
15 number that we offered in settlement in chambers
16 was -- I never mentioned it before, and I only
17 mentioned it in that conversation. And also,
18 Nan -- Nan Smith mentioned it to Dave Paris.
19 So I'm very concerned about --
20 about the fact that Mr. Paris directed the
21 jury's attention to this site where, apparently,
22 now there is all kinds of conversations. Some
23 of it sounds like people in the Town purposely
24 trying to put out information, for example,
25 about whether or not they have insurance, about
6
1 settlement demand that I made.
2 I'm very disturbed by this and
3 especially by Mr. Paris's road map that he -- I
4 thought the question was odd because he -- he
5 went through exactly how to get precisely to
6 this blog or this log or this site. At first I
7 didn't understand it. Having spoken further
8 about it to others, I now realize there is a lot
9 of information on this jury that would prejudice
10 my -- lot of information on this site that would
11 prejudice my clients.
12 Number one, I would like the
13 Court to direct defense counsel never to mention
14 this again.
15 And number two, I -- I suppose --
16 I don't know what good warnings are in this
17 thing, but I suppose another advisement to the
18 jury at the end of each day would be important.
19 Now, I don't know what --
20 JUDGE CURRAN: I would certainly
21 agree to do that. And I would just ask all
22 counsel, if I forget, you know, please feel free
23 to remind me because I hoped we took care of it
24 yesterday. But I, frankly, did that yesterday
25 just as preventative, having no idea that there
7
1 was really anything that was a problem on the
2 web site --
3 MR. MULLIN: Someone actually --
4 JUDGE CURRAN: -- other than
5 some --
6 MR. MULLIN: Someone actually put
7 our settlement demand that we put in chambers
8 and Miss Smith made directly and openly to
9 defense counsel. I don't know how it got out
10 there.
11 JUDGE CURRAN: Have you seen this
12 site, Mr. Mullin?
13 MR. MULLIN: I haven't seen the
14 site.
15 JUDGE CURRAN: Is the -- do you
16 know enough about the site -- frankly, I can try
17 to go on from here, but we have a lot of
18 restrictions on the court computer. I may be
19 able to. But do you know how the web site
20 operates? In other words, even though we
21 wouldn't know who it was, is there a name that
22 you can associate with so that theoretically it
23 could be tracked back?
24 MR. MULLIN: I think we can --
25 yes, I have done this in other cases. We can
8
1 get what's called a "screen name."
2 JUDGE CURRAN: Right.
3 MR. MULLIN: Then, using the
4 internet service provider, we can track back
5 where -- I can have a private eye or something
6 track back where the screen name traces to.
7 JUDGE CURRAN: I believe that has
8 to be done on virtually all of these.
9 MR. MULLIN: Yes.
10 JUDGE CURRAN: Although I'm not
11 saying there aren't ways to get around it, but
12 it's my understanding that's the way it works.
13 MR. MULLIN: I will do that. I
14 will ask a private investigator to -- oh,
15 actually, my partner is reminding me that we
16 need a subpoena to get that information.
17 Subpoena would have to go to NJ.com to The Star
18 Ledger site.
19 JUDGE CURRAN: Right.
20 MR. MULLIN: So I suppose I can
21 issue -- with Your Honor's permission I will
22 issue a subpoena to The Star Ledger to the
23 NJ.com site and ask for all the information I
24 need to trace it back. I will see if there is
25 any effort by this Town to influence this jury
9
1 through that site.
2 In the meantime I would ask the
3 Court to direct counsel not to mention again. I
4 would ask the Court to ask counsel for the
5 defense to please advise all Town officials not
6 to do -- not to have these sort of
7 communications on this site because it's -- it's
8 from what I hear -- and I'll go print out the
9 material, and we'll dig deeper into it -- it
10 sounds like an attempt to influence this jury.
11 JUDGE CURRAN: Mr. Paris.
12 MR. PARIS: Sure, if I may.
13 Number one, I -- I am as upset -- I don't know
14 how upset Mr. Mullin is. I will just tell you
15 I'm very upset to hear this. I am familiar with
16 the site -- not the Secaucus site, but I am
17 familiar with this site generally because of
18 experiences that I have had in another town that
19 I represent. And, you know, I was as unhappy in
20 my representation of that town with the
21 discussion going on; and that's how I was
22 familiar with this particular site. I stopped
23 reading it a couple years ago. But I -- that's
24 how I understand this site.
25 I did not intend to even go into
10
1 the site. I had no idea that Mr. Carter
2 actually had gone on that site yesterday until
3 he mentioned it. He is the one who brought it
4 up in answer to a question that I asked. And
5 frankly, the question that I asked had nothing
6 to do with have you ever been --
7 JUDGE CURRAN: Okay.
8 MR. PARIS: -- you know, have you
9 ever been on the web site? I didn't even ask
10 that question. Next thing you know, he says,
11 yeah, I was on this web site and they're saying
12 this and this.
13 And then I asked him and -- and
14 frankly, there was a reason I was doing that in
15 terms of the detail. I wanted to make sure,
16 number one, that I knew which web site it was.
17 But number two, I also wanted to demonstrate to
18 the jury the effort that Mr. Carter had to make
19 in order to -- to see what people are chatting
20 about out there. Okay. And that will be --
21 will become more important later on as the case
22 proceeds.
23 But you know, I -- I am very disturbed
24 and unhappy that somebody would do that. And I
25 can assure you that it had absolutely nothing to
11
1 do with myself or Mr. Bevere. I had absolutely
2 no knowledge that any of this was going on
3 there.
4 Frankly, having heard this, I would
5 like to take a few minutes and call whoever I
6 can reach or whoever Mr. Bevere can reach over
7 at the Town, let them know about this
8 discussion. And that if it was somebody from
9 the Town who -- who did it, you know, I want --
10 I want to make sure that nobody does it again,
11 to the extent that we can prevent that from
12 happening, because the entries are -- are listed
13 anonymously. Everyone comes up with some sort
14 of wacky screen name. But I certainly want to
15 be sure that -- that we convey that message.
16 JUDGE CURRAN: If you would also
17 be kind enough, Mr. Paris, to convey -- I'm sure
18 you did, but to repeat to the Town officials --
19 I don't know and don't want to know with whom
20 you discussed any settlement discussions, but --
21 MR. PARIS: You know what, Your
22 Honor, maybe this should go to sidebar.
23 JUDGE CURRAN: Sure. Who is this
24 gentleman, Miss Castelli?
25 MR. BEVERE: I think he is
12
1 delivering the transcripts.
2 JUDGE CURRAN: Okay.
3 TRANSCRIPT DELIVERY: Sorry, Your
4 Honor.
5 JUDGE CURRAN: That's okay.
6 COURT CLERK: Thank you.
7 JUDGE CURRAN: Then we can go to
8 sidebar, thank you.
9 (Whereupon, the following sidebar
10 discussion is held.)
11 JUDGE CURRAN: I would just ask
12 you to reiterate, because I'm sure as officers
13 of court you both did discuss the matter with
14 Town representatives as far as settlement -- in
15 fact, at one point, as we were maybe starting
16 jury selection, I even talked to the two of you
17 and said, "Gee, would you go back and talk?"
18 Because I'm a big believer, if cases are going
19 to settle, they are going to settle at the
20 beginning. I never understand why cases
21 settle -- unless there is huge problem nobody
22 anticipated, I don't understand why they settle
23 in the middle.
24 So I know you did discuss it. I
25 don't even want to know necessarily with whom
13
1 you discussed it. But even if they're talking
2 about things like settlement or insurance or
3 things, it's just not a proper thing to do.
4 MR. PARIS: Again, I haven't seen
5 what counsel is referring to. Okay.
6 MR. MULLIN: I haven't seen it
7 either.
8 MR. PARIS: Yeah, and I don't
9 intend to.
10 MR. MULLIN: What I heard was two
11 things.
12 JUDGE CURRAN: Wait one minute.
13 This is The Star Ledger site; is that right?
14 MR. BEVERE: The last thing we
15 would want is a juror to see a number.
16 JUDGE CURRAN: I'm sorry?
17 MR. BEVERE: The last thing we
18 want is for a juror to see a number that was
19 discussed by any party.
20 MR. PARIS: Or discussion
21 regarding insurance.
22 MR. MULLIN: Well, my concern
23 is -- is that members of the Town might be --
24 I'm not talking about what you're doing. I am
25 talking what the Town is doing. And I want to
14
1 make sure they don't do this any further. It
2 might even hurt your cause.
3 MR. PARIS: Exactly.
4 MR. MULLIN: I don't like these
5 discussions.
6 JUDGE CURRAN: Because I -- let my
7 ability -- I read The Ledger and The Times
8 on-line every morning, so I know how to do that
9 at least; but this is a separate site. But it's
10 run by The Ledger?
11 MR. PARIS: It's www --
12 MR. MULLIN: NJ.com.
13 MR. PARIS: -- NJ.com.
14 JUDGE CURRAN: You have to get
15 into this -- wait. Wait. You have to get into
16 this century here, Mr. Paris. My daughter has
17 made clear to me you don't need to type "www"
18 anymore; the machine automatically does that for
19 you.
20 MR. MULLIN: This is true.
21 MR. PARIS: She is way ahead of
22 me, Judge.
23 JUDGE CURRAN: She is way ahead of
24 me too. Here we go. Probably -- and I'm pretty
25 sure -- my four-year-old grandson could do this.
15
1 MR. PARIS: One other thing does
2 come to mind, and that is the fact that I think
3 there were newspaper articles when this lawsuit
4 was started -- but that goes back a number of
5 years already -- that I think indicated that the
6 demand was like $5 million. That might have
7 been in a tort claim notice.
8 MR. MULLIN: Someone picked it up
9 from a tort claim notice.
10 MR. PARIS: So if that's out
11 there, may be someone with a good memory because
12 I think that was published out in a newspaper.
13 But this kind of stuff, you know, is just --
14 MS. SMITH: Yeah, I wanted to --
15 JUDGE CURRAN: You know, I will
16 also say, just so the record is complete, there
17 was a Ledger and photographer here from the -- I
18 mean there was a reporter and a photographer
19 here from The Ledger in. And other cases
20 reporters have even called or they have come in
21 ahead of time and they've asked questions like,
22 "Well, hey, were there settlement negotiations?
23 Are they ongoing?" whatever. That guy, you all
24 saw my entire conversation with him. He didn't
25 even hint --
16
1 MR. PARIS: He didn't ask us.
2 MR. MULLIN: He didn't discuss
3 with us later.
4 JUDGE CURRAN: He didn't call
5 later.
6 MS. SMITH: Right.
7 MR. MULLIN: He just took some
8 pictures.
9 MS. SMITH: Idea that people have
10 a lot to say and they can hide behind some
11 screen name, ultimate --
12 MR. PARIS: Frankly, I have been a
13 victim of it myself.
14 MS. SMITH: People are very tough
15 when you don't know who they are.
16 MR. BEVERE: Do you have my D-101?
17 I can't find it. It's the photograph.
18 MR. MULLIN: Photograph?
19 MS. SMITH: Do we have a
20 photograph of?
21 MR. BEVERE: Remember yesterday?
22 It was the photograph from the Secaucus Home
23 News, little -- do you have that? I can't
24 find --
25 MS. SMITH: I'll look.
17
1 MR. MULLIN: We have one.
2 MR. BEVERE: I have a copy of it.
3 We can use the copy, but I can't find one with
4 the original exhibit stamp on it. Not big deal.
5 MR. MULLIN: Newspaper photograph
6 of the firemen?
7 MR. BEVERE: Exactly, exactly. I
8 have been looking for it.
9 JUDGE CURRAN: Well, I've got to
10 say just quickly only local blogs I see do not
11 include anything from Secaucus -- I'm guessing
12 this is a blog.
13 MR. MULLIN: It's a Secaucus blog.
14 JUDGE CURRAN: There is none from
15 Secaucus. I typed in "Secaucus," and I'm
16 getting --
17 MR. PARIS: You know what we have
18 to do, Judge?
19 MS. SMITH: I don't know how to do
20 it.
21 MR. PARIS: I still remember.
22 What happens is when you get onto the site, it
23 talks about forums. There is --
24 JUDGE CURRAN: Right.
25 MR. PARIS: Then you hit "forums."
18
1 JUDGE CURRAN: You hit "forums"?
2 MR. PARIS: Yeah, hit "forums."
3 Then you go to the county.
4 JUDGE CURRAN: Oh.
5 MR. PARIS: And then, when you go
6 to the county, it comes up with the towns.
7 JUDGE CURRAN: Forums, rather than
8 blogs. I wonder what the difference is.
9 MR. PARIS: Yeah, the other thing
10 which we could do, which would be very helpful,
11 my recollection is that there is a box that
12 says, if you find this to be objectionable or
13 something like that, that you can ask to have
14 something removed. But I'm not sure whether you
15 can do that unless you've like been a registered
16 user kind of thing.
17 MR. MULLIN: Right, right.
18 JUDGE CURRAN: Okay. I have
19 gotten Hudson. I clicked on "Secaucus." Oh,
20 see, you have to go up to here. "Firehouse."
21 This is literally about the firehouse. "North
22 End Firehouse." There certainly is a blog here.
23 I don't see any -- I don't see -- that number
24 that's in there is 25,000, but there is --
25 certainly appears to be an individual -- there
19
1 are two individuals. One is called "mudgunner,"
2 who talks about insurance, talks about the Town
3 is self-insured. And then there is another
4 individual called "pmaxwell." You know, the
5 screen name is pmaxwell, all small letters,
6 pmaxwell. And mudgunner is also small letters,
7 you know, lower case. I think it would take
8 more time to go through these just to find them.
9 MR. MULLIN: The self-insurance
10 issue was very troubling to me, when I heard
11 about that. I didn't see it, but I heard
12 about --
13 JUDGE CURRAN: Yeah, says the
14 Town -- well, you know, in fairness to your
15 side, Mr. Mullin, it says -- only objection this
16 individual has is that the Town is self-insured.
17 MR. MULLIN: But that's enough
18 because if --
19 MS. SMITH: We have a Secaucus
20 resident sitting on this jury.
21 MR. MULLIN: That would incline a
22 juror to vote for a small number because they
23 don't want the Town residents to pay for it.
24 JUDGE CURRAN: Let's just say
25 this.
20
1 MR. PARIS: They shouldn't be
2 reading it.
3 JUDGE CURRAN: It is somewhat, you
4 know, tough for both sides. One of the,
5 whatever we will call this, blogs or entries,
6 says, "Elwell stinks."
7 MR. PARIS: Says what?
8 JUDGE CURRAN: "Elwell stinks."
9 MR. PARIS: Oh.
10 JUDGE CURRAN: And that's -- and
11 then it says, "At least mike is honest,"
12 whatever that means. So I guess it is sort of
13 two-sided.
14 MR. PARIS: The difficulty is that
15 people can even be putting stuff on there --
16 JUDGE CURRAN: Right.
17 MR. PARIS: -- that's kind of a
18 counter-intuitive. So you know, who knows if
19 they're going to just try to get a discussion
20 going, whatever. But the bottom line is the
21 jurors shouldn't be reading this, the same way
22 that they shouldn't be reading the newspapers.
23 JUDGE CURRAN: Exactly. There is
24 another one, Miss Smith. This screen name is
25 all -- again, all lower case, lowandbehold,
21
1 l-o-w-a-n-d-b-e-h-o-l-d. And that talks about
2 the case specifically. Again, I don't see any
3 reference to a -- a settlement number. It's
4 talking about an article in the Secaucus
5 Reporter.
6 And these are very current.
7 These are on 4/28/08. I know there is a trick
8 to reading these. I never went into -- what do
9 they call those things -- chat rooms; but I know
10 if we just did this carefully, you can tell
11 exactly -- you can read something that someone
12 says and then you can read the responses. I
13 just have to figure that out.
14 So I'm just basically, you know,
15 scrolling down now. But there certainly is a
16 fair amount on here about it.
17 Was there another lawsuit by
18 someone named Schwartz?
19 MR. PARIS: Not that I'm aware of.
20 MR. MULLIN: I'm not aware of.
21 JUDGE CURRAN: This says Mike
22 Schwartz is involved in some kind of lawsuit. I
23 don't know what that is; but certainly, I don't
24 see -- "North End Firehouse." This is another
25 person just asking, "Does anyone know how things
22
1 are going on?" And this screen name is thatkid,
2 t-h-a-t-k-i-d, 4664. Sometimes people use their
3 address -- the numbers of their addresses --
4 MR. MULLIN: Yeah.
5 JUDGE CURRAN: -- in the screen
6 names.
7 MR. PARIS: Judge, what was the
8 screen name of the person who said, "Mayor
9 Elwell stinks"? Maybe we should go both sides
10 here.
11 JUDGE CURRAN: I didn't take that
12 one down. Let's see here. I don't see it right
13 now. I'll look for it again. Oh, that's
14 lowandbehold.
15 MR. PARIS: Lowandbehold.
16 JUDGE CURRAN: And that was put on
17 last week.
18 MR. PARIS: I want to ask him if
19 he ever used that name, okay.
20 JUDGE CURRAN: Now, I think it's
21 only fair to allow one plaintiff only to take
22 the Fifth one time but then go back. All right.
23 I think it's only fair.
24 MS. SMITH: Judge, I wonder
25 whether specifically because there is this false
23
1 statement that the Town is self-insured and
2 there is a Secaucus resident sitting on our jury
3 if, when you instruct them to please stay off
4 these sites and if you could instruct them also
5 that there is information on the sites that's
6 specifically false. Thank you.
7 MR. PARIS: Judge, rather --
8 rather than -- rather than pique someone's
9 curiosity about the site, you know, to say that
10 there is information that's specifically false,
11 I -- I don't think -- I absolutely don't think
12 you should do that. I think you should say that
13 it is as wrong to -- to read anything on that
14 site as it would be to read anything either on
15 TV or in the newspapers about this case, that
16 there -- you could say there may be
17 misinformation, either in newspaper articles or
18 on web sites and -- and leave it at that.
19 MR. MULLIN: I don't think --
20 MR. PARIS: But rather -- rather
21 than pique someone's curiosity by saying there
22 is false information on it. What's that's
23 saying is either you have been on the site, we
24 have been on the site, that we have been
25 following this site. And frankly, I don't think
24
1 we should -- I don't think we should treat it
2 any differently than if it was a false newspaper
3 story.
4 MR. MULLIN: It's different
5 because you -- you went out of your way to pique
6 their curiosity.
7 MR. PARIS: I didn't --
8 MR. MULLIN: Yes, my client
9 mentioned it, then you cross-examined. And in
10 your cross-examination you went through this
11 road about how to get on this site.
12 MR. PARIS: Well --
13 MR. MULLIN: Well, that definitely
14 told them this is how you do it, Folks. Let's
15 go do it.
16 MR. PARIS: And the judge
17 specifically --
18 MR. MULLIN: She -- yes, she did.
19 MR. PARIS: -- instructed them not
20 to do that.
21 MR. MULLIN: Yes, yes, she did.
22 MR. PARIS: That instruction was
23 given yesterday. It was a good instruction,
24 absolutely. Frankly, if I knew there was this
25 much here, I wouldn't have gone through it. I
25
1 had no idea, but --
2 MS. SMITH: Wait a minute. We
3 agree that it's false that the Town is
4 self-insured, right?
5 MR. PARIS: Well, it's not --
6 MR. BEVERE: It's self-insured
7 through an insurance fund, but it's -- they pool
8 their funds.
9 MR. MULLIN: Let's put it this
10 way. The taxpayers do not have to pay the
11 judgment we get in this case.
12 MR. PARIS: You're seeking
13 punitives.
14 MR. MULLIN: Punitives are a
15 separate story. But the taxpayers do not have
16 to pay compensatory damage award. Look, this is
17 false information; and someone -- we're going to
18 find out who -- who put it out there.
19 MR. PARIS: That's fine.
20 MR. MULLIN: This was done
21 purposely in order to influence the jury to
22 bring in a low number. I am not naive about
23 this kind of stuff. If the witness blurted it
24 out, that would be the purpose of it. It's
25 happened before in trial. You blurt out that
26
1 the Town is self-insured, and all of a sudden
2 the taxpayers' money is in jeopardy. There is a
3 reason for these things.
4 So we will get to the bottom of
5 who put it on; but Your Honor, this -- the jury
6 needs to be told there is false information on
7 this. We don't have to specify what it is.
8 JUDGE CURRAN: What about even
9 indicating that there are -- I don't want to use
10 the word "investigations," I don't want to use
11 the word "subpoenas" but that there is --
12 MS. SMITH: Inquiry?
13 JUDGE CURRAN: -- something --
14 inquiries now in regard to the site.
15 MR. PARIS: Let me -- and again, I
16 didn't start this, okay. Mr. Carter mentioned
17 this site. He indicated that he was reviewing
18 it to see whether there were essentially any
19 threats being made --
20 JUDGE CURRAN: Right.
21 MR. PARIS: -- on the site --
22 MR. MULLIN: Yes.
23 MR. PARIS: -- against him.
24 JUDGE CURRAN: And he was going
25 back in regard to how long.
27
1 MR. PARIS: Right. But now to
2 give the site more publicity by saying that
3 we're investigating this site, we're
4 investigating comments, we're sending out
5 subpoenas for people who posted on the site,
6 that -- that gets into an area that I think
7 reflects back on Mr. Carter's testimony about
8 the site yesterday, which we don't necessarily
9 want to get into.
10 And number two, again, I think it
11 highlights something, that there is something
12 out there, it's really juicy, but you can't read
13 it. And I -- I think that your instruction
14 yesterday -- if you want to add the instruction
15 that says these -- you know, these -- these
16 sites may contain misinformation, that's fine.
17 But to say that there's specifically
18 misinformation on the site --
19 JUDGE CURRAN: Okay. I think I'll
20 try to do it wrapping it up with the newspapers
21 too, so that, as you say, we don't pique their
22 interest.
23 If you just wait one more second,
24 I think I've figured out how to read this.
25 There is another individual; and this person
28
1 appears to have information because mudgunner is
2 asking, "Who is paying the lawyers for the
3 firemen?" This guy is answering. So that is
4 cartridge, c-a-r-t-r-i-d-g-e, 161. And -- yeah,
5 that's the way it goes. There is a blog, and
6 then the answers all clip under it. But that
7 individual seems to be answering questions, not
8 asking questions.
9 All right. Unless there is an
10 objection, I won't do this until the end of the
11 day --
12 MR. PARIS: Exactly.
13 JUDGE CURRAN: -- because that's
14 the way we usually do it.
15 MR. PARIS: Yeah, exactly.
16 Especially considering we are not going to be
17 here tomorrow too.
18 JUDGE CURRAN: Yes, please do not
19 go home and play on your computer.
20 MS. SMITH: Exactly.
21 JUDGE CURRAN: But people should
22 be sophisticated enough, but they're not --
23 MS. SMITH: No.
24 JUDGE CURRAN: -- in regard to
25 this because there is that encyclopedia on-line
29
1 now.
2 MR. BEVERE: Wickipedia.
3 JUDGE CURRAN: I used to look
4 things up on that, and I found out I can go in
5 and change things. That makes no sense. So
6 people should know better than to pay attention
7 to what's on there. Although, I have to say,
8 having just read a book about Frank Lloyd
9 Wright, they had excellent information about --
10 if you guys haven't read "Loving Frank" -- have
11 you?
12 MS. SMITH: No.
13 JUDGE CURRAN: It's all -- it's
14 about Frank Lloyd Wright and his second wife,
15 not necessarily married wife. I just simply --
16 I had heard of Taliesin and read about Taliesin,
17 but I never knew all of the background.
18 MS. SMITH: Yeah, wasn't that
19 shock?
20 JUDGE CURRAN: Yes. I don't want
21 to say it, in case you want to read the book.
22 MR. PARIS: No, I do.
23 JUDGE CURRAN: I probably spent
24 two hours after that, after I finished the book
25 on-line. It's amazing the -- you know, I knew
30
1 Falling Water and went out to see it. And I
2 don't know how I missed all that, but I
3 certainly did.
4 MS. SMITH: I need a good book
5 right now.
6 MR. PARIS: Do you? There are
7 some transcripts that Neil could --
8 MS. SMITH: That's why I need a
9 good book.
10 JUDGE CURRAN: Anything else?
11 MR. PARIS: Can we take about ten
12 minutes --
13 JUDGE CURRAN: Of course.
14 MR. PARIS: -- because I really
15 do --
16 JUDGE CURRAN: Sure.
17 MR. PARIS: -- want to make some
18 phone calls.
19 JUDGE CURRAN: Absolutely.
20 MS. SMITH: I'm sorry, Judge.
21 JUDGE CURRAN: Could you tell the
22 person is who is representing the Town --
23 MR. BEVERE: I am going to get his
24 name right now.
25 JUDGE CURRAN: You don't have to
31
1 do it. I don't want you to make it clear --
2 MR. PARIS: This is number three,
3 right? This is the last --
4 JUDGE CURRAN: We will get it
5 later, so it's not obvious you have to ask.
6 MR. BEVERE: It's Alan something.
7 I don't remember the last name, but it's Alan
8 something.
9 MR. PARIS: Judge, in addition to
10 when you granted the sequestration request, you
11 indicated that you were going to let the jury
12 know that the witnesses for the Town have been
13 sequestered and that's why you haven't seen any
14 of them here.
15 JUDGE CURRAN: And I didn't do
16 that.
17 MR. PARIS: No, you didn't.
18 MS. SMITH: All witnesses, not
19 just the Town's.
20 MR. PARIS: All witnesses other
21 than the two plaintiffs.
22 JUDGE CURRAN: Yes.
23 MS. SMITH: Well, they're parties.
24 JUDGE CURRAN: I will do that now,
25 thank you.
32
1 MR. PARIS: But if we can just
2 take a few minutes to --
3 MS. SMITH: You are going to tell
4 us who the three reps are?
5 MR. PARIS: Yes.
6 MS. SMITH: All right, great.
7 JUDGE CURRAN: Thank you. Thank
8 you, Tracey.
9 (Whereupon, sidebar discussion is
10 concluded.)
11 COURT CLERK: Off the record?
12 JUDGE CURRAN: Yes.
13 (Whereupon, the following sidebar
14 discussion is held.)
15 MR. PARIS: What's the issue?
16 MR. BEVERE: The issue is the
17 consent form. When Mr. Carter submitted himself
18 to a forensic defense examination in this case
19 with my neuropsych, Dr. Goldwaser, he signed a
20 consent form. We wanted to use this consent
21 form in cross-examination of Mr. Carter today.
22 The consent form was not in my binder of
23 documents as a marked exhibit. It was provided
24 to the plaintiffs in discovery, and it was
25 marked as Goldwaser-1 at Goldwaser's --
33
1 Dr. Goldwaser's deposition by Kelly Smith from
2 Smith Mullin. My understanding is that there is
3 an objection.
4 MR. MULLIN: If it was marked at a
5 deposition -- you didn't tell me that.
6 MR. BEVERE: You know --
7 MR. MULLIN: I didn't see a Bates
8 stamp number, and I wasn't aware of the
9 document. If I could have a copy of it?
10 JUDGE CURRAN: We will make
11 copies.
12 MR. BEVERE: Can we make a copy of
13 this, Judge; and I will give it to Mr. Mullin.
14 MR. MULLIN: If this was marked at
15 a deposition --
16 JUDGE CURRAN: Miss Castelli.
17 Miss Castelli, would you be -- is she on the
18 phone?
19 COURT CLERK: Listening.
20 JUDGE CURRAN: I'm sorry, Miss
21 Hawks, I didn't see you. Would you take this
22 document; and could you make us four copies,
23 please.
24 MS. HAWKS: Yeah.
25 JUDGE CURRAN: Four or five.
34
1 MS. HAWKS: You said, "four or
2 five"?
3 JUDGE CURRAN: Yes.
4 MR. BEVERE: We're trying to get
5 to the bottom of this.
6 MR. PARIS: Your Honor.
7 JUDGE CURRAN: I'm sorry.
8 MR. PARIS: Never mind, it's okay.
9 Thank you.
10 JUDGE CURRAN: Thank you.
11 COURT CLERK: Off the record.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, sidebar discussion is
14 concluded.)
15 (Whereupon, a discussion is held
16 off the record.)
17 COURT CLERK: On the record.
18 MS. SMITH: I just wanted to --
19 because it was a subject of some conversation, I
20 wonder if we can put on the record the names of
21 the three representatives for the Town which Mr.
22 Bevere has been kind enough to give me.
23 JUDGE CURRAN: Mr. Bevere.
24 MR. BEVERE: Okay. Your Honor,
25 first and primary is David Drummeler,
35
1 D-r-u-m-m-e-l-e-r. Town Administrator. Linda,
2 L-i-n-d-a, Carpenter, purchasing agent. And the
3 name I just provided to you, Mr. Alan
4 Bartolozzi, tax collector.
5 JUDGE CURRAN: Thank you.
6 Anything else?
7 MS. SMITH: No, thank you, Your
8 Honor.
9 JUDGE CURRAN: Thank you.
10 We can bring out the jury,
11 please. We can remain on the record.
12 MS. HAWKS: Jurors are
13 approaching.
14 COURT CLERK: On the record.
15 JUDGE CURRAN: Thank you.
16 (Whereupon, the jury is brought
17 into the courtroom.)
18 JUDGE CURRAN: Good morning,
19 Ladies and Gentlemen. We're back on the record.
20 Those are -- the cards and pencils are for the
21 questions, if there are any questions, okay.
22 Thank you. Thank you very much
23 for being here is promptly. We appreciate it.
24 We are going to continue with the
25 plaintiffs' case. We are still in the middle of
36
1 the questioning under cross-examination of the
2 plaintiff, Mr. Carter, by Mr. Paris.
3 Mr. Paris.
4 MR. PARIS: Thank you very much,
5 Your Honor. Good morning.
6 JUDGE CURRAN: Good morning.
7 CONTINUED CROSS EXAMINATION BY MR. PARIS:
8 Q Mr. Carter, I just want to touch
9 base on one thing quickly that we went over
10 yesterday. This is the photograph that you had
11 seen in the newspaper, dated June 10th, of the
12 firemen taken at the dinner, correct?
13 A It is.
14 Q Okay. Do you remember we had
15 discussed this photograph yesterday?
16 A I do.
17 Q Okay. And do you remember I had
18 asked you whether you thought it was important
19 that that photograph be in the hands of the
20 Attorney General in view of the fact it was a
21 photograph of firemen?
22 MR. MULLIN: Objection, asked and
23 answered, done yesterday.
24 MR. PARIS: Your Honor, I am just
25 trying to lay a foundation, essentially.
37
1 JUDGE CURRAN: As a foundation,
2 that is not the question, so I will overrule the
3 objection.
4 BY MR. PARIS:
5 Q Okay. Mr. Carter, do you remember
6 our discussing whether you thought this
7 photograph was important to be in the hands of
8 the Attorney General?
9 A I certainly do not.
10 Q You don't remember what I said
11 yesterday? You don't remember being asked
12 whether you thought that it was important that
13 this photograph be in the hands of the Attorney
14 General, as it was a picture of firemen who were
15 at the dinner, including Charles Snyder, Sr.,
16 Charles Snyder, Jr.?
17 MR. MULLIN: Your Honor, I object
18 to this speech. I think a question should be
19 asked.
20 JUDGE CURRAN: Sustained.
21 Sir, the question is -- I
22 apologize -- do you remember the discussion
23 yesterday? That's the only question. The
24 discussion about the picture.
25 THE WITNESS: If that's the only
38
1 question, yes. But this question was asked
2 theoretically, and it is now being contrived
3 into a direct question in which I was actually
4 planning or plotting somehow to do this. And --
5 and it was -- it was a merely a theoretical
6 question yesterday.
7 BY MR. PARIS:
8 Q That's how you perceived it?
9 A Well, that's how I answered it.
10 Q Okay.
11 A And I would think you would want me to be
12 clear. And if you ask clearer questions, I
13 would be able to -- to answer them better.
14 Q Okay. Mr. Carter, do you remember
15 testifying before this jury yesterday that when
16 the photograph came back on June -- came out on
17 June 10th that you were not aware as of
18 June 10th that the Attorney General was
19 conducting the investigation?
20 MR. MULLIN: Objection. Asked and
21 answered yesterday.
22 JUDGE CURRAN: Sustained. But
23 given the answer of the plaintiff, I'm going to
24 allow the question.
25 MR. PARIS: Thank you.
39
1 BY MR. PARIS:
2 Q Do you recall giving that
3 testimony yesterday?
4 A I do. And the answer was that the -- we
5 were never quite certain for some weeks who
6 would have the responsibility of the case.
7 Q Mr. Carter, I want to show you a
8 document which was marked Plaintiff's Exhibit
9 66, which was an e-mail -- showing you right
10 here -- from Timothy Carter. Do you see that?
11 A I do.
12 Q Okay. And to whom did you send
13 this e-mail?
14 A To Troyanski.
15 Q And Troyanski is whom?
16 A Troyanski is an investigator for the
17 Attorney General's Office.
18 Q And you worked with Troyanski
19 throughout the investigation by the Attorney
20 General, didn't you?
21 A I wouldn't say throughout.
22 Q It was --
23 A Until the time of the Grand Jury.
24 Q Okay. So up until the time of the
25 Grand Jury appearance you worked with Troyanski
40
1 from the Attorney General's Office, correct?
2 A How do you mean "worked"?
3 Q Well, you met with Troyanski. You
4 provided Troyanski with information. You
5 e-mailed Troyanski. Mr. deVries e-mailed
6 Troyanski. That was at least a contact that you
7 had with the Attorney General's Office, correct?
8 A That was one of the contacts we had, yes,
9 sir.
10 Q Okay. Let's go back to the
11 e-mail. When did you send this I mail to
12 Troyanski of the Attorney General's Office?
13 A May 7, Friday.
14 Q And the subject of the e-mail was,
15 "What happened to the empty bottles confiscated
16 by Sergeant McCarsky at the Ladder 2 Fire
17 Station" at 1:30 a.m. on Sunday, April 25th,
18 correct?
19 A That is correct.
20 Q And the first sentence of this
21 was, "We will not call your cell phone number.
22 We will try not to bother you and communicate by
23 e-mail," correct?
24 A Correct.
25 Q Now --
41
1 A That --
2 MR. MULLIN: Wait for the next
3 question.
4 Q Mr. Carter, you continued to see
5 Dr. Almeleh in April -- at least including April
6 of 2005, correct?
7 A Correct.
8 Q And that was your treating
9 psychiatrist, correct?
10 A Correct.
11 Q On April 4th of 2005, okay,
12 April 4th, 2005, do you recall reporting to Dr.
13 Almeleh that you were mugged in Jersey City?
14 A Yes.
15 Q Did you recall telling Dr. Almeleh
16 that you were mugged by an apparent drug dealer
17 or dealers?
18 A They are alleged to be. I'm not certain.
19 Q How many -- how many drug dealers
20 mugged you?
21 A Well --
22 Q Assuming that they were drug
23 dealers, but how many people mugged you?
24 A Yeah, assuming they're drug dealers
25 because I don't know. There at the end of
42
1 Clinton Road that leads onto West Side Avenue on
2 the evening of Good Friday.
3 Q How many were there?
4 A There were maybe three.
5 Q Three?
6 A Uh-huh.
7 Q Did they make physical contact
8 with you?
9 A They tried to.
10 Q I'm sorry?
11 A They tried to.
12 Q And what -- what prevented them
13 from making physical contact with you?
14 A I started running, and they ripped my
15 shirt in half.
16 Q And that was on the street of
17 Jersey City?
18 A Uh-huh.
19 Q Pardon me?
20 A Yes.
21 Q Now, I want to show you --
22 MR. PARIS: Your Honor, should we
23 have this marked for Identification?
24 JUDGE CURRAN: Yes. Are you
25 talking about the consent?
43
1 MR. PARIS: Let me give it to the
2 clerk, yes.
3 JUDGE CURRAN: Thank you.
4 (Whereupon, consent form from Dr.
5 Goldwaser's office is received and marked
6 as Defendant's Exhibit D-310 for
7 Identification.)
8 JUDGE CURRAN: 310.
9 MR. PARIS: Yes, thank you.
10 COURT CLERK: 310 marked for
11 Identification.
12 MR. PARIS: Thank you.
13 BY MR. PARIS:
14 A Thank you.
15 Q Mr. Carter, I'm showing you a
16 document which is marked Defendant's Exhibit
17 310. And this is a form from Forensic
18 Psychiatric Associates, Alberto M. Goldwaser,
19 M.D., correct?
20 A Yes.
21 Q And this is a consent for a
22 forensic examination by Dr. Goldwaser, correct?
23 A Yes.
24 Q Now, you went to see Dr. Goldwaser
25 for a psychological evaluation at our request,
44
1 correct, the defense's request?
2 A I don't know if you'd call it an
3 "evaluation."
4 Q Whatever you call it, you were
5 asked to go see Dr. Goldwaser at the request of
6 the defense in this case, correct?
7 A Well, whatever you call it is important.
8 Q Pardon me?
9 A Whatever you call it is important.
10 Q Okay. Well, what I'm calling it
11 is you going to see Dr. Goldwaser. I'm not
12 categorizing it. You were asked to go see Dr.
13 Goldwaser, correct?
14 A I was asked to go see him. But how you
15 categorize it is important.
16 Q Okay. And that request came
17 through your attorneys, didn't it?
18 A I don't recall that.
19 Q Well, for example, I didn't call
20 you on the phone, I didn't send you a letter and
21 say, "Go see Dr. Goldwaser." Mr. Bevere didn't
22 call you or tell you to go see Dr. Goldwaser.
23 You were told to go see Dr. Goldwaser through
24 your attorneys in this case, correct?
25 A You know, I can't say yes because Peter
45
1 handles my correspondence.
2 Q So it could be that Mr. deVries
3 asked you to go see Dr. Goldwaser; is that it?
4 A Well, in fact, that is what happened.
5 Q Okay. Did Mr. deVries tell you
6 that, "Our attorneys have asked us to go see Dr.
7 Goldwaser because you're required to see Dr.
8 Goldwaser"?
9 A I simply can't recall.
10 MR. MULLIN: Objection, Your
11 Honor. This is seeking a privileged
12 communication between us, the attorneys, and our
13 clients.
14 JUDGE CURRAN: All right. I'll
15 sustain that. If you will rephrase it.
16 BY MR. PARIS:
17 Q Mr. deVries told you you had to go
18 see Dr. Goldwaser; is that correct?
19 A That's correct.
20 Q Mr. Carter, you didn't want to go
21 see Dr. Goldwaser, did you?
22 A I thought it was necessary.
23 Q Pardon me?
24 A I thought it was necessary.
25 Q You understood that it was
46
1 necessary because you were making a claim for
2 money damages against the Town for a
3 psychological injury, correct?
4 A I didn't know that was the reason.
5 Q Okay. But you understood that it
6 was necessary that you'd go see Dr. Goldwaser,
7 correct?
8 A I've already said that.
9 Q Okay. Now, you were asked to
10 complete an informed consent form at Dr.
11 Goldwaser's office, correct?
12 A I was.
13 Q Okay. And you took the form when
14 it was given to you, D-310, correct?
15 A I did.
16 MR. PARIS: I don't want to block
17 you.
18 MR. MULLIN: That's all right. Is
19 it just the blowup?
20 MR. PARIS: Yeah.
21 MR. MULLIN: That's okay.
22 MR. PARIS: Thanks.
23 JUDGE CURRAN: Is the blowup
24 marked?
25 MR. PARIS: The blowup is not
47
1 marked, Your Honor.
2 JUDGE CURRAN: Okay.
3 BY MR. PARIS:
4 Q Okay. And this was the first page
5 of the form that you were given, right? This is
6 the first page of the form, correct?
7 A It appears to be.
8 Q Okay. And it was a consent for a
9 forensic examination, correct?
10 A Correct.
11 Q Okay. And you read this form,
12 didn't you?
13 A I did.
14 Q Okay. You understood that
15 Dr. Goldwaser was not acting as your physician
16 or psychiatrist in doing this interview or
17 interviews, correct?
18 A I did that.
19 Q And you also understood that he
20 was not -- that you were not his patient, right?
21 A Right.
22 Q You understood that he wasn't
23 going to be giving you any medical or
24 psychiatric treatment, correct?
25 A Yes, sir.
48
1 Q Okay. And you read the whole
2 first page of the form, correct?
3 A I did.
4 Q Okay. And then you read the
5 entire second page of the form, correct?
6 A I did.
7 Q Now, you understood that
8 Dr. Goldwaser -- or that you were being
9 interviewed by Dr. Goldwaser in a legal matter,
10 correct?
11 A I did.
12 Q And you understood what you were
13 going to tell Dr. Goldwaser was not going to be
14 kept a secret? "I give up my rights to have
15 Dr. Goldwaser kept secret what I tell him,"
16 right?
17 A Yes, that's true.
18 Q Okay. And he had your permission
19 to talk to people involved in the legal case
20 about what you had discussed with him, right?
21 A He had my permission?
22 Q Well, it says, "This means that
23 Dr. Goldwaser has my permission to talk to
24 people involved in my legal case about the
25 things that he and I discuss and anything he
49
1 thinks or decides about what we discuss," right?
2 A Right.
3 Q You also agreed to give up any
4 rights you may have by law, "to keep him from
5 saying in court what I tell him or what we
6 discuss," right?
7 A That is correct.
8 Q Okay. Now, in paragraph three you
9 read that, right?
10 A Uh-huh.
11 Q Correct?
12 A That's correct.
13 Q And then, in paragraph three, is
14 this your handwriting on the left-hand side?
15 A It is, indeed.
16 Q Okay. And you underlined certain
17 things. Where Dr. -- where it says on the form,
18 "Dr. Goldwaser has explained to me and I
19 understand that Dr. Goldwaser's written report
20 or out loud statements for court may help my
21 case, hurt my case or have no effect on my claim
22 that I can see." Okay. "And I understand that
23 no one can know which one it will be in
24 advance." Right?
25 A Right.
50
1 Q That's what the form says, right?
2 A Right.
3 Q Now, Mr. Carter, in reading this
4 form and you thinking about it and analyzing it,
5 you decided you needed to write something on the
6 form, correct?
7 A I was invited to write any notations that
8 I wanted that were above my signature or, if
9 not, on the first page, to initial them.
10 Q Okay. So Dr. Goldwaser told you
11 if you have a problem with the form, if there is
12 something you want to write on it, go right
13 ahead, correct?
14 A Knock yourself out, yeah.
15 Q Okay. And you did write something
16 on the form, correct?
17 A I did.
18 Q Okay. Can you read to the jury
19 what you wrote on the form?
20 A I said, "I do not believe that this
21 session is intended to help me in any way. It
22 is a re-victimization of an outrageous
23 antiAmerican, amazingly bias attack."
24 Q Did you put your initials there?
25 A As I said, he said if you write it above
51
1 your name --
2 Q Oh, okay.
3 A -- you don't have to initial it.
4 Q Okay. Now, you wrote that because
5 you believed that Dr. Goldwaser would be biased
6 against you, correct?
7 A No, I wrote this because apart from Dr.
8 Goldwaser, completely separating him from this
9 whole process, I wrote this because even the --
10 the trauma of going through expert witnesses,
11 were they on our side, is very, very hard. And
12 the perpetrators of the event had never been --
13 had their feet held to the fire in this way.
14 And I simply wanted to make note that this was
15 hurtful to me.
16 And if you look in the third paragraph,
17 third line, "help my case, hurt my case, have no
18 effect on my claim." And although I realize
19 that is referring to the legal case, I was
20 making a point I am a human person, after all,
21 and it did hurt me.
22 Q You indicated, "I do not believe
23 this session is intended to help me in any way,"
24 correct?
25 A Well, it wasn't.
52
1 Q But that's -- that's what was in
2 your mind as you sat down to be interviewed by
3 Dr. Goldwaser, correct?
4 A Yes.
5 Q Okay. You thought you were being
6 made a victim by the Town because it was doing
7 what it was permitted to do in defending itself
8 against your claim for money damages, correct?
9 A I understood it as necessary.
10 Q Okay. And as you went through the
11 evaluation that was the attitude that you had in
12 your mind, correct?
13 A No, as I went through the evaluation I --
14 he had -- well, the trauma -- that man, he even
15 got me to sort of warm up to him.
16 Q Okay. Now, at the same time your
17 attorneys hired Dr. Goldstein for a
18 psychological evaluation of you and Mr. deVries,
19 correct?
20 MR. MULLIN: Objection, Your
21 Honor. Wrong name.
22 JUDGE CURRAN: Sustained.
23 BY MR. PARIS:
24 Q I'm sorry, Bursztajn. You hired
25 Dr. Bursztajn -- your attorneys hired Dr.
53
1 Bursztajn for a psychological psychiatric
2 evaluation of both you and Mr. deVries, correct?
3 A I wouldn't say at the same time. They
4 had done this much earlier.
5 Q But let's go back. We're not
6 talking about the timing. Your --
7 A You said, "at the same time."
8 Q I'm sorry. Mr. Carter, your
9 attorneys hired Dr. Bursztajn to do a
10 psychological evaluation of you and Mr. deVries,
11 correct?
12 A Correct.
13 Q And you understood that you
14 weren't being treated by Dr. Bursztajn; you were
15 being seen by him for the purpose of coming to
16 testify for -- for your case in court, correct?
17 A Correct.
18 Q So when you were talking to Dr.
19 Bursztajn, that is the attitude that you had in
20 your head, correct?
21 A Say -- say what attitude I had in my
22 head.
23 Q In other words, you understood
24 while you were being seen by Dr. Bursztajn that
25 the purpose of your being seen by him was to
54
1 testify in court for your case?
2 A Actually, that was more painful than --
3 than Goldwaser.
4 Q Okay. But my question, again,
5 Mr. Carter, my question is that when you were
6 being seen by Dr. Bursztajn, you understood that
7 the -- the purpose of that or the necessity of
8 that was for him to come to court and testify in
9 your case, correct?
10 A Yes, unless I'm missing some nuance.
11 What you're saying seems so obvious.
12 Q If it's obvious, then just answer
13 the question, Mr. Carter.
14 A Okay. I was afraid I was missing
15 something.
16 Q No.
17 MR. MULLIN: Objection, Your
18 Honor. He did answer the question.
19 JUDGE CURRAN: Overruled. You can
20 answer the question.
21 MR. MULLIN: Your Honor, can we
22 have the question read back? It's the question
23 that appears on line 3 on our screens, where it
24 says, "Okay. But my question is."
25 (Whereupon, the requested portion
55
1 is read back by the reporter as follows:
2 "QUESTION: Okay. But my
3 question, again, Mr. Carter, my question
4 is that when you were being seen by Dr.
5 Bursztajn, you understood that the -- the
6 purpose of that or the necessity of that
7 was for him to come to court and testify
8 in your case, correct?
9 ANSWER: Yes, unless I'm missing
10 some nuance. What you're saying seems so
11 obvious.")
12 MR. MULLIN: Your Honor, he did
13 answer.
14 JUDGE CURRAN: In fairness, I will
15 change the decision. The objection is
16 sustained.
17 BY MR. PARIS:
18 Q Okay. And Mr. -- Mr. Carter, you
19 and Mr. deVries traveled all the way up to
20 Massachusetts to see Dr. Bursztajn, correct?
21 A Correct.
22 Q Okay. When you saw Dr. Bursztajn,
23 did you feel the necessity to say to him, "I
24 understand that the reason I'm here is to help
25 my case"?
56
1 A The -- I find my -- you're asking me
2 questions about my attitude.
3 Q I'm asking you --
4 A It's very obtuse. I don't get -- I can't
5 quite get a hold of the question.
6 Q Let me ask the question for a
7 second. Did you -- did you sign anything? Did
8 you make a written statement with Dr. Bursztajn
9 where you indicated that you thought he was
10 going to be biased in your favor?
11 A I don't remember signing anything like
12 that. I -- I can't remember.
13 Q Now, Mr. Carter, regardless of
14 whether you wrote a statement for Dr. Bursztajn
15 or not, when you were seen by Dr. Goldwaser, you
16 thought he was going to be biased against you,
17 right?
18 A Not necessarily.
19 Q Okay. And did you think, when you
20 saw Dr. Bursztajn, that he was going to be
21 biased for you?
22 A Not necessarily because they have their
23 professional integrity, like a judge.
24 Q Mr. Carter, right before you left
25 Secaucus in early October do you recall an
57
1 incident that occurred at the public library in
2 Secaucus?
3 A Yes, I do.
4 Q Okay. Someone had called you and
5 indicated to you that there was a display case
6 at the library regarding the Fire Department,
7 correct?
8 A No.
9 Q How did you find out that there
10 was a display case regarding the Fire Department
11 at the library in October?
12 A On October 25th, right as we were getting
13 ready to leave, I made -- this is how I met
14 them. I made a large arrangement of flowers to
15 take to the library. I used to do this all the
16 time. Walking down the street, two -- two
17 friends, Indian friends stopped me. And Hina
18 said, "Where are you going with those flowers?"
19 And I said, "I'm taking them to the
20 library to say good-bye because I was very close
21 to these librarians."
22 And Hina said, "When you get to the
23 library" --
24 Q I'm listening, Mr. Carter, I am.
25 A Okay. Okay. "When you get to the
58
1 library, Timothy, you're not going to be very
2 happy."
3 And I said, "Why?"
4 And she said, "Because the lobby of the
5 library has been set up as sort of a shrine to
6 the Fire Department, in particular Fire Engine
7 Hose Number 2." Noreen -- and she said, "It's
8 full" -- "filled with pictures of their families
9 and so forth."
10 Chucky Snyder, Sr.'s wife is an
11 assistant at the library. She works there
12 full-time.
13 So I came in and I looked at all of
14 this. I took my flowers in. And one -- Vivian,
15 one of the librarians, said, "Take them upstairs
16 and fill them with water in our kitchen." So I
17 did.
18 While I was there --
19 MR. PARIS: Your Honor, can I --
20 can I interject? Do you remember my original
21 question, Mr. Carter?
22 MR. MULLIN: Can we check and see
23 what the original question was, Your Honor?
24 MR. PARIS: I would appreciate it.
25 JUDGE CURRAN: Thank you.
59
1 MR. PARIS: The original question,
2 Your Honor -- I'm looking over Mr. Mullin's
3 shoulder -- How did you find out there was a
4 display case regarding the Fire Department at
5 the library in October?
6 MR. MULLIN: The next question is,
7 "I am listening, Mr. Carter, I am."
8 MR. PARIS: Because he stopped
9 answering. I wanted to make sure he knew I was
10 listening. But he answered the question.
11 BY MR. PARIS:
12 Q You found out from some friends as
13 you were walking to the library there was a
14 display case there, right?
15 A Yes, sir.
16 Q At some point in time did you
17 leave a voice mail message for the librarian?
18 A Katherine Steffens.
19 Q Did you leave a voice mail message
20 for the librarian?
21 A Yes.
22 Q And in the voice mail message
23 isn't it true that you repeated the words that
24 the firemen, the people in the parking lot had
25 yelled at you on April 25th, that you repeated
60
1 many of the same words and phrases on the voice
2 mail message of Miss Steffens, the librarian?
3 A Completely out of context.
4 Q I'm asking you if you left a voice
5 mail message for the librarian using all or part
6 of those words?
7 A I do not recall.
8 Q You don't recall that?
9 A I don't recall using those words again.
10 Q You recall coming to the library?
11 A Yes, I do.
12 Q And meeting with Miss Steffens?
13 A I ran into her. I didn't go there to see
14 her.
15 Q Okay. You ran into her at the
16 library?
17 A Yes.
18 Q Okay. And at the time that you
19 ran into her at the library you expressed your
20 displeasure about the fact that the library had
21 a display with regard to the Fire Department,
22 correct?
23 A First I gave her the flowers.
24 Q And then you expressed --
25 A She hugged me and said, "I'm so sorry
61
1 you're leaving."
2 Q I'm asking --
3 A And then I said -- displeasure -- I said
4 I -- no, that's not really true. I left it
5 open. I said, "I don't understand the display
6 downstairs in the library."
7 Q And didn't -- weren't -- wasn't it
8 explained to you that the reason for the display
9 was because it was Fire Prevention Week or
10 month?
11 A Right.
12 Q Okay.
13 A And I said --
14 MR. PARIS: Your Honor.
15 A And I said --
16 JUDGE CURRAN: Sir, with all due
17 respect, that's his question; and you answered
18 it. As far as what you then said, maybe Mr.
19 Mullin will follow up on that later on. Okay.
20 Thank you.
21 Q You asked Miss Steffens to
22 replace -- to at least replace one half of the
23 Fire Department display with a display
24 supporting gay and lesbian causes, correct?
25 A That is incorrect.
62
1 Q Incorrect. Okay. When you spoke
2 to Miss Steffens did -- Miss Steffens or anyone
3 else at the library did you ask to have part of
4 the Fire Department display removed and replaced
5 with a display supporting gay and lesbian
6 causes?
7 A Absolutely not.
8 Q Okay. Now, did you ever say to
9 anyone at the library that perhaps you would
10 call your lawyer and add the library to the
11 pending case against the firemen?
12 A Absolutely not.
13 Q And while you were at the library
14 in person did you repeat the same language that
15 you found offensive when it was said to you on
16 April 25th and repeat that language to one of
17 the librarians?
18 MR. MULLIN: Your Honor, can we
19 have a sidebar?
20 (Whereupon, the following sidebar
21 discussion is held.)
22 MR. MULLIN: I don't recall
23 Miss Steffens being listed as a witness by
24 defendants. If she is, correct me, then, if I'm
25 wrong. But if Miss Steffens is not going to be
63
1 called, there is no good faith basis for this
2 entire line of questioning. A lawyer cannot ask
3 a question on cross-examination that he does not
4 intend to offer evidence to prove. So maybe
5 there's a good faith basis. I don't recall.
6 There is a lot of evidence in this case.
7 MR. PARIS: Your Honor, number
8 one, whether we call Miss Steffens or not, the
9 fact is on cross-examination I can ask him
10 whether this occurred. We provide them as D-303
11 a report that was prepared of this entire
12 matter. My recollection -- was this in the AG's
13 file? Not sure.
14 MR. BEVERE: It was forwarded by
15 Iacono.
16 MR. PARIS: It was forwarded to
17 the Attorney General's Office.
18 MR. MULLIN: By whom?
19 MR. PARIS: It was a report by
20 Katherine Steffens, and we don't have to offer
21 her testimony in order for me to cross-examine
22 him on this.
23 MR. MULLIN: Your Honor, that's a
24 hearsay document. Can't be offered into
25 Evidence.
64
1 MR. PARIS: He can -- he can
2 answer yes or no as to whether or not this
3 occurred.
4 JUDGE CURRAN: If she is not going
5 to testify and if the document is not going into
6 Evidence --
7 MR. PARIS: Pardon me?
8 JUDGE CURRAN: If she is not going
9 to testify -- and I don't remember her name. I
10 could be mistaken; but frankly, I would have had
11 no trouble pronouncing it. It would have been
12 one of the few I didn't. But if she is not
13 going to testify and if the document can't go
14 into Evidence, how can you proceed? What's the
15 good faith basis?
16 MR. PARIS: But it's a question as
17 to whether or not the event occurred.
18 JUDGE CURRAN: I know that.
19 MR. PARIS: Does he deny that it
20 occurred?
21 JUDGE CURRAN: But -- I know you
22 wouldn't do this; but in all due respect, you
23 could make up something. If there was no
24 witness and there was no way to get a document
25 into Evidence, and therefore there would have to
65
1 be a foundation. You could ask him if he had an
2 argument with someone in the deli he referred
3 to.
4 MR. PARIS: Well, I also have an
5 e-mail that he wrote.
6 MS. SMITH: Where he threatens to
7 sue the library?
8 MR. PARIS: No, no.
9 MS. SMITH: Well --
10 MR. PARIS: He said it didn't
11 happen.
12 JUDGE CURRAN: But --
13 MR. MULLIN: I don't see Bates
14 stamp numbers.
15 JUDGE CURRAN: He said he didn't
16 do the -- he said he didn't e-mail her.
17 MR. PARIS: Pardon me?
18 JUDGE CURRAN: He said, when you
19 asked him did you do an e-mail -- no, if you
20 left a message for her and if there is no
21 recorded message and she is not going to testify
22 and he denies it, then it really should be
23 stricken. It's not -- it's not proper unless at
24 this point you're asking to amend your witness
25 list.
66
1 MR. PARIS: It's possible that we
2 may call Miss Steffens, I guess, as a potential
3 rebuttal witness.
4 JUDGE CURRAN: I told you -- if
5 you are going to go on with this line of
6 questioning, you have to tell me now you are
7 going to call her. I will note that there will
8 probably be objections, but I've got to know
9 that now, in fairness; otherwise, this line of
10 questioning, there is no foundation for it.
11 MR. MULLIN: Can I also add I
12 don't see a Bates stamp number on his documents
13 he is holding? Of course, I don't remember
14 every document that was turned over; but every
15 document had a Bates number.
16 MR. BEVERE: He was questioned on
17 this at his deposition.
18 JUDGE CURRAN: I'm sorry?
19 MR. PARIS: He was questioned
20 about this at his deposition.
21 MR. MULLIN: Was he questioned
22 about this report by the librarian? I don't
23 recall.
24 MR. BEVERE: I don't recall the
25 event in question.
67
1 MR. MULLIN: I'm talking about --
2 MR. BEVERE: I think this document
3 is in their binder, as well. Let me see if I
4 can find it.
5 MR. MULLIN: Which document?
6 MR. BEVERE: I think this document
7 was in your blinder, as well.
8 MR. MULLIN: May be. But the
9 other objection stands, Your Honor. I haven't
10 seen it, but that probably just means I forgot.
11 JUDGE CURRAN: Was he questioned
12 about the two-page report, or was he questioned
13 about the top page right there?
14 MR. BEVERE: He was questioned
15 about the incident at the library, and he gave a
16 version at his deposition of the incident at the
17 library.
18 MR. MULLIN: That I don't recall.
19 I don't recall this document.
20 MR. BEVERE: He was questioned
21 about that. But e-mail is certainly his. The
22 e-mail about the incident is his. It's his
23 e-mail.
24 JUDGE CURRAN: And who did it go
25 to?
68
1 MR. PARIS: Pardon me?
2 JUDGE CURRAN: Who did the e-mail
3 go to?
4 MR. PARIS: He e-mailed it to Tim
5 Carter, to Peter deVries and also a -- excuse
6 me, to Mr. deVries and also to her. He sent it
7 to her.
8 MR. MULLIN: He doesn't threaten
9 to sue in that e-mail?
10 MR. PARIS: He does not.
11 MR. MULLIN: What is the basis for
12 the allegation? You are presenting him as a
13 litigious person.
14 MR. PARIS: It is a report in
15 discovery.
16 JUDGE CURRAN: Okay. If you want
17 to ask him one last question only about the
18 e-mail, did he write the e-mail or whatever,
19 that's fair game. If he was questioned about
20 that, if it was in his deposition and if it goes
21 to her, you can ask that. But other than --
22 that's the last question, unless you want to
23 tell me that you want to add her to your witness
24 list. I need to know that now before this goes
25 on.
69
1 MR. PARIS: I will question him
2 about his e-mail.
3 MR. MULLIN: You can answer the
4 question, Judge's question.
5 MR. PARIS: I have to talk to Mr.
6 Bevere.
7 JUDGE CURRAN: Okay. If you are
8 going to talk to Mr. Bevere about that, we are
9 not going to any questions -- any further
10 questions about the library at this point. We
11 can probably take a break before you're finished
12 with him, anyway. I don't mean to say -- before
13 the cross-examination is complete. And then, if
14 you two want to talk and let me know after that.
15 MR. PARIS: I actually may be done
16 with my cross right now.
17 MR. MULLIN: I would like a
18 curative instruction right now that there is no
19 evidence nor will there be any evidence offered
20 in this case that my client, that Mr. Carter
21 ever threatened to sue the library. There is no
22 evidence of that. None will be offered in this
23 case.
24 MR. PARIS: Well, we may call
25 Miss Steffens.
70
1 MS. SMITH: You may ask to call
2 Miss Steffens.
3 MR. PARIS: I may ask to call. We
4 may ask to call.
5 JUDGE CURRAN: Are you going to
6 tell me you are going to request --
7 MR. PARIS: No, I need to discuss
8 that for a minute.
9 MR. MULLIN: We need to know that
10 now. So you can take a minute.
11 JUDGE CURRAN: I will give the
12 jury a break, if you two want to talk.
13 MR. PARIS: Thanks.
14 (Whereupon, sidebar discussion is
15 concluded.)
16 JUDGE CURRAN: Ladies and
17 Gentlemen, we are going to give you the morning
18 break. If you would come back at 10:45, I would
19 appreciate it. Okay. Thank you.
20 (Whereupon, the jury is excused.)
21 COURT CLERK: Off the record.
22 JUDGE CURRAN: Thank you.
23 (Whereupon, a brief recess is
24 taken.)
25 COURT CLERK: On the record.
71
1 JUDGE CURRAN: Mr. Mullin.
2 MR. MULLIN: Yes, Your Honor, can
3 I have -- can I have the benefit of Counsel's
4 decision on whether or not they're going to ask
5 to call Miss Steffens to the stand?
6 JUDGE CURRAN: Are you -- have you
7 completed your discussion, Mr. Paris?
8 MR. PARIS: Yeah, we're not going
9 to call Miss Steffens.
10 MR. MULLIN: Then, Your Honor, my
11 application for a curative instruction stands as
12 I -- as I expressed it.
13 JUDGE CURRAN: Thank you.
14 MS. HAWKS: Your Honor, are you on
15 the record?
16 JUDGE CURRAN: Yes.
17 MS. HAWKS: There is a juror that
18 wants to come.
19 JUDGE CURRAN: You can bring the
20 juror in. Thank you very much.
21 COURT CLERK: Off the record?
22 JUDGE CURRAN: No.
23 COURT CLERK: Jurors are
24 approaching.
25 JUDGE CURRAN: Thank you.
72
1 (Whereupon, a juror enters the
2 courtroom.)
3 MR. PARIS: Your Honor.
4 COURT CLERK: On the record.
5 MR. PARIS: I would like to know
6 what curative instruction counsel is seeking.
7 MR. MULLIN: The one I requested.
8 MR. PARIS: Which is?
9 JUDGE CURRAN: He requested a
10 curative instruction to indicate that there is
11 no basis in the record -- come on in.
12 MR. MULLIN: There will be --
13 COURT CLERK: Juror.
14 (Whereupon, two jurors enter the
15 courtroom.)
16 COURT CLERK: Are we back on the
17 record?
18 JUDGE CURRAN: We are still on the
19 record, yeah.
20 MR. MULLIN: There will be no
21 evidence offered by the Town of Secaucus that
22 Mr. Carter ever threatened to sue the library
23 and it was inappropriate for counsel to raise
24 that issue and the jury should disregard any
25 reference to it.
73
1 MR. PARIS: Your Honor, if I may.
2 Number one, there was a good faith basis to ask
3 the question amongst the documents and we have
4 done this -- I guess this is about the third
5 time during the course of this case -- where
6 plaintiffs have alleged.
7 MS. HAWKS: Your Honor.
8 (Whereupon, a juror enters the
9 courtroom.)
10 MR. PARIS: This is about the
11 third time during the case where Plaintiffs'
12 counsel has alleged that we didn't provide
13 something in discovery, they had never seen it.
14 This morning it was the consent form. Before it
15 was a tape. Now it's this document.
16 MR. MULLIN: What is the Bates
17 number of that document, Mr. Paris?
18 MR. PARIS: This document is part
19 of your exhibits.
20 MR. MULLIN: What is the Bates
21 stamp?
22 MR. PARIS: AG 68 through 71.
23 MR. MULLIN: I'm not offering it
24 into Evidence.
25 MR. PARIS: I understand. But you
74
1 know, the applications are made as -- as though
2 these documents hadn't been provided and this is
3 the first time you're seeing them. This
4 document is in your notebook. It's marked as
5 Plaintiff's Exhibit 201. It is started with a
6 letter by Anthony Iacono, the administrator of
7 the Town -- of the Town. He is sending this
8 report, which I was utilizing, sending this
9 report to the Attorney General's Office; and it
10 included an e-mail from Mr. Carter.
11 MR. MULLIN: Your Honor.
12 MR. PARIS: Excuse me. So to say
13 I had no good faith basis to ask the question,
14 the question came right out of the report.
15 They've had the report from the librarian. He
16 answered the question, "No," so I didn't get an
17 answer that I wanted. He answered the question,
18 "No." And I don't really understand why that
19 isn't just fair cross-examination. It's not
20 like I made this up out of my head.
21 JUDGE CURRAN: Does that report
22 that Mr. Iacono sent to the Attorney General's
23 Office talk about a lawsuit?
24 MR. PARIS: Yes.
25 JUDGE CURRAN: What does it say?
75
1 MR. PARIS: "Mr. Carter said that,
2 quote, perhaps I will call my lawyer and add the
3 library to the pending case against the
4 firemen."
5 MR. MULLIN: How -- Your Honor,
6 how is this evidence getting in? RPC 3.4,
7 fairness to opposing counsel, subparagraph E,
8 says, "A lawyer shall not in trial allude to any
9 matter that the lawyer does not reasonably
10 believe is relevant or that will not be
11 supported by admissible evidence." And it goes
12 on. And that's always been my understanding.
13 This is not admissible evidence.
14 This is a hearsay document and -- and
15 Miss Steffens is not going to be called. So,
16 first of all, let me note that counsel has gone
17 very far already with this line of questioning.
18 But I don't know how they're going to prove the
19 truth of the matters asserted in a blatant
20 hearsay document. I don't -- I don't hear how
21 it's coming in.
22 MR. PARIS: This was a report that
23 was filed with Mr. Iacono, the Town
24 Administrator, by one of the employees in the
25 Town, the director of the library. She reported
76
1 on an incident that occurred with Mr. Carter the
2 morning of October 6th. And this document was
3 then forwarded to the Attorney General as
4 part -- in furtherance of their investigation.
5 So to say that there was no good faith basis at
6 all even ask the question is -- is not the case.
7 This is not a surprise. This is
8 a document that was produced in discovery.
9 Plaintiffs included it amongst their potential
10 documents, exhibits, whatever you want to call
11 it. So to say now that there was no basis for
12 asking these questions and that Mr. Carter's
13 answer and the question now should be stricken
14 is not the case. He answered the question no,
15 it didn't occur. I would have liked him to
16 answer in accordance with what Miss Steffens
17 said; but he didn't do that.
18 MR. MULLIN: Let me refine my
19 request to take the good faith issue out of
20 this. Okay. Let me say that the Court should
21 tell the jury that the Town of Secaucus will not
22 offer any evidence to support --
23 (Whereupon, a juror enters the
24 courtroom.)
25 JUDGE CURRAN: Okay.
77
1 MR. MULLIN: The Town of Secaucus
2 will not offer any evidence to support their
3 claim that my client threatened to sue the
4 library, without criticizing counsel for -- for
5 raising the issue because that's a true
6 statement.
7 JUDGE CURRAN: I think we have
8 admitted 17 or 18 jurors so far.
9 (Whereupon, two jurors enter the
10 courtroom.)
11 JUDGE CURRAN: Thank you.
12 If you are not going to call the
13 librarian, that seems to me a fair curative
14 instruction. What is unfair about it from the
15 defense side?
16 MR. PARIS: Well, the only thing
17 that's unfair about it is we are going to call
18 Mr. Iacono and he is going to indicate that he
19 received a report from one of the directors of
20 the library. That's all.
21 MR. MULLIN: That will be hearsay.
22 That would be just blatant hearsay.
23 JUDGE CURRAN: I don't see how
24 that will be admissible that way.
25 MR. PARIS: Your Honor, you know,
78
1 again, I object. He answered the question,
2 "No." And there was good faith basis for asking
3 the question.
4 JUDGE CURRAN: Good faith is out.
5 No question about good faith at this point.
6 Do you want to go off the record
7 so the two of you can --
8 MR. PARIS: Yeah, just for a
9 second.
10 JUDGE CURRAN: Why don't we go off
11 the record.
12 COURT CLERK: Off the record.
13 (Whereupon, a discussion is held
14 off the record.)
15 JUDGE CURRAN: Back on the record.
16 MR. PARIS: You know what, at this
17 point I would ask that, if you're going to do
18 anything, that you just ask the jury to
19 disregard the last question and answer. And
20 that's been done before. That the question with
21 regard to the threatened suit against the Town
22 is stricken and they are to disregard the
23 answer.
24 MR. MULLIN: Your Honor, that
25 won't do it. The jury won't remember the last
79
1 question. There is great prejudice. And
2 counsel has attempted in his cross-examination
3 to portray my client as litigious, and it's very
4 potent. And there has been damage done. And
5 there is not going to be evidence offered that
6 my client was litigious.
7 Again, I am not going to ask the
8 Court to condemn counsel for asking the
9 question. I am not going to good faith issue.
10 But the jury should be told the Town of Secaucus
11 will present no evidence demonstrating that my
12 client ever threatened to sue the library. That
13 way they will remember the question. The
14 factual implication of the question sounds like
15 he has some evidence in his pocket he is going
16 to offer, and that's not -- that's not fair
17 play.
18 MR. PARIS: Your Honor, you know
19 what, I would ask our witness list be amended to
20 add Miss Steffens.
21 JUDGE CURRAN: Objection noted.
22 MR. MULLIN: I stren -- the middle
23 of the trial? I strenuously object. I never
24 anticipated her as a witness. I haven't taken
25 her deposition. My client has finished
80
1 testifying on direct, and I didn't put into his
2 testimony that which would deal with the issues
3 raised by Miss Steffens. I will be profoundly
4 prejudiced by such -- the grant of such an
5 application.
6 MR. PARIS: We would call her as a
7 rebuttal witness, Your Honor.
8 JUDGE CURRAN: They have every
9 right to do that.
10 MR. MULLIN: What?
11 JUDGE CURRAN: They have a right
12 to call her as a rebuttal witness, considering
13 your client's answer.
14 MR. MULLIN: They don't have a
15 right to rebuttal, Your Honor; I have a right to
16 rebuttal.
17 JUDGE CURRAN: Right. But if you
18 do --
19 MR. MULLIN: They have to right to
20 rebuttal?
21 JUDGE CURRAN: I understand that,
22 but it's not a right with the capital R. But
23 it's a fairness --
24 MR. MULLIN: Well, first of all --
25 JUDGE CURRAN: -- issue.
81
1 MR. MULLIN: -- rebuttal to what?
2 They asked an improper question; and now they
3 are going to call a witness to rebut the answer
4 they elicited based on an improper question,
5 based on a document that can't be admitted into
6 Evidence and -- and a hearsay -- and a witness
7 that isn't a witness.
8 JUDGE CURRAN: They call -- I'm
9 sorry. If they call her, it's not improper, if
10 they call her.
11 MR. MULLIN: But it is improper
12 because she is not on the witness list, she --
13 she -- therefore, I did not prepare my clients'
14 testimony with the -- with the fact that she was
15 coming in their defense case. I am profoundly
16 prejudiced. They had -- they didn't have the
17 right to suggest to the jury that they were
18 going to prove this fact, that my client
19 threatened to sue.
20 MR. PARIS: Frankly --
21 JUDGE CURRAN: You are right.
22 Mr. Mullin is certainly right technically
23 because she -- when the offer -- when the
24 question was asked, there was no indication that
25 the librarian was on the -- in fact, the
82
1 librarian was not on the witness list at that
2 point.
3 MR. PARIS: Your Honor, honestly,
4 if it's just -- if it's just about -- this isn't
5 all about a threat to sue. Believe it or not,
6 there are other -- there are other ways that
7 this gets tied into the case. But I will
8 withdraw the question with regard to did you
9 threaten to sue the Town. I would withdraw that
10 question. And I think that that's more
11 appropriate, to say that that last question was
12 withdrawn and the answer is stricken and the
13 jury is to disregard any comment with regard to
14 any threat to sue.
15 JUDGE CURRAN: But with all due
16 respect, as many times as we say to them
17 something is withdrawn, is stricken, that means
18 it can't be part of your deliberations -- in
19 fairness, I think this is a sensitive issue; and
20 I think there had -- in fairness, I'm not sure
21 they would remember the last question because
22 there has been so much back and forth and
23 nuancing in regard to answers of questions. So
24 just to say you withdraw the last question, I
25 think, in fairness, there has to be an
83
1 identification of the question.
2 Are you saying that you're
3 withdrawing the question and therefore you are
4 not going to bring in the witness?
5 MR. PARIS: No.
6 JUDGE CURRAN: No?
7 MR. PARIS: What I'm saying is I
8 would withdraw the question with regard to the
9 threatened litigation.
10 JUDGE CURRAN: But are you going
11 to bring in the witness?
12 MR. PARIS: We may. Well, if --
13 if we withdraw that -- if we withdraw that, I
14 would then withdraw the request to bring in the
15 witness.
16 JUDGE CURRAN: Okay.
17 MR. MULLIN: Your Honor, I just
18 want to add --
19 JUDGE CURRAN: I'm sorry,
20 Mr. Mullin.
21 MR. MULLIN: I want to add to the
22 record. I'm sorry, go ahead.
23 JUDGE CURRAN: As I see the two
24 choices, they are I would give a curative
25 instruction to the jury indicating that the Town
84
1 will provide no evidence in regard to
2 Mr. Carter's threatening to sue the library and
3 therefore I am striking that question and
4 answer; or you can call the witness as a
5 rebuttal witness. I don't see the withdrawing
6 and no mention to the jury as an option.
7 Mr. Mullin.
8 MR. MULLIN: Yes, I just want to
9 add I have had my staff check through all the
10 rogg answers, Interrogatory answers while I'm
11 standing here. I am told Miss Steffens is not
12 listed as a person with knowledge in the
13 Defendant's Answers to Interrogatories. I can
14 tell you that -- that she was not listed.
15 Clearly, she was not listed as a witness for
16 this trial. And while we have a whole lot of
17 rogs, our -- our pass on it right now doesn't
18 turn up a reference to Miss Steffens as a person
19 with knowledge.
20 Also, at sidebar counsel for
21 the -- for Secaucus mentioned that the document
22 that has the so-called threat to sue the museum
23 seemed -- I'm not sure they said this; they may
24 have said it -- my client was shown that in his
25 deposition. Perhaps they haven't said that. We
85
1 checked the deposition. My client was not shown
2 that in his deposition. So Miss Steffens has
3 not been named as a person with knowledge in
4 answers to discovery. Miss Steffens is not on
5 the witness list. I did not, in preparing my
6 client for -- Mr. Carter for direct and cross,
7 anticipate that she would play a roll, that she
8 would testify, that this hearsay document would
9 come into play.
10 I will be profoundly prejudiced
11 if the curative is not given and if they're
12 allowed to suddenly bring in Miss Steffens, who
13 I have never deposed, bring in discovery on.
14 MR. PARIS: There certainly is
15 document discovery because the document we are
16 relying upon is part of everyone's record.
17 MR. MULLIN: I would have -- I
18 would have sought discovery of all of
19 Miss Steffens' e-mail communications. I would
20 have done a thorough job exploring all of her
21 contacts, apparently, which Miss Snyder, Sr.
22 worked with her or for her. I would have
23 explored all communications with Miss Snyder,
24 Sr. to show that she is not an impartial person.
25 I am prejudiced. I haven't done any of that. I
86
1 wouldn't be able to do any of that.
2 JUDGE CURRAN: Mr. Paris, you
3 mentioned or argued that this goes beyond just
4 whether or not the plaintiff threatened to sue.
5 Presumably, then, there are other issues in this
6 regard. Why, then, would she not be even
7 mentioned in the rogs? You know, I mean, they
8 can -- those answers can always be amended. And
9 I can understand maybe as things went on you
10 discovered --
11 MR. PARIS: I am sure there was
12 probably a catchall and she was referred to and
13 there was -- you know, certainly part of the
14 Attorney General's records included this report.
15 So that's probably why she wasn't mentioned
16 specifically. But there is nothing I can say
17 about that at this point.
18 JUDGE CURRAN: Any other
19 arguments?
20 MR. PARIS: No, Your Honor.
21 JUDGE CURRAN: Okay. I am going
22 to give the curative instruction without any
23 reference of bad faith. I will indicate that
24 the Town will provide no evidence that
25 Mr. Carter threatened to sue the library and
87
1 that question and answer are stricken. Thank
2 you.
3 Anything else?
4 MR. MULLIN: Nothing else, Your
5 Honor.
6 JUDGE CURRAN: Thank you. We will
7 bring back the jury.
8 MS. HAWKS: Jurors are
9 approaching.
10 JUDGE CURRAN: Thank you.
11 (Whereupon, the jury is brought
12 into the courtroom.)
13 JUDGE CURRAN: You may be seated,
14 Mr. Carter.
15 Thank you, Ladies and Gentlemen.
16 We are going to continue with the
17 cross-examining in a moment -- cross-examination
18 in a moment; but if you would let me just
19 indicate one thing to you.
20 I don't know if we remembered the
21 last question, but it was addressed by Mr. Paris
22 to Mr. Carter in regard to the library. I am
23 indicating to you and instructing you that the
24 Town is not going to present any evidence that
25 Mr. Carter threatened to sue the library.
88
1 Therefore, that question and that answer are
2 stricken. Again, that can have no part in your
3 deliberations. And we'll talk about questions
4 and answers being stricken at the end.
5 Thank you we'll continue with the
6 cross-examination, Mr. Paris.
7 BY MR. PARIS:
8 Q Mr. Carter, you indicated in --
9 the event I was talking about, it occurred on
10 October 25th; is that correct?
11 A That's correct.
12 Q Why do you remember the date
13 October 25th?
14 A I don't remember it exactly.
15 Q Are you sure this didn't happen in
16 early October?
17 A I'm not certain, sir.
18 Q Okay. And you -- you had asked
19 that the display be taken down, didn't you?
20 A I did not ask that the display be taken
21 down.
22 Q After -- after -- at some point in
23 time you had a discussion about the display
24 coming down, then you wanted to compromise where
25 there would be a sign up near the display,
89
1 correct?
2 A I -- I think maybe it's written down. I
3 just -- I'm not sure how it all ended, except
4 that Katherine said, "Can I give you a hug" and
5 I hugged her. And that's the last I saw of her.
6 Q Okay. And that's how it ended.
7 And I just want to understand, do you recall
8 requesting that a sign go up next to the Fire
9 Department display?
10 A I remember saying -- she said, "It's Fire
11 Prevention Week" and Chucky Snyder, Sr.'s wife,
12 who was an assistant, had put up the display.
13 And I said, "There's a perception among
14 some people."
15 And she said, "It wasn't meant that
16 way. It's for Fire Prevention Week for the
17 children."
18 And I said, "I have a teacher's
19 license, Katherine. And there is no educational
20 component to this."
21 And so she said, "Tim, what can we do?
22 What would make you happy?" Because she is a
23 warm friend of mine.
24 Q And you never shared with her any
25 of the language that occurred on the evening of
90
1 April 25th; is that correct?
2 A That is not correct. What she did was
3 she said, "Tim, what really happened that
4 night?"
5 And as I did here in Court, I backed it
6 up about four ways with saying, "You don't want
7 to hear this," et cetera. And I told her
8 generally a couple of things, spelling out some
9 words, whatever.
10 And she said, "Okay. I get the idea."
11 Q And you did that personally, not
12 by way of a voice mail, correct?
13 A If I left a voice mail, it would have
14 been after that conversation.
15 Q You didn't use any of that
16 language in a voice mail, did you?
17 A I didn't say that.
18 MR. MULLIN: Objection. Can we be
19 heard sidebar, Your Honor?
20 JUDGE CURRAN: Sure.
21 MR. PARIS: I have no further
22 questions.
23 MR. MULLIN: I want to be heard
24 sidebar.
25 THE WITNESS: We're very good
91
1 friends.
2 JUDGE CURRAN: No question.
3 (Whereupon, the following sidebar
4 discussion is held.)
5 MR. MULLIN: Your Honor, again,
6 there is a lot of material in this record. And
7 I'll stand corrected, but I don't recall a voice
8 mail of -- of Mr. Carter being turned over to me
9 in discovery where he is leaving curses and
10 crude language. I don't recall that. I don't
11 believe they're going to -- maybe I'm mistaken
12 and it is there and I overlooked it and you are
13 going to offer it into Evidence. But if you're
14 not, well, I want a curative instruction on that
15 where the jury has now heard this promise about
16 four times.
17 MR. PARIS: Your Honor, he says he
18 didn't leave any such message. I don't have a
19 voice mail message. Okay. I don't --
20 JUDGE CURRAN: What was the basis
21 for the question?
22 MR. PARIS: Again, it's referred
23 to in the report.
24 MR. MULLIN: What report?
25 MR. PARIS: In the report from the
92
1 librarian.
2 JUDGE CURRAN: Okay. In fairness,
3 if we were over here for the first time,
4 Mr. Paris, maybe I'd listen to arguments. But
5 at this point you have got -- you had to know
6 that objection was coming, and you had to know I
7 was going to sustain it. And you had to know
8 I'm going to give them a curative instruction
9 saying the Town will provide no evidence that
10 there were any improper or obscene words in --
11 you didn't use the word "obscene."
12 MR. PARIS: No, I didn't say --
13 JUDGE CURRAN: Improper words or
14 no graphic description of words that were used
15 left in a voice mail for the librarian.
16 MR. MULLIN: Thank you, Your
17 Honor.
18 JUDGE CURRAN: In fairness, I
19 mean, as I said, if this was the first time, we
20 could argue it; but I don't see a point in
21 arguing it.
22 MR. PARIS: Okay.
23 JUDGE CURRAN: I will note your
24 objection. It's preserved.
25 (Whereupon, sidebar discussion is
93
1 concluded.)
2 JUDGE CURRAN: Ladies and
3 Gentlemen, before we -- oh, Tracey, I'm sorry.
4 Ladies and Gentlemen, before we
5 proceed I'm going to give you another -- we call
6 them "curative instructions." The Town will
7 prevent -- will present no evidence that
8 Mr. Carter left a voice mail for the librarian
9 with any of the graphic language that you have
10 already heard repeated in the voice mail.
11 So, again, I am going to ask you
12 to -- I'm going to strike that question and
13 answer, and I'm going to just instruct you that
14 it can be no part of your deliberations. Thank
15 you.
16 Now we are going to move back to
17 redirect by Plaintiffs' counsel. Mr. Mullin.
18 MR. MULLIN: Thank you, Your
19 Honor.
20 REDIRECT EXAMINATION BY MR. MULLIN:
21 Q Tim --
22 A Yes, sir.
23 Q -- are you the kind of person that
24 goes around suing people and threatening to sue
25 people all the time?
94
1 A No, sir, I'm not.
2 Q How old are you, sir?
3 A I just turned 50.
4 Q You're 50. And in your 50 years
5 how many lawsuits have you filed?
6 A I have filed no lawsuits, sir.
7 Q Other than this one?
8 A Other than this one, which we had to.
9 Q How about Mr. deVries; you have
10 known Mr. deVries how long?
11 A I have known him for 22 years. He is 60
12 years old on June 24.
13 Q Has he ever filed any lawsuits
14 other than this one?
15 A Absolutely not.
16 Q Did you -- did you sue the
17 library?
18 A I made --
19 Q Yes or no?
20 A -- arrangement -- no, I made arrangement,
21 a floral arrangement, Williamsburg.
22 Q And I don't want to go into much
23 more detail on that; but when you left
24 Miss Steffens, what gesture did she make towards
25 you and you towards her?
95
1 A She said, "Tim, we've loved having you.
2 Will you give me a big hug?" And I hugged her.
3 Q And you hugged her.
4 A Yes, I did. And I still like her.
5 Q Did you love the library of
6 Secaucus?
7 A Yes, because that was a concern. We had
8 gone to Secaucus with the intention that I would
9 have time to sort of find myself. Admittedly, I
10 had been lost quite a while. And so I used that
11 library every day. I knew all the librarians by
12 name. I knew Katherine by name and face. And I
13 used it extensively. They were very good to me
14 because we have a very good New Jersey library
15 system.
16 Q Do you miss that library today?
17 A That is one of the only things I miss;
18 but yeah, I do.
19 Q It's the only thing --
20 A I miss them a lot. They were my friends,
21 Vivian and the whole -- all the librarians.
22 Q Okay. Mr. Paris asked you some
23 questions implying that you were threatening to
24 sue your employer at Kohl's. Do you recall that
25 line of questioning?
96
1 MR. PARIS: Objection, Your Honor.
2 JUDGE CURRAN: Basis?
3 MR. PARIS: Again, it's not --
4 it's not a direct question. He is asking what I
5 was implying. I only asked questions, Your
6 Honor.
7 JUDGE CURRAN: Sustained. If you
8 will please rephrase.
9 MR. MULLIN: I will rephrase, Your
10 Honor.
11 BY MR. MULLIN:
12 Q Do you remember being asked
13 certain questions about your employment at
14 Kohl's and how that employment ended? Do you
15 recall being asked those questions?
16 A Yes.
17 Q And you mentioned that you were
18 being harassed by certain employees who worked
19 at the loading dock, right?
20 A Very much so.
21 Q Okay. Do you know where those
22 employees were also employed in addition to
23 Kohl's or working for Kohl's?
24 A They were employed by the Department of
25 Public Works.
97
1 Q Okay. And were any of them
2 volunteer firemen?
3 A Yes, sir, they were.
4 Q How many of the employees or
5 people working for Kohl's that you described
6 before that were calling you names, like
7 "faggot," were volunteer firemen?
8 A I would say probably 15.
9 Q Okay. And then at some point you
10 resigned from Kohl's; is that right?
11 A Yes, sir, I did.
12 Q When did you resign from Kohl's?
13 A I resigned on Monday. Maybe it's May the
14 20th. I'm not sure exactly.
15 Q Towards the end of May 2004?
16 A Yes, sir.
17 Q About a month after the incident
18 of April 24th?
19 A Yes, sir.
20 Q And then your attorney
21 communicated with Kohl's about -- about the
22 conditions they allowed to exist; is that what
23 happened?
24 A Yes, sir.
25 Q Okay. Now, just so we make it
98
1 clear for the jury, this is a letter that
2 Mr. Paris showed you marked Plaintiff's Exhibit
3 24 from a Kelly Smith. And -- and just briefly,
4 who is Miss Kelly Smith?
5 A Miss Kelly Smith is an attorney at law.
6 Q And whose office does she work
7 for, for the record?
8 A She works for Smith Mullin.
9 Q Okay. And that's not Kelly Smith;
10 that's Nancy Smith, right?
11 A That's Nancy Smith.
12 Q And she works for our firm?
13 A She is a partner.
14 Q Okay. Now, you were asked a
15 question that emphasized that this letter was
16 written six months after the incident of
17 April 25th, that it's dated December 3, 2004,
18 right?
19 A That's right.
20 Q Do you recall that questioning?
21 Okay. But is that when Miss Smith started to
22 attempt to negotiate a resolution with -- with
23 this company for firing you --
24 A No.
25 Q -- from Kohl's?
99
1 A She -- she -- that -- most of that
2 activity, I would say, took place late May,
3 early June.
4 Q Of 2004?
5 A It happened very quickly.
6 Q In fact, in this letter Miss Kelly
7 Smith referred -- is writing to a lawyer and a
8 vice president at Kohl's and says, "I" --
9 Miss Kelly Smith, your lawyer, says, "I spoke to
10 you," the lawyer for Kohl's, "last weak
11 regarding your letter to me dated October 19th,
12 2004." Do you recall correspondence --
13 A Yes.
14 Q -- back in October and even in
15 earlier than that?
16 A Right.
17 Q Okay. And -- and by the way, did
18 Kohl's settle with you? Did they give you some
19 money?
20 A Never, never, never.
21 Q And when they didn't give you
22 money, did you file a lawsuit against them?
23 A No.
24 Q You chose not to?
25 A No, I didn't get unemployment or
100
1 anything.
2 Q Okay. And you didn't sue them?
3 A I never sued anybody in my life.
4 Q Okay. Other than --
5 A Other than --
6 Q -- this lawsuit?
7 A -- these guys.
8 Q Now, you were asked a series of
9 questions about whether or not you transmitted
10 information about what -- what was happening to
11 you after the big April 25th incident; do you
12 remember that? In other words, first there is
13 that big riot, that mob attack; and then things
14 happened afterwards. Do you remember that?
15 A Yes, sir.
16 Q And do you remember being asked
17 questions about, well, did you tell the Attorney
18 General's Office which, on May 10th, took over
19 the investigation, did you tell them about those
20 instances? Do you remember that?
21 A Yes, sir.
22 Q Okay. Let me show you this
23 letter, which is copied to you. This is P-89,
24 plaintiff's Exhibit 89. You see this is copied
25 to you; is it not, sir?
101
1 A Uh-huh.
2 Q Do you recall getting this letter?
3 A Yes.
4 Q Let's look at the information.
5 The letter is written to whom?
6 A To Chief Corcoran.
7 Q And Chief Corcoran is Chief of
8 which department?
9 A Police Department.
10 Q Which Police Department, of which
11 Town?
12 A Of Secaucus --
13 Q Okay.
14 A -- New Jersey.
15 Q And who is writing the letter?
16 A It is written by the DAG.
17 Q Does DAG stand for?
18 A Deputy attorney general.
19 Q And who does the deputy attorney
20 general work for? Is that the Attorney
21 General's Office?
22 A Yeah, broadly speaking.
23 Q Okay. And who is the DAG or
24 deputy attorney general that's writing this
25 letter?
102
1 A Hester Agudosi.
2 Q Agudosi?
3 A Agudosi.
4 Q And is that someone you came to
5 know in the course of your dealings with the
6 State Attorney General's Office?
7 A Yes.
8 Q Now, the first sentence of this
9 letter is, "Dear Chief Corcoran," Miss Agudosi
10 writes, "I have been advised by Timothy Carter
11 and Peter deVries that they have reported a
12 number of criminal incidents that have occurred
13 on or near their premises subsequent," after,
14 "April 25th, 2004." Do you see that sentence?
15 A Uh-huh.
16 Q Was that a true statement? Had
17 you and Peter, in fact, told the Attorney
18 General's Office of these incidents that were
19 happening after April 25th? Were you doing your
20 best to communicate that?
21 A We were doing our best to communicate
22 that, and I believe that the person -- but --
23 although, I believe, except for just writing on
24 their web site where you can write in, I believe
25 that the real contact was made through a third
103
1 party.
2 Q State Trooper -- State Officer
3 Troyanski?
4 A No, I believe that the real contact to
5 the -- first went to the Attorney General
6 through Senator Corzine's office.
7 Q Okay. But did you communicate --
8 as this sentence says, did you and Peter
9 communicate information to the Attorney
10 General's Office about these incidents after
11 April 25th?
12 A Yes.
13 Q Okay. When Miss Agudosi wrote
14 that was that a true statement?
15 A Yes.
16 Q That was, okay. Now she says,
17 right after that, "They," referring to you and
18 deVries, "have further requested copies of
19 reports on file in your office," referring to
20 Chief Corcoran's office, "pertaining to these
21 incidents and were denied a copy of the same, as
22 they were informed that those matters were being
23 handled by the office of the Attorney General."
24 Just very narrowly, had you and Peter,
25 indeed, asked the Police Department of Secaucus
104
1 to give you the police reports that reflected
2 all your complaints to the Secaucus Police about
3 all these incidents, the shining of lights,
4 driving by and yelling "faggot," things like
5 that? Had you requested that?
6 A Yes, we had.
7 Q And had you been denied them by
8 Secaucus?
9 A We had.
10 Q Okay. And let's go question by
11 question. Miss Agudosi writes, "Please be
12 advised that the Office of Bias Crime and
13 Community Relations' pending case investigation
14 is limited to the reported bias incident that
15 occurred on April 25th, 2004 in the vicinity of
16 988 Schopmann Drive, Secaucus, New Jersey. Any
17 subsequent reports filed by Mr. Carter and
18 deVries that are unrelated to the April 25th,
19 2004 incidents should be handled pursuant to the
20 standard operating procedures of your
21 department."
22 Let me ask you this. Did you
23 understand, as Miss Agudosi says here, that all
24 the incidents that happened after the April 25th
25 incident were not being handled by the State
105
1 Attorney General's Office --
2 MR. PARIS: Objection.
3 Q -- but, in fact, were being
4 handled by the Secaucus Police Department?
5 MR. PARIS: Objection.
6 Q Was that your understanding?
7 MR. PARIS: Objection, Your Honor.
8 A That's correct.
9 MR. PARIS: This whole line of
10 questions is leading.
11 MR. MULLIN: I had to --
12 incorporating --
13 JUDGE CURRAN: It is leading, but
14 there was no objection as the line progressed.
15 And there was a question, and the answer is
16 already on the record. But the objection is
17 noted.
18 MR. PARIS: Thank you, Your Honor.
19 MR. MULLIN: Your Honor, I may be
20 finished. Just give me a moment --
21 JUDGE CURRAN: Sure.
22 MR. MULLIN: -- let me check my
23 notes.
24 BY MR. MULLIN:
25 Q You know, I think Mr. Paris may
106
1 have referred to this letter, D-305, during his
2 questioning of you.
3 A All right.
4 Q Did you, in fact, write an e-mail
5 on October 6, 2004 to Peter deVries concerning
6 the subject matter of Mr. Paris'
7 cross-examination on the library incident? Did
8 you write this e-mail?
9 A I did, indeed.
10 Q Okay.
11 A And I remember it.
12 MR. MULLIN: It's a short e-mail.
13 Your Honor, can I -- with the Court's
14 permission, can I have him read this e-mail?
15 MR. PARIS: I don't know what the
16 question is. What's the question?
17 JUDGE CURRAN: What is the
18 question, Mr. Mullin?
19 MR. MULLIN: The question this
20 deals with -- well, I'll try to make it a little
21 more specific.
22 BY MR. MULLIN:
23 Q In this --
24 JUDGE CURRAN: Need some
25 foundation.
107
1 MR. MULLIN: Yes.
2 BY MR. MULLIN:
3 Q In this e-mail did you describe
4 the poster that Mr. Paris questioned you about
5 that you wished the library to hang up near the
6 fire prevention display? Did you?
7 THE WITNESS: Yes, ma'am.
8 Q Yes? And can you please just read
9 this -- just read that text to the jury in which
10 you -- we can start at the beginning.
11 JUDGE CURRAN: The answer -- the
12 question is: Did you describe the poster? The
13 answer was: Yes.
14 MR. PARIS: Yes.
15 BY MR. MULLIN:
16 A "Peter, I had to go to the library today.
17 I ran into Hina, who said they have a tribute to
18 the Fire Department. Hina was very angry about
19 it and said it was a disgrace. She said
20 Katherine Steffens did it, as she is one of the
21 Town honchos. I went to Katherine Steffens, who
22 was just as sweet as she could be. You know I
23 love the library staff, anyway. She explained
24 that it is a Fire Prevention Month. So I said,
25 'Well, Katherine, you need to be realistic and
108
1 realize that it is already been seen by others
2 as your having taken sides and we object to it.'
3 I said 'Can we compromise? What I want is a
4 sign poster size which reads: This display is
5 for Fire Prevention Month. It is not intended
6 to reflect the library or the Town's bias toward
7 the criminal investigation against the Fire
8 Department by the Attorney General's Office or
9 the civil suit pending against these parties.'
10 I don't see a thing unreasonable about this
11 request."
12 MR. MULLIN: Thank you. I have no
13 further questions.
14 MR. PARIS: Just a couple, Your
15 Honor.
16 JUDGE CURRAN: Mr. Paris.
17 RECROSS EXAMINATION BY MR. PARIS:
18 Q Mr. Carter --
19 A Yes, sir.
20 Q -- you were copied -- you were
21 copied on the letter that was written by Kelly
22 Smith to Kohl's corporate headquarters on
23 December 3rd, 2004, correct?
24 A Yes, sir.
25 Q Okay. So you read this letter at
109
1 that point in time?
2 A Yes, sir.
3 Q And at that point in time
4 Miss Smith indicated -- let's --
5 JUDGE CURRAN: What is the number?
6 MR. PARIS: This is Plaintiff's
7 Exhibit 24.
8 JUDGE CURRAN: Thank you.
9 BY MR. PARIS:
10 Q So December 3rd, 2004 you got a
11 copy of this letter. And what does the last
12 paragraph of the letter indicate?
13 A "We would prefer to resolve this matter
14 through negotiation, rather than litigation.
15 Toward that end, kindly contact me no later than
16 December 17, 2004; or we shall amend the
17 complaint accordingly."
18 Q Thank you. And as of
19 December 2004 that was your position, wasn't it?
20 A I suppose.
21 Q Mr. deVries, with regard to the
22 library --
23 A I'm Mr. Carter.
24 MR. MULLIN: Mr. Carter.
25 Q I'm sorry, Mr. Carter. With
110
1 regard to the compromise where you had requested
2 a poster-size sign, your initial position was
3 that you wanted the display taken down entirely,
4 correct?
5 A That is incorrect.
6 Q Okay. So what was the compromise?
7 What did you want the library to do with regard
8 to the display for Fire Prevention Month?
9 A What I said was, okay, if we have Fire
10 Prevention Month, maybe to send a signal that
11 the library is open to all, you could, next year
12 during gay pride month, have a display for -- a
13 similar display for us.
14 Q And the compromise was the poster?
15 A The compromise was a poster, which she
16 did.
17 Q Okay. Now, I just want to ask you
18 a couple more questions. Mr. Mullin showed you
19 a letter that was dated in October to the
20 Secaucus Fire Department -- excuse me, the
21 Police Department from the Attorney General,
22 correct?
23 A That is correct.
24 Q October 18th, right? Do you
25 recall calling the Secaucus Police Department
111
1 on -- in May of 2004 and advising the Police
2 Department that -- and this was in an
3 afternoon -- that an hour ago there was a very
4 heavy white male with a mustache in a vehicle
5 sitting parked next to 986 Schopmann Drive? Do
6 you recall calling the police because there was
7 a heavy white male with a mustache parked next
8 to 986 Schopmann?
9 A I do, indeed.
10 Q And do you remember that you told
11 the police that you thought that the reason that
12 the man was parked there was to get a good look
13 at you?
14 A Yes, I do.
15 MR. MULLIN: Your Honor.
16 Q Can you recall --
17 MR. MULLIN: Objection. This is
18 beyond the scope of my redirect. He is raising
19 a whole new topic.
20 MR. PARIS: Absolutely not.
21 JUDGE CURRAN: Why don't we go to
22 sidebar.
23 (Whereupon, the following sidebar
24 discussion is held.)
25 MR. PARIS: The next -- the next
112
1 sentence that I was going to read was that the
2 policeman asked Mr. Carter why he waited an hour
3 to call after the suspect departed. And the
4 answer he gave was -- and I'm going to ask him,
5 "Didn't you tell the police officer that you
6 were advised by the Attorney General's Office
7 not to call the Secaucus Police Department but
8 to call them directly?"
9 MR. MULLIN: What's the date of
10 that report?
11 MR. PARIS: 5/24. And that's the
12 only -- that's the only reason that I'm asking
13 the questions about that.
14 MR. MULLIN: I will withdraw the
15 objection, Your Honor.
16 MR. PARIS: Because it relates
17 back to that.
18 JUDGE CURRAN: Okay. No problem.
19
20 MR. MULLIN: Your Honor, I
21 withdraw my objection.
22 JUDGE CURRAN: Thank you.
23 (Whereupon, sidebar discussion is
24 concluded.)
25 BY MR. PARIS:
113
1 Q And do you recall being asked by
2 the police officer why you waited an hour to
3 call them after the person had left?
4 A I talked to Mrs. Hjelm.
5 Q Mr. Carter, I'm only asking you do
6 you recall telling the police officer -- or the
7 police officer asking you, "Why did you wait an
8 hour after the person you're complaining about
9 left the scene before you called the Secaucus
10 Police?" Do you recall being asked that
11 question?
12 MR. MULLIN: Is that a yes or no?
13 MR. PARIS: I hope.
14 BY MR. PARIS:
15 A There is no need to be sarcastic. I have
16 ADD.
17 Q Mr. Carter, do you recall having
18 been asked the question from the police officer?
19 A No, I recall another part of it.
20 Q Pardon me?
21 A No, I recall another part of it.
22 Q Do you recall telling the police
23 officer that the reason you waited an hour to
24 call the Secaucus Police was because you were
25 advised by the Attorney General's Office not to
114
1 call the Secaucus Police but to call them
2 directly?
3 A Yes, I do recall that now.
4 Q Okay. I have no further
5 questions.
6 MR. MULLIN: Can we have the
7 exhibit number of that, please?
8 MR. PARIS: D-159. I have no
9 further questions.
10 MR. MULLIN: I have a couple
11 follow-up.
12 JUDGE CURRAN: Any recross?
13 MR. MULLIN: Yes, Your Honor, just
14 on that issue.
15 FURTHER REDIRECT EXAMINATION BY MR. MULLIN:
16 Q Let me show you the report that
17 Mr. Paris was just holding in his hand, D-159.
18 Tim, would you look over here. And there is an
19 incident where you looked outside and you saw a
20 very heavy male sitting in a car; is that right.
21 A That's right.
22 Q And were you frightened of him?
23 A Yes, I was.
24 Q And it says that you --
25 JUDGE CURRAN: I'm sorry, can
115
1 Juror Number 1 hear?
2 MR. MULLIN: I'm sorry, are you
3 okay?
4 JUROR NUMBER 1: Yeah.
5 BY MR. MULLIN:
6 A Yes, I do. Yes, I was.
7 Q Okay. And the passage that
8 Mr. Paris just read you is, "Mr. Carter
9 explained that he will call the Secaucus Police
10 Department sparingly, as we are involved and we
11 would never catch the people responsible."
12 Did you -- was that your view at the
13 time, that the Secaucus Police would not catch
14 the people responsible?
15 A Yes, they had -- they were -- they had
16 really trailed off on it.
17 Q They trailed off? Look what is
18 the date of this report?
19 A May 24.
20 Q By May 24th had they arrested
21 anybody the Secaucus Police? What is the
22 answer?
23 A No, sir.
24 Q No? But then Mr. Paris referred
25 to this sentence. "I asked Mr. Carter why he
116
1 waited an hour to call after the suspect
2 departed. He said he was advised by the
3 Attorney General's Office not to call the
4 Secaucus Police Department but to call them,"
5 meaning the Attorney General's Office,
6 "directly." And was that the case?
7 A That was the case. Troyanski told me
8 that.
9 Q This date when you made this
10 statement is May 24th, '04, right?
11 A Right.
12 Q Now, at some point I showed you a
13 letter just before where finally the Attorney
14 General said, look, we, the Attorney General's
15 Office, have jurisdiction over the April 25th
16 event, right? But you, Secaucus, you have
17 jurisdiction over everything that happened after
18 April 25th. Remember you got that letter?
19 A Yes.
20 Q The statement that Mr. Paris
21 focused you on, that was a statement you made
22 around May 24th, correct?
23 A Right.
24 Q When did you get the letter from
25 Miss Agudosi of the Attorney General's Office
117
1 clearing up who had jurisdiction over what?
2 A It's dated October 18.
3 Q October 18, 2004. So you didn't
4 get this letter from the Attorney General
5 explaining who had jurisdiction over what until
6 how many months after you made that statement
7 April 24th?
8 A That would be --
9 Q June, July, August, September --
10 A Five months.
11 Q -- October, is that five months?
12 A Yes, sir.
13 MR. MULLIN: No further
14 questions -- oh, hold on one sec. Hold on one
15 sec.
16 Q But on May 24th you did call the
17 Secaucus Police Department, right?
18 A I did.
19 Q Because you were scared?
20 A Because I was scared and Mrs. Hjelm was
21 scared too.
22 MR. MULLIN: Thank you. No
23 further questions.
24 MR. PARIS: I have no further
25 questions, thank you, Your Honor.
118
1 JUDGE CURRAN: Thank you.
2 Is there anyone on the jury who
3 has a question for this witness? If so, please
4 write down the question on one of those cards.
5 Is there anyone on the jury who has a question?
6 Anyone need a card? No? No questions. Thank
7 you very much.
8 The witness may step down.
9 MR. MULLIN: You can step down.
10 (Whereupon, the witness is
11 excused.)
12 MR. MULLIN: Your Honor, can we
13 see you sidebar?
14 JUDGE CURRAN: Sure.
15 MR. MULLIN: Scheduling witnesses.
16 JUDGE CURRAN: You know, we could
17 fold up that easel, then we wouldn't have to
18 worry about knocking it over.
19 Mr. Mullin. Miss Smith.
20 MS. SMITH: Judge, my expert
21 witness is here. And I don't want to be
22 disrespectful, but I wonder if I can leave the
23 courtroom --
24 JUDGE CURRAN: Of course.
25 MS. SMITH: -- and go meet with
119
1 him in the attorneys conference room. He came
2 down from Boston.
3 JUDGE CURRAN: No problem.
4 MR. PARIS: Can I just raise one
5 question? It's 11:25, whatever, now. The
6 expert is supposed to, I guess, take the stand
7 around 1:30. Your Honor indicated that there
8 was going to be a Rule 104 hearing first, unless
9 there is an agreement he is only going to
10 testify as a psychiatrist.
11 If there is going to be a Rule
12 104 hearing, then -- he has rendered separate
13 opinions with regard to two different
14 plaintiffs. I don't know how long the direct is
15 going to go, but I'm really concerned about
16 whether or not we're going to be able to finish
17 up with this witness by 4 or 4:30, 5:00, 5:30,
18 you know, how long this is going to go today.
19 So I mean, I don't know who's doing the direct,
20 but --
21 MS. SMITH: I am. So what's
22 the -- what's your point?
23 MR. PARIS: My point is that if we
24 start a Rule 104 hearing at 1:30, I don't know
25 that we are going to be done today. And is
120
1 there a possibility that we can get him started
2 earlier than 1:30?
3 MR. MULLIN: Can I confer with
4 Miss Smith, Your Honor?
5 MR. PARIS: May we take lunch,
6 come back at 12:30?
7 MR. MULLIN: Because I was
8 prepared --
9 MS. SMITH: Could you confer with
10 me, since I'm putting him on, just for a second?
11 JUDGE CURRAN: Okay. I understand
12 there is at least a request that we let the jury
13 go to lunch early.
14 MS. SMITH: Yes.
15 JUDGE CURRAN: So that's one
16 possibility. Thank you. Off the record.
17 (Whereupon, a discussion is held
18 off the record.)
19 MS. SMITH: Okay.
20 JUDGE CURRAN: Go back on the
21 record.
22 MS. SMITH: Judge, one thing is I
23 don't believe we are going to need a 104
24 hearing. Dr. Bursztajn is not going to testify
25 as an expert in the organizational response to
121
1 discrimination.
2 JUDGE CURRAN: That answers that
3 question. Time to cross that off my yellow pad.
4 MS. SMITH: He certainly is going
5 to testify about the effect on the plaintiffs of
6 continuing to live next door.
7 JUDGE CURRAN: That's already on
8 the record.
9 MR. BEVERE: We have no --
10 JUDGE CURRAN: That was proffered.
11 MS. SMITH: So we can put that
12 aside.
13 With regard to the request that
14 we take a break now and maybe come back at 1,
15 instead of 1:30, we have no objection to that.
16 MR. PARIS: I was thinking 12:30,
17 but I don't care.
18 MR. BEVERE: Let's --
19 JUDGE CURRAN: I'm sorry?
20 MR. BEVERE: If we are not going
21 to go into the organizational issues, then I
22 think that if we -- as opposed to starting
23 Mr. deVries now and getting in a half-an-hour of
24 testimony --
25 JUDGE CURRAN: We will use this --
122
1 MR. BEVERE: Getting in a
2 half-an-hour of testimony, it might make sense
3 to break now and maybe bring the jury back at
4 1:00.
5 JUDGE CURRAN: Okay. So you want
6 to do Mr. deVries for half-an-hour?
7 MR. BEVERE: No, no, no. What I'm
8 saying is I don't think it makes sense to start
9 Mr. deVries for a half-an-hour.
10 MR. MULLIN: I'm fine with that.
11 I don't see the point in putting Mr. deVries on
12 for half hour.
13 JUDGE CURRAN: If -- I'm sorry, if
14 I -- I just need to clarify before we get
15 everybody's comment. If we don't finish by 4 or
16 4:30, he comes back tomorrow, right?
17 MR. PARIS: We are not -- I can't
18 be here tomorrow.
19 MS. SMITH: He will definitely
20 have to come back, if we don't finish. I will
21 have to work with him around that, Your Honor.
22 MR. PARIS: That's fine.
23 JUDGE CURRAN: So we'll do that.
24 Is everybody agreed now that we should --
25 MR. PARIS: Take an hour, 12:30?
123
1 MR. MULLIN: What time is it?
2 JUDGE CURRAN: It's 11:30.
3 MR. MULLIN: An hour is fine with
4 me, sure.
5 JUDGE CURRAN: Okay.
6 MR. BEVERE: That's fine, Judge,
7 thank you.
8 JUDGE CURRAN: Thank you.
9 (Whereupon, sidebar discussion is
10 concluded.)
11 JUDGE CURRAN: Ladies and
12 Gentlemen -- I'm sorry, Tracey.
13 Ladies and Gentlemen, as we
14 indicated, counsel are very concerned about your
15 schedule; and we do try not to delay you. We do
16 have another witness, and the witness is here.
17 But it doesn't really make any sense at this
18 point to get started with that witness. So what
19 we're going to do, in order to keep things more
20 cohesive and not interrupt in the middle, is
21 give you the lunch break now, okay.
22 So we will -- that gives you, you
23 know, an up on getting a place at some of the
24 many fine restaurants we have in this area.
25 Little truck outside is about as good as any, if
124
1 they still have that truck out there.
2 So we will give you a lunch break
3 for the hour. We will ask that you come back at
4 12:30, okay. Thank you.
5 Again, please don't discuss the
6 case among yourselves, nor with anyone else.
7 Off the record.
8 COURT CLERK: Off the record.
9 JUDGE CURRAN: Thank you.
10 (Whereupon, the jury is excused
11 for lunch.)
12 (Whereupon, a luncheon recess is
13 taken.)
14 A F T E R N O O N S E S S I O N
15 JUDGE CURRAN: On the record,
16 please.
17 COURT CLERK: On the record.
18 JUDGE CURRAN: Thank you, Mr.
19 Bevere.
20 MR. BEVERE: Your Honor made
21 certain rulings over the last couple of days
22 with regard to the Jersey City incident and what
23 can and what cannot be said about the Jersey
24 City incident. In reviewing Dr. Bursztajn's
25 report I notice that his report makes mention of
125
1 bloody towels in Jersey City. I would just ask
2 that the witness not make reference to bloody
3 towels in Jersey City, in light of Your Honor's
4 ruling.
5 MS. SMITH: I have advised him of
6 that, Your Honor.
7 JUDGE CURRAN: Thank you.
8 MR. BEVERE: Thank you, Your
9 Honor.
10 JUDGE CURRAN: Thank you.
11 MR. PARIS: Your Honor, can we
12 give the instruction to the jury regarding
13 sequestration?
14 JUDGE CURRAN: Absolutely.
15 MR. BEVERE: For both sides, Your
16 Honor.
17 JUDGE CURRAN: Thank you. I have
18 put my note right up here. Planning to do it,
19 thank you.
20 MR. PARIS: Thank you, Judge.
21 JUDGE CURRAN: I will just ask,
22 Bartolozzi, sir, is that the correct
23 pronunciation?
24 MR. BARTOLOZZI: Very good.
25 JUDGE CURRAN: And your first name
126
1 as given to me is Al. Is it Alfred --
2 MR. BARTOLOZZI: Alan, A-l-a-n.
3 JUDGE CURRAN: Thank you. Bring
4 out the jury, please.
5 MS. HAWKS: Jurors are
6 approaching.
7 JUDGE CURRAN: Thank you.
8 MS. HAWKS: You're welcome.
9 (Whereupon, the jury is brought
10 into the courtroom.)
11 COURT CLERK: On the record.
12 JUDGE CURRAN: Thank you. We are
13 back on the record. I will note that the jury
14 is returning to the jury box.
15 Thank you, Ladies and Gentlemen.
16 I appreciate your being back promptly. I hope
17 you all had a good lunch. And we are going to
18 continue with the plaintiffs' case.
19 Please call your next witness. I
20 believe Miss Smith is calling the next witness.
21 Is that correct?
22 MS. SMITH: Yes.
23 JUDGE CURRAN: Thank you.
24 MS. SMITH: Thank you, Your Honor.
25 Plaintiffs call Dr. Harold Bursztajn.
127
1 JUDGE CURRAN: Thank you.
2 THE WITNESS: Good afternoon.
3 JUDGE CURRAN: Good afternoon.
4 MS. HAWKS: Please remain
5 standing. Raise your right hand, put your left
6 hand on the Bible, please.
7 H A R O L D J. B U R S Z T A J N, M.D. is duly
8 sworn by a Notary Public of the State of New
9 Jersey and testifies under oath as follows:
10 MS. HAWKS: Thank you. For the
11 record, please state your full name and spell
12 your last name, please.
13 THE WITNESS: It's Harold J.
14 Bursztajn, which is spelled the original way,
15 B-u-r-s-z-t-a-j-n. And when my daughter says,
16 "Why didn't you change it, Dad, your name, when
17 you came to the United States," I said, "We came
18 here in 1959. We didn't have to change our name
19 by then."
20 MS. HAWKS: Thank you.
21 JUDGE CURRAN: Thank you. Please
22 be seated.
23 THE WITNESS: Thank you, Your
24 Honor.
25 JUDGE CURRAN: Thank you. Will
128
1 you please give us your professional address for
2 the record.
3 THE WITNESS: It's 96 Larchwood,
4 L-a-r-c-h-w-o-o-d, Drive in Cambridge,
5 Massachusetts.
6 JUDGE CURRAN: Thank you. Your
7 witness.
8 MS. SMITH: Thank you, Your Honor.
9 DIRECT EXAMINATION BY MS. SMITH:
10 Q When you came from where, Dr.
11 Bursztajn?
12 A Oh, I came from town in Poland called
13 Lodz. And I came to Paterson, New Jersey. So
14 I'm back home.
15 Q How old were you when you came?
16 A I was nine years old.
17 Q And what is your profession,
18 Doctor?
19 A I practice as a psychiatrist and as a
20 forensic psychiatrist and as a psychoanalyst.
21 Q What is psychiatry?
22 A Psychiatry is seeking to understand human
23 beings using a biopsychosocial model. You use
24 biology, what we know from biology, we use what
25 we know from psychology and we use what we know
129
1 from sociology to try to understand individual
2 human beings and how human beings think, feel,
3 behave, live, as deeply as we possibly can.
4 Q And what is forensic psychiatry,
5 Doctor?
6 A Forensic psychiatry is a special interest
7 area of psychiatry, just the way in which
8 forensic pathology is a special interest area of
9 pathology where you look at events which have
10 occurred in the past, where there was a legal
11 question; and you try to provide the deepest
12 possible biopsychosocial understanding that you
13 can for the finders of fact, be they judges or
14 juries.
15 Q Doctor, you -- in the record is
16 your curriculum vitae. It's marked P-108 and
17 updated P-108A. If you can refer to it with me
18 as we go along, because it's extensive. I am
19 going to ask you to start with please tell the
20 jury what your educational background is.
21 A When I came to United States in Paterson
22 I went to elementary school, PS 28, and then
23 East Side High School, which some of you may
24 know for its basketball team. Great basketball
25 teams in Paterson.
130
1 Then I applied to the best school in
2 New Jersey that I knew of, with all due
3 deference to Rutgers, where most of my friends
4 went. And surprisingly, I got accepted to
5 Princeton through a scholarship. I went to
6 Princeton.
7 And then I journeyed to Harvard Medical
8 School in 1972. And I have never left. They
9 say the difference between the students and the
10 teachers is the students learn enough to
11 graduate and leave.
12 Q Describe your residences --
13 residencies. First, what's a residency, Doctor?
14 A A residency is a period of apprenticeship
15 subsequent to graduating from medical school
16 where you learn how to take care of patients,
17 which is the essence of being a doctor. It's
18 not prescribing. It's not diagnosing. It's
19 taking care of patients. And that's what you
20 learn in the course of a residency.
21 I first did a pediatric internship at
22 Children's Hospital in Boston. And then I went
23 on to do a residency in psychiatry at another
24 Harvard teaching hospital, but it was also a
25 state hospital, the Massachusetts Mental Health
131
1 Center, where we saw those people who are
2 socially, economically disadvantaged and
3 provided free care, basically, to two people.
4 While there I was also doing a senior
5 fellowship in internal medicine at another
6 Harvard teaching hospital, the Massachusetts
7 General Hospital because I have always been
8 interested in the interaction between medical
9 problems and psychosocial problems, how -- how
10 they interact.
11 In 1982 I was appointed as the first
12 chief resident of a program which I co-founded,
13 called the Program in Psychiatry and the Law,
14 which I directed for 25 years. And now I have
15 been elevated to the status of co-founder,
16 which -- of the program. And it's the longest
17 running volunteer think tank in Harvard Medical
18 School history. We have now had 26, 27 years
19 of -- of ongoing productive research, helping
20 young psychiatrists learn about intersection
21 between psychiatry, ethics and the law.
22 Q Are you board certified, Doctor?
23 A I am board certified by the American
24 Board of Psychiatry & Neurology and a specialty
25 of psychiatry, and I have been for 20-some-odd
132
1 years.
2 Q What does it mean to be board
3 certified?
4 A It means that you need to pass a
5 two-stage -- after finishing through training as
6 a resident you need to pass a two-stage
7 examination. There is a written part, and then
8 you are asked to do an interview with a patient.
9 And you are observed by your colleagues to make
10 sure that you are conducting the interview
11 properly and that you can formulate an
12 appropriate differential diagnosis and an
13 appropriate treatment plan for that particular
14 patient.
15 Q Can you please describe to the
16 jury your academic appointments?
17 A I began at the longest run with Harvard
18 in 1979. I was named a clinical instructor.
19 And subsequently, as I continued to teach, I
20 was -- continued to be promoted where I'm
21 currently at a level of an associate clinical
22 professor of psychiatry at Harvard Medical
23 School.
24 Q And do you have any hospital
25 appointments, Your Honor -- Your Honor? Sorry,
133
1 Dr. Bursztajn?
2 A I defer to --
3 Q I just elevated you.
4 JUDGE CURRAN: You are insulting
5 the witness.
6 A But by no stretch of the imagination, my
7 17-year-old daughter keeps reminding me I am not
8 a judge.
9 The -- I am on the consulting staff of
10 a number of Harvard teaching hospitals,
11 including the Mount Auburn Hospital. And I
12 continue to be on the staff of the Massachusetts
13 Mental Health Center, whose mission it is to
14 take care of people who don't have the funds to
15 be otherwise taken care of by private hospitals.
16 So I have continued to do that.
17 Q And do you belong to any
18 professional associations?
19 A I do. Those range from the American
20 Academy of Psychoanalytic Physicians to the
21 American Academy of Forensic Sciences, which
22 reflects my range of interest in medicine,
23 psychiatry and the law.
24 Q Have you held any other
25 professional positions or major visiting
134
1 appointments?
2 A Over the years I have been invited to
3 give grand rounds in a variety of hospitals
4 across the United States. And I also have been
5 invited to sit on a variety of commissions,
6 including the American Bar Association
7 Commission on Mental Health and Disability Law,
8 where I have been in -- both a member of that
9 commission, and I have also been on the
10 Editorial Board of the American Bar Association
11 Journal, which deals with mental health and
12 disability law.
13 Q Have you received any awards or
14 honors?
15 A Yes. To mention three different
16 categories, as far as patient care is concerned,
17 I've been elected and named to a list called,
18 "The Best Doctors in America." You are named to
19 it by your colleagues and elected to it by your
20 colleagues.
21 I have also by my colleagues at the
22 medical school have been -- have served as the
23 Harvard Medical School representative to the
24 Harvard Alumni Council, representing -- by the
25 medical school alumni.
135
1 As far as research is concerned, I have
2 been awarded the Solomon prize in research,
3 which is the highest prize for research that the
4 Massachusetts Mental Health Center, Harvard
5 Medical School Department of Psychiatry gave for
6 doing research.
7 And finally, next Tuesday at this time
8 I will be awarded the Harvard Medical School
9 Excellence in Mentoring Clifford A. Barger
10 Award, which is an award for teaching and
11 mentoring and teaching and mentoring across a
12 diversified student and collegial body with
13 special emphasis on promoting the academic
14 advancement of minorities and otherwise
15 under-represented people in the health
16 professions. And I think I will be the only
17 psychiatrist receiving that award that
18 particular day.
19 Q And you were elected by the
20 faculty of Harvard?
21 A I was elected by the faculty of Harvard;
22 and I was nominated by my students, my
23 colleagues, my mentees.
24 Q How many faculty at Harvard are
25 there?
136
1 A 10,000. We have the largest faculty of
2 any medical school in the United States. I
3 think probably the world, actually.
4 Q Have you worked as an editor at
5 any major journals?
6 A I have been a peer reviewer in a variety
7 of journals. And these have ranged from the
8 Journal of the American Academy of Psychiatry
9 and the Law to being a book reviewer for the
10 American Psychiatric Association Journal, the
11 Journal of the American Medical Association and
12 so on.
13 Q What does it mean to be a peer
14 reviewed journal?
15 A When -- when acting as a peer reviewer,
16 one gets papers, research papers; but one
17 doesn't know who has written them. They're
18 being blindly reviewed. And your job is to go
19 ahead and to talk about the strengths and the
20 weaknesses of a research paper and how it may
21 need to be revised, to be accepted or why it
22 needs to be rejected, depending on what the
23 strengths and weaknesses are. The process is
24 blind, which means that I -- I don't know who
25 has written the paper when I read it.
137
1 Q Have you published in any peer
2 reviewed journals?
3 A Yes, I think my most recent count is I
4 have -- over the past 25 years I have published
5 in over -- over 65 peer reviewed journals.
6 Q Let's talk about a couple of them.
7 We're not going to go through all 65.
8 A Thank you.
9 Q Let's talk about number 54 --
10 A Okay.
11 Q -- on your CV. Can you please
12 tell us what that article is about?
13 A Number 54 talks about the importance,
14 when new data comes in and you have been
15 retained by an attorney to do an independent
16 evaluation, of letting the attorney know if the
17 data does not support the initial hypotheses or
18 things have changed, that you need to withdraw
19 from the case, that you can cannot continue to
20 be helpful because irrespective of who's
21 retained you, your job is to provide an
22 objective opinion. And if you are given one set
23 of information, a few months later there is
24 additional information which washes out that
25 information, then you need to go ahead and let
138
1 the attorney know I -- I can't be of help to
2 you.
3 Q What is the name of that article,
4 Doctor?
5 A It's called, "Just Say No, Experts Late
6 Withdrawal from Cases to Preserve Independence
7 and Objectivity."
8 Q And where was that published?
9 A That was published in the Journal of the
10 American Academy of Psychiatry and the Law in
11 2004.
12 Q How about can we talk about number
13 64?
14 A Okay.
15 Q Can you describe that publication?
16 A Number 64 is published just this
17 September with one of my extraordinarily bright
18 mentees, Abilash Gopal, one of the best students
19 I ever had. He deserves much of the credit.
20 But it's about how the Diagnostic and
21 Statistical Manual is misused very often in both
22 clinical training and in cultural testimony
23 because people start looking at checklists,
24 which is a little bit like mistaking the menu
25 for the meal. You know, just because you can
139
1 go -- you -- you can't paint by the numbers in
2 psychiatry or in art, and you -- you can't
3 diagnose by using a checklist either. It's.
4 Meant to be a training manual, rather than a way
5 of understanding people deeply or formulating a
6 differential diagnosis.
7 And that was published in the
8 Psychiatric Annals which is one of the
9 psychiatric journals with an extraordinarily
10 wide circulation and readership, both in the
11 United States and internationally.
12 Q And I think we might refer to that
13 as DSM, the --
14 A Yes.
15 Q -- Diagnostic and Statistical
16 Manual. Can you describe for the jury briefly
17 what that is?
18 A The Diagnostic and Statistical Manual was
19 put together by a committee of the American
20 Psychiatric Association to try to get some
21 standardized way of including people in research
22 trials. It was never meant to be a substitute
23 for clinical judgment.
24 And if one reads the preface of -- of
25 the manual, a preface which, by the way, both
140
1 first-year residents and, all too often,
2 attorneys ignore, it says it should only be used
3 for forensic purposes with the greatest of
4 cautions. You read it -- you know, it should
5 not be used per se as a substitute for clinical
6 judgment or understanding.
7 Unfortunately, again, the constraints
8 of time, given the fact that insurance companies
9 demand a DSM number to -- to give reimbursement,
10 it all too often becomes a substitute for a
11 diagnosis with any deep understanding of what
12 the human being's life is like and what they're
13 suffering from.
14 Q How about number 65, Doctor; can
15 you describe number 65 for the jury, please?
16 A Yes, number 65 includes both a -- two of
17 my esteemed colleagues and also one of my,
18 again, really superb students, Robin Kosh Paul,
19 who has just finished a forensic fellowship, now
20 will be going to private practice. And that
21 article is called "Knocking At the Wrong Door:
22 Insured Workers' Inadequate Psychiatric Care and
23 Workers' Compensation Claims."
24 And that talks about a new phenomena
25 that we're beginning to see with health care
141
1 insurance being generally fairly limited and
2 with organizations all too often turning a blind
3 eye or blind ear to sexual and racial and other
4 forms of harassment on the job.
5 What happens is people who have either
6 had bad experiences with inadequate health care
7 insurance or people who have been harassed on
8 the job, their only recourse is to file workers'
9 compensation claim, to say that their impairment
10 is work-related, when it may be work-related but
11 may be work-related because of inadequate health
12 care or because of sexual, racial harassment on
13 the job. So, again, that has to be part of the
14 consideration whenever one is evaluating a
15 workers' compensation claim, is it the job or is
16 it the organization that's the cause of the
17 claim?
18 Q Have you published any books,
19 Doctor?
20 A I have published four books, which have
21 been favorably reviewed in a variety of
22 journals. The most recent one came out either
23 late last year or this year. I better check to
24 see what's the date on that. But it can be
25 found, if you go to the United Nations web site.
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1 It's a book which I actually wrote based --
2 international group, based on the promise which
3 was made to me it would be freely distributed to
4 people, so people don't have to buy the book,
5 especially physicians in developing countries,
6 so it can be downloaded. It's available in hard
7 cover, if you want to buy it; but the United
8 Nations has also made it available to be
9 downloaded internationally.
10 And it's a book which has to do with
11 the mental -- mental health rights of people who
12 suffer from mental health impairments and
13 disabilities. It's -- it focuses on the ethics.
14 And again, among my -- my co-authors, there is
15 Michael Perlin, who some of you may be familiar
16 with in this room. He was originally New
17 Jersey law professor who is now professor at NYU
18 and one of the leading national advocates for
19 the rights of mentally impaired and mentally
20 disabled people.
21 Q How about chapters in books; have
22 you published any chapters in books?
23 A Yes, I think I have listed over 25 or so.
24 I guess it's now up to --
25 Q Twenty-six.
143
1 A -- twenty-six. I think there is a number
2 I haven't listed there just because I try to go
3 ahead and -- you know, book chapters are
4 something which you write regularly with
5 students. And since my CV is up to 25 pages and
6 I promised myself to keep it at 25 pages, so
7 things begin to go out after a while.
8 Q Can you tell us about the chapter
9 that you have described as number 24, please?
10 A Yes, that chapter is called, "The Role of
11 the Mental Health Professional In Employment
12 Litigation." And it was published in, "Mental
13 and Emotional Injuries in Employment Litigation"
14 by the Bureau of National Affairs. It was a
15 book which was edited by a leading defense
16 attorney in the field. And at the same time
17 what he asked me to do is to write about what
18 are the standards for doing an objective
19 evaluation when there are employment-related
20 claims, such as sexual harassment, racial
21 harassment, sexual discrimination, racial
22 discrimination.
23 Q Have you done any presentations,
24 Doctor?
25 A I think I have listed over a hundred, but
144
1 I'm sure the number was probably twice as many.
2 Again, I try to, after a while, not have the
3 same presentation given in different places be
4 mentioned more than one or try not to have
5 overlapping presentations be mentioned.
6 Q We are going to talk about just a
7 few of them, please. Let's talk about number
8 three on your list.
9 A Yeah, that was a presentation regarding
10 posttraumatic stress disorder in the courtroom,
11 which was presented at an American Psychiatric
12 Association meeting. Post -- my focus there was
13 to talk about the importance of understanding
14 what a particular trauma means to an individual
15 in the context of that individual's life and why
16 some people are more vulnerable and why -- how
17 it's not just the trauma but how the trauma is
18 responded to, which makes a great deal of
19 deference as far as the outcome is concerned.
20 If the trauma is responded to in a
21 manner empowered to the patient, patient often
22 will do very well. Even complicated patients,
23 if the trauma is not responded to in a humane,
24 thoughtful and decent manner, if the person is
25 not only traumatized but helpless, then the
145
1 helpless makes whatever the trauma is that much
2 worse. It's one thing to feel pain. It's one
3 thing to feel -- it's another thing to feel pain
4 and fear when you are feeling absolutely
5 helpless. That's a huge dividing line right
6 there.
7 Q How about number five, Your
8 Honor -- Dr. Bursztajn.
9 A I am going to have to mention this to my
10 daughter.
11 This was called, "Liability for Sexual
12 Misconduct of Government Providers"; and it was
13 the Office of Legal Education of the Executive
14 Office for United States Attorneys. They asked
15 me to talk about this. The reason being that
16 there was sexual harassment and sexual
17 discrimination within the government, as well
18 as -- and within government organizations. And
19 also government organizations, there were times,
20 asked to respond to charges of sexual harassment
21 and sexual discrimination.
22 What I was asked to talk about is what
23 is a helpful response when that happens? There
24 was a part of it which was about prevention, but
25 a good part of it was also a response.
146
1 Q How about number -- number 34?
2 A Okay.
3 Q Please tell us where you gave this
4 presentation.
5 A This was the Harvard School of Public
6 Health conference, which was called "Leadership
7 in Evolving Health Care Systems." And the
8 people who were there were people like the vice
9 president for human relations in this major firm
10 or that major firm, people who would ordinarily
11 be handling potential claims of sexual
12 harassment, racial harassment.
13 And the issue was how do you take --
14 how do you respond to those claims? How do you
15 conduct an investigation? Why you can't just
16 leave it up to the EEO. Why you can't just
17 leave it up to the police. Why you have to take
18 steps within the organization to clean your
19 house, you can't ask someone else to do it for
20 you. And why that makes a difference to people
21 who have been harassed and discriminated.
22 Q How about number 36; can you
23 please describe that presentation?
24 A That was at the American Academy of
25 Forensic Sciences. And it was called, "Sexual
147
1 Harassment Post Daubert." Daubert is a legal
2 case which set the standard for how to do a
3 proper evaluation, how to make sure that,
4 irrespective of whichever side retains you, you
5 can go ahead and do an objective forensic
6 evaluation, how to use different kinds of
7 methods to make sure that you get all sides of
8 the story when you are doing evaluation.
9 Q Can you please describe for the
10 jury the presentation on your CV marked number
11 45, Doctor?
12 A Number 45 was a follow-up to my initial
13 presentation at the Harvard School of Public
14 Health for executives dealing with sexual and
15 racial harassment and discrimination in terms of
16 effective organizational responses or meaningful
17 organizational responses when such claims come
18 up.
19 Q Number 49, please, Doctor.
20 A Number 49 was a presentation I did at
21 Lawrence General Hospital, Lawrence,
22 Massachusetts, which focused on what happens
23 when racial or sexual harassment claims come up
24 by employees of the hospital or patients --
25 patient feels, you know, wait a minute, I went
148
1 to the emergency room and no one would see me
2 for hours and hours; whereas, people of a
3 different skin color would be seen ahead of me.
4 What was going on here? How to respond when
5 these kinds of issues come up.
6 Q How about number 109, Doctor?
7 A Number 109 was a presentation I did last
8 year in the international meeting, the Congress
9 of the International Academy of Law and Mental
10 Health. This took place in Italy. And this
11 involved presenting an analysis regarding the
12 effects of work -- workplace racial
13 discrimination and harassment on intimate
14 relationships and sexual function.
15 And what that talked about is, again,
16 how the organizational response to racial
17 harassment or nonresponse to racial harassment
18 can either aggravate or mitigate what happens
19 and how, in terms of how individual people
20 respond to racial harassment. That response
21 doesn't necessarily have to be via a DSM
22 checklist but can involve such traumatic
23 responses as if there was already some small
24 problem in -- or some problem, sexual problem in
25 an intimate relationship, that that could get
149
1 much worse, that can be aggravated, that just
2 because something happens on the job doesn't
3 mean it doesn't have effects on the home, that
4 there is a carryover effect. And that is
5 especially true when there is helplessness, when
6 the organization doesn't respond in fact to the
7 form of racial harassment and racial
8 discrimination.
9 Q Number 113, please, Doctor.
10 Please describe that for the jury.
11 A Number 113 was a talk I gave in Montreal
12 in November of this year at a international
13 meeting which focused on social policy and
14 ethics in the workplace. And that, again,
15 focused on risk factors regarding sexual
16 harassment, racial harassment and -- on the job
17 and how those impact on intimate relationships
18 between people at home.
19 Q Can you please describe to the
20 jury briefly the presentation number 116 on your
21 CV?
22 A Number 116 occurred this May, just a few
23 weeks ago, at the American Psychiatric
24 Association meeting, where I joined a panel of
25 students and colleagues in talking about
150
1 interviewing, how one can do a good interview of
2 people that have been traumatized, be that
3 interview for teaching purposes or be that
4 interview for forensic purposes.
5 What's similar between the two is that
6 interview for forensic purposes and teaching
7 purposes are public, basically, so they are not
8 the usual kind of private interviews in a
9 doctor-patient relationship.
10 So the question was if you are
11 interviewing someone in a public setting who has
12 been traumatized or potentially public setting,
13 how do you put that person at ease enough so
14 they don't have to go ahead and put on your best
15 face or let a smile be their umbrella, how they
16 can actually be themselves, even in the context
17 of a public setting.
18 Q And are you scheduled to do a
19 presentation this month, Doctor?
20 A Yes, on Thursday, May 22nd, I will be in
21 Columbia, South Carolina. And I have been asked
22 by the National Advocacy College, which is the
23 teaching arm of the Justice Department, to do a
24 presentation on how to detect faking,
25 exaggerating and malingering when there are
151
1 claims being made in the context of litigation.
2 Q Okay. So we've talked about your
3 books, your book chapters, your editing, your
4 articles and your book reviews. Then I see
5 there is still another category called,
6 "Professional and General Education
7 Publications"?
8 A Yes.
9 Q Can you tell me what those are?
10 A Those are publications for the general
11 public. I have always had an interest in public
12 education and trying to make this jargon-free
13 and straightforward some of the knowledge that
14 we have acquired over the years in psychiatry
15 for the education of the general public. So my
16 work has included everything from teaching
17 teachers of fifth graders on how to talk about
18 9/11 after 9/11 to a variety of other kinds of
19 public education programs.
20 Q Of the ones you have listed here,
21 Doctor, let's discuss just a couple of them.
22 Can you discuss number four, please?
23 A Okay. This was a paper published in a
24 journal for attorneys which talked about new
25 developments in posttraumatic stress disorder in
152
1 civil and criminal law. And the emphasis of the
2 paper was how to be objective, irrespective of
3 whichever side retains you and how to be able to
4 hear the bad news from your expert when your
5 expert tells you, "Listen, I don't think I can
6 help you here. These are the reasons why."
7 Q How about number six, Doctor?
8 A This was a paper published in a
9 presentation which I did for the New Hampshire
10 Bar Association. And again, this was regarding
11 what should you expect from a forensic
12 psychiatric evaluation.
13 Q Number eight?
14 A Number eight was a paper which, again,
15 was basically a presentation. It was published
16 in Crime Victims Litigation Quarterly. Talked
17 about how people who represent victims of crime
18 need to be sensitive to very often these victims
19 may be very frightened, they may be trying to --
20 they may be using denial to minimize trauma,
21 they may seem to be very disorganized, how to go
22 ahead and work with people who are very
23 frightened, who have been victims of a crime.
24 Q Number 11?
25 A Number 11 was a paper published for
153
1 primary care physicians in that journal called
2 Patient Care to talk about how -- how the
3 general practitioner, the non-psychiatrist among
4 physicians, can recognize posttraumatic stress
5 disorder, which is often overlooked. Because we
6 are often presented stuff, for example, as a
7 claim of sexual dysfunction; and primary care
8 physician focuses on the sexual dysfunction.
9 They don't focus on the trauma, which may be --
10 may have caused the dysfunction in the first
11 place or may have aggravated the dysfunction.
12 Q How about number 20, Doctor?
13 A Number 20 was -- and that was published,
14 "Preventing Neo-Nazi Cult Violence In Our
15 Schools." Among my mentees was a superb nurse
16 who went on to become a professor of nursing at
17 University of Colorado and a reserve Army
18 colonel. So I don't know how many of you
19 remember the high school shootings in Littleton,
20 Colorado, which happened a few years ago. But
21 she was sent in to do the debriefing of this --
22 of the surviving students to try to figure out
23 what happened.
24 So based on my talking with her, based
25 on some of the analyses that I have done, based
154
1 on some of the treatment that I have done I
2 published an article which focused on the
3 importance of schools having a zero tolerance
4 policy regarding bullying, that it's important
5 to respond to bullying in a straightforward
6 manner, in a manner which empowers, rather than
7 disempowers, the victims, that you can't just
8 leave it up to the police. That's not what the
9 school principal's job is. That's not what the
10 school's administration -- it has to be done in
11 the school, rather than saying "Hey, man, not my
12 job here, you know. Let the police deal with
13 it."
14 Q Doctor, have you consulted with
15 any institutions regarding prevention and the --
16 prevention and response to discrimination and/or
17 harassment?
18 A I have consulted with a variety of
19 institutions, including health care
20 institutions, including law firms, including a
21 variety of educational institutions. For
22 example, we do see at times in educational
23 institutions both racial and sexual harassment,
24 racial and sexual discrimination. That's been
25 one of the areas that consult on a fairly
155
1 regular basis when such issues come up.
2 Q Have you been qualified, Doctor,
3 as a forensic psychologist -- as a an expert in
4 forensic psychiatry and clinical psychiatry by
5 other courts?
6 A Yes, I have.
7 Q Have you represented both
8 plaintiffs, the people who are suing, and
9 defendants?
10 A I have been retained both by plaintiffs'
11 attorneys and defendants, as well as by
12 individuals and institutions.
13 Q Have I missed any major
14 accomplishments or publications or awards or --
15 A Well, my major accomplishment is being
16 the father of a 17-year-old, so --
17 JUDGE CURRAN: And the toughest
18 job.
19 MS. SMITH: Your Honor, I move to
20 qualify Dr. Bursztajn as a clinical psychiatrist
21 and a forensic psychiatrist --
22 JUDGE CURRAN: Thank you.
23 Any questions?
24 MS. SMITH: -- expert.
25 MR. BEVERE: I will reserve any
156
1 questions for cross, Your Honor.
2 JUDGE CURRAN: No objections?
3 MR. BEVERE: No objections.
4 JUDGE CURRAN: Based on the
5 information put on the record, based on the
6 doctor's extensive CV, as well as all of the
7 information he has given to you by way of his
8 education and experience, I find that it is
9 appropriate to qualify him as an expert in
10 psychiatry, both clinical psychiatry and
11 forensic psychiatry.
12 Ladies and Gentlemen, the major
13 difference between the kinds of witnesses that
14 you will hear is that most witnesses are fact
15 witnesses. They may only testify as to what was
16 said, what they saw, what they did, fact
17 witnesses.
18 An expert witness may be asked a
19 hypothetical question and may give an opinion.
20 And that is the major difference, that the
21 doctor's expertise will be help to you in
22 understanding the issues in this case.
23 Miss Smith.
24 MS. SMITH: Thank you, Your Honor.
25 BY MS. SMITH:
157
1 Q Did there come a time, Doctor,
2 where you met Peter deVries and Timothy Carter?
3 A Yes. May I refer to my report?
4 Q Do you need to refresh your
5 recollection?
6 A To be precise, yes.
7 MS. SMITH: The reports, for the
8 record, for Mr. Carter is P-107 and for
9 Mr. deVries is P-106?
10 JUDGE CURRAN: Thank you.
11 MS. SMITH: Thank you, Judge.
12 BY MS. SMITH::
13 A I met both Tim and Peter on two days,
14 May 22nd and May 23rd, 2006. I met the two of
15 them over the course of two days for a total of
16 12 hours.
17 Q And did you meet with them in
18 order to provide an expert opinion regarding
19 their -- any psychiatric harm they had suffered?
20 A I met with them in order to be able to do
21 an objective forensic psychiatric evaluation as
22 to the nature of their suffering and what had
23 caused it.
24 Q Did you review any medical records
25 in preparation of conducting -- in conducting
158
1 your evaluation?
2 A Yes, I did. Those records included the
3 records of their treating psychiatrist since the
4 mid-1980s, Dr. Almeleh.
5 Q Can you please tell the doctor
6 what other documents or records you reviewed in
7 preparing -- doing an evaluation of Mr. Carter
8 and Mr. deVries?
9 A I reviewed a variety of forms, forms
10 filled out by their friends which talked about
11 the kinds of changes they have seen in both Pete
12 and Tim subsequent to the assaults of the night
13 of April 24th, April 25, 2004 and the months
14 that followed as both Pete and Tim became
15 increasingly -- began to feel increasingly
16 helpless due to what they perceived to be the
17 fact that no one was taking -- they were
18 suffering seriously and no one was doing
19 anything to go ahead and remove the people who
20 had caused their suffering from continuing to
21 harass and threaten them, to continue to be
22 right next door to their home.
23 Q Can you please refer to page three
24 of your report, Doctor, and tell the jury all
25 the other documents that you reviewed in
159
1 conducting your evaluation?
2 A Yes, I reviewed and analyzed a variety of
3 psychological tests which I administered, a
4 variety of structured interviews which I
5 administered.
6 I also sent away two of the tests which
7 I administered to be blindly analyzed and
8 reviewed by a computer protocol, which means no
9 one knew which side had retained me and their
10 responses were going to be compared with the
11 responses of other people who have been followed
12 over many years.
13 I reviewed a variety of legal
14 pleadings. I reviewed a variety of notes which
15 had been made, especially by Peter. I reviewed
16 variety of statements made by Peter to the
17 Police Department, by their landlord, Patricia
18 Hjelm is I think the way you pronounce.
19 Q Hjelm.
20 A Hjelm to the Police Department. I
21 reviewed Tim's statement. I reviewed the report
22 of the investigation. I have already mentioned
23 that I reviewed the medical records of Dr.
24 Almeleh, including a letter by him in January of
25 2005 which summarized his opinion as a treating
160
1 clinician.
2 I reviewed the medical records of
3 Barbara Hines, of Dr. Pumill. I reviewed a
4 variety of a number of symptoms which Peter
5 deVries had reported. I reviewed the short-term
6 disability forms for Peter. I reviewed the
7 documents put to use by the Attorney General's
8 Office. I reviewed some photographs.
9 I reviewed some police reports which
10 were made after April. I reviewed the motion to
11 dismiss by the defendants. I reviewed other
12 similar cases in New Jersey which had been --
13 were sent to me by the attorneys for the purpose
14 of my being able to understand what -- what
15 questions they wanted me to go ahead and analyze
16 and answer as objectively as I could.
17 I also undertook an extensive review of
18 the relevant literature regarding what the
19 nature and the causes of suffering by people who
20 have experienced the kind of harassment and
21 indifference that Peter and Tim did, what's
22 their natural course, what happens to these
23 people as time goes on and how people who are
24 vulnerable to begin with will go ahead and
25 experience not only the harassment but the
161
1 indifference in a way which magnifies their
2 helplessness and to the extent that they were
3 helplessness has magnified how their suffering
4 can become -- can go beyond something which is
5 treatable to something which becomes a matter
6 of -- of -- a lifelong problem.
7 Q You mentioned a structured and
8 unstructured interview. Let's talk about the
9 two days that you spent with Mr. Carter and
10 Mr. deVries. Please tell the jury about your
11 meetings with them and how you conducted those
12 interviews.
13 A Yes, I began by doing my best to
14 ascertain in what condition they each were when
15 they came to see me. They both apparently had
16 had tremendous difficulty sleeping before coming
17 to see me and had driven most of the night from
18 New Jersey to -- since very early morning from
19 New Jersey to -- to Cambridge, Massachusetts.
20 So the first thing which I did was I
21 tried to go ahead and set them at ease and
22 create an atmosphere of safety as much as
23 possible. That meant, to me, meeting with both
24 of them because as I had reviewed the medical
25 records, it's clear to me that even though each
162
1 of these people is a fragile person in some way,
2 together they have formed a very stable and very
3 safe, functioning relationship which helps them.
4 So I wanted to have a chance to talk with the
5 two of them to begin with.
6 After I did that and after I told them
7 that there would not be any confidentiality
8 because anything they would tell me I might --
9 I -- I would have to go ahead and use to
10 formulate my opinion and that I might need to
11 testify about. They both agreed to proceed as
12 best as they could.
13 They each were having a great deal of
14 difficulty. We began with doing the Minnesota
15 Multiphasic Personality Inventory, which is a
16 structured test, which is 567 questions.
17 However, as they proceeded to take this test, it
18 seemed apparent to me, especially with Tim, who
19 has ADD, attention deficit disorder, that
20 between the fatigue, between being frightened of
21 the exam because he would have to remember
22 things which he didn't want to remember,
23 basically, which are frightening to remember,
24 between -- with the ADA and with how exhausted
25 he was, he was just having a tremendous amount
163
1 of difficulty concentrating.
2 So I decided to postpone the second
3 part of the testing until the end of the
4 examination because, meanwhile -- I have two
5 offices -- Tim could both rest while I was
6 interviewing Peter and he could go ahead and
7 respond to some of the easier self-report forms,
8 which I wanted to give him. He wasn't able to
9 do that very well, but we were -- he was
10 still -- his attention was wandering. He was
11 feeling frightened.
12 Tim is -- you know, he is a very bright
13 man. I mean, he has a number of degrees. He is
14 extraordinarily thoughtful. But he was just --
15 between his ADD and fatigue and being scared to
16 death, it was clear to me he just couldn't take
17 the next part of the test.
18 So I spoke with Peter. Then I did my
19 best, after Tim got some rest, to talk with --
20 with Tim.
21 And then I administered -- I -- towards
22 the end of the interview the PAI, the
23 Personality Assessment Inventory, to both of
24 them. And this time we were able to get more
25 valid results.
164
1 The next day they were both more
2 comfortable. We were able to complete the
3 interviews. They both felt safer with me,
4 basically. They knew that I wouldn't shame
5 them, I wouldn't humiliate them. I wasn't there
6 to sit in judgment of -- of them or their
7 life-style. I wasn't there to criticize them.
8 I was there to understand them as individuals,
9 as -- as human beings and as a couple, as a
10 couple that's had a loving relationship since
11 the mid-1980s.
12 So I think the second day they were
13 able to speak with me more freely, although,
14 again, I think Tim still can get very, very
15 anxious and frightened. And Peter also gets
16 very frightened, but what happens with Peter is
17 he -- when Peter gets very frightened, he --
18 where Tim gets very distracted and goes into
19 denial and tries to put on his best face, Peter
20 tries to put on his medical editor face.
21 Peter is a medical editor; and he
22 proceeds to disassociate from emotion. You
23 know, he tries to go ahead and be as
24 professional as he can when talking about his
25 suffering, which is, of course, very difficult
165
1 to do when you're remembering things which are
2 very painful. But they each will cope in their
3 characteristic style.
4 Q Doctor, did you take a medical and
5 psychological history?
6 A I did. I took a medical history. I took
7 a developmental history. I took a psychological
8 history. And not only was I taking a history,
9 but the idea of taking a history isn't just to
10 listen to what the patient has to say to you but
11 to really listen deeply, which means observing
12 not only what a person says but how they say it.
13 What's their expression? What's their manner?
14 Regarding what areas can they talk about freely?
15 Which areas do they become defensive? When does
16 Tim begin to distract? When does he begin to go
17 off on a tangent? When does Peter stop talking
18 like a medical editor? When can he speak like
19 himself?
20 Q You described doing some testing.
21 Can you describe in general for the jury the
22 tests that you administered to Mr. Carter and
23 Mr. deVries, please?
24 A I administered two tests. Generally,
25 they each have been well validated. They each
166
1 are generally used. They are each part of my
2 standard battery of testing. And the reason why
3 I use the two tests is to go ahead and make sure
4 that the response I get on the test isn't
5 because the person is too frightened or too
6 tired or too disorganized; but rather, it
7 reflects their inner life.
8 So it's good to give, very often, one
9 test at the beginning and one test at the end
10 after the person has become more comfortable and
11 see what the progression is from one to the
12 other. Someone who's faking, exaggerating or
13 malingering will get -- will show that on both
14 tests, not just one test. Someone who is
15 disorganized or tired, they will show it on the
16 test where they are very fatigued, for example,
17 but not on the test they are well rested. So
18 that is one way to discriminate between the two.
19 Q Just like I gave my adversary my
20 copy of your CV, I think I have taken your
21 copies of the reports.
22 A Oh, thank you.
23 Q Can I take mine back?
24 A Okay.
25 Q Thank you.
167
1 A Thanks a lot.
2 Q Let me start with you've described
3 ADD. You said Mr. Carter suffers from ADD?
4 A Yes.
5 Q Tell us what ADD is, please.
6 A ADD is attention deficit disorder. It's
7 a disorder which was first diagnosed in children
8 and was a special area of my interests when I
9 was doing pediatrics. But reality is it's
10 not -- not just children who have it. It can be
11 a lifelong disorder. It doesn't mean that Tim
12 isn't intelligent. It doesn't mean that Tim
13 isn't thoughtful. But it does mean that,
14 especially under stress, he has difficulty
15 concentrating and not beginning to think about
16 25 things at once and going off on a tangent.
17 Q Did you -- were you able during
18 the two days that you spent with them and
19 reviewing all the documents reviewed and his
20 medical history and the other information you
21 sought -- did you say you sought information
22 from coworkers or friends or --
23 A Yes, I asked that at least two of the
24 people who have known -- two different people
25 each, so four people total, who have known Tim
168
1 and Peter, that each of them comment on what
2 changes they saw from before April 24, 25th,
3 2004 to what happened in the months subsequent.
4 Q Were you able to -- to form an
5 opinion about the severity of Mr. Carter's ADD
6 prior to April 24th, 2004?
7 A Although Tim Carter has had ADD and I --
8 it's been ADD, which, although serious, has been
9 responsive to treatment. So his prior to 2004
10 ADD has been responsive to treatment, which has
11 included medications.
12 Subsequent to April 2004 it's become
13 complicated because you have the problem of
14 concentration with ADD; and that's compounded by
15 the fear that he experiences due to his PTSD
16 spectrum suffering posttraumatic stress
17 disorder, which also has to do with disorder of
18 concentration.
19 So when you have one disorder of
20 concentrating compounding another disorder of
21 concentration, that becomes a complicated
22 version of PTSD or becomes -- it becomes -- it
23 changes from being a disorder to being -- to
24 actually what the international classification
25 of disorders, which is the United Nations
169
1 classification -- it's used internationally --
2 calls an "enduring personality change subsequent
3 to catastrophic experience."
4 So given his ADD to begin with, which
5 needed treatment and which had received
6 treatment and he was continuing, that became
7 much worse and much more complicated by the
8 problems with concentration and helplessness
9 that he experienced subsequent to April 24 and
10 the months that followed and the years that
11 followed as he -- as he continued to have
12 reminders of what happened, such as finding out
13 that one of the people that he saw as the ring
14 leaders, Chucky Snyder, Jr., was -- is someone
15 who wound up getting elected to being battalion
16 chief and now is in line -- and this was
17 approved by the Town government and now the guy
18 is to be in line to be the Fire Chief of the
19 Town of Secaucus. So, you know, those kinds of
20 reminders have certainly re-traumatized them,
21 have certainly made both Tim and Peter, but each
22 in their own individual ways.
23 Q Did Mr. Carter have any other
24 significant mental health history?
25 A Mr. Carter also has a history of periods
170
1 of depression. And again, the bad news is he is
2 vulnerable to depression. He is fragile. The
3 good news in the past it has been responsive to
4 treatments. He has very good treating physician
5 since the 1980s, Dr. Almeleh. And when he is
6 needed, he has been able to go ahead enough with
7 him, the help that Tim needs -- the help Peter
8 and Tim needs.
9 At times Tim has also experienced some
10 panic symptoms, which, again, Dr. Almeleh has
11 always been able to treat successfully. And
12 these have been episodes. So if I may use an
13 analogy, what we have is someone who is
14 basically prone to living in the autumn in New
15 Jersey. You get occasional showers here. And
16 that's the way he was living before April 1984.
17 Having been to the Amazon during the rainy
18 season, what happened after that was he was
19 placed in emotional environment akin to being in
20 the Amazon in the rainy season, which is very,
21 very difficult. I lived in New Jersey. I know
22 we do have rain showers. But this was very,
23 very different.
24 Q Can you describe for the jury one
25 by one the tests that you administered to
171
1 Mr. Carter and what you learned from them? I
2 think they start on page ten --
3 A Uh-huh.
4 Q -- of your report.
5 A Yes. Let me just distinguish between the
6 tests and the structured self-report forms, if I
7 may.
8 Q Thank you.
9 A There were two tests which I administered
10 to Mr. Carter. Let me just refer here to this.
11 The first test was a Minnesota Multiphasic
12 Personality Inventory. And as I expected, given
13 the State of fatigue and fear that he was
14 experiencing at the beginning of my examination
15 on the first day of the exam, that test came
16 back invalid. It was consistent with my
17 observations that he was extraordinarily
18 distracted. He was pacing up and down as he was
19 taking the test. Couldn't sit still. Had to go
20 downstairs. Had to take his shoes off in order
21 to be able to be comfortable in my office. He
22 was really almost jumping out of his skin and
23 extraordinarily tired when I saw him.
24 The second test was the Personality
25 Assessment Inventory, which was also blindly
172
1 scored; but this time he was -- I gave him the
2 opportunity to rest while I was doing the six
3 hours of time he spent that first day with me.
4 And as he was able to rest he was able to go
5 ahead and attend to the testing material. And
6 his responses were most consistent with someone
7 whose self-esteem is low and who views himself
8 as being ineffectual and powerless to change the
9 direction of his life.
10 In other words, what the test showed
11 was someone who was suffering from being
12 terrified and helpless with the emphasis on
13 helpless. And that was showing to be -- to be,
14 again, something which was valid. There was, on
15 that second test, no evidence more consistent
16 with faking, exaggerating or malingering. So
17 whereas the first test could be interpreted at
18 being, at worst, ambiguous, the second test gave
19 a valid result and gave a result that this man
20 was suffering from helplessness subsequent to
21 being traumatized in a fundamental way.
22 Q Now, during the two days that you
23 interviewed Mr. Carter, can you describe for the
24 jury, in addition to what you have already told
25 us about how he presented, any other significant
173
1 observations that you made with regard to
2 Mr. Carter in your interviews, putting aside the
3 test, in terms of his symptoms?
4 A Yes, although when he was talking about
5 some parts of his life, including his life
6 growing up as a child in a family which was very
7 harsh on him because he was gay -- I mean, he
8 was -- he was brought up in a family where it
9 was seen as being very shameful to be gay. Even
10 though he exhibited some distractibility, he
11 was -- he was able to focus. He was able to
12 talk about antigay bias. He was able to talk
13 about his life, his achievements. He was able
14 to talk about the fact that he was doing
15 charitable work, that he was creating a
16 foundation for people with ADD.
17 On the other hand, when it came time to
18 talk about what happened on the evening of -- on
19 the night of April 24th and 25th, he was
20 terrified. He used avoidance. He became
21 hyper-arousable. When my phone rang, he almost
22 jumped through the roof, basically. His pupils
23 dilated. I had to bring him back to and ask him
24 as much as I possibly could about the details.
25 He also talked about how there was a
174
1 sense of foreboding ever since December of that
2 year that something was going very wrong with
3 the people -- at least December, maybe earlier,
4 with the people next door, the people at the
5 firehouse, but how he tried to make friends with
6 them around Christmas, he tried to buy them some
7 ice cream because they were selling Christmas
8 trees. You know, he was trying to go ahead and
9 do best to be a good neighbor and to make peace.
10 And the more he talked about how that
11 wasn't working, the more frightened he became.
12 The more he talked about how in the weeks
13 subsequently, when he left a message to the
14 Mayor asking for help, how helpless he felt, the
15 more distracted he became, the more halting he
16 became, the more he began to go off on tangents,
17 the more he began to disassociate to the point
18 that he had to take breaks. And he actually had
19 to leave my office so that he could go ahead and
20 reconstitute himself to come back and talk with
21 me.
22 One thing which I had made clear to
23 each of them was that they could take breaks
24 during my interview any time they wanted. And I
25 think that was very helpful because that way
175
1 they didn't feel as helpless and trapped as they
2 did in their home when they were living next to
3 people who had been yelling, "Kill the faggots.
4 Kill" -- pardon my using the term, but that was
5 what was being shouted. That's what he
6 remembers was being shouted at them, "Kill the
7 faggots. Kill the faggots" and literally
8 pounding on their house.
9 He also talked about how frightened he
10 was for Peter because Peter was still in the
11 midst of recovering after having had heart
12 surgery in 2003, which followed heart surgery in
13 2000. How worried he was that something would
14 happen to Peter because of this, how their home,
15 which had been a refuge, which had been place
16 for them to celebrate Christmas, to celebrate
17 holidays, to have a kind life with each other.
18 I mean, these people had a kind and loving life.
19 Whatever their sexual preference, they had a
20 kind and loving life. How that had been
21 destroyed; that shelter had been taken away from
22 them.
23 I'm sorry if I'm -- you're saying this;
24 and you know, Tim is here right now. It's
25 difficult for him to hear it. But it -- I
176
1 really did have to go ahead and give them breaks
2 so that he wouldn't be overwhelmed and he
3 wouldn't just -- when overwhelmed, Tim's
4 reaction is to try to put the best face on
5 everything but say, "I'm okay now. I'm" -- you
6 know, just to go ahead and discount things,
7 basically. That's behind, you know -- he would
8 try to get away from that or, "Let me tell you
9 about my achievements with my charitable
10 foundation. Let's talk about my charitable
11 foundation. Can't we talk about that,"
12 basically because that's what he felt he was
13 comfortable, those are his happy memories.
14 Q You used the word "disassociate."
15 I'm sorry, did I interrupt you, Doctor?
16 A No, please. And please feel free to
17 interrupt me. I don't mean to go on and on
18 about this either, so I --
19 Q You used the term "disassociate."
20 What does that mean?
21 A It means to space out, to literally go
22 off on a tangent, to lose track of space and
23 time. All of us do it a little bit. If you
24 have ever been to a dentist's office, even
25 anesthesia, you do space out a little bit
177
1 without it. Occasionally, if you have -- I
2 don't know how many of you driven to the
3 Midwest, but you have these long highways where
4 all you see is the highway in front of you.
5 After a while you begin to space out. So that
6 happens.
7 But here what was happening is he was
8 literally jumping out of his skin both literally
9 and figuratively. His mind was, you know, just
10 gone at times. When we try to talk about how
11 helpless he felt afterwards, after April 24th
12 25th and during April 24th, 25th, afterwards
13 when he was feeling harassed, when he was
14 feeling harassed at the job, where he was
15 working at Kohl's with all these firefighters,
16 afterwards, when all his pleas for help went
17 totally -- totally not responded to --
18 MR. BEVERE: Objection. Sidebar,
19 please.
20 JUDGE CURRAN: Sure.
21 (Whereupon, the following sidebar
22 discussion is held.)
23 MR. BEVERE: Judge, my
24 understanding was that this witness was not
25 going to opine as to whether or not the
178
1 municipal and the police response was adequate.
2 My understanding was he was going to opine as to
3 what Mr. Carter and Mr. deVries perceived their
4 response to be and what the effect on them was.
5 He has now made a statement that the police
6 response was inadequate or improper, and my
7 understanding was --
8 JUDGE CURRAN: I could get it read
9 back. I saw Mr. Mullin looking at it, so I
10 assumed that was their objection. It seems to
11 me -- I don't know how I can read it back from
12 there, but basically what he was asking him
13 was -- what he was saying was Mr. Carter's
14 perception. But let me -- let me just see. We
15 could clarify it. He uses the phrase, "he was
16 feeling harassed"; and then he goes on now -- in
17 fairness, he does say, "when they were not
18 responded to." I heard it, and I thought it
19 went back to the feeling. But I can see --
20 MR. BEVERE: I just want to be
21 clear this witness is not going to opine as to
22 whether the response was proper, inappropriate.
23 He is going to opine as to their feelings.
24 JUDGE CURRAN: Miss Smith, I'm
25 sorry.
179
1 MS. SMITH: He is certainly going
2 to respond to, as I said before we put him on,
3 to what the effect of having to continue to live
4 next door to the people who threatened to kill
5 them had on their mental state.
6 MR. BEVERE: That's different,
7 Judge. That's different.
8 MS. SMITH: And -- and their
9 perceptions that people weren't responding they
10 put in mostly through their cross.
11 JUDGE CURRAN: Okay. I'm going to
12 ask you to do this. We have interrupted the
13 doctor now. If you would just ask him a
14 question about, "Were you just referring to
15 Mr. Carter's perception," so that it's clear.
16 MS. SMITH: Absolutely.
17 JUDGE CURRAN: The doctor was not
18 saying the police did not respond. Obviously,
19 you don't have to go there.
20 MS. SMITH: Absolutely.
21 JUDGE CURRAN: Thank you very
22 much.
23 MS. SMITH: No problem.
24 (Whereupon, sidebar discussion is
25 concluded.)
180
1 BY MS. SMITH:
2 Q Let's go back to where we were,
3 Dr. Bursztajn. Were you just describing the
4 feelings and perceptions of Tim?
5 A Yes, I was describing Tim's experience.
6 Q Okay. And did you also send Tim
7 and Peter home with some self-report
8 instruments?
9 A Yes, I had to send Tim back with more
10 self-report instruments than Peter because Tim
11 had a much harder time filling out those
12 self-report forms than Peter did. Peter, I
13 think I sent him back with one or two. With
14 Tim, I sent him back with about eight or so
15 because Peter was able to complete the
16 self-report forms in my office, most of them.
17 Tim was not able to complete most of the
18 self-report forms. He was just feeling too --
19 too frightened and just couldn't concentrate
20 well enough to be able to do so.
21 Q Now, in your report of Mr. Carter
22 at page ten you report and subsequently you
23 report your observations regarding the PAI
24 clinical profile. And I know you have spoken
25 about it briefly. What is the PAI profile?
181
1 A It's the Personality Assessment
2 Inventory; and it's generally accepted
3 standardized test I use clinically, as well as
4 forensically.
5 Q Okay. And is there anything else
6 about the PAI that was significant to you in
7 forming your opinion in this matter?
8 A Yes, it was consistent with the fact that
9 Tim is likely to display significant symptoms
10 related to traumatic stress, which continues to
11 distress him and produce recurrent episodes of
12 anxiety. So this was consistent with Tim having
13 been traumatized and continuing to relive and
14 reexperience the trauma. It was consistent with
15 his disorganization and lack of concentration,
16 not being simply due to the ADD but -- but
17 being, rather, to an ongoing experience of
18 severe trauma.
19 Q Now, was the PAI profile
20 consistent with Dr. Almeleh's records that you
21 reviewed?
22 A It was entirely consistent with Dr.
23 Almeleh's records. And those are well
24 summarized in Dr. Almeleh's records of
25 January -- letter of January 2005.
182
1 MS. SMITH: That's P-30, for the
2 record, Your Honor.
3 JUDGE CURRAN: Thank you.
4 BY MS. SMITH:
5 Q Is there anything in particular
6 about that letter that you want to highlight,
7 Doctor?
8 A Yeah, if I may refer to that letter.
9 Q Yes.
10 A Thank you.
11 Q You have your copy?
12 A I hope so. Yeah, I do.
13 Q Okay. It's P-30.
14 MR. BEVERE: I'm sorry, is this
15 for Tim or Peter?
16 MS. SMITH: This is for Tim.
17 MR. BEVERE: Thank you.
18 BY MS. SMITH:
19 A It's the January 23rd, 2005 letter from
20 Dr. Almeleh. And this letter was about
21 Mr. deVries.
22 Q I'm sorry, P-29. I'm so sorry.
23 A Okay, thank you. Yeah, this letter --
24 this is the January 9th, 2005 letter. I'm
25 sorry, my mistake. This is regarding Tim
183
1 Carter. And if I may read from this letter,
2 which summarizes. And Dr. Almeleh has known Tim
3 since the mid-1980s. This is someone who has
4 known these two people, both Tim and Peter, for
5 20 years and treated them for close to 20 years.
6 "Prior to the firehouse events in the
7 spring of 2004 Mr. Carter had been making
8 tremendous progress with the use of medication
9 to treat his attention deficit problem. And
10 with psychotherapy his self-esteem had risen and
11 he obtained a job. After the firehouse events
12 in the spring of 2004 there had been a dramatic
13 deterioration in his psychiatric condition. His
14 sleep is now very poor," which it certainly was
15 when I saw him. "He is having recurrent
16 nightmares," which he talked about. "His
17 self-esteem has fallen dramatically." And
18 that's related to how helpless he felt. You
19 can't feel good about yourself if you are
20 feeling helpless. "And he is diffusely anxious.
21 He has all the major symptoms of posttraumatic
22 stress disorder."
23 MR. BEVERE: Objection. Can we go
24 to sidebar?
25 JUDGE CURRAN: Sure.
184
1 (Whereupon, the following sidebar
2 discussion is held.)
3 MR. BEVERE: Judge, obviously, I
4 have no objection of this witness, if this
5 witness wants to testify about observations of
6 Dr. Almeleh through his notes. Quite frankly,
7 my psych is going to do the same thing. But for
8 this witness to talk about Dr. Almeleh's
9 opinions as to what diagnosis, I think is
10 improper. It's hearsay. He is not a testifying
11 expert in this case.
12 And you know, that's my --
13 certainly, with respect to observations from his
14 notes, passage he read about how he was
15 diffusely anxious, he was fearful, those are in
16 his notes. But -- but to come in here and talk
17 about Dr. Almeleh's opinion diagnosis is -- is
18 hearsay; it's improper.
19 MR. MULLIN: Your Honor, I will
20 have to get the rule book; I don't know why the
21 number is skipping on this old brain of mine.
22 But the rule on expert witness is -- it happens.
23 The rule on expert witnesses clearly says that
24 an expert is allowed to rely upon even hearsay
25 materials, as long as claims of hearsay material
185
1 is normally relied upon by their profession in
2 making this kind of assessment and -- and so
3 it's normal and appropriate for an expert to
4 refer to hearsay like this and to rely upon it
5 in making his assessment and to refer to in his
6 testimony. I can get the rule, if you want.
7 JUDGE CURRAN: I can't remember
8 them either but --
9 MR. BEVERE: Judge, I see no
10 difference between this and the situation where
11 we don't allow the chiropractor who hasn't read
12 the MRI report not to opine as to the -- the
13 existence of the bulge. We do it all the time.
14 He is going to come in here and
15 talk about another doctor's opinion. Facts in
16 his notes, I agree, facts in the notes,
17 observations of the doctor. But that doctor's
18 opinion without that doctor being here to be
19 cross-examined?
20 JUDGE CURRAN: Mr. Bevere, as I
21 understand the primary issue in regard to the
22 chiropractors is that they are not qualified to
23 read MRIs or --
24 MR. BEVERE: Now we extend it to
25 no physician can testify as to another
186
1 physician's reading of a diagnostic study.
2 JUDGE CURRAN: Oh, I don't --
3 MR. BEVERE: Judge.
4 JUDGE CURRAN: I'm not questioning
5 you, Mr. Bevere. I'm sure you make that -- I
6 will tell you honestly I just am not aware of
7 that case.
8 MR. BEVERE: But Judge --
9 JUDGE CURRAN: Especially because
10 Dr. Almeleh is a treating physician.
11 MR. BEVERE: Yes, but, Judge, here
12 we are, he is going to give another doctor's
13 opinion and diagnosis. That's different than
14 saying, "This was in his notes. This is what he
15 reported. This is what he reported." But we
16 are talking about a diagnosis of a man who is
17 not here to be cross-examined.
18 JUDGE CURRAN: Let me ask you
19 this. I have the report, but I have just been
20 glancing through it. Is the opinion of Dr.
21 Almeleh different from the opinion of this
22 doctor, Dr. Bursztajn? I don't think so.
23 MS. SMITH: No.
24 MR. BEVERE: Well, Dr. Almeleh
25 says that he suffers -- I believe in the report
187
1 he said that he suffers from posttraumatic
2 stress disorder. Dr. Bursztajn's opinion is
3 that he suffers from symptoms in the
4 posttraumatic stress spectrum.
5 Dr. Bursztajn doesn't recognize
6 the DSM. Dr. Almeleh recognizes the categories
7 of the DSM this witness doesn't recognize.
8 In addition, Dr. Almeleh and
9 this -- I believe this witness' opinion is that
10 what Mr. deVries and Mr. Carter suffer from is
11 enduring personality change following
12 catastrophic event, which Dr. Almeleh did not
13 address in his report.
14 MS. SMITH: Okay. Can I respond
15 to that? Unless it's not necessary. I don't
16 want to waste your time.
17 JUDGE CURRAN: No.
18 MS. SMITH: That's completely
19 false, that this opinion -- this doctor doesn't
20 believe in the DSM. He testified in his dep and
21 he testified today that he believes it's misused
22 because now we need little numbers for
23 everything.
24 And his testimony about the
25 posttraumatic -- posttraumatic stress disorder
188
1 spectrum, which we can clearly talk about, does
2 not distinguish his diagnosis from Dr. Almeleh's
3 diagnosis in any way. That's just completely
4 misleading. This doctor just seeks to be more
5 precise. That's why he teaches at Harvard
6 Medical School about the DSM. He seeks to be
7 more precise in his definition of it's not a
8 number, posttraumatic stress disorder; it's a
9 complicated diagnosis that includes some people
10 have these kind of symptoms and some people have
11 these kind of symptoms on a spectrum, on a
12 continuum. It's a matter of precision, not a
13 matter of distinguishing them.
14 JUDGE CURRAN: That's how --
15 that's how I honestly -- I didn't know this
16 issue was going to come up; but that's how I
17 heard what he said, if you will.
18 MR. BEVERE: But --
19 JUDGE CURRAN: Because it was also
20 talking about the DSM in regard to basically
21 people are now numbers because of insurance,
22 whatever, and that he feels they should not be
23 used as a replacement. In other words, a doctor
24 shouldn't just grab on a number. I did not hear
25 him say that he does not believe in the DSM at
189
1 all.
2 MR. BEVERE: Maybe I misheard
3 that, Judge; but let me say this. What we are
4 going to do is allow this doctor to come on the
5 witness stand, bolster his opinion, where the
6 doctor who is not even going to testify --
7 MS. SMITH: That's right. He is
8 an expert.
9 MR. MULLIN: Let me add this,
10 P-29. The vast majority of what Dr. Bursztajn
11 is saying is the exactly the same thing Dr.
12 Almeleh says in his treatment records. He is
13 laying out what he has observed.
14 JUDGE CURRAN: See, that's my
15 concern. Sorry, I didn't mean to cut you off,
16 Mr. Mullin. I don't necessarily see it -- and
17 sometimes we do have that situation. I don't
18 see it, this expert bolstering his opinion. I
19 see it as this expert commenting on what he
20 reviewed. There is -- as I understand it, there
21 is no real difference in the two opinions. And
22 frankly, he doesn't need to bolster his opinion.
23 I'm not commenting on his opinion; but he seems
24 to me to have the background and the ability,
25 from what I have looked at in his report, to
190
1 make that -- to give the opinion that he did.
2 You're free to cross-examine it,
3 but I just don't -- you know, sometimes there is
4 an issue about whether or not there is a disk
5 bulge and a disk herniation or whatever. That
6 kind of thing is used to bolster. I am -- I
7 just honestly don't see how he is bolstering it,
8 how you think he is bolstering it.
9 MS. SMITH: Well, he is actually
10 saying this was a factor he considered --
11 JUDGE CURRAN: Right, right.
12 MS. SMITH: -- in coming to his
13 opinion. It's consistent with the treating
14 doctor.
15 JUDGE CURRAN: But he -- I just
16 don't see it as bolstering his opinion. In
17 other words, there is not -- bolstering would
18 mean there is some disagreement, maybe a third
19 doctor or whatever. I just don't see it that
20 way, Mr. Bevere. Maybe I'm not understanding
21 your argument.
22 MR. BEVERE: No, I think --
23 that's -- my argument is doctor could not come
24 in here and give us the opinion of
25 non-testifying doctor, an opinion. An opinion.
191
1 JUDGE CURRAN: If that's the
2 opinion, then I am going to overrule the -- God
3 bless you -- the objection. Dr. Almeleh is a
4 treating physician. There is no discrepancy.
5 It's not as if, for example, this
6 doctor is trying to give an opinion, although he
7 didn't read the MRIs or see the MRI report, but
8 he is trying to make what I would consider --
9 then he is trying to make his report better by
10 bolstering it with someone else's report. I
11 just don't see it that way because of the nature
12 of what Dr. Almeleh said, the fact that Dr.
13 Almeleh was a treating physician and that what
14 this witness is now testifying to is he reviewed
15 Dr. Almeleh -- he took that in -- Almeleh's
16 report, he took that into consideration in
17 reaching his conclusions.
18 Presumably, if Dr. Almeleh had
19 said, "I saw these two guys and they were both
20 charlatans, I don't think there is anything
21 wrong with them," presumably, he wouldn't say
22 that he considered the records of the treating
23 physician. If we listen to one of his
24 presentations, he wouldn't be here, if that was
25 the situation, presumably.
192
1 I just don't see it that way. I
2 will note your strong objection.
3 MR. BEVERE: Thank you.
4 MR. MULLIN: Thank you.
5 MR. BEVERE: Thank you, Judge.
6 That's all I could ask for. Thank you.
7 (Whereupon, sidebar discussion is
8 concluded.)
9 MS. SMITH: Are you going to
10 respond to the Objection, Your Honor?
11 JUDGE CURRAN: The objection is
12 overruled.
13 MS. SMITH: Thank you.
14 BY MS. SMITH:
15 Q Okay. Do you remember where you
16 were, Doctor?
17 A I hope so.
18 Q We're on P-29, January 9th, 2005,
19 Dr. Almeleh's letter regarding Timothy Carter.
20 A Yes. Dr. Almeleh summarizes his records
21 by saying, "Since the events of the spring of
22 2004 I have had to introduce into Tim's
23 treatment antidepressant medication,
24 tranquilizing medication and sleep medication.
25 To this day Mr. Carter is -- Tim's functioning
193
1 remains very poor. His symptoms of
2 posttraumatic stress disorder have not improved.
3 He has lost his job. The stress of recent
4 events has caused a deterioration in their
5 relationship with his life partner." That's
6 Peter. "And I have had to increase the
7 frequency of his treatment to once a week."
8 And then most alarmingly he says, "At
9 our most recent treatment session I even
10 entertained the possibility of psychiatric
11 hospitalization." And this is for someone who
12 has never had that considered before in his
13 life.
14 Q Doctor, there is a -- in your
15 report at page 12 you discuss the dissociative
16 experience scale?
17 A Yes.
18 Q Can you please explain that for
19 us?
20 A The dissociative experience scale is a
21 measure of the difficulty that people who have
22 been traumatized have in being able to focus and
23 concentrate. And Tim, although trying to
24 minimize his symptoms because he would --
25 obviously, there were some things he didn't
194
1 check off, which you could just see in my
2 office. Nonetheless, what he reported was
3 remembering a past event so vividly as to feel
4 as if he was reliving it.
5 And you could see that when he was
6 talking about the night of April 24th and 25th,
7 what happened subsequently, when he made that
8 phone call to the Mayor, there was no response.
9 He also scored high in staring off into
10 space and losing track of time and not feeling
11 emotions appropriate to a particular situation,
12 not being able to have loving feelings or kindly
13 feelings, even though he is a very kind man. I
14 mean, there is no question logically Tim is a
15 very, very kind man.
16 He also reported having intrusive or
17 disturbing thoughts, images, memories or dreams.
18 And maybe most tellingly, there was 45
19 items on the dissociative experience scale. He
20 left the last ten items blank, which is exactly
21 the opposite of someone who would be faking or
22 exaggerating. They would go ahead and keep on
23 going. He just left them blank. That's more
24 consistent with someone disassociating than
25 someone faking disassociating.
195
1 Q On page 12 of your report you talk
2 about the Neurobehavioral Functioning Inventory
3 and NFI family forms?
4 A Yes.
5 Q Can you please tell the jury about
6 those two items?
7 A Those two items, the family form and the
8 patient self-report form -- it's really family
9 and friends. Doesn't have to be family, but
10 someone different than the patient -- are
11 congruent; they have the same items on them.
12 And there is a scale from -- which is "never" to
13 "always" with, you know, "sometimes" and
14 "frequently" in the middle.
15 What was interesting was that on those
16 items that Tim would check "sometimes," his
17 family and friends would check "frequently" and
18 "always." So, again, that's consistent not with
19 faking or exaggeration; it's consistent with
20 someone who uses denial, you know, that let a
21 smile be your umbrella to minimize how much he
22 is suffering, which is what Tim does.
23 Tim, you know, can try to be very
24 cheerful. He -- he will try to minimize his
25 suffering. Tim very much reminds me -- and I
196
1 think developmentally this is true of people who
2 I've had whose mothers have had a postpartum
3 depression. You know, the baby tries to cheer
4 the mom up, vice versa. But what Tim is trying
5 to do when he is suffering, he tries to cheer
6 you up, as the examiner, by denying he is
7 suffering, instead of being able to say, "I'm
8 suffering." He has learned how to be a very
9 good little boy, basically. And I think that's
10 what he uses when he is feeling frightened or in
11 pain. He tries to be a very good little boy and
12 tell you that it's not so bad, it's not so bad,
13 basically.
14 Q Did you do some kind of test or --
15 or interview questionnaire called the McLean
16 Hospital Human Sexuality Program?
17 A Yes. Oh, thank you.
18 Q You're welcome.
19 A Although, if I drink this, we may have to
20 take a break soon, if that's okay. Showing my
21 age here.
22 The -- yes, that is a standardized
23 structured self-report form, which is used to
24 help people talk about sexual intimacy because
25 sometimes, you know, lots of people -- most of
197
1 us will have difficulty talking about physical
2 intimacy and sexual intimacy. So -- unless you
3 are on a talk show or something like that. But
4 most people usually don't talk about it. So
5 this is a way of helping people who are shy
6 talking about physical intimacy to talk about
7 their experience of physical and sexual
8 intimacy.
9 And it was interesting because whereas
10 Tim basically denied that there were any
11 problems, Peter, who is his sexual partner,
12 said, "Wait a minute there were problems here."
13 And Peter, himself, uses denial.
14 So, again, Tim was trying to minimize
15 the extent to which his intimate life, his
16 personal life had been impaired, which is --
17 which is consistent with his overall character.
18 I mean, hey, I don't make any trouble. I'm a
19 good guy. You know, I buy ice cream for the
20 firefighters. You know, this is -- this is what
21 he does. This is Tim Carter, basically.
22 Q Did you also administer a personal
23 history checklist for adults?
24 A Yes. And again, what was interesting is
25 that Tim was very open talking about his
198
1 problems with his family, including having been
2 beaten up by his father for being gay, to
3 talking about his accomplishments. He was able
4 to give a balanced view of his life. I mean, he
5 had -- in school he had met friends. He stayed
6 out of trouble. You can see why.
7 I mean, he is basically what we would
8 call in high school a "good guy." That's --
9 that's -- that's his character, in essence.
10 He -- I think this is where this good -- even
11 though his ADD has been -- he has been able to
12 bounce back and respond to treatment. He is a
13 good guy. He responds to treatment. He seeks
14 help.
15 And going back to the PAI, the PAI
16 talks about him as being an ideal kind of
17 patient, the kind of person who seeks treatment,
18 rather than the kind of patient who -- who will
19 go ahead and think that he knows it all, "Hey, I
20 don't need nobody around here, you know. I know
21 it all. Don't need no help. The heck with
22 you." I mean, that's not Tim.
23 So, again, I think overall what we have
24 are various methods, different people, different
25 sources of information which give us a picture
199
1 of Tim Carter, his life before the incident and
2 after the incident, as he grew progressively
3 more helpless and more demoralized because no
4 one was listening, no one -- you know, what are
5 you going to do?
6 Q As a result, Doctor, two days of
7 observations and interviews, all the tests you
8 conducted and documents you reviewed and the
9 medical records you reviewed and the additional
10 documents you got from friends and family and
11 the additional documents you got from Tim, were
12 you able to form an opinion as to whether or not
13 Tim suffers from any kind of mental illness?
14 A Yes.
15 Q And what is your diagnosis of that
16 illness?
17 A Tim has several different conditions. He
18 does have ADD. There is no question about that.
19 Attention deficit disorder. But he also suffers
20 from major symptoms in the complex posttraumatic
21 spectrum and what's called an "enduring
22 personality change subsequent to catastrophic
23 experience," such as feeling reasonably
24 frightened and losing your home. And feeling
25 helpless to keep you home subsequently.
200
1 This change is not likely to be
2 responsive to treatment. At best he can be
3 maintained to prevent further demoralization and
4 to prevent psychiatric hospitalization. And to
5 Tim's credit and to Dr. Almeleh's credit, they
6 were able to prevent and they have been able to
7 prevent any psychiatric hospitalizations.
8 On the other hand, he is not going to
9 be where he was before April 2004, no matter
10 how -- how he tries. And he tries very, very
11 hard. There is no -- his motivation is
12 excellent. I mean, he really tries.
13 Q If I may -- may summarize briefly,
14 I believe you testified that Tim had suffered
15 some harassment or discrimination because of his
16 sexual orientation prior to the Secaucus
17 incidents?
18 A Yes. I mean, beginning with his family
19 and his father deciding to take it upon himself
20 to, you know, to beat him up because he was
21 ashamed of his son, which, you know, certainly
22 no treatment. But he always has been able to
23 bounce back.
24 He has always been able to have
25 friends. And what's interesting is these have
201
1 not just been gay friends. He has had
2 heterosexual friends. He has been able to be a
3 friend of people irrespective of -- he hasn't
4 been in what's called the "gay ghetto," where
5 people just sequester themselves and only have
6 as friends other gay people. He has been -- you
7 know, he has been able to have friends, ordinary
8 people.
9 He is someone who, even though he has
10 had a tremendous amount of education, is still
11 willing to take up -- take a job as a sales
12 clerk at Kohl's, like selling clothes. He is
13 not snotty. He is not snobby. He doesn't look
14 down at people. He treats people decently. He
15 is a kind person. So I think those are major
16 strengths. And they have helped him in the
17 past.
18 Unfortunately, even with Dr. Almeleh's
19 help and even with Peter's love, he has -- he
20 has reached his limit. As you see him today is
21 the best that he is going to be. And I say this
22 painfully. It gives -- it gives me no great joy
23 to say it -- to say this. I'm sorry.
24 Q Did you form an opinion regarding
25 what caused Tim to have an enduring personality
202
1 disorder and to be on the spectrum of
2 posttraumatic stress disorder?
3 A Yes.
4 Q Can you please tell us your
5 opinion regarding -- within a reasonable degree
6 of medical certainty of what caused these mental
7 illnesses and personality disorder?
8 A It wasn't only or even perhaps
9 primarily -- I think primarily but certainly
10 wasn't primarily the incident of April 24th and
11 25th, but what happened afterwards, the loss of
12 their home, their feeling of helplessness, their
13 loss of any hope that they would be responded to
14 in a reasonable way. It's not what happened
15 that night or even in the week afterwards but in
16 the months and in the years afterwards, when,
17 you know, events such as in December of 2006,
18 hearing about Chucky Snyder, Jr. being promoted,
19 being elected, being promoted, being in line for
20 being Fire Chief of this volunteer department,
21 that has continued to render him that much more
22 helpless.
23 Q You've discussed the concept of
24 home. Can you -- can you tell us what that
25 means with regard to your diagnosis in your
203
1 opinion regarding causation?
2 A Yes. Home is important for each and
3 every one of us, especially for those of us who
4 have had to change homes, you know, growing up
5 or those of us who may be immigrants or those of
6 us who feel in some ways that, you know, maybe
7 it's not totally safe to be out in -- in the
8 greater world. Home -- but this -- home is
9 important for anyone.
10 Home is also very important -- and I do
11 home visits, by the way, for -- for Holocaust
12 survivors, for elderly patients, for people who
13 are fragile, be they elderly, be they sick, be
14 they people who are recovering from major
15 medical illness.
16 In this instance home, which was very
17 important for Peter and Tim all along, became
18 that much more important after Peter's heart
19 surgery, because this was a safe place for Peter
20 and Tim. The loss of the home that the two of
21 them built together, being driven out of
22 Secaucus, seeing what they allege to be one of
23 their tormenters be not just reprimanded by the
24 Fire Department but elected and promoted, all of
25 that has destroyed their sense that they can
204
1 have a home which is safe, where they can live
2 in a community which doesn't have to agree with
3 their choice, doesn't have to applaud their
4 choice of -- of partner but which -- where we
5 can at least tolerate, tolerate each other for
6 our differences.
7 They -- they came to New Jersey hearing
8 that this was a tolerant state. And I think
9 that they -- they were -- they could build a
10 home here. And that's what they lost.
11 Q Can you -- did you observe or do
12 you have an opinion with regard to the effect on
13 their relationship, what the events in Secaucus
14 had on their relationship?
15 A Although their relationship has managed
16 to survive what happened, the safety in the
17 relationship is now gone. The love may be
18 there. The kindness may be there. But what
19 happens is that when one or the other one of
20 them becomes frightened, then they feel like
21 fleeing, let's break up, let's run away from
22 each other because the safety they had between
23 the two of them in their home is no longer
24 there. You need to have a safe home to have a
25 good intimate relationship with your partner.
205
1 If you don't have a safe home, you won't have a
2 good intimate relationship with your partner.
3 Just doesn't happen.
4 Q Can you contrast, based on all of
5 the information that you have reviewed, the life
6 of Tim and Peter prior to what happened in
7 Secaucus and the life they have now?
8 A Before what happened in Secaucus and what
9 continued to happen in Secaucus was that they
10 had a life where they each would have -- might
11 have difficulty being able to be happy by
12 themselves, but together they formed a happy
13 functioning couple.
14 They each had a life. They each had a
15 job that they valued. Tim was being
16 philanthropic; he was setting up a charity.
17 Peter was creating -- was working as a medical
18 editor, which is no easy task. I have worked
19 with medical editors. It's a job where you
20 really need to be able to think quickly on your
21 feet. You need to be able to respond. You need
22 to be able to work with other people. You need
23 to be able to communicate.
24 So they each had a life both at home
25 and at work. When they lost the safety of their
206
1 home, they also lost the safe place they needed
2 to recharge their batteries so they could work
3 outside of the home. So they lost both by
4 losing their home, in fact.
5 MS. SMITH: Your Honor, could we
6 take a really short bathroom break before we
7 move on to Mr. deVries?
8 JUDGE CURRAN: Surely. We will
9 take a break for whatever purpose you'd like.
10 Off the record.
11 (Whereupon, the jury is excused.)
12 (Whereupon, a brief recess is
13 taken.)
14 JUDGE CURRAN: Ladies and
15 Gentlemen, we are back on the record.
16 Be seated.
17 I will note that the jury is in
18 the jury box.
19 Miss Smith.
20 MS. SMITH: Thank you, Your Honor.
21 BY MS. SMITH:
22 Q Dr. Bursztajn, in your report and
23 today you talked about Tim experiencing
24 intrusive and disturbing thoughts, images,
25 memories and dreams almost all the time. Do you
207
1 have an opinion about whether or not that will
2 continue?
3 A Unfortunately, yes.
4 Q Now, do you have a -- have you
5 made an -- do you have an opinion about a
6 prognosis for Tim?
7 A It's difficult for me to say this with
8 Tim being here --
9 Q First I want to ask you what a
10 prognosis is?
11 A A prognosis is making a projection into
12 the future as to what someone's life and
13 suffering would be like based on their current
14 condition and their current suffering.
15 Q Okay. And what is your prognosis,
16 if you have made one, with regard to Tim Carter?
17 A In the best case, the most optimistic
18 scenario is that he will not deteriorate further
19 but will stay at this very limited level of
20 functioning, continuing to experience inability
21 to hold a job for any length of time, an
22 inability to feel safe at home for any length of
23 time.
24 In the worst case scenario the
25 psychiatric hospitalizations that Dr. Almeleh
208
1 talked about in his letter will actually
2 eventually come to pass as he gets older and as
3 either he loses Peter's support because Peter
4 becomes physically disabled or he, himself,
5 begins to experience some of the things that you
6 experience as you grow older, as you become more
7 fragile.
8 Q Doctor, you've talked a little bit
9 about other instances, gay bias or harassment,
10 that Tim experienced in his life and his
11 resilience, his ability to get over them. In
12 your opinion, based on everything you've read,
13 your observations, your spending two days with
14 them, did Tim Carter go through his life looking
15 at himself as a victim?
16 A No, Tim has never looked at himself as a
17 victim. And even though there may have been
18 other opportunities and so -- where he could
19 have filed lawsuit based on discrimination or
20 harassment, he never did. This isn't Tim. Tim
21 is -- isn't someone who has ever sued anyone.
22 That's -- that's just not Tim.
23 Q Okay. If I can, I would like to
24 turn your attention to Peter. Your report with
25 regard to Peter is P-106. Can you please start
209
1 with any significant medical or psychiatric
2 history with regard to Peter.
3 A Medically Peter's history is significant
4 for having had an aortic valve replacement,
5 which is a -- aortic valve is a valve in the
6 heart -- in the year 2000 and subsequently
7 needing to have some additional heart surgery in
8 2003.
9 He did have at one point a drinking
10 problem, but he has not had a drinking problem
11 for over 20 years. He has been sober for over
12 20 years.
13 He has at times had a smoking problem,
14 but prior to the incident in April of 2004 he
15 had not been smoking for a good amount of time.
16 Peter is also someone who is vulnerable to
17 becoming depressed and has had a history of
18 being occasionally depressed.
19 Q Did -- are you aware of
20 Mr. deVries resuming smoking after the attack in
21 April of 2004?
22 A After the attack of April 2004, as he was
23 feeling scared and helpless, he started to smoke
24 to calm himself down, which people use in states
25 when they have been traumatized, especially if
210
1 they have used smoking before, as a way of being
2 able to relax.
3 Q With regard to the procedure Peter
4 had in 2003 -- 2002 and then another --
5 A Yeah.
6 Q -- heart procedure in 2003, did
7 that have any effect on his mental health, in
8 your opinion, having reviewed both the medical
9 and the Dr. Almeleh's records?
10 A It contributed to his being vulnerable to
11 becoming depressed.
12 Q Okay. And why is that?
13 A I have just actually a patient who a
14 year-and-a-half ago had an aortic valve
15 replacement, and she is now suffering from
16 depression in the context of some overall
17 stresses. But it's not unusual -- the heart is
18 such a vital organ and it's such a major
19 operation that after having had such major
20 surgery, which reminds us that we are all -- we
21 are all human beings, we are all fragile, no one
22 is here forever. Although I'm sure sitting in
23 these seats you feel like you are here forever,
24 no one is here forever. You know, that's
25 something that's difficult to keep in mind. And
211
1 people do become depressed after major surgery,
2 especially after major heart surgery. It's an
3 observable phenomena.
4 Q Did you learn anything or observe
5 anything from all the testing you did and all
6 the records and documents that you reviewed and
7 your two days spending time with Peter, did you
8 learn anything about his level of functioning
9 prior to April 2004?
10 A Prior to April of 2004 Peter had a job
11 that he loved, that he generally loved being a
12 medical editor. This man loves to write. He
13 loves to translate. He loves to communicate.
14 And he had a home that he loved. I
15 mean, he takes pride in his books and his home.
16 Those are his -- he doesn't have children; but
17 if there can be such a thing as children, it
18 would be the people that he worked with and the
19 books that he had at home and his home in
20 itself. So these -- these are what -- these are
21 the items that he loved, in addition to loving
22 Tim.
23 He is a very quiet man, relatively shy,
24 pretty much the opposite of Tim in some ways.
25 With Tim it's, "Hi, how are you doing?" Peter
212
1 tends to be more reserved; he tends to be
2 quieter.
3 Peter's history is marked by the fact
4 that he had a younger sibling who drowned. And
5 again, I think that may be a reflection of
6 the -- you know, learning how to be quiet,
7 whereas, Tim learned how to be -- how to be a
8 good boy by denying symptoms. Peter learned to
9 be quiet, so his depressed parents wouldn't have
10 to worry about him as they were in the middle of
11 grieving for his drowned -- drowned sibling. So
12 he has always been a shy person, basically. I
13 think he was shy even before then; but he had a
14 life, he had a job that he loved and he had a
15 home that he loved.
16 Q Now, can you describe for the
17 jury, please, the interviews that you conducted
18 with Peter during the two days that they visited
19 you in your office in Cambridge?
20 A Yes. If I may refer to my report?
21 Q Yes. That's P-106.
22 A Yes. And I'll go to page 16 in that
23 report regarding my examination observations.
24 Q Yes, thank you.
25 A Again, I'm going to say something which
213
1 may be embarrassing to Peter; but I think I do
2 need to say it to be objective. Peter was so
3 frightened by the exam, in preparation for
4 remembering what had happened, that he literally
5 peed in his pants. He wet his pants, which is,
6 again, very unusual. This is a man who is very
7 clean, very fastidious. So he -- he had
8 difficulty reading, difficulty concentrating.
9 He -- while he was able to talk
10 relatively freely about his job, what he loved
11 about it, how he loved to -- how he had -- what
12 he was working on and how he was able to talk
13 freely about how, generally speaking, he would
14 just let things slide off his back, when it
15 came -- and he has even talked relatively freely
16 about the heart surgery that he experienced,
17 which, itself, can be a scary thing. You know,
18 it's major heart surgery. He was able to talk
19 about that.
20 He talked about his problems with
21 alcohol and why he had been sober for 20 years
22 and why he just doesn't drink anymore. He was
23 able to talk about periods of time that he was
24 depressed.
25 What he had a tremendous amount of
214
1 difficulty talking about was the incident, the
2 assault on April 24th, 25th of 2004 and, again,
3 what happened afterwards, how worried he was,
4 how worried he was about Tim being hurt, how
5 worried he was about their dogs being hurt.
6 These people also loved -- they loved
7 their dogs. Again, these are their children,
8 the children they never had; but they treat
9 these pets with respect and affection.
10 So how worried he was about that,
11 how -- while he was talking about hearing people
12 shout, "Homo, homo, we will kill you fucking
13 faggots and your fucking dogs" and when
14 Mr. Carter took the dogs in and how the two men
15 felt when they stayed in the house, how
16 terrified he felt and as describing this, he
17 began to sweat. His face became tense. His
18 pupils became dilated. He was literally feeling
19 hyper-aroused and frightened.
20 This continued and escalated when we
21 began to talk about what this meant to them,
22 that the men who attacked them weren't a bunch
23 of hooligans, weren't a bunch of juvenile
24 delinquents, they were Secaucus Fire fighters,
25 like doctors he works with, he admires. These
215
1 are people in authority. These are people who
2 represent safety. You don't expect a
3 firefighter to attack your home. You expect a
4 firefighter to protect your home. Those were
5 his expectations. That was his upbringing,
6 basically. That's what he expected. And that's
7 what was lost. Lost not -- not on that night
8 but as time went on, as time went on and there
9 was no meaningful response as far as
10 transferring the alleged ringleaders, as far as
11 disciplining the alleged ringleaders.
12 He talked about how at times he has the
13 intrusive thought, They want to kill you. They
14 want to kill you. It's hard to concentrate on
15 writing a medical article when you think they
16 want to kill you, they want to kill you. I
17 mean, it's impossible, basically. And sure
18 enough, it's impossible.
19 His -- he began to show more and more
20 how demoralized he was, the more he talked about
21 how Tim tried and tried and tried to get someone
22 to move the firefighters, to make sure that
23 there would be no repeat of this incident in the
24 weeks and months that followed and how there
25 wasn't. After -- so that's part of the
216
1 examination per se.
2 Q Thank you. Did you also
3 administer tests to Mr. deVries?
4 A I administered the same tests to Peter as
5 I did to Tim.
6 Q Okay. Can you please describe for
7 us the results of those tests in -- in any way
8 that's significant in doing your evaluation? I
9 believe they start on page 11.
10 A Yes, thank you. So going to page 11, I'm
11 just going to touch on the highlights here. The
12 tests are consistent with Mr. deVries
13 minimizing, rather than malingering or
14 exaggerating his symptoms. He also minimizes
15 his symptoms.
16 The MMPI was consistent with his being
17 on disability. It showed a very low level of
18 efficiency when he functions. So for a man who
19 prided himself on being efficient, which you
20 need to be as a medical editor with deadlines
21 and -- you know, I don't know if any of you have
22 ever been an editor; but those deadlines are
23 just murder, basically, so you need to be
24 efficient when you're facing them. He became
25 extraordinarily inefficient because he was
217
1 having these intrusive thoughts, They want to
2 kill you, they want to kill you.
3 The psychological testing, the MMPI,
4 also showed that he reported a large number of
5 unusual symptoms. Now, those can be common at
6 times in people who want to exaggerate; but
7 they're also very common in patients who have
8 had like major heart surgery, major other kinds
9 of traumatic events. And although his problems
10 to some extent, his vulnerabilities were chronic
11 and long-standing, what -- what the PAI showed
12 is that his responses were inconsistent with
13 faking, malingering or exaggeration.
14 Moving on to page 14 of the PAI was
15 most consistent with a deep demoralization
16 caused by those events, especially by the
17 Secaucus City Government's and Fire Department's
18 ongoing failure to do anything to help, to do
19 anything to transfer --
20 MR. BEVERE: Judge, sidebar.
21 (Whereupon, the following sidebar
22 discussion is held.)
23 JUDGE CURRAN: Mr. Bevere.
24 MR. BEVERE: Same problem as
25 before, Judge. He is making it sound like he is
218
1 saying -- sounds like -- you have transcript in
2 front of you; but sounds like he is saying there
3 was a failure of the Township to respond, as
4 opposed to limiting it to his perceptions of
5 that it was clearly stated.
6 MS. SMITH: Well --
7 MR. PARIS: We would like a
8 curative instruction, please.
9 MS. SMITH: I think it's
10 undisputed in the record that the Fire
11 Department didn't close the Fire Department,
12 discipline the firefighters.
13 JUDGE CURRAN: No, no, no, no.
14 What the case is about. With all due respect,
15 that's what the case is about --
16 MS. SMITH: Okay.
17 JUDGE CURRAN: -- the allegations
18 are.
19 MS. SMITH: Do you want me confirm
20 again that you are describing Mr. deVries'
21 perceptions?
22 JUDGE CURRAN: Well, Mr. Paris has
23 asked for a curative instruction. What are you
24 asking for, Mr. Paris?
25 MR. PARIS: Asking the jury be
219
1 instructed this witness is not here to give
2 opinions with regard to the response of the Town
3 to any of these events and that -- that he is
4 not here to opine -- he is merely here to opine
5 the effect of the events on Mr. Carter and
6 Mr. deVries.
7 MS. SMITH: I can't hear him.
8 MR. PARIS: But he is not here to
9 give opinions about the adequacy or inadequacy
10 of response.
11 MS. SMITH: I don't think we need
12 a curative in the contention of he was
13 describing his perception. And again, I can
14 confirm talking about Mr. deVries' perceptions
15 of how the Town responded to what happened.
16 MR. PARIS: This is about --
17 JUDGE CURRAN: I think that was
18 sufficient the first time. There has been a
19 request for a curative. I will give a short
20 curative, then we'll go on.
21 MR. BEVERE: Thank you, Judge.
22 (Whereupon, sidebar discussion is
23 concluded.)
24 JUDGE CURRAN: Ladies and
25 Gentlemen, I just want to clarify something.
220
1 This witness is not here to comment on the
2 adequacy or inadequacy of any of the Police or
3 Fire Department or officials or lack thereof.
4 This witness is here commenting on his
5 evaluation opinions in regard to Mr. Carter and
6 Mr. deVries.
7 I would just ask you, Doctor, if
8 you'd be kind enough to make sure when you are
9 reciting what are the impressions or ideas or
10 concerns that were expressed to you, if -- by
11 either one or both of these individuals, if you
12 would just be kind enough to make that clear for
13 us. Thank you.
14 Miss Smith.
15 BY MS. SMITH:
16 Q I think you were in the PAI
17 report, Doctor. Have you concluded the
18 significant findings of the PAI?
19 A Well, on page one I also quote from the
20 PAI. So this is a -- this is the psychological
21 test report, and this is the impression.
22 Peter's responses suggest an acknowledgment of
23 important problems and the perception of a need
24 for help in dealing with these problems. So,
25 again, it sees him as someone who is desperately
221
1 looking for help, someone who wants help.
2 He reports a positive attitude towards
3 the possibility of personal change, the value of
4 therapy and the importance of personal
5 responsibility, which is exactly the opposite of
6 someone who's fake, exaggerate or malinger or
7 make a mountain out of a molehill. That is on
8 the PAI. That's not my interpretation. That's
9 a interpretation that's blind. It doesn't know
10 who Peter is. It doesn't know who's retained me
11 as far as examining people.
12 Q Did you give him any examination
13 regarding the dissociative experience scale?
14 A I did. And again, if I may --
15 Q I think it's page 14, Doctor.
16 A Thank you. Under dissociative experience
17 scale Peter, even more than Tim, would tend to
18 circle zero, as if he wasn't disassociating,
19 even though you could see him disassociating.
20 So again, he was, again and again, minimalizing
21 the extent of his suffering.
22 Q How about the Neurobehavioral
23 Functioning Inventory and the NFI family forms;
24 was -- did you learn anything that was
25 significant to your evaluation on those two
222
1 items?
2 A Yes, again, with Peter, he was very
3 precise and, if anything, minimalizing in what
4 symptoms he was reporting. Those tended to do
5 with concentration. I could observe him having
6 more difficulty with planning and sequencing and
7 problem solving, which are all related to
8 concentration, being able to plan ahead, being
9 able to multitask. He was clearly having
10 difficulty with that, and yet he would tend to
11 minimize that. So his self-reports were less
12 than either what was evidenced by my observation
13 or by psychological testing as far as the extent
14 of his suffering.
15 Q How about the personal history
16 checklist; did you learn anything significant on
17 Peter's personal history checklist?
18 A Peter was very free and open in
19 acknowledging that he has had emotional problems
20 for, you know -- and he has had periods where he
21 has had depression.
22 There was a time more than 20 years ago
23 that he did have -- suffer from alcoholism. He
24 wasn't defensive about it in any way.
25 But these are exactly the kinds of
223
1 problems which made him especially vulnerable to
2 losing his home and feeling helpless in the
3 process of losing his home.
4 Q Now, you mentioned earlier that at
5 the time you saw Peter he was already on
6 disability?
7 A Yes.
8 Q So he had stopped working?
9 A Yes, he had given up what he loved the
10 most, which is his work. I mean, this is
11 someone who, if someone can be said to love
12 their job, Peter deVries could be said to have
13 loved the job of being a medical editor and that
14 communication specialist. Gave him the
15 opportunity to talk with writers, to talk with
16 doctors, to talk with patients. It was -- it
17 was the job of his dreams, basically, that he --
18 he has held for many, many years. That's --
19 that's his life in many ways.
20 Q During some periods of depression
21 did Peter, in fact, talk to Dr. Almeleh about
22 wanting to retire in some frustrations with
23 regard to his job?
24 A Yes, he would voice those frustrations;
25 but he would be getting help with those
224
1 frustrations because he wanted to continue his
2 job, not because he was planning to give up his
3 job. So his previous treatment allowed him,
4 even when he was depressed, to maintain his job,
5 which is -- and even after heart surgery to
6 maintain his job, which is no small
7 accomplishment. I mean, I don't know of many
8 people who would be willing to go to -- go back
9 to 50, 60 hours a week after heart surgery,
10 unless they loved the job.
11 Q Now, do you know, did Peter relate
12 to you whether or not he qualified for long-term
13 disability?
14 A Yes.
15 Q Did you come to learn whether he
16 qualified for Social Security Disability?
17 A Yes. And he qualified for each, each of
18 which is extraordinarily difficult to qualify
19 for. You have to be severely impaired.
20 Q And are those findings consistent
21 with your findings, Doctor?
22 A Those findings are consistent with my
23 findings. Those findings are consistent with
24 the psychological testing. Those findings are
25 consistent with the reports of his friends who
225
1 know him. Those findings are consistent with
2 Dr. Almeleh's letter, which summarizes that
3 major deterioration which occurred. As --
4 after -- as weeks turned to months and months
5 turned to years.
6 Q That's P-30, Doctor. Can we
7 discuss for a moment what -- what you learned
8 from Dr. Almeleh with regard to Mr. deVries?
9 A Yes. Again, this is his treating
10 physician's experience; and this is his treating
11 physician's analysis, which I did rely upon.
12 Dr. Almeleh says, "Mr. deVries" -- "I
13 have treated Mr. deVries off and on since 1988."
14 And that's important because, you know, for
15 someone to be able to form a relationship with
16 someone -- patients that you form a relationship
17 with are people who are genuine. They are not
18 people who fake. They are not people who
19 exaggerate. They are not people who are
20 phonies. So Dr. Almeleh and Peter were able to
21 form this relationship. And that's been true
22 since 1988 on and off.
23 "And he most recently he re-entered
24 treatment in November 7th, 2003. Mr. deVries
25 had been treated by me in the past for episodes
226
1 of biologically based depression," a major
2 depression, "which responded each time
3 successfully to antidepressant medication."
4 Prior to the firehouse events of the
5 spring of 2004 Mr. deVries, Peter, was doing
6 well. And he was actually taken off his
7 antidepressant medication by his doctor, which
8 says to me that his depression was in remission
9 at that point, if he was taken off -- if Dr.
10 Almeleh felt safe enough to take him off his
11 antidepressant medication.
12 "Since the firehouse events of the
13 spring 2004 there has been a dramatic
14 deterioration in Mr. deVries' functioning. He
15 has disturbed sleep with recurrent nightmares.
16 He has become hyper-vigilant and diffusely
17 anxious. And his concentration has
18 deteriorated. Mr. deVries used to be an avid
19 reader" -- which he tells you about his book
20 collection, you hear about it, it's quite a book
21 collection -- "but he is no longer engaged in
22 leisure reading."
23 "Mr. deVries works as an editor, where
24 concentration is crucial and his work
25 performance has suffered. This is
227
1 particularly" -- "particularly troubling, since
2 Mr. deVries has always been and continues to
3 be the primary breadwinner in this household."
4 "Since the firehouse events of the
5 spring of 2004 Mr. deVries has lost 40 pounds."
6 That's, you know, tremendous amount for a man of
7 his stature to lose. This is January of 2005.
8 "Since the firehouse events of the
9 spring of 2004 I have had to reinstitute
10 antidepressant medication and I have had to
11 prescribe sleep medication and tranquilizing
12 medication. In all the many years I have
13 treated Mr. deVries, which is on and off since
14 1988" -- so it's, you know, 17, 18 years in
15 2005 -- "I have never had to use this
16 tranquilizing medication and sleep medication as
17 treatment."
18 Mr. deVries' diagnosis, according to
19 Dr. Almeleh, is posttraumatic stress disorder,
20 309.81, and major depression. And the number he
21 gives for that is 296.3. These are just codes
22 that are used. So Dr. Almeleh sees him as
23 suffering from symptoms from posttraumatic
24 stress disorder and from a recurrent major
25 depression.
228
1 Q Doctor, as a result of all the
2 records that you reviewed, the documents, the
3 medical records, the testing, the forms that you
4 had submitted, after you met with Peter with
5 your two days of meeting with him and all that
6 information, did you form a diagnosis with
7 regard to Peter deVries?
8 A Yes.
9 Q Could you please tell the jury
10 what that diagnosis is?
11 A If I may refer to my report.
12 Q Yes.
13 A I am going to focus on the summary.
14 Mr. deVries has both experienced symptoms in the
15 complex posttraumatic spectrum of disorders. He
16 has experienced a recurrence of major
17 depression. And at this point prognostically,
18 if I may --
19 Q Does that mean looking forward?
20 A Looking forward. Looking forward, again,
21 what he -- the best that he has to hope for --
22 and again, I say this with some reservation --
23 is to continue to be the loving, kind man that
24 he is in his relationship with Peter. But he --
25 with -- with Tim, excuse me. But he is not
229
1 likely to regain enough function to be able to
2 again work as a medical editor. He can be
3 loving. He can be kind. But he can't
4 concentrate enough. He can't focus enough. He
5 can't multitask enough. He is too traumatized
6 to be able to resume the job that he loves and
7 which was such a source of empowerment and
8 self-esteem for him.
9 Q Can you tell us, when you say,
10 "posttraumatic stress disorder spectrum," what
11 are you talking about?
12 A We are talking about someone who has
13 experienced horror and especially helplessness,
14 whose home has been threatened, who lost his
15 home, whose physical integrity has been
16 threatened, who now has a difficult time
17 concentrating, who now has a difficult time
18 focusing, who constantly has intrusive thoughts
19 about being afraid of being killed, who spaces
20 out when he needs to focus, who has not only
21 becomes impaired as far as his ability to
22 function at work but who has become chronically
23 demoralized, which complicates his treatment for
24 depression, as well.
25 Q Within a reasonable degree of
230
1 medical certainty do you have an opinion about
2 what caused Peter deVries to have what we call
3 "PTSD" beyond the posttraumatic stress disorder
4 spectrum and to suffer from major depression?
5 A Yes.
6 Q What caused it, Doctor?
7 A Although he -- the major depression has a
8 basis in a biologic vulnerability, it's lack of
9 response to treatment and the posttraumatic
10 stress disorder spectrum symptoms that he
11 suffers of hyper-arousal, hyper-vigilance,
12 avoidance, lack of concentration are caused by
13 the horror and the helplessness that he
14 experienced both on April 24th, 25th, 2004 and
15 the weeks and the months and the years that have
16 followed as he has continued to feel absolutely
17 helpless and has continued to experience a sense
18 of absolute disillusionment that anyone is there
19 to listen to him.
20 Q Doctor, in your opinion -- and
21 you've certainly, I think, even written about
22 this -- is litigation stressful?
23 A Litigation, itself, can be stressful, as
24 those of you who have been sitting here through
25 this trial can imagine. But it's something
231
1 which can also potentially be empowering for
2 people who don't have -- who feel helpless and
3 for people who don't have any other hope, for
4 people who otherwise would not feel listened to,
5 for people who -- who see this as their last --
6 as their last hope.
7 MR. BEVERE: Judge, can we come up
8 to sidebar?
9 (Whereupon, the following sidebar
10 discussion is held.)
11 MR. BEVERE: Judge, this is far
12 beyond the scope of his report.
13 MR. PARIS: Your Honor, I think
14 it's also highly improper. He -- he is telling
15 the jurors that what the Town didn't do they
16 should be doing. I think if we look at his
17 comments about the litigation providing them
18 with the relief that they need, I think this is
19 extremely improper for him to be telling the
20 jury this.
21 MS. SMITH: Can I deal with one of
22 them at a time? In his deposition you asked him
23 about litigation stress.
24 MR. BEVERE: I don't have any
25 objection to them saying litigation is
232
1 stressful. But for him to then come out and say
2 it's empowering and you have the ability to do
3 the right thing to help these guys out, that's
4 improper. No question -- if the litigation is
5 stressful, I have no problem with him opining
6 that this litigation may have caused him stress.
7 JUDGE CURRAN: Did he go into
8 these issues in the answers at deposition?
9 MR. BEVERE: He never talked about
10 litigation being empowering. What he said is
11 litigation could be stressful.
12 JUDGE CURRAN: Right, but there is
13 the other side --
14 MS. SMITH: Yeah.
15 JUDGE CURRAN: -- initial side of
16 the coin.
17 MR. BEVERE: Yeah.
18 JUDGE CURRAN: But he didn't talk
19 about now they were empowered?
20 MR. BEVERE: No.
21 MS. SMITH: Well, I'm answering --
22 I don't have to cross him in a dep. But the
23 issue was brought up by defendants in the dep.
24 So I understand the rule is that his report is
25 amended with what he says in the dep. So I am
233
1 answering now what they're going to.
2 JUDGE CURRAN: They're not
3 objecting --
4 MR. BEVERE: I am not saying that.
5 JUDGE CURRAN: They're not
6 objecting to a discussion of or questioning on
7 litigation stress. They're talking -- I
8 believe, if I understand their argument, they're
9 indicating that at deposition even and certainly
10 not in his report he didn't mention coming
11 forward with this litigation now being
12 empowering to them now and that kind of thing.
13 Is that fair to say?
14 MS. SMITH: Because they didn't
15 ask it. They asked him in his deposition about
16 litigation stress.
17 JUDGE CURRAN: No, same question.
18 MS. SMITH: I'm sorry.
19 MR. PARIS: Frankly, Judge -- can
20 I just say something? I don't think it matters.
21 I would like to see his words again in front of
22 me, but it sounded to me that what he was
23 essentially telling the jury is that you have a
24 way to do what Secaucus didn't do and you can
25 empower these two gentlemen and give them the
234
1 relief that they seek through this litigation.
2 JUDGE CURRAN: Why don't we do
3 this. I think it really is silly to do this at
4 sidebar. Why don't we send the jury inside,
5 then we will ask Tracey to do a read back, if
6 you don't mind. Thank you.
7 (Whereupon, sidebar discussion is
8 concluded.)
9 JUDGE CURRAN: Ladies and
10 Gentlemen, I am going to ask you to step into
11 the jury room for a moment because we need to
12 have some issues on the record. Thank you.
13 (Whereupon, the jury is excused.)
14 COURT CLERK: Off the record.
15 JUDGE CURRAN: Thank you.
16 (Whereupon, a discussion is held
17 off the record.)
18 MR. PARIS: Your Honor, while we
19 have this argument, I don't know if you already
20 did, but can we ask the witness to step outside?
21 JUDGE CURRAN: That's what I just
22 did.
23 MR. PARIS: Okay. I'm sorry.
24 Thank you.
25 (Whereupon, the witness is
235
1 excused.)
2 JUDGE CURRAN: We can go off the
3 record, please -- I'm sorry, go back on the
4 record.
5 Just so that it's on our record
6 too, would you read back the last question and
7 answer, please?
8 MR. PARIS: Who have you asked to
9 do that?
10 JUDGE CURRAN: Tracey.
11 MR. PARIS: Wanted to make sure
12 you didn't ask me and I'm sitting here.
13 JUDGE CURRAN: No, no.
14 COURT CLERK: On the record.
15 JUDGE CURRAN: Thank you.
16 (Whereupon, the requested portion
17 is read back by the reporter as follows:
18 "QUESTION: Doctor, in your
19 opinion -- and you've certainly, I think,
20 even written about this -- is litigation
21 stressful?
22 ANSWER: Litigation, itself, can
23 be stressful, as those of you who have
24 been sitting here through this trial can
25 imagine. But it's something which can
236
1 also potentially be empowering for people
2 who don't have -- who feel helpless and
3 for people who don't have any other hope,
4 for people who otherwise would not feel
5 listened to, for people who -- who see
6 this as their last -- as their last
7 hope.")
8 MR. PARIS: Your Honor, I think
9 that is absolutely improper. We are sitting
10 here. Counsel asks the question, "Is litigation
11 stressful?"
12 Instead of saying, "Yes,
13 litigation is stressful," he goes through this
14 soliloquy, saying, as all of you sitting here
15 know, it's stressful, which I think is improper
16 in and of itself. But then he goes on and he
17 says, "but it's something wishing also
18 potentially be empowering for people who don't
19 have -- for people who feel hopeless, for people
20 who don't have any other hope, for people who
21 otherwise would not feel listened to, for people
22 who see this as their last hope."
23 This is exactly -- to me, this is
24 absolutely improper. Absolutely improper. In
25 fact -- well, you know what, I'm not going to
237
1 say it. It's absolutely improper to tell this
2 jury that this is the last hope for these
3 gentlemen from a psychiatrist implying to them
4 that somehow, if you do the right thing, these
5 men are going to feel better, they're going to
6 be cured. I mean, that's the implication here.
7 And you know what, if that was
8 the question, we would have been able to object.
9 But instead, the question is, "Is litigation
10 stressful?" And he goes into this speech. I
11 mean, it's incredible.
12 JUDGE CURRAN: Well, I don't think
13 there is any indication that you're indicating
14 that the question was posed that way so that
15 he --
16 MR. PARIS: No, no.
17 JUDGE CURRAN: Thank you. I
18 understand.
19 MR. PARIS: I am saying if a
20 question was posed that way, we would have the
21 opportunity to object. But he is going through
22 this speech about the empowerment of litigation,
23 giving these gentlemen hope, where they have no
24 other hope. I mean, it's -- I think it's
25 totally improper. I think it's absolutely
238
1 prejudicial.
2 MS. SMITH: Well --
3 JUDGE CURRAN: Miss Smith.
4 MS. SMITH: -- despite all the
5 emotion from Mr. Paris, it's really not that big
6 a deal. Litigation -- I asked him about
7 litigation stress because it's injected into the
8 case by defendants in the deposition. And in
9 this doctor's opinion, who's written extensively
10 about law and litigation, for some people, is
11 what he said, it can be empowering to stand up
12 for themselves, especially people who experience
13 help -- feelings of helplessness. It actually
14 helps them.
15 He is actually saying that this
16 has been a good process for them, you know. And
17 he is not saying anything about -- he is even
18 talking in general, if you look at what his
19 answer -- he is speaking in general, that for
20 some people litigation can be empowering, as a
21 good antidote to feeling some helplessness.
22 It's really not such a big deal, and I am happy
23 to move on.
24 JUDGE CURRAN: Okay. This is what
25 I'm going to rule. Frankly, Mr. Paris, not
239
1 that -- I would not make my decision based on a
2 personal opinion. However, I also see this as
3 could be helpful by way of theoretically
4 mitigating some potential or alleged damages;
5 but that's not the issue.
6 What I'm going to do is I'm going
7 to strike the last part of his statement with a
8 comment to the jury and to the doctor that these
9 questions are -- the question asked specifically
10 was in regard to litigation being stressful for
11 these two plaintiffs. The other comments were
12 general. No general comment should be given.
13 I'm not going to in any way
14 indicate that the doctor did anything improper.
15 But I'd appreciate it if he would just, you
16 know, make any answers that he give specific to
17 these two plaintiffs; and then you can ask him
18 whatever your next specific question is.
19 There was another issue.
20 MR. PARIS: That was the only
21 other -- that was the only issue I see.
22 MS. SMITH: Okay.
23 MR. PARIS: That's it.
24 JUDGE CURRAN: Same way? Is that
25 okay?
240
1 MS. SMITH: So I will instruct him
2 that privately too, Your Honor --
3 JUDGE CURRAN: Thank you.
4 MS. SMITH: -- to make sure that
5 we don't --
6 (Whereupon, a brief recess is
7 taken.)
8 JUDGE CURRAN: Ready to go?
9 MR. MULLIN: Yes.
10 JUDGE CURRAN: We'll bring out the
11 jury, please.
12 MS. HAWKS: Jurors are
13 approaching.
14 JUDGE CURRAN: Thank you.
15 MS. HAWKS: You're welcome.
16 (Whereupon, the jury is brought
17 into the courtroom.)
18 JUDGE CURRAN: Thank you. I'll
19 note that the jury is back in the jury box.
20 Ladies and Gentlemen, I'm going
21 to strike the portion of the last answer where
22 the doctor commented on sometimes litigation can
23 be empowering to people.
24 As a general rule, the questions
25 are to be limited and the answers are to
241
1 be limited to the specifics in regard to
2 individuals involved in this case, not general
3 specifics. So it's not that the doctor did
4 anything improper or that anyone did, but I just
5 want to make that clear.
6 So again, I am going to strike
7 that portion of the last response.
8 Miss Smith.
9 MS. SMITH: Thank you, Your Honor.
10 BY MS. SMITH:
11 Q Dr. Bursztajn, with regard to
12 Mr. deVries and Mr. Carter, has litigation, this
13 case been stressful?
14 A Yes, it's been stressful for both Peter
15 and Tim to be asked to remember and to be asked
16 and therefore to some extent to even further
17 relive some very frightening events where they
18 felt helpless. However, for both Peter and Tim
19 it has also been empowering.
20 JUDGE CURRAN: Well, no, no, no,
21 no. That was not her question at this point.
22 Her question was just --
23 THE WITNESS: Okay.
24 JUDGE CURRAN: Thank you.
25 BY MS. SMITH:
242
1 Q Doctor, do you think that
2 litigation stress has caused the major
3 depression and the posttraumatic stress?
4 A No. If anything, the fact that they
5 don't feel helpless anymore has been helpful.
6 Q Doctor, were these two fragile
7 people that were attacked on April 24th, 2004?
8 A Yes.
9 MS. SMITH: No further questions,
10 Your Honor, thank you.
11 JUDGE CURRAN: Thank you. Can I
12 see counsel at sidebar? Unless you want to
13 begin. That was my question. Do you want to
14 begin now?
15 MR. BEVERE: Judge, yeah --
16 JUDGE CURRAN: Thank you.
17 MR. BEVERE: Yeah, Judge, I don't
18 see why I can't begin now.
19 JUDGE CURRAN: Ladies and
20 Gentlemen, just so you understand, sometimes
21 attorneys need to take a break between direct
22 and cross. Sometimes they want to --
23 MR. BEVERE: I guess I should
24 clarify what time we're breaking for the day.
25 JUDGE CURRAN: That's something we
243
1 will have to work out.
2 MR. BEVERE: Why don't we talk,
3 then, at sidebar.
4 JUDGE CURRAN: Thank you.
5 (Whereupon, a discussion is held
6 off the record.)
7 (Whereupon, the following sidebar
8 discussion is held.)
9 JUDGE CURRAN: It's up to you all.
10 MS. SMITH: Well, Judge, I had
11 spent a lot of money to bring this man down from
12 Boston. We should go as far as we're going to
13 go. And I'm going to say if we break at 4:30
14 and they have 15 minutes left, I don't think
15 that's appropriate.
16 JUDGE CURRAN: I don't either.
17 And I doubt that either --
18 MR. BEVERE: Oh, Judge, no. I
19 want to make sure we're going to go until 4:30.
20 And if we need some extra time we will --
21 MR. PARIS: I guess the only
22 question that I have, whether the jurors can
23 stay late. That's the only question because --
24 MS. SMITH: Well, let's go.
25 JUDGE CURRAN: We haven't had any
244
1 complaints so far.
2 MR. PARIS: Excuse me?
3 JUDGE CURRAN: We haven't had any
4 complaints so far. Certainly, they are told
5 they have to stay until 4:30 pretty much. Judge
6 Gallipoli does like us to let them go at 4,
7 mainly so the lawyers can get back to their
8 offices.
9 MR. BEVERE: Judge, if 4:30 comes
10 and I'm 15, 20 minutes, you can tell them sit
11 tight?
12 JUDGE CURRAN: I'm sorry?
13 MR. BEVERE: If 4:30 comes and I
14 still got some time left, I don't want to be the
15 bad guy.
16 JUDGE CURRAN: Just give me a
17 hint.
18 MR. BEVERE: Yeah.
19 JUDGE CURRAN: Right.
20 (Whereupon, sidebar discussion is
21 concluded.)
22 JUDGE CURRAN: Ladies and
23 Gentlemen, just so that I don't make anybody
24 nervous with my 8:00 comment, we try just to
25 lighten the mood. Now, I think some of you are
245
1 laughing enough that you understood that. Our
2 normal procedure is that we will go until about
3 4:30. Sometimes to finish a witness we will go
4 a little bit later than that. But that's the
5 usual parameters. If anything changes, I will
6 let you know. Okay. Thank you.
7 Mr. Bevere.
8 MR. BEVERE: Thank you, Judge.
9 CROSS EXAMINATION BY MR. BEVERE:
10 Q Dr. Bursztajn, you were neither
11 Mr. deVries' nor Mr. Carter's treating
12 physician, correct?
13 A Yes.
14 Q You were an examining physician,
15 correct?
16 A Yes.
17 Q You were a forensic examiner?
18 A Yes.
19 Q You were retained by the attorneys
20 for Mr. deVries and Mr. Carter to examine them,
21 review documentation and to render an opinion in
22 this case, correct?
23 A Yes.
24 Q Now, Doctor, it is true -- or at
25 least it was true as of last April, when you
246
1 were deposed, that approximately 70 percent of
2 your income comes from providing services as a
3 forensic examiner, correct?
4 A Yes.
5 Q And it would also be true that the
6 majority or the bulk of the times that you are
7 retained or hired to provide forensic examining
8 services, you do that at the request of
9 attorneys, correct?
10 A Yes.
11 Q Doctor, you advertise in legal
12 publications for your services, correct?
13 A Yes.
14 Q And you advertise on the internet,
15 correct?
16 A Yes.
17 Q Doctor, you also opined on a wide
18 variety of psychiatric conditions and disorders,
19 correct?
20 A Yes.
21 Q In other words, you don't
22 specialize in depression or posttraumatic stress
23 disorder? You will opine on any psychiatric
24 condition in the broad spectrum or range of
25 psychiatric disorders, correct?
247
1 A Yes.
2 Q Now, Doctor -- and you have
3 actually rendered opinions as a forensic
4 examiner in many different types of cases,
5 correct?
6 A Yes.
7 Q I believe you told us about
8 harassment and discrimination cases; but you
9 have also given opinions in family law cases,
10 correct?
11 A Yeah, I have been court qualified.
12 Q And in criminal cases, correct?
13 A Yes, in criminal court, as well.
14 Q And even, well, types of cases
15 beyond that, correct? You don't limit your
16 forensic examining service to certain types of
17 cases either?
18 A Correct.
19 Q Okay. Now, Doctor, you have
20 actually published articles on how to be an
21 expert witness, correct?
22 A On how to be objective as an expert
23 witness, correct.
24 Q And in fact, you are considered an
25 expert on being an expert, correct?
248
1 A Yes, on how to be able to perform your
2 job with a degree of integrity in a conflictual
3 situation.
4 Q Well, in other words, you teach
5 experts how to be experts?
6 A Other physicians, both in the medical
7 school and nationally, who have been court
8 qualified as experts will turn to me in terms of
9 how do you communicate your opinion, how do you
10 formulate your opinion, what do the standards of
11 reliability for your opinion, how do you tell
12 attorneys, "I can't help you"?
13 Q But my point, Doctor, is that you
14 teach other expert witnesses how to be expert
15 witnesses?
16 A Yes.
17 Q Now, Doctor, it is true that in
18 this case you rendered certain opinions,
19 correct?
20 A Yes.
21 Q All right. And in those -- in
22 rendering your opinions you assumed certain
23 facts to be true, correct?
24 A I assumed as little as possible to
25 be true, basically, because often there are
249
1 different versions. I was focusing on
2 experience in -- in -- fundamentally, so I
3 wasn't making an assumption as to factual
4 issues --
5 Q Dr. --
6 MR. BEVERE: Judge, I'm sorry, I
7 am going to stand over here. Having trouble
8 hearing.
9 A No, it's actually my accent.
10 JUDGE CURRAN: No.
11 Q There is actually an air
12 conditioner preventing me from hearing. There
13 is actually an air conditioner preventing me
14 from hearing.
15 A If my voice drops, which it does in the
16 afternoon because I'm tired, ask me; and I will
17 speak up.
18 JUDGE CURRAN: You do have water?
19 THE WITNESS: But I'm trying to
20 avoid any of those breaks for the jury.
21 BY MR. BEVERE:
22 Q All right. Doctor, my question to
23 you is -- and I probably didn't hear the
24 answer -- when you rendered your opinion in this
25 case, you assumed certain facts were true,
250
1 correct?
2 A Very few because I -- my usual assumption
3 is that facts are in dispute. I mean, whenever
4 I -- because I'm not asked to render an opinion
5 as to facts; I'm asked to render an opinion as
6 to a condition. So I generally assume facts to
7 be in dispute. That's my fundamental
8 assumption.
9 Q So when you rendered your opinion
10 in this case, you didn't -- you didn't assume
11 that certain facts were true in rendering that
12 opinion?
13 A I don't believe so. But please, you
14 know, tell me which facts; and I can tell you
15 whether I assumed them or not.
16 Q I just wanted to know if you
17 assumed facts to be true.
18 A Generally speaking, no.
19 Q Now, Doctor, prior to writing your
20 report in this case, you did not review the
21 transcripts of the depositions of Mr. deVries or
22 Mr. Carter, correct?
23 A Correct.
24 Q My understanding is you received
25 them at some point subsequent in time, correct?
251
1 A Yes.
2 Q Did you review the depositions of
3 any other witnesses?
4 A I believe of Dr. Goldwaser.
5 Q Any other witnesses?
6 A Off the top of my head, I don't think so.
7 Q Okay. Now, Doctor, prior to
8 writing your report in this case, in rendering
9 your opinions you did not speak to any of
10 Mr. deVries' or Mr. Carter's treating
11 physicians, correct?
12 A Correct.
13 Q You didn't discuss with them any
14 of your opinions or their conclusions?
15 A Correct.
16 Q You didn't discuss with them their
17 treatment of Mr. deVries and Mr. Carter,
18 correct?
19 A Well, I wasn't engaged in treating either
20 of them. I was engaged in doing an objective
21 evaluation.
22 Q No, I understand, Doctor. But you
23 didn't speak to them and discuss with them their
24 course of treatment?
25 A Oh, their -- I'm sorry, I misheard you.
252
1 Q Theirs.
2 A Their treatment, correct.
3 Q Now, Doctor, neither Mr. deVries
4 nor Mr. Carter sought emergency medical
5 treatment following April 25th, 2004, correct?
6 A Well, they did see Dr. Almeleh, who was
7 about as close to an emergency -- he gave
8 basically emergency response. And they did much
9 better with him than they would going to the
10 emergency room. If you have a physician who's
11 known you for how many years by that time, about
12 16 years or so, you know, you generally wait a
13 day or two and go to see him, instead of going
14 to see -- we go to even to see, rather than
15 going to the emergency room, if you can.
16 Q Well, they did not go to the
17 emergency room, correct?
18 A They did not.
19 Q Do you know as you are sitting
20 here today whether or not Mr. deVries and
21 Mr. Carter kept their regularly scheduled
22 appointments with Dr. Almeleh?
23 A I would have to refresh my recollection
24 on that.
25 Q Now, Doctor, prior to April 25th,
253
1 2004 do you -- I'm sorry, let me ask it this
2 way. As you're sitting here do you have a
3 recollection of whether or not prior to April
4 25th, 2004 Mr. deVries and Mr. Carter were
5 treating with Dr. Almeleh on a bimonthly basis?
6 A I -- I believe that they were, yeah.
7 Q Do you know whether from
8 April 25th, 2004 through the end of
9 December 2004 they continued to treat with Dr.
10 Almeleh on a bimonthly basis?
11 A I would have to refresh my recollection
12 with reference to the records.
13 Q Now, Doctor, I believe we went
14 over some of this on direct examination with
15 Miss Smith. Let me ask you this first. Did you
16 review the psychiatric records from Dr. Almeleh
17 of Mr. deVries and Mr. Carter prior to -- I'm
18 sorry, let me ask it a different way. Did you
19 have, when you rendered your opinions in this
20 case, the records of Dr. Almeleh for Mr. deVries
21 and Mr. Carter before April 25th, 2004?
22 A Yes.
23 Q So you had Dr. Almeleh's records
24 going back to when you first started treating
25 Mr. deVries and Mr. Carter up through the date
254
1 of April 25th, 2004, correct?
2 A I would have to check as to what dates
3 they began at.
4 Q Okay. But you specifically
5 remember reviewing medical records that predated
6 April 25th, 2004?
7 A I would have to double-check on that, but
8 I believe so.
9 Q Okay. Now, Doctor, you are
10 aware -- and I believe you testified to this on
11 direct examination -- that Mr. deVries suffered
12 from major depression prior to April 25th, 2004,
13 correct?
14 A Yes.
15 Q Mr. deVries was also on
16 antidepressants prior to April 25th, 2004,
17 correct?
18 A Yes.
19 Q I believe you also testified,
20 based upon Dr. Almeleh's January letter or
21 January report, that Dr. Almeleh had
22 discontinued or taken Mr. deVries off the
23 antidepressants prior to April 25th, 2004?
24 A Yes.
25 Q Do you know how close to
255
1 April 25th, 2004 he took him off the
2 antidepressants?
3 A I don't remember.
4 Q Do you know whether or not the
5 physical -- the last visit that Mr. deVries had
6 prior to April 25th, 2004 Dr. Almeleh considered
7 reinstituting the antidepressants at that time?
8 A I would need to check the records.
9 Q Now, Doctor, do you know when it
10 was that Dr. Almeleh first prescribed
11 Mr. deVries antidepressants following
12 April 25th, 2004?
13 A I would have to check the records.
14 Q Now, Doctor, do you know whether
15 Mr. deVries was also taking Adderall and Ritalin
16 prior to April 25th, 2004?
17 A I don't remember off the top of my head;
18 but again, I would need to check the records.
19 Q Doctor, let's talk about
20 Mr. Carter. And once again, I believe from your
21 direct testimony Mr. Carter suffered from ADD
22 prior to April 25th, 2004, correct?
23 A Yes.
24 Q And is it your understanding from
25 either speaking to Mr. Carter or from reviewing
256
1 Dr. Almeleh's records that Mr. Carter suffered
2 from low self-esteem prior to April 25th, 2004?
3 A Yes.
4 Q Do you know whether prior to
5 April 25th, 2004 he suffered from anxiety?
6 A Sometimes.
7 Q Okay. So he had -- he had what
8 you'd call episodes or periods of anxiety prior
9 to April 25th, 2004?
10 A That's a fair description.
11 Q And do you know whether or not
12 Mr. Carter suffered from a sleep disturbance
13 prior to April 25th, 2004?
14 A Occasionally.
15 Q Now, Doctor, you are aware that
16 Mr. Carter had taken and was on antidepressants
17 prior to April 25th, 2004, correct?
18 A Yes.
19 Q And you're also aware that he was
20 on Adderall and Ritalin prior to April 25th,
21 2004, correct?
22 A Yes.
23 Q All right. Do you know when --
24 and I think when you went over with us Dr.
25 Almeleh's note or records for Mr. Carter for
257
1 January 2005 that he talked about starting
2 tranquilizing medication and sleep aids for
3 Mr. Carter?
4 A Yes, I, again, have to refer back to the
5 letter to be precise.
6 Q Do you know when in relation to
7 April 25th, 2004 he prescribed those sleep aids
8 and those tranquilizing medications?
9 A I would need to look -- refresh my
10 recollection by looking at the records.
11 Q Would that also be same with
12 regard to Mr. deVries and when Mr. deVries was
13 prescribed any tranquilizing medication or
14 anti -- sleep aid?
15 A Yes.
16 Q Do you know whether -- or do you
17 know as you are sitting here today when the last
18 time was that Mr. deVries took a sleep aid?
19 A I don't remember; but I would have to,
20 again, look at those records and also ask Peter.
21 Q Now, Mr. deVries was working as of
22 April 25th, 2004, correct?
23 A Yes.
24 Q All right. And he continued to
25 work for a year after April 25th, 2004 before
258
1 going out on disability, correct?
2 A Yes.
3 Q Now, do you know when Mr. deVries
4 and Mr. Carter moved from the Town of Secaucus
5 to Jersey City?
6 A I believe it was November of 2004.
7 Q Okay. So when Mr. deVries moved
8 from Secaucus in November of 2004 he was
9 working, correct?
10 A He was still able to.
11 Q Do you know -- and -- and in fact,
12 he worked for a period of time after moving to
13 Secaucus, correct?
14 A Yes.
15 Q Do you know whether after
16 Mr. deVries moved from the Town of Secaucus but
17 before he went out on disability in April of
18 2005 that he was passed over for a promotion at
19 work?
20 A Yes.
21 Q You are aware of that?
22 A Yes.
23 Q And that took place after he left
24 the Town of Secaucus, while he was still
25 working, correct?
259
1 A Yes.
2 Q And he went out on disability,
3 that was after he was passed over for the
4 promotion at work; that's your understanding?
5 A Yes, that was part of the deterioration.
6 Q Now, did you ever review any
7 employment records for Mr. deVries?
8 A No.
9 Q Now, Doctor, I believe Miss Smith
10 might have asked you this; but I want to
11 confirm. You are aware prior to April 25th,
12 2004 Mr. deVries did report to Dr. Almeleh
13 dissatisfaction with his work environment,
14 correct?
15 A Occasionally.
16 Q Do you know whether prior to
17 April 25th of 2004 Mr. deVries or Mr. Carter
18 reported any relationship problems that they
19 were having to Dr. Almeleh?
20 A Occasionally.
21 Q Do you know whether Peter deVries
22 or whether Tim Carter ever reported to Dr.
23 Almeleh that Peter was upset that Tim wasn't
24 working?
25 A Occasionally.
260
1 Q And do you know whether after
2 April 25th of 2004 Mr. deVries or Mr. --
3 Mr. deVries, I should say, ever reported to Dr.
4 Almeleh that he was upset that Tim wasn't
5 working?
6 A Occasionally.
7 Q And do you know whether Mr. Carter
8 expressed to Dr. Almeleh the fact that Peter was
9 upset that Tim wasn't working?
10 A Occasionally, yes.
11 Q And now, Doctor, you have not
12 examined Mr. deVries or Mr. Carter since May of
13 2006, correct?
14 A Yes.
15 Q Have you reviewed any of their
16 psychiatric records since you've rendered your
17 report in September of 2006?
18 A No.
19 Q Now, Doctor, I want to talk for a
20 second about your examination of Mr. deVries and
21 Mr. Carter. My understanding is that you
22 started out the examination with -- I guess for
23 lack of a better term we'll call it a "joint
24 unstructured exam," correct?
25 A Yes.
261
1 Q Which means that you put
2 Mr. deVries and Mr. Carter in the room together
3 and spoke to them as a couple, correct?
4 A Yes.
5 Q And then, after that was done,
6 then you separated them and you administered
7 psychological testing, correct?
8 A Yes, the first set of psychological
9 tests.
10 Q In other words, there was the
11 MMPI-2 --
12 A Yes.
13 Q -- which is the Minnesota Multi
14 Personality Inventory?
15 A Multiphasic Personality Inventory.
16 Q Okay, I'm sorry.
17 A No, it's okay.
18 Q And there is a second one called
19 the PAI. And that stands for?
20 A It's the Personal Assessment Inventory.
21 Q Okay, Personal Assessment
22 Inventory. The one that you gave to Mr. deVries
23 and Mr. Carter was after -- I'm sorry, the one
24 that you gave to Mr. deVries and Mr. Carter
25 after what I term the "joint unstructured
262
1 interview" was the Minnesota test, correct?
2 A Yes.
3 Q The MMPI-2?
4 A Yes.
5 Q All right. And my understanding
6 is that as Mr. deVries and Mr. Carter were
7 taking those tests, you were going back and
8 forth between the rooms to observe them while
9 they were taking the test, correct?
10 A Yes.
11 Q And my understanding, Doctor, is
12 that it is important for the examinee to
13 actually -- the examiner, I'm sorry, the
14 forensic examiner to observe the examinee as the
15 examinee is taking the test, correct?
16 A Yes.
17 Q And, you know, considering that
18 there's one of you and there is two of them, it
19 would be safe for me to say you were not able to
20 observe Mr. deVries taking the entire test and
21 Mr. Carter taking the entire test?
22 A Yes.
23 Q So there were times during the --
24 that testing phase where you would have been
25 deprived of observing Mr. deVries and
263
1 Mr. Carter, correct?
2 A Yes.
3 Q Now, Doctor, after the Minnesota
4 Multi -- I'm sorry, I will call it MMPI-2.
5 A Sure.
6 Q After that was done you then moved
7 to what I'll term as the -- and if it's a bad
8 term, you can let me know -- the individual
9 structured and unstructured interviews, correct?
10 A Yes.
11 Q Which basically means that while
12 you were -- while you were sitting there in a
13 room speaking to one, the other was filling out
14 the self-report forms that we went over,
15 correct?
16 A Yes.
17 Q Okay. And these self -- the MMPI
18 is a test; I believe it's 565 true and false
19 questions?
20 A True.
21 Q And what you do, Doctor, is you
22 take the results of that test and then you
23 compare it against answers of 2000 other people,
24 correct?
25 A Well, I don't do it, but -- I will
264
1 analyze it myself; but then, as a check, it also
2 gets sent away.
3 Q That was my question. It actually
4 gets sent out --
5 A Yeah.
6 Q -- to a facility to be, you know,
7 analyzed, correct?
8 A Yes.
9 Q Okay. And that's -- that's
10 actually a test?
11 A Yes.
12 Q All right. And then the
13 self-report forms are not tests? That is the
14 examinee actually writing down answers to
15 questions, what they're thinking, what they're
16 feeling, correct?
17 A Yes.
18 Q And what those self-report forms
19 are, Doctor, are the examinee's -- their own
20 lack of -- let me see if I can find the right
21 term. They're the examinee's own reports,
22 correct?
23 A Yes.
24 Q In other words, it's the
25 information the examinee is telling to you?
265
1 It's not observations that you're making about
2 the examinee?
3 A That's a good distinction because what
4 happens is we then take those forms and we
5 compare them to our observations.
6 Q And -- and, in fact, one of the
7 reasons that you don't just do self-report forms
8 is because on occasion self-report forms can be
9 inaccurate or misleading, so you want to have
10 a -- a examinee fill out the form and you want
11 to do the examination? You want to do them
12 both --
13 A Yes.
14 Q -- so you could determine for
15 yourself whether or not what's in a form is
16 consistent with what you say you're seeing in
17 the examination --
18 A Yes.
19 Q -- is that right?
20 A Does the examinee have a tendency to
21 exaggerate or to minimize?
22 Q But with regard to the self-report
23 forms, though, Doctor, those forms alone, you
24 have to rely upon the truthfulness, the veracity
25 of the examinee, correct?
266
1 A Well, we never use those forms alone.
2 Q I understand that. But I'm just
3 saying the information that's on the forms, in
4 other words, you -- you can't -- the information
5 that is on the form comes from the examinee, and
6 you have to trust the examinee to report
7 accurately?
8 A I never trust the examinees to report
9 accurately. I always compare it to my own
10 observations because people will tend to go in
11 both directions.
12 Q Which is why you do both?
13 A That's correct.
14 Q Because you can't trust a form?
15 A That's right, yeah.
16 Q Now, Doctor, my understanding is
17 that it is -- it is preferred or maybe even
18 required, I don't know, but I believe at your
19 deposition you testified that the self-report
20 forms should be done either when the examinee is
21 alone or when the examinee is in the presence of
22 a clinician?
23 A The psychological testing needs to
24 be done when the examinee is being monitored, if
25 not continuously, at least intermittently.
267
1 As far as a self-report checklist, they
2 can be used both ways. They can be used in the
3 presence. They can also be used when the person
4 is alone, away from the clinician. The key is
5 to have -- do the examination to be able to see
6 the person. Not while they are filling out the
7 form; that's not the issue. But to be able to
8 have an examination that you have done at some
9 point in time close to the point in time when
10 the form is being filled out, as far as the
11 patient forms are concerned.
12 The family form is usually done without
13 there being anyone present. That's usually done
14 where we use the family or the friend's form to
15 compare the friend's observations with the
16 patient's observations, where the patient
17 self-reports with my own observations. So you
18 have three points of data, basically.
19 Q Well, clearly, the friends' forms
20 have to be sent out, correct?
21 A Yeah.
22 Q I mean, you didn't -- you didn't
23 talk to any of the friends who filled out forms
24 for Mr. deVries or Mr. Carter, correct?
25 A Recollect.
268
1 Q You just reviewed their forms?
2 A Yes.
3 Q All right. But with regard to the
4 self-report forms, at a minimum you would like
5 the examinee to be alone when the form is filled
6 out, correct?
7 A Ideally. But the key to it is I want to
8 be sure that when I -- that I have been able to
9 see the examinee contemporaneously, you know,
10 within a week or two, in the same time period as
11 the forms have been filled out in terms of
12 self-report.
13 Q All right. Well, let me ask you
14 this. I believe it was your testimony that
15 Mr. deVries was able to fill out most of his
16 self-report forms in the office, correct?
17 A Yes.
18 Q All right. Mr. Carter was not
19 able to fill out the majority of the forms in
20 the office, correct?
21 A Yes.
22 Q All right. So you sent those
23 forms home with them --
24 A Yes.
25 Q -- to fill out --
269
1 A Yes.
2 Q -- and then send back?
3 A Yes.
4 Q And once those forms went out and
5 left your office, then you couldn't be sure that
6 there was no collaboration, that there was no
7 outside influence or anything? You couldn't
8 discount that those things could have happened,
9 correct?
10 A I considered that as a possibility. And
11 the fact that the forms which came back, if
12 anything, minimized his symptomatology, instead
13 of exaggerated, meant if there was any outside
14 influence, it was to go ahead and help him feel
15 safe and minimizing his symptomatology, rather
16 than to exaggerate.
17 Q Let me talk about the results on
18 some of the forms, and then what I'll do is come
19 back to your unstructured interview.
20 Peter deVries -- well, Mr. deVries and
21 Mr. Carter both actually --
22 MR. BEVERE: Sorry.
23 MR. MULLIN: It's okay.
24 BY MR. BEVERE:
25 Q -- both actually completed their
270
1 MMPI-2s, correct?
2 A Yes.
3 Q All right. And my understanding
4 is that you sent out the tests for evaluation.
5 I don't know what terms you used when you send
6 them out, wherever you send them out to. And
7 you also read the results yourself, correct?
8 A Yes.
9 Q And with regard to Mr. deVries, on
10 his MMPI-2, on page 12 of your report at the
11 top, are you there? I'm sorry, Doctor, are you
12 there?
13 A Yes.
14 Q I apologize. I was waiting for
15 you; you were waiting for me. You say,
16 "According to the report, page six, Mr. deVries'
17 presentation of a large number of unusual
18 symptoms is relatively common in personal injury
19 litigation and indicates that a possible
20 tendency to exaggerate symptoms be considered in
21 the evaluation." That's what it said, correct?
22 A Yes.
23 Q And you rejected that, correct?
24 A I considered it, and it -- given all the
25 other data, that's not true.
271
1 Q So you considered it, and you
2 rejected it?
3 A Yes.
4 Q And then the MMPI-2 report also
5 hypothesized that Mr. deVries' psychological
6 problems are chronic and long-standing. And you
7 rejected that too, as well, correct?
8 A It's consistent with his having had
9 depression in the past.
10 Q Now, Doctor, going to the PAI, I
11 have to go to page 13. It says -- and I
12 believe -- about halfway down the page do you
13 see the sentence that begins with,
14 "Nonetheless"?
15 A Yes.
16 Q Says, "Nonetheless, his anxiety
17 and stress are characterized as being within
18 what would be considered the normal range,"
19 correct?
20 A Yes.
21 Q You rejected that, as well,
22 correct?
23 A No, because the PAI also says -- and if I
24 can draw your attention to -- it's the -- next
25 to the last sentence on the page. "These
272
1 normalizing responses on the PAI are
2 inconsistent with faking, malingering or
3 exaggeration." What we have are series of
4 normalizing responses by him on the PAI.
5 Q But Doctor, my question to you is
6 did you believe, when you read the results of
7 this test, that Mr. deVries' stress and anxiety
8 were within what you would consider to be the
9 normal range?
10 A Only for someone who's minimizing and
11 normalizing his symptoms.
12 Q But, Doctor, What I need to know
13 is whether or not, based upon your entire
14 clinical overview -- not clinical, forensic
15 examination of Mr. deVries, whether you believe
16 that his anxiety and stress were -- were
17 worth -- were within what would be considered
18 the normal range?
19 A For someone who's normalizing or
20 minimizing, yes. For an ordinary person who is
21 being -- if this was Tim Carter's response, no.
22 But for Peter deVries, yes. For Peter, yes.
23 For Tim, no.
24 Q Well, Doctor, let's talk about
25 your -- you said, "Although he reports
273
1 difficulties consistent with the significant
2 depressive experience, he does not appear to
3 feel hopeless; and his self-esteem seems largely
4 intact. Findings inconsistent with those on the
5 MMPI-2," correct?
6 A Yes.
7 Q And you rejected that, as well,
8 correct?
9 A Well, they were consistent with the other
10 findings which show a deep sense of hopelessness
11 and helplessness.
12 Q But you found it to
13 be inconsistent with the MMPI-2, correct?
14 A If you don't -- if you -- they're
15 consistent with the MMPI-2, if you consider his
16 tendency to normalize, to minimize.
17 Q Doctor, with regard to the --
18 well, let's -- let's talk about -- oh, I'm
19 sorry. And down a little further it says,
20 "Physiological role of the depressive" -- "such
21 as" -- "in sleep pattern, decrease in level of
22 activity and sexual" -- "and loss of appetite
23 and weight not a prominent part of the clinical
24 picture," right?
25 A Yes.
274
1 Q And you didn't find that to
2 be true, correct?
3 A Well, he had lost 40 pounds.
4 Q Well, let me ask you about that,
5 Doctor. Do you know whether or not Mr. deVries
6 reported to Dr. Pumill in July of 2003 that he
7 was not exercising and he gained weight?
8 A Yes.
9 Q All right. And do you -- and do
10 you recall, Doctor, from the records Mr. deVries
11 reporting to Dr. Pumill in May of 2004 that he
12 was dieting?
13 A Yes.
14 Q Now, Doctor, let's talk about
15 Mr. Carter for a second. Mr. Carter's MMPI-2
16 produced an invalid profile, correct?
17 A Yes.
18 Q And one of the ways that an
19 invalid profile can be produced would be if
20 someone was trying to exaggerate and malinger,
21 correct?
22 A Correct.
23 Q All right. And you rejected that
24 possibility with regard to Mr. Carter, correct?
25 A Yes.
275
1 Q Mr. Carter's PIA did produce valid
2 results, correct?
3 A PAI.
4 Q I'm sorry, PAI did produce valid
5 results, correct?
6 A Yes.
7 Q And that PAI was administered at
8 the end of the day, correct?
9 A Yes.
10 Q And he got this PAI to fill out
11 and -- and complete after doing the unstructured
12 joint interview, after doing the MMPI-2, after
13 doing either the self-report forms or some
14 unstructured, we'll call it, individual
15 interview with you, correct?
16 A No, we left something out that's very
17 important. After having a few hours of rest, as
18 well, while Peter was struggling with filling
19 out the structured forms.
20 Q But at the -- at the end of day?
21 A It was at the end of the day, after he
22 literally laid on the floor in one of my rooms
23 and rested and was able to get some sleep.
24 Q But the MMPI-2 was done in the
25 morning, when he was fresh?
276
1 A He wasn't fresh. They had traveled most
2 of the morning. They were worried about their
3 dogs. They had a new automobile. He hadn't
4 slept. He was feeling frightened. So no, he
5 was not fresh when I saw him by any stretch of
6 the imagination.
7 Q Doctor, the results of
8 Mr. Carter's PAI, weren't those results
9 consistent with someone who has severe ADD?
10 A Not to the extent that they actually
11 produced an invalid result. They were
12 consistent with someone who is frightened and
13 scared to death.
14 Q He didn't have an invalid result
15 on his PAI; he only had an invalid result on his
16 MMPI?
17 A Correct.
18 Q And there were findings in PAI,
19 were there not, that was consistent with someone
20 with severe ADD, correct?
21 A They were consistent with someone with
22 severe ADD, being complicated by being scared to
23 death.
24 Q How about someone with low
25 self-esteem?
277
1 A Not by -- certainly, low self-esteem is a
2 part of it; but it doesn't produce these kinds
3 of findings. You need to have someone with ADD.
4 And there is a synergy between the fact that you
5 can't concentrate with ADD and you can't
6 concentrate when you're scared to death and
7 feeling helpless -- both of those are factual --
8 and lack of concentration, which would produce
9 this kind of result.
10 Q But, Doctor, my question to you is
11 were there results on the PAI consistent with
12 someone who had ADD and low self-esteem?
13 A Not by -- not by itself from Mr. Carter.
14 Not in this context. Certainly not someone who
15 is on medication for ADD at the same time.
16 Q Well, what were your
17 understandings of his medication levels at the
18 time that you administered these tests?
19 A My understanding was that he was taking
20 medications at that time from Dr. Almeleh.
21 Q Just before I forget, I want to
22 step back to something with Dr. Almeleh. You
23 read us from two of Dr. Almeleh's reports; and
24 both of those reports were written in January of
25 2005, correct?
278
1 A Yes.
2 Q All right. And that was -- those
3 reports from Dr. Almeleh were written
4 approximately five months before you did your
5 examination, correct?
6 A Yes.
7 Q And approximately nine months
8 before you wrote your report, correct?
9 A Yes.
10 Q Now, Doctor, with regard to Dr.
11 Almeleh's note from Mr. Carter, he talked about
12 entertaining the possibility of a psychiatric
13 hospitalization, correct?
14 A Yes.
15 Q All right. Do you know whether or
16 not Mr. Carter was ever hospitalized by Dr.
17 Almeleh?
18 A As far as I know, he wasn't.
19 Q Okay. Do you know whether at that
20 appointment, the last appointment that Dr.
21 Almeleh had right before that statement was made
22 in his report, that -- do you know whether Dr.
23 Almeleh even increased his medication?
24 A I would have to check the records to
25 refresh my memory.
279
1 Q Now, Doctor, I just want to talk
2 briefly about the, I will call it, for lack of a
3 better term, the "unstructured individual
4 interview." Can we call it that?
5 A Okay.
6 Q All right. And that would be you
7 sitting alone in a room with either Mr. deVries
8 or Mr. Carter and talking to them?
9 A Yes.
10 Q As opposed to them filling out
11 forms?
12 A Well, listening to them and observing
13 them.
14 Q Okay. But as opposed to them
15 filling out forms?
16 A Right.
17 Q So in other words, this is the
18 process that you're involved in insofar as there
19 is interaction between you and the -- and the
20 examinee, correct?
21 A Yes.
22 Q So now, Doctor, it's my
23 understanding with regard to the results of the
24 unstructured individual interview you made
25 certain observations, correct?
280
1 A Yes.
2 Q And that would have been
3 observations as to how they answered questions.
4 I think you said observations about pupils
5 dilating or sweating. I think you talked about
6 disassociating and the -- the -- my question to
7 you is that is you reporting to us what it is
8 that went on in that room, correct?
9 A These are my observations.
10 Q These were your personal
11 observations, correct?
12 A Precisely.
13 Q My understanding is that -- it's
14 based upon your recollection of those
15 observations, correct?
16 A It's based on my recollection.
17 Q Now, Doctor, my understanding is
18 that when you do these unstructured individual
19 interviews, you don't take verbatim notes,
20 correct?
21 A I don't.
22 Q And we also know that you don't
23 audio or video record the interview, correct?
24 A Correct.
25 Q In fact, you believe that that
281
1 shouldn't be done, correct?
2 A Well, unless it's being done at a request
3 of the plaintiff or the examinee. It shouldn't
4 be something that is imposed by the examiner,
5 absent extraordinary circumstances, because if
6 you examining people who are feeling helpless to
7 begin with, you don't want to make them feel
8 more helpless by telling them that you have to
9 tape record them.
10 Q My point, Doctor, is whatever
11 happened in that room -- what you're telling us
12 of what happened in that room is largely based
13 upon your recollection, correct?
14 A Yes.
15 Q Your personal impressions and your
16 recollection of those impressions, correct?
17 A My observations and my recollections of
18 those observations.
19 Q Your observations, your
20 impressions, your recollections, correct?
21 A Correct.
22 Q It's not like -- you know, it's
23 not like an X-ray or an MRI or a CAT scan, where
24 you can put something up on the light box and
25 say, you know, "Here it is, here is the
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1 fracture," "Here is the" -- "Here is the tumor,"
2 right?
3 A It's not like that, although even there
4 you can have radiologists who will go ahead and
5 look at an X-ray and come to a different
6 interpretation.
7 Q There may be different
8 subjectivity, depending upon who's reviewing the
9 X-ray?
10 A There may be.
11 Q So I say different subjectivity.
12 Two radiologists may interpret an X-ray the same
13 way?
14 A Yes, but in this particular instance the
15 observations were clear. They were not like
16 mere shadows, but they were -- they were very
17 obvious. When Tim Carter is going to pieces,
18 when he is becoming distracted, when he is
19 avoiding, when he is sweating, when his pupils
20 become large, that's not a matter of shadows;
21 that's a matter of direct observation.
22 Q All right. Now, Doctor, I want to
23 talk about that. I think you said that -- I
24 believe that the -- if the phrase that you used
25 is inaccurate, I apologize; you can correct me.
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1 I think you said that you had to coax the story
2 out of -- out of Mr. Carter, correct?
3 A You have to create a safe environment for
4 him to be able to tell his story.
5 Q Well, I thought you told us that
6 he was having -- having difficulty relating the
7 events to you?
8 A Yes.
9 Q And you said he was dis -- is it
10 disassociating?
11 A I pronounce it disassociating.
12 Q Disassociating?
13 A But I'm no expert on pronunciation. Let
14 me just make that clear.
15 Q Well, I saw it spelled in your
16 report disassociating; and I wasn't sure if it
17 was disassociated or disassociating.
18 A The latter is the way I say it but --
19 Q You also said he experienced or
20 that you observed him avoiding --
21 A Yes.
22 Q -- avoiding topics?
23 A Yes.
24 Q That it was difficult for him to
25 remember events and details, correct?
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1 A Yes.
2 Q Now, Doctor -- and I think you had
3 the same observations with regard to
4 Mr. deVries, correct?
5 A Yes.
6 Q Now --
7 A Although the way they avoided things was
8 different, as I said. There was a difference in
9 the avoidance.
10 Q Well, did one of them -- was one
11 of them not able to recall details of the event
12 and the other one was?
13 A Well, they each could recall fragments.
14 But in terms of being able to give a coherent
15 narrative, the way in which Tim avoided doing
16 that is by jumping to other subjects; whereas,
17 Peter just wouldn't talk about it. So there was
18 a difference in the way they avoided. The
19 avoidance is a symptom of complex posttraumatic
20 stress disorder; but the way it manifests itself
21 is a function of the individual's personality in
22 a characteristic way of dealing with feeling
23 frightened and helpless.
24 Q Now, Doctor, you are aware that
25 Mr. Carter was mugged when he was living in
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1 Jersey City, correct?
2 A Yes.
3 Q And did you take that event into
4 account in rendering your final opinions in this
5 case?
6 A I did. And he was able to talk, as I
7 think I mentioned, freely and without being
8 petrified about being mugged. In fact, you
9 know, he overall -- when other incidents
10 occurred in Jersey City, he actually felt that
11 the police were helpful to him, so he wasn't --
12 he is not a police-basher by any stretch of the
13 imagination.
14 Q Well, and let me ask you this.
15 All -- he also related to you problems that he
16 had had with his family growing up. I think you
17 mentioned on direct examination a horrible
18 incident, that his father had beaten him up,
19 correct?
20 A All right. He did -- and again, he was
21 able to do so without being petrified in the
22 process, without being overwhelmed by his
23 emotions. He could talk about that.
24 Q So --
25 A That's something he could talk about.
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1 Q So the only things he couldn't
2 talk about were the events in Secaucus?
3 A And the aftermath.
4 Q Well, the events in Secaucus and
5 what happened afterwards?
6 A Yes.
7 Q Okay. That's the only thing he
8 had trouble talking about?
9 A That was what he -- where he exhibited a
10 fundamental level of avoidance.
11 Q Now, I believe with regard to
12 prognoses that you gave in this case, your
13 prognosis with regard to Mr. deVries -- you
14 correct me, if I'm wrong -- is that,
15 notwithstanding the best medical care that
16 anyone could give Mr. deVries, is -- is never
17 going to get any better and he is never going to
18 be able to work?
19 A Yes.
20 Q And that's with psychotherapy,
21 with medications, no matter -- no matter what we
22 do?
23 A And with his very good motivation for
24 treatment.
25 Q And with regard to Mr. Carter, I
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1 believe when you rendered your report in
2 September of 2006 you gave Mr. Carter a very
3 poor prognosis, correct?
4 A Unfortunately, yes.
5 Q But you are aware -- or are you
6 aware -- and when -- when you rendered -- when
7 you saw Mr. Carter in May of 2006, Mr. Carter
8 wasn't working, correct?
9 A Correct.
10 Q Are you aware that by December of
11 2006 Mr. Carter had found a job and he was
12 working?
13 A I know that he has tried to work on
14 several different occasions since then, that he
15 is able to work for maybe two hours a day in a
16 flower shop on some occasions.
17 Q Are you aware that he had a job
18 organizing documents?
19 A Yes.
20 Q And --
21 A And I should correct myself. I believe
22 when I saw him he was -- he actually had talked
23 about that job.
24 Q Okay.
25 A And these were documents related to 9/11.
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1 And he found it very meaningful to be organizing
2 documents for people who had died in 9/11, as a
3 way of trying to do some good. So it was a very
4 meaningful job for him he was able to work on on
5 a part-time basis.
6 Q Well, Doctor, when you wrote your
7 report in September of 2006, do you know if
8 Mr. Carter was working then?
9 A Again, I believe when I examined him he
10 was working, which was in -- in May. I'm not
11 sure whether he was working in September, but I
12 know he was working in May of 2006. I believe
13 he was.
14 Q You believe he was working when
15 you did your exam in May?
16 A Oh, had been. If he wasn't working at
17 that time, he had been working.
18 MR. BEVERE: Okay. Judge, if I
19 can just take two minutes, go over my notes, I
20 may be done.
21 JUDGE CURRAN: Sure.
22 Off the record, please.
23 COURT CLERK: Off the record.
24 (Whereupon, a discussion is held
25 off the record.)
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1 JUDGE CURRAN: Back on the record.
2 MR. BEVERE: Yes.
3 COURT CLERK: On the record.
4 BY MR. BEVERE:
5 Q Just to clarify one area with you,
6 Doctor, with regard to your prognosis for Peter
7 deVries, it's your opinion that he will never be
8 able to work as a medical editor again?
9 A Yes, that he -- I agree with the other
10 evaluations which have found him to
11 be permanently disabled.
12 Q You're not a vocational expert?
13 You were not retained to determine what, if any,
14 alternate employment Mr. deVries would be
15 qualified for, correct?
16 A Correct.
17 MR. BEVERE: Okay. I have no
18 further questions.
19 JUDGE CURRAN: Okay. Any
20 redirect?
21 MS. SMITH: Just a couple, Your
22 Honor.
23 REDIRECT EXAMINATION BY MS. SMITH:
24 Q Dr. Bursztajn, did you memorize
25 all the dates in all the records and documents
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1 you looked at?
2 A No. And in fact, my memory may be
3 playing tricks when it comes to the dates in the
4 documents.
5 Q So when we're talking about the
6 Almeleh records, all those years and years --
7 A Yes.
8 Q -- of records for Mr. deVries and
9 Mr. Carter, as we sit here today can you tell me
10 what happened on April 7th, 2006?
11 A No way. I would have to check the
12 records, and I would have to go ahead and look
13 at -- if there was any question of
14 interpretation, I would have to go ahead and
15 look at the Dr. Almeleh letter, which summarizes
16 his records.
17 Q And when you wrote your report,
18 did you review those records in detail?
19 A I believe I had, yes.
20 Q Did you refer to some of them
21 specifically in your report?
22 A Specifically I did, yes.
23 Q Doctor, in your opinion is there
24 sometimes a delay in the symptoms of PTSD?
25 A Yes, what it is is that people use up all
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1 the fuel they have; and eventually they -- they
2 go empty. So it's -- there is a model which was
3 introduced by Hans Sayle, who is a very famous
4 endocrinologist, physiologist, called the
5 "stress-diathesis model," which says that after
6 a stress occurs, unless there is some way of
7 remedying it, what happens is eventually you run
8 out of fuel. If you have been driving and
9 driving, and eventually you run out of gas. And
10 then, when the stress -- that's when the stress
11 becomes overwhelming.
12 Q You discussed with Mr. Bevere some
13 records that indicated that Peter was having
14 some dissatisfaction with his work environment
15 prior to April of 2004; is that correct?
16 A Yes.
17 Q Do we all occasionally have some
18 problems with our work environment?
19 A I believe everyone in this room probably
20 has.
21 Q And he had -- Peter and Tim have
22 been together for 22 years. Have they
23 occasionally had some relationship problems?
24 A They have had their share of squabbles
25 and spats and temper tantrums even.
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1 Q My husband and I excluded, do all
2 of us have relationship problems in our lives?
3 A Well, I have to tell you, when I met you,
4 I didn't know the two of you were married.
5 Q So we have no problems. Doctor,
6 do you, in fact, teach courses on how to
7 determine whether somebody's faking,
8 exaggerating or malingering?
9 A I do. And on May 22nd, which I believe
10 is a Thursday, the Justice Department will be
11 having me go to their national advocacy college
12 to teach all the Justice Department people about
13 detecting faking, exaggerating or malingering,
14 which sometimes happens in -- when we do claims.
15 Q Is Tim Carter faking, malingering
16 or exaggerating?
17 A He should be so lucky. No, no way.
18 Q Is Peter deVries faking,
19 exaggerating or malingering?
20 A No. They each are very authentic people
21 who, if anything, are minimizing their suffering
22 in their own individual ways; but certainly not
23 exaggerating, not faking, not malingering.
24 Q Doctor, have you ever been
25 retained to evaluate a case by an attorney
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1 involved in litigation and found that the client
2 was faking, malingering and exaggerating?
3 A Yes.
4 Q And what did you do?
5 A I picked up the phone and I have called
6 the attorney and I have told them that I
7 wouldn't waste my time on it, no matter what
8 they wanted to pay, thank you very much. I have
9 other ways of earning my living, and they
10 shouldn't be wasting their time either.
11 Q Now, you -- Mr. Bevere talked to
12 you about your observations, that you sat there
13 with Mr. Carter and Mr. deVries and you made
14 observations. Were those observations based on
15 your education and experience and training that
16 we discussed at some great length this
17 morning -- or this afternoon, I'm sorry?
18 A I know, as morning turns to afternoon to
19 early evening soon, right?
20 They -- over the past, oh, gosh, 30
21 years I have trained myself to make
22 observations; and that's what I teach people
23 ultimately, to make observations, to make
24 observations in a disciplined, meaningful,
25 thoughtful way.
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1 Q And were your observations
2 consistent with your diagnoses?
3 A They were consistent with my diagnoses,
4 with Dr. Almeleh's diagnoses, with the findings
5 by -- that -- regarding Peter, for example, that
6 he is disabled by Social Security Disability.
7 Q Mr. Bevere brought out that the
8 only things that Tim and Peter couldn't talk
9 about were the events in Secaucus. Is that
10 consistent with faking?
11 A By -- by no stretch of the imagination.
12 First of all, also, as I mentioned, they had
13 difficulty talking about the helplessness that
14 they felt subsequently, even after they moved
15 from Secaucus to Jersey City, the helplessness
16 of losing their home and feelings of
17 vulnerability which they had. In fact, one
18 thing that was somewhat helpful to them was the
19 fact that the police in Jersey City responded
20 appropriately when there was an incident.
21 MS. SMITH: No further questions.
22 Q Thank you, Doctor.
23 JUDGE CURRAN: Any recross?
24 RECROSS EXAMINATION BY MR. BEVERE:
25 Q Doctor, I'll be brief. Just a
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1 couple of questions. You've given us your
2 opinion that Mr. deVries and Mr. Carter were not
3 exaggerating their symptoms, correct?
4 A Yes.
5 Q And that's your opinion, correct?
6 A Yes.
7 Q And you understand that it is the
8 jury's function in this case to determine
9 witness credibility, correct?
10 A Yes.
11 Q Now, Doctor, do you know whether
12 when Mr. deVries applied for the long-term
13 disability benefits in November of 2005 the
14 words "posttraumatic stress disorder" appeared
15 anywhere on the medical form that was signed by
16 Dr. Almeleh?
17 A I don't.
18 MR. BEVERE: Okay. No further
19 questions.
20 JUDGE CURRAN: Any redirect?
21 MS. SMITH: No, thank you, Your
22 Honor.
23 Thank you, Doctor.
24 JUDGE CURRAN: One second.
25 Is there anyone on the jury who
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1 has a question for the doctor? If so, please
2 raise your hand. Is there anyone on the jury
3 has a question? You can raise your hand or take
4 one of the cards.
5 Thank you very much. You may
6 step down.
7 THE WITNESS: Thank you, Your
8 Honor.
9 And thank you.
10 JUDGE CURRAN: Ladies and
11 Gentlemen, we are going to excuse you for the
12 day. Before I do that there are a few things I
13 just wanted to discuss with you briefly.
14 First is, as I always say, please
15 do not discuss the case among yourselves.
16 Please do not discuss it with anyone else.
17 The next is that I have cautioned
18 you -- we don't like to say "ordered" because
19 that's a really interesting legal question. But
20 you have certainly been cautioned and instructed
21 not to read any newspaper stories about this
22 case or anything similar or not to do any
23 research on the internet. And yesterday I even
24 cautioned you and I remind you again please do
25 not in any way consider going onto the web site
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1 that was referred to yesterday, if, in fact, you
2 remember it.
3 Part of our concern is that when
4 you're talking about newspaper articles, you're
5 talking about web sites, there is a lot of
6 misinformation, incorrect information out there.
7 And our concern is that no one would read that
8 or be in any way affected by it.
9 The last thing that I have meant
10 to say -- and I apologize for not doing this
11 sooner -- in regard to a case, if someone is
12 going to be a witness, then that person on both
13 sides, plaintiffs' side and defense side, is
14 sequestered. That means they cannot be in the
15 courtroom for testimony prior to their
16 testifying. The exception to that is if a
17 person is a party.
18 So you have seen Mr. Carter and
19 Mr. deVries here, and you have seen individuals
20 who have been designated by Secaucus to
21 represent the Town. You have seen, I think --
22 and I think he was even introduced to you, the
23 administrator, Mr. Drumeler. Yesterday you saw
24 Linda Carpenter, who is the purchasing agent.
25 And today -- and I apologize for not indicating
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1 this to you sooner -- we are -- or the Town is
2 represented by Alan Bartolozzi, who is the tax
3 collector.
4 So just so you understand, the
5 reason you don't see the same people every day
6 in regard to the Town is the designees who are
7 not going to be witnesses and therefore they're
8 not sequestered have jobs back in the Town; and
9 so they are rotating.
10 Okay. Last, but not least, I
11 will remind you that you will not be required to
12 be here tomorrow, which is Wednesday. You will
13 not be required to be here on Thursday until
14 1:30. But we will ask you to come in on 1:30
15 having had your lunch and ready to proceed.
16 Okay. Is there anything else for
17 the jury before they are dismissed?
18 MS. SMITH: Thank you, Your Honor.
19 MR. BEVERE: No, Judge, thank you.
20 JUDGE CURRAN: Thank you very
21 much. Have a good day.
22 COURT CLERK: Off the record.
23 JUDGE CURRAN: Thank you.
24 (Whereupon, the witness is
25 excused.)
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1 (Whereupon, the jury is excused.)
2 (Whereupon, the proceeding is
3 concluded at 4:35 p.m.)
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1 C E R T I F I C A T E
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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.
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18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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