1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 9
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
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HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Thursday, May 22, 2008
Commencing 9:50 a.m.
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B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
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1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
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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
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3 WITNESS DIRECT VOIR
4 DIRE
5 ALBERTO GOLDWASER, M.D.
6 By: Mr. Bevere 88, 125, 138
7 By: Ms. Smith 108, 131
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9 E X H I B I T S
10 NUMBER DESCRIPTION PAGE
11 C-8 Dr. Goldwaser's handwritten notes 211
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1 COURT CLERK: On the record.
2 JUDGE CURRAN: Thank you. We are
3 back on the record. Do you wish to wait for Mr.
4 Bevere?
5 MR. PARIS: No, I do not.
6 JUDGE CURRAN: I will note he is
7 here. He is just not in the court.
8 MR. PARIS: We are bringing in Dr.
9 Goldwaser at 11.
10 JUDGE CURRAN: Mr. and Mrs. Smith
11 are in the court. The jury is not.
12 In regard to the readings, I
13 understand that there has been some agreement to
14 certain changes but there are some issues
15 remaining; is that correct?
16 MS. SMITH: Yes, Your Honor. I
17 can give you full copies of both depositions we
18 will refer to this morning.
19 JUDGE CURRAN: Thank you.
20 I will note that counsel has
21 handed me the deposition of Dennis Elwell taken
22 June 12th, 2006 and the deposition of Anthony,
23 Iacono taken July 7th, 2006.
24 COURT CLERK: Off the record now?
25 JUDGE CURRAN: No, they'll be
5
1 fine, thanks.
2 Mr. Paris.
3 MR. PARIS: Your Honor, with
4 regard to the deposition -- proposed deposition
5 reads of Dennis Elwell, I'm going to page 62,
6 line 24. And the question was, "Was Charles
7 Snyder ever disciplined for using the antigay,
8 homophobic term" -- then it's in quotes --
9 "cock-sucker," end quote.
10 There was an objection by Mr.
11 Bevere. There was an objection by Mr. kneels,
12 who was in the case at that point.
13 Then the answer was,
14 "Disciplined, no not to my knowledge."
15 The objection was made at that
16 point in time. There is a characterization with
17 regard to the phrase that was stated by Mr.
18 Snyder. It's really a characterization of
19 counsel. If she had asked the question, "Was he
20 ever disciplined for using the word," et cetera,
21 you know, again, "cock-sucker," that would have
22 been one thing. But she is characterizing the
23 phrase and the intention with which,
24 theoretically, had been said.
25 So we do have a problem with that
6
1 being read. We object to that.
2 MS. SMITH: Judge, I offered to
3 take the characterization out and ask simply if
4 he had ever been disciplined.
5 JUDGE CURRAN: Any objection to
6 that?
7 MR. PARIS: Not really. I mean,
8 it's cumulative. I -- it's really cumulative
9 because they have already established and there
10 is not a dispute that he was disciplined or
11 wasn't disciplined. So I don't -- I don't know
12 what question they're proposing that wasn't
13 asked at depositions, that wasn't covered
14 somewhere else in all the reads. I mean, it's
15 not a -- you know, it's not really a factual
16 dispute here.
17 MS. SMITH: It goes to the Mayor's
18 knowledge specifically, Your Honor.
19 JUDGE CURRAN: Right.
20 MR. PARIS: So I don't know what
21 question they want to substitute.
22 JUDGE CURRAN: What they want to
23 substitute, as I understand it, question, "Was
24 Charles Snyder ever disciplined?" Is that
25 correct?
7
1 MS. SMITH: Yes, just leave out
2 the characterization.
3 MR. PARIS: Well, I guess at that
4 point it should probably -- you know, "Was
5 Charles Snyder ever disciplined for using the
6 word?"
7 MS. SMITH: That's fine. I'll
8 agree.
9 JUDGE CURRAN: I think that's a
10 fair compromise, Mr. Paris.
11 MR. PARIS: That's fair.
12 JUDGE CURRAN: I don't find that
13 that is cumulative in regard to Mayor Elwell's
14 knowledge, so we'll simply make this for using
15 the -- we can even keep term in there because
16 then we're not changing anything -- or word,
17 whichever is more convenient -- more
18 appropriate, as far as either of the -- if you
19 disagree, which I doubt you do.
20 What's the next issue?
21 MR. PARIS: Next issue goes to the
22 deposition of Anthony Iacono. And we're going
23 to page 52, line 10. And again, this is a
24 discussion that we had yesterday with regard to
25 our objection to questions --
8
1 JUDGE CURRAN: Miss Catapano,
2 would you wait for a moment.
3 Go ahead.
4 MR. PARIS: -- with regard to our
5 objections with questions related to workplace
6 policy or harassment training within the
7 workplace. And the question -- the questions
8 that are asked here go to that.
9 In fact, if you look at question
10 ten, it says, "Regarding harassment,
11 discrimination in the workplace; is that right?"
12 And it starts there. And again, it's the same
13 objection that we had yesterday with regard to
14 the relevance of training within the workplace.
15 And here -- if there was any
16 ambiguity as to what was being asked, here it's
17 clear. They're asking about workplace
18 harassment and discrimination training. That
19 issue has already been determined going back to
20 the motions for summary judgment. And here
21 again we think these questions are irrelevant to
22 this case. Doesn't apply. So --
23 JUDGE CURRAN: Thank you.
24 MR. PARIS: -- you know, I'm
25 giving you that general objection to put that on
9
1 the record again. If we need to parse through
2 which questions in particular, I'd be happy to
3 do that; but I think that's where it starts.
4 It's clear as he goes on,
5 continuing through page 54, at various points in
6 time they are talking about harassment in the
7 workplace.
8 JUDGE CURRAN: Miss Smith.
9 MS. SMITH: Your Honor, we argued
10 this yesterday; but I would just like to add for
11 purposes of this deposition and this case the
12 firefighters' workplace is the firehouse. I
13 mean, there may have been other ways that we
14 could have asked that; but their workplace as
15 firefighters is the firehouse. And -- yeah, and
16 where they meet with the public.
17 But I rely on our arguments
18 yesterday, Your Honor, with regard to this.
19 MR. PARIS: I think that that
20 is -- that argument is a stretch, to say that
21 because the firemen work in a firehouse, that's
22 their workplace harassment issues. The
23 harassment policy, when we talk about workplace
24 harassment, the policy is always with regard to
25 employees and employees.
10
1 But again, we made the argument
2 yesterday. I rely upon that argument, as well.
3 JUDGE CURRAN: What I will do
4 would be to preserve your objection on the
5 record. I will make my determination the same
6 as I did yesterday in regard to the issues that
7 were -- thank you -- that arose when -- yes,
8 that's fine, they can -- when we had the
9 question with regard to "within" or "in" or
10 "by." I don't think I need to repeat the
11 arguments. I'm relying on the same arguments
12 that were made on both sides yesterday. And
13 basically, I'll keep the decision the same.
14 Anything else?
15 MS. SMITH: No, thank you, Your
16 Honor.
17 JUDGE CURRAN: Mr. Paris, anything
18 else?
19 MR. PARIS: No, I just -- just in
20 terms of scheduling, Mr. Bevere will be here at
21 11:00. Dr. Goldwaser will be ready at 11:00. I
22 think, based upon what Your Honor had said about
23 your view of the course of the day today, that's
24 the witness that we have for today.
25 JUDGE CURRAN: Sure.
11
1 MR. PARIS: And then, after that,
2 before -- before the jury leaves I think it
3 would be appropriate for us to tell them what
4 they can expect next week and -- and the week
5 thereafter.
6 JUDGE CURRAN: Okay.
7 MR. PARIS: Thank you.
8 MS. SMITH: Yeah.
9 JUDGE CURRAN: The week
10 thereafter?
11 MR. PARIS: Well, Your Honor --
12 JUDGE CURRAN: In case?
13 MR. PARIS: -- there are only
14 three days next week.
15 JUDGE CURRAN: Let's not do that
16 now. You're right; there are only three days.
17 And it's my understanding the charge conference
18 is going to take two days, anyway.
19 MR. PARIS: There are motions to
20 be made. There are only three days next week.
21 JUDGE CURRAN: I got it.
22 MR. PARIS: Frankly, today is day
23 eight or day nine.
24 JUDGE CURRAN: Right.
25 MR. MULLIN: Judge, is there any
12
1 outside chance of trying this case on Friday
2 next week? Is that ever possible of --
3 JUDGE CURRAN: Friday is a
4 non-motion day next week, right?
5 MS. SMITH: I think it's the 30th.
6 JUDGE CURRAN: Yeah, it's a
7 non-motion. What that means is that we have got
8 Special Civil -- I will say this. I could
9 check, but I know that Judge Bariso is already
10 in Atlantic City because he is speaking at the
11 Bar Association today. If I can get in touch
12 with him down there, I will.
13 I'm sure I'd still have to have
14 my Special Civil cases because that's not fair
15 to the other judges. But you know, we could at
16 least see. I could theoretically cancel the
17 proofs and friendlies. And theoretically, they
18 could not send me a DC case.
19 So I could ask, but I can't
20 really give you an answer on that today.
21 MR. MULLIN: Just thought I'd put
22 it on the table, Judge.
23 JUDGE CURRAN: Absolutely. What
24 I -- okay.
25 MR. PARIS: Probably -- probably,
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1 if we are talking about that type of a day on
2 Friday, maybe, again, presuming that motions are
3 either not granted or reserved, maybe we could
4 have a charge conference on Friday.
5 JUDGE CURRAN: And then that would
6 not require the jury to come in.
7 MR. PARIS: They wouldn't have to
8 come in.
9 JUDGE CURRAN: Because I am a
10 little concerned we definitely told them no
11 Fridays. I will definitely see if we can do
12 that.
13 MR. PARIS: Because I
14 definitely -- I have to say I definitely expect
15 that there are going to be witnesses the week
16 after that. They --
17 JUDGE CURRAN: You know, we really
18 don't --
19 MR. PARIS: We can do that later.
20 JUDGE CURRAN: We can do that
21 later.
22 MR. PARIS: That's fine.
23 JUDGE CURRAN: I just wanted to
24 indicate they're sending up some jurors. It
25 will just take a moment, but it saves them
14
1 having to wait. Normally if jurors have arrest
2 warrant issued for them, they are brought in and
3 chastised by Judge Gallipoli. He is not here
4 today, so I am required to chastise them.
5 Please keep a straight face, if you're in the
6 courtroom. Okay?
7 MR. MULLIN: Judge --
8 JUDGE CURRAN: Off the record.
9 MR. MULLIN: -- I was going to
10 talk briefly about Interrogatory readings. And
11 we have had some e-mail communications.
12 JUDGE CURRAN: Okay. Off the
13 record.
14 (Whereupon, a brief recess is
15 taken.)
16 COURT CLERK: Jurors are
17 approaching.
18 (Whereupon, the jury is brought
19 into the courtroom.)
20 COURT CLERK: On the record.
21 JUDGE CURRAN: Thank you. On the
22 record.
23 Thank you, Ladies and Gentlemen.
24 I apologize for keeping you waiting. I actually
25 delayed counsel. And maybe we should have let
15
1 you come out into court and see. We had a
2 number of jurors who failed to show up for jury
3 duty, and warrants were issued for their arrest.
4 And then they have to come in and explain why
5 they did not show up. And sometimes they are
6 fined, sometimes not, depending on the
7 circumstances. But we did tell them that you
8 all were in the jury room, you showed up, as you
9 properly should, and you were being kept waiting
10 by these individuals. So I apologize for that.
11 I am going to ask again that we
12 put the appearances on the record for the jury.
13 MR. MULLIN: Good morning, Ladies
14 and Gentlemen. Neil Mullin, Nancy Erika Smith.
15 JUDGE CURRAN: Thank you.
16 MR. PARIS: Good morning, Ladies
17 and Gentlemen. David Paris, Piro, Zinna,
18 Cifelli, Paris & Genitempo. Mr. Bevere will be
19 here shortly.
20 JUDGE CURRAN: Thank you. And on
21 behalf of the plaintiff, Mr. Mullin, what is
22 your next witness or reading?
23 MR. MULLIN: We have a few short
24 readings, Your Honor.
25 JUDGE CURRAN: Thank you, sir.
16
1 MR. MULLIN: Hopefully short.
2 JUDGE CURRAN: And you're doing
3 the deposition -- readings from the deposition
4 of Dennis Elwell; is that correct?
5 MS. SMITH: That's where we're
6 starting, Your Honor. Thank you.
7 JUDGE CURRAN: Miss Smith will
8 read the questions, and Mr. Mullin will read the
9 answers given on the record of Mr. Elwell.
10 MR. MULLIN: Your Honor, the
11 deposition was taken on June 12th, 2006.
12 JUDGE CURRAN: Thank you.
13 MS. SMITH: Thank you, Your Honor.
14 READING OF PORTION OF DENNIS ELWELL'S DEPOSITION
15 Q Okay. Mr. Elwell --
16 MR. MULLIN: What page are you on?
17 MS. SMITH: Page 14.
18 MR. MULLIN: I don't have a list
19 up here, so you have to help me.
20 MS. SMITH: I will give you a
21 list.
22 MR. MULLIN: Thank you very much.
23 Q -- how long did you hold the
24 second ward Council seat?
25 A Until 1999.
17
1 Q When you became Mayor?
2 A That's correct.
3 Q Do you know Charles Snyder, Sr.?
4 A Yes, I do.
5 Q How are you familiar with him?
6 A He is the assistant superintendent of
7 Streets. He has also been involved in the North
8 End Firehouse for many, many years as a
9 volunteer firefighter.
10 Q What about Charles Snyder, Jr.?
11 A I know him to be Charles Snyder, Sr.'s
12 son. I know he is involved in the firehouse
13 too.
14 Q Do you have some familiarity with
15 the North End Firehouse?
16 A Yes.
17 Q And are you familiar with its
18 members?
19 A Yes.
20 Q And how are you familiar with its
21 members?
22 A Well, it's a small Town. I happen to
23 live in the North End. My great grandfather was
24 a founding member of the firehouse. Also, any
25 firefighter who becomes a member of any
18
1 firehouse, the Mayor and Council must vote on
2 approving them. And we also must vote to
3 dismiss them. So we have a general idea of
4 who's in the firehouse.
5 There is, I think, maybe 12 or 15 men
6 in there, so we have a general idea. If you ask
7 me today exactly what the roster is, I could not
8 answer that; but we have a general knowledge.
9 Q Did you indicate that you are
10 responsible for the hiring and firing of these
11 firefighters?
12 MR. MULLIN: And Mayor Elwell
13 answers.
14 A Well, when a firefighter becomes a
15 firefighter, they have to meet certain
16 qualifications put out by the Town and Fire
17 Department. Once we are advised by the Fire
18 Chief that they have finished all training, yes,
19 we vote to hire them.
20 Q Do you vote based on a
21 recommendation by the Chief, or do you do any
22 independent evaluation?
23 A No, generally by recommendation of the
24 Chief.
25 MS. SMITH: Page 20.
19
1 Q You testified earlier that in the
2 last few years there have been five or six
3 resignations. Have there been any involuntary
4 separations of firefighters from the Department
5 based on a vote of the Mayor and Council?
6 A Yes.
7 Q Who is that?
8 A His name escapes me now. There was one
9 firefighter the Mayor and Council removed from
10 his position.
11 Q Do you know why?
12 A Yes, based on reports given to us by our
13 fire chiefs.
14 Q Based on safety? Based on what?
15 A Moral character.
16 Q You testified that there was an
17 individual who was let go from the Fire
18 Department based on an issue related to his
19 moral character. Those were your words; is that
20 accurate?
21 A Yes.
22 Q Are you familiar with this
23 individual's name?
24 A Yes, now I am. It came back to me.
25 Q What is this person's name?
20
1 A Richard Ballans.
2 Q What was it that Richard Ballans
3 did to be removed from the Fire Department as a
4 result of his moral character?
5 A There was an allegation involving serving
6 alcoholic beverages to a minor. There was
7 another allegation that just escapes me right
8 now. I can't comment on it because I don't
9 remember.
10 Q Was he serving the alcoholic
11 beverages to a minor in the firehouse?
12 A No.
13 Q Where was it?
14 A At a local park.
15 Q Did he come up before some kind of
16 disciplinary committee?
17 A I think he went in front of the local
18 municipal judge.
19 Q Was he arrested?
20 A No, I think the charges were dropped.
21 Q So yes, he was arrested; but then
22 the charges were dropped?
23 A I'm not aware of an arrest. It was
24 reported to us. That would have been done in
25 the investigation that was done by Chief Eggers
21
1 that I talked to you about before.
2 Q Why did he go before the local
3 municipal judge?
4 A There was an allegation, only an
5 allegation of giving a minor alcoholic
6 beverages. I'm not aware what happened in
7 court. That was all done in the investigation
8 by Chief Eggers.
9 Q Do you know who currently is a
10 member of the North End Firehouse?
11 A Yes, I have an idea who is, yes.
12 Q Do you know any of them better
13 than just knowing that you have an idea that
14 they are in the North End Firehouse?
15 A With respect to certain members I know
16 longer than others.
17 Q Perhaps it would be easier to do
18 it this way. Do you know Charles Snyder, Sr.?
19 MR. MULLIN: Mayor Elwell answers.
20 A Yes.
21 Q How long have you known him?
22 A I would say 15 to 20 years.
23 Q Have you ever socialized with him?
24 A Once or twice.
25 Q Recently?
22
1 A Describe recently.
2 Q In the last five years?
3 A Yes.
4 Q Were both times in the last five
5 years?
6 A Yes.
7 Q What did that socializing involve?
8 A Fire Departments, many of them have a
9 party where, you know, they go out of the
10 firehouse, they invite the Mayor and Council out
11 to dinner once a year; and I think the two
12 occasions of socializing with Charles Snyder was
13 at those functions.
14 Q Do you remember what years those
15 functions took place?
16 A Well, I think there was one I was always
17 invited as Mayor. So I imagine they took place
18 in the years from the year 2000 going forward.
19 I was not generally invited as a councilman.
20 Q But you don't recall which years
21 you attended from the year 2000?
22 A I don't want to say year because if you
23 are more specific, I could probably be more
24 specific. I don't know what year.
25 Q Do you know Charles Snyder, Jr.?
23
1 A Yes.
2 Q How long have you known him?
3 A I know him to be Charles Snyder, Sr.'s
4 son; that is all I know of him.
5 Q Do you know Charles Mutschler?
6 A I know him to be a firefighter. I knew
7 his father very well.
8 MS. SMITH: Page 31.
9 Q As Mayor of Secaucus what do your
10 job responsibilities include?
11 A I'm a member of the governing body. I
12 chair meetings. I sign documents. I sit on
13 certain boards that are -- that I'm obligated to
14 be on by State statute. I have sole
15 appointments to different statutory boards. I
16 can marry people. I think I said chair
17 meetings. I chair our Council meetings. And I
18 vote on issues.
19 Q Who do you supervise?
20 A We have a chain of command here.
21 Normally my contact with other employees would
22 be through the Town Administrator.
23 Q Do you have your own support
24 staff?
25 A I have a secretary. I have a Town
24
1 attorney.
2 Q Do they report to you?
3 A Yes.
4 Q Anyone else?
5 A The Administrator, Chief Financial
6 Officer, Purchasing Agent, Town Clerk,
7 Superintendent of Streets, all department heads.
8 Q Is that it?
9 A Yes.
10 Q Anyone responsible for human
11 resources?
12 A The Town Administrator, he is our Equal
13 Opportunity Employment officer. He handles, and
14 I believe that is by ordinance that we have to
15 have in place that gives him that position.
16 Q Do you know whether sexual
17 orientation training is provided?
18 MR. PARIS: Objection, Your Honor.
19 That was -- that was not read totally
20 accurately, the answer.
21 MR. MULLIN: Which.
22 JUDGE CURRAN: I didn't think it
23 was significant; but I will ask you please to
24 reread the last question, starting with line
25 14 --
25
1 MR. PARIS: Thank you very much.
2 JUDGE CURRAN: -- and after.
3 Q Anyone responsible for human
4 resources?
5 A The Town Administrator, he is our Equal
6 Opportunity Employment officer. He handles and
7 I believe that is by an ordinance that we have
8 in place that gives him that position.
9 Q Do you know whether sexual
10 orientation training is provided to any Town
11 employees?
12 A It's provided to all employees.
13 Q Sexual orientation specifically,
14 not sexual harassment?
15 A You know what, I'm not understanding your
16 word. I know there is training. There were
17 seminars. There were classes.
18 Q You're not understanding the word
19 "sexual orientation"?
20 A I don't know what you mean by that.
21 Q You don't know what I mean by the
22 words "sexual orientation"?
23 A No.
24 MS. SMITH: Thirty-nine.
25 Q Now, moving to the events of
26
1 April 25th, 2004 -- and when I say that, I'm
2 going to assume that you know what I mean --
3 that I mean what took place at 988 Schopmann
4 Drive between the firefighters and my clients.
5 Is that fair?
6 A That's fair.
7 Q When did you first find out what
8 happened?
9 A I received a phone call I would guess
10 somewhere between 1 and 2:00 in the morning. I
11 was woken up. I was asleep. So somewhere
12 between 1 and 2:00 in the morning.
13 Q Who called you?
14 A Chuck Snyder, Sr.
15 Q What did he say?
16 A He called. He asked me to come over. He
17 said there was a problem at the firehouse.
18 Q What was Chuck Snyder, Sr.'s title
19 at that time?
20 A You know, he has been a captain of that
21 firehouse several times. At that point I can't
22 tell you. I don't know who the captain was. It
23 could have been him. It could have been his
24 son. It could have been any other firefighter.
25 They share terms for like a year. They have
27
1 their own in-house elections. So I can't tell
2 you if he was a captain or he was just -- if he
3 was a -- just a firefighter.
4 Q Do you know why he was the one who
5 called you?
6 A No, I have no knowledge as to why.
7 Q And what did you do?
8 A I got up, I got dressed and I went to the
9 firehouse.
10 Q And what did you see when you got
11 there?
12 A There was a police car there. There was
13 some firefighters there. I guess Chuck Snyder
14 might have been outside waiting for me to come.
15 There was some firefighters inside. That is
16 what I saw.
17 Q Did you speak to anyone on the
18 scene?
19 A I spoke to Chuck Snyder. And I'm trying
20 to think. There was a police officer there.
21 I'm not really sure which police officer.
22 Q And when you --
23 A But there was a police officer there.
24 Q When you say, "Chuck Snyder," you
25 mean Senior?
28
1 A Yes.
2 Q What did he say to you at that
3 time?
4 A I asked him what happened. He said there
5 was a commotion between the -- some -- I guess
6 he said there was charges made by two neighbors.
7 There was a commotion. There was some yelling
8 and screaming. And that was all.
9 Q How long did you stay at the site?
10 A Probably no more than -- less than five
11 minutes.
12 Q Did you speak to the police
13 officer who was there?
14 A Yes, I did.
15 Q And what did he say?
16 A He said he had asked the firefighters to
17 close the firehouse and go home.
18 Q When you were speaking with Chuck
19 Snyder, Sr., did he indicate that he had done
20 any yelling that evening?
21 A No.
22 Q So you were there for, what did
23 you say, 10 or 15 minutes?
24 A Five minutes.
25 Q I'm sorry. And then you went
29
1 home?
2 A What I did was I told the firefighters to
3 close the firehouse and go home. And then I
4 went home --
5 Q Was the --
6 A -- which they did.
7 Q Was the firehouse clear when you
8 left?
9 A Yes -- well, there was a police officer
10 there; and firefighters were clearing out.
11 Q Would it surprise you to learn
12 that there is a police report that indicates
13 that while the police were trying to get the
14 firefighters out of the firehouse that Charles
15 Snyder, Sr. was on his cell phone indicating
16 that he was calling you in order so they can
17 stay?
18 A I know he called me. I don't know who
19 was there when he called me. I did go there,
20 and I told him to close the firehouse and go
21 home.
22 Q Now, later that morning on the
23 25th, what is the first thing -- and I mean
24 besides breakfast and so forth. What is the
25 first thing that you did? Did you attend a
30
1 meeting with a number of other Town officials,
2 or did you go to the home of Peter and Tim?
3 A No.
4 Q When you first got up that
5 morning, after breakfast and so forth, did you
6 attend a Town meeting with other officials?
7 A Yes.
8 Q Was that the first thing that you
9 did before going to the home of Timothy Carter
10 and Peter deVries?
11 A Yes.
12 Q Who was present at the meeting
13 that you attended on April 25th, 2004?
14 A It's a long time ago. I go to a lot of
15 meetings.
16 Q To the best of your recollection?
17 A To the best of my recollection, Charles
18 Snyder, Sr., Charles Snyder, Jr., myself,
19 Councilman John Reilly, Chief Walters, Deputy
20 Chief Raymond Cieciuch, the Police Chief. I
21 think that's all. There may have been another
22 person. You know, it was held right in this
23 room here. If there was someone else, there may
24 have been; but I'm not going to comment on that.
25 Q Who called the meeting?
31
1 A I did.
2 Q Who was responsible for deciding
3 who was at the meeting?
4 A Well, obviously, after the incident, the
5 night before, when I got up in the morning I
6 called Councilman John Reilly, who was the fire
7 liaison. And I told him I thought there was an
8 incident at the North End Firehouse and I
9 thought we should sit and meet and find out
10 exactly what happened.
11 And I think at that point he reached
12 out to the fire chiefs and/or I may have called
13 them myself. Two years later I don't remember
14 exactly who -- I remember making phone calls. I
15 think I made one phone call and the rest of it
16 just happened. To the best of my knowledge,
17 anyway.
18 Q Do you recall why Chuck Snyder was
19 present at the meeting?
20 A I said, "Charles Snyder."
21 Q Do you know why he was present?
22 Did you request him to be present?
23 A He would have been a captain of the house
24 or just he was a longtime member of the house.
25 I can't answer that. It could be because I did
32
1 speak to him that night.
2 Q I just want to make sure I am
3 clear. You didn't personally invite each person
4 who participated? You indicated to one or two
5 people, "Gather some folks together, we need to
6 sit down"?
7 A Absolutely.
8 Q During the course of that meeting
9 did anyone use the phrase, "You're going to" --
10 MS. SMITH: I'm sorry.
11 Q -- "You're going to believe those
12 cock-suckers over me?"
13 A You know, that meeting was -- there were
14 a lot of things going on at that meeting. I may
15 have heard the term that you just used. I don't
16 know that I could ascertain exactly who said it.
17 And there was a reason for that. There was a
18 phone call that came to me from my wife. There
19 were other phone calls that had come in because
20 I have a business. I had people working. And
21 the door was open. I walked out. And I walked
22 back in. So there was a quite a bit of
23 conversation going on at the time. And you
24 know, I think even in the police report that I
25 gave I said that I did hear that term but I
33
1 could not ascertain who said it.
2 MS. SMITH: An exhibit was then
3 shown to Mr. Elwell, Your Honor. It's called
4 Elwell-1 in the record. Today it's P-342.
5 JUDGE CURRAN: Thank you.
6 A That's my report. I said this.
7 Q I haven't asked you a question
8 yet.
9 A Okay.
10 Q I'm only going to ask you about
11 the front page, but you can read the whole
12 thing.
13 A Okay.
14 Q Have you had the opportunity to
15 review the document that has been marked as
16 Elwell-1 for Identification?
17 A Yes.
18 Q Is it familiar to you?
19 A Yes.
20 Q Is it a document that you have
21 seen before today?
22 A I don't know that I seen it. I remember
23 giving the one part of it where I was asked
24 questions. I know -- I don't think I have ever
25 actually looked at the document.
34
1 Q Does it refresh your recollection
2 as to who said, "Are you going to believe those
3 cock-suckers over me"?
4 A Yes.
5 Q Who was that person?
6 A According to the report, Chuck Snyder,
7 Sr.
8 Q Does the report reflect what you
9 told Detective Sergeant Michael Reinke on
10 4/29/04?
11 A Well, if that is what he wrote, I assume,
12 yes, that's what I said.
13 Q So it accurately reflects what you
14 told Detective Sergeant Michael Reinke on
15 4/29/04?
16 A Yes.
17 MS. SMITH: Fifty-six.
18 Q Okay. Following events of
19 April 25th, 2004 did numerous members of Engine
20 Company Number 3 threaten to resign?
21 MR. MULLIN: Number 2, Engine
22 Company Number 2.
23 MS. SMITH: Sorry.
24 A I remember reading that in the newspaper,
25 yes.
35
1 MS. SMITH: Whereupon what was
2 marked Elwell-3 was marked for Identification,
3 Your Honor. Elwell-3 is P-399 in this record.
4 JUDGE CURRAN: Thank you.
5 A I also remember this. It was also in the
6 newspaper.
7 Q Have you had an opportunity to
8 review what's been marked as Elwell-3 for
9 Identification?
10 A Yes.
11 Q You were copied on this memo?
12 A Yes.
13 Q Do you remember receiving it?
14 A Well, now that I see it, yes.
15 Q Were you involved in responding to
16 this memo?
17 A I think about that point every time we
18 received anything we sent it through our
19 administrator to our, I don't know, you can --
20 I'm not sure what happened with that.
21 Q Did you participate in the
22 decision-making process as to whether or not the
23 firehouse should open?
24 A Initially there was an order to close the
25 firehouse for all activities other than fires.
36
1 It was a period of time after that that the
2 governing body allowed the firefighters, the
3 firehouse to open back up. I'm not sure what it
4 was, but it was somewhat of a few months or
5 something like that. I know that the firehouse
6 was closed for all activities for a period of
7 time. And then at one point we did allow them
8 to go back into the firehouse because the
9 firehouse was used for training and other
10 duties, cleaning of equipment and training and
11 actual training sessions that are held on
12 evenings and weekends.
13 Q So you participated in that
14 decision?
15 A Yes.
16 Q And was it -- as a result of this
17 threatened resignation?
18 MR. MULLIN: Read it again.
19 Q And was it as a result of this
20 threatened resignation?
21 A No, I don't think so. I think that came
22 at a later date. I'm not sure of the exact
23 dates, but I'm -- unless you're going to show me
24 something I did it the next week, it was never
25 my intention that the firefighters were going to
37
1 threaten us into -- by resignation.
2 MS. SMITH: At this point Exhibit
3 Elwell-4 is marked, Your Honor. And in this
4 proceeding Elwell-4 is P-344.
5 JUDGE CURRAN: Thank you.
6 Q Have you had the opportunity to
7 review what's been marked as Elwell-4 for
8 Identification?
9 A Yes.
10 Q Referring your attention to
11 Elwell-3, the signatures attached to this
12 letter, do you have that in front of you still?
13 A Yes, I have that.
14 Q That is dated April 29th, 2004; is
15 that accurate?
16 A Yes.
17 Q So the threatened resignation is
18 on April 29th, according to Elwell-3?
19 A Yes.
20 Q Elwell-4 is dated April 30th,
21 2004. And it is to Fire Chief Walters from
22 Anthony Iacono. You are copied on that letter.
23 This is the first time that you have seen it?
24 A No, I have seen it. I don't know that I
25 saw it on April 30th, though. I may have seen
38
1 it at a later date.
2 Q Did you agree with the decision by
3 Anthony Iacono to open the houses, not just for
4 use of fighting fires but for full use without
5 any restrictions?
6 MR. MULLIN: Couple minor word
7 changes. You want to just read it again.
8 MS. SMITH: I'm sorry.
9 Q Did you agree with this decision
10 by Anthony Iacono to open the houses not only
11 for use of fighting fires but for full use
12 without any restrictions?
13 A Yes.
14 Q And that would include the use of
15 alcohol?
16 A No, that would not.
17 Q Without any restrictions
18 doesn't --
19 A There was no alcohol allowed in the Fire
20 Department at this -- at this point.
21 Q I think you were misunderstanding
22 my question. Going forward pursuant to the
23 letter would there have been -- strike that
24 question.
25 After this letter of April 30th, 2004,
39
1 the North End Firehouse was permitted full use
2 without any restrictions. Does that include no
3 restrictions on the use of alcohol in the house?
4 A I think the intent of the letter was the
5 firehouse was open. We suspended the use of the
6 firehouse for anything other than when an alarm
7 went off. The firefighters could go and take
8 equipment and go to a fire. I think the words
9 "full use of the firehouse without any
10 restrictions" was geared to only fire duties.
11 As I said before, the firefighters were not
12 allowed to drink alcohol in their firehouse
13 unless they were off-duty.
14 Q So when was the North End
15 Firehouse again permitted to have alcohol in the
16 firehouse for use socially?
17 A I can't ascertain that. That would be
18 done by the Fire Chief.
19 Q And you would have no involvement
20 in that decision?
21 A No, that is a decision that is left
22 entirely up to the Fire Department. If they
23 sign themselves off-duty, we are not aware of --
24 Q I'm talking about using the North
25 End Firehouse for drinking, even if they are
40
1 off-duty.
2 A They are not allowed to drink in the
3 firehouse.
4 Q Even if they are off-duty?
5 A If they sign themselves off-duty, then
6 they can have alcoholic beverages.
7 Q In the firehouse?
8 A In the firehouse.
9 Q How soon after April 25th, 2004
10 was that reinstated?
11 A Well, if you're saying the incident
12 happened on April 25th, five days. But I don't
13 think the intention of the administrator's
14 letter was to say that they could have a party
15 at the firehouse. I'm not going to comment any
16 further because it's not my memo. I was only
17 copied on it.
18 Q Were you involved in the
19 decision-making process as to when there could
20 be the social use of alcohol in the North End
21 Firehouse after the events of April 25th, 2004?
22 A I don't know that we -- I'm not aware of
23 any -- I don't remember any decisions to allow
24 the use of the house for social functions.
25 Q Could such decisions have been
41
1 made without your approval?
2 A I don't know. I don't think so. I'm
3 just not aware of it or I don't remember. Maybe
4 I should rephrase that.
5 MS. SMITH: Finally.
6 Q Was Charles Snyder ever
7 disciplined for using the term "cock-sucker"?
8 A Disciplined, no, not to my knowledge.
9 MS. SMITH: Moving to Mr. Iacono,
10 Your Honor.
11 JUDGE CURRAN: Thank you.
12 MS. SMITH: Starting at page 26,
13 the deposition of Anthony Iacono, which occurred
14 on July 7th, 2006.
15 JUDGE CURRAN: Thank you.
16 READING OF PORTION OF ANTHONY IACONO'S
17 DEPOSITION
18 Q Are you currently a Secaucus
19 firefighter?
20 A Yes, I am.
21 Q What engine?
22 A Engine 3.
23 Q How long have you been a
24 firefighter?
25 A Eight years.
42
1 Q Have you always been with Engine
2 3?
3 A Yes.
4 Q Do you socialize with other
5 firefighters?
6 A Yes.
7 Q Do you socialize with any of the
8 Secaucus Police Officers?
9 A Yes.
10 Q Which firefighters do you
11 socialize with?
12 A Can you define "socialize with"?
13 Q Go out for drinks, have dinner,
14 have them come to your house, go to your house.
15 Any of those; it doesn't have to be all four.
16 A Do I consider some of the Secaucus
17 officers and firefighters my friends? Yes. Do
18 I occasionally play golf with both firefighters
19 and police officers? Yes. Have I been to
20 dinner with both police and fire occasionally?
21 Occasionally, yes.
22 MS. SMITH: Page 35.
23 Q You have been the Town
24 Administrator for Secaucus for how long?
25 A Ten years.
43
1 MS. SMITH: Thirty-six.
2 Q Have you always been the Town
3 Administrator in --
4 MS. SMITH: I'm sorry.
5 Q Have you held other positions
6 within the Town of Secaucus besides Town
7 Administrator?
8 A Yes.
9 Q Do you currently hold other
10 positions?
11 A Yes.
12 Q Currently what other positions do
13 you hold? That includes paid and nonpaid
14 positions.
15 A I am the vice chairman of the Secaucus
16 Municipal Utility Authority.
17 Q Is that paid?
18 A Nonpaid. I am the EEO officer for the
19 Town of Secaucus.
20 Q Paid or nonpaid?
21 A I don't receive a stipend for that. It
22 is part of my -- part of the duties as
23 administrator. I am State certified. I am also
24 a certified consumer affairs investigator, which
25 I do receive a stipend. I am a member of the
44
1 Secaucus Planning Board, which I do not get
2 paid. I am a member of the Secaucus Volunteer
3 Fire Department, which I do receive a stipend.
4 I serve on some advisory committees.
5 Q Anything else?
6 A No. No.
7 Q Is the Town Administrator a
8 full-time job?
9 A Yes, it is.
10 MS. SMITH: Page 40.
11 Q During the time that you have been
12 a firefighter has the consumption of alcohol
13 been permitted in the firehouses?
14 A As it pertains to the policy, which is
15 the policy of allowing alcohol at private
16 parties and firehouses, yes.
17 Q And is that the current policy?
18 A It's the current policy, yes.
19 Q And has that always been the
20 policy?
21 A Over the years it may have gotten -- the
22 policy may have tightened up a little bit; but
23 to the best that I recall, the firehouse as a
24 meeting facility has always been allowed to be
25 taken out by members and guests of members as a
45
1 banquet hall, so to speak.
2 Q Has the policy always been that
3 you need to get permission to use the firehouse
4 for that purpose?
5 A In my ten years as the administrator,
6 yes.
7 Q And what is the process for
8 obtaining permission to use the firehouse for
9 purposes that include the consumption of
10 alcohol?
11 A A member from that individual firehouse
12 may request the use of the facility.
13 MR. PARIS: Your Honor, I hate to
14 interrupt. Can I be heard at sidebar for one
15 second, please?
16 JUDGE CURRAN: Sure.
17 (Whereupon, the following sidebar
18 discussion is held.)
19 MR. PARIS: Your Honor, I know
20 that it was referenced earlier by Mr. Mullin
21 when he had the permit form up there; but there
22 is a reference in this answer to notification of
23 the insurance company. The insurance company
24 had nothing to do with the events afterwards. I
25 think that that should be removed from the
46
1 answer.
2 MR. MULLIN: Why don't we just
3 strike it from the end of line 67?
4 MR. PARIS: I'd appreciate it very
5 much.
6 JUDGE CURRAN: Thank you.
7 MR. MULLIN: I will do it on my
8 copy.
9 MR. PARIS: Thank you, Your Honor.
10 (Whereupon, sidebar discussion is
11 concluded.)
12 MR. MULLIN: Hang on a second.
13 What page was that?
14 MS. SMITH: Forty going on -- the
15 answer is on 41.
16 MR. MULLIN: The issue we just
17 dealt with what page was that on.
18 MS. SMITH: Forty-one. Okay. I
19 will ask the question again.
20 MR. MULLIN: Very good.
21 MS. SMITH: Is that okay, Your
22 Honor?
23 JUDGE CURRAN: Okay.
24 Q What is the process for obtaining
25 permission --
47
1 MR. MULLIN: Oops, I'm screwing
2 up. Something went over the side. Thank you
3 very much.
4 Q And what is the process for
5 obtaining permission to use the firehouse for
6 purposes that include the consumption of
7 alcohol?
8 A A member from that individual firehouse
9 may request the use of the facility. He fills
10 out a Town form; and it is signed by the
11 individual member, signed by the Chief of the
12 Department and I believe the captain of the
13 particular company.
14 Q And what kind of information does
15 the form request?
16 A I believe it requests the names of the he
17 individual using the facility.
18 Q Does it request the names of
19 people who would be present?
20 A No.
21 Q Does it require information
22 regarding the amount of alcohol that would be
23 served?
24 A No.
25 Q Does it require information
48
1 regarding the type of alcohol that would be
2 served?
3 A No.
4 Q Did you, as Town Administrator,
5 establish the rule that a permit is required to
6 use the firehouse for the consumption of
7 alcohol?
8 A The best of my knowledge the policy had
9 been in place prior to me being administrator.
10 Q So that's always been the policy
11 as far as your recollection is concerned?
12 A That's correct.
13 MS. SMITH: Forty-eight.
14 Q Going back to the certifications
15 that you hold, are there actual certifications,
16 pieces of paper, that you have that indicate
17 that you are certified?
18 A Yes.
19 Q Do you have them?
20 A Yes.
21 Q I am going to ask that you produce
22 them to your lawyer. Throw them in the Xerox,
23 that would be fine. I have already used the
24 term; but throughout the remainder of your
25 deposition I will be using the term "sexual
49
1 orientation discrimination" and "sexual
2 orientation harassment." Do you understand
3 those terms?
4 A Yes.
5 Q What do you understand them to be?
6 A Sexual orientation?
7 Q Discrimination and sexual
8 orientation harassment.
9 A As far as discriminating against someone
10 based on his sexual orientation.
11 Q What about harassment?
12 A The same, harassing someone based on his
13 sexual orientation.
14 Q What are your responsibilities as
15 the Equal Employment Opportunity officer?
16 A Primarily to make sure that the Town is
17 in compliance with our hirings and our
18 performance as public servants to the community.
19 Q And how do you do that?
20 A Make sure we are in total compliance with
21 law.
22 Q As a practical matter, how do you
23 ensure that that is happening?
24 A We have policies in place, and we promote
25 a safe and clean harassment-free environment in
50
1 the workplace.
2 Q How do you do that in addition
3 to -- let's back up a minute. Where do the
4 policies come from?
5 A The policies are reviewed periodically.
6 Some -- some are revised, implemented. And we
7 also promote and continue the practice of a
8 harassment-free work environment. Any form of
9 harassment.
10 Q Where do the policies originate?
11 A They originated with the Town policy, I
12 guess.
13 Q Who drafts the policies?
14 A Ultimately I would take an existing
15 policy and I would revise it. If we didn't have
16 one in place, I would write a policy, as the EEO
17 officer, submit it to the Mayor and Council for
18 approval.
19 Q Are you responsible for drafting
20 the sexual harassment policy for the Town of
21 Secaucus?
22 A I'm sure, since I have been the
23 administrator in Secaucus I have participated in
24 that particular policy that you are referring
25 to. I don't know that I wrote the original
51
1 policy; but I'm sure we have revised, you know,
2 the existing one now.
3 Q And who participates in that
4 process besides yourself?
5 A The Town labor attorney.
6 Q Who is that?
7 A Martin Pachman.
8 Q And how often is the policy
9 updated?
10 A Periodically. In my tenure of ten years,
11 maybe twice.
12 Q How are Town employees educated
13 about the policy?
14 A We have in the past offered in-service
15 trainings on a work -- a harassment-free work
16 environment.
17 Q How often are the trainings
18 provided?
19 A Periodically.
20 Q Meaning?
21 A Anywhere from one to five years.
22 Q So every five years?
23 A In some cases every five years; in some
24 cases sooner. I don't recall specifically the
25 dates of our training.
52
1 Q Do Secaucus Fire fighters receive
2 specific training regarding sexual harassment
3 and other types of workplace discrimination?
4 A Secaucus Volunteer Fire Department
5 received training within the last -- I don't
6 know the date. Within the last two years.
7 Q Was it after April 25th, 2004?
8 A Yes.
9 Q And when was the last training
10 before that, most recent training?
11 A I don't know the exact year as it
12 pertained to a harassment-free work environment.
13 Q We are talking only about
14 firefighters right now.
15 A No, that was the only one. Prior to that
16 incident volunteer firefighters did not receive
17 formal training.
18 Q Did not receive formal training --
19 A Formal in-service.
20 Q -- regarding harassment and
21 discrimination in the workplace; is that right?
22 A That's correct.
23 Q Why was that?
24 A I cannot answer. I can't answer on
25 behalf of the Mayor and Council, or I can't
53
1 answer on behalf of the Fire Chief.
2 Q Can you answer on behalf of
3 yourself as the EEO officer?
4 A Yes, it was not part of the policy that
5 was in place prior to me being the
6 administrator.
7 Q Are you responsible for the
8 harassment and discrimination policy that
9 pertains to Town employees of Secaucus?
10 A The Volunteer Fire Department are not
11 employees of the Town of Secaucus. So my
12 jurisdiction as the administrator is not as
13 clear as it is -- as it pertains to Town
14 employees, which I am fully responsible for.
15 Q So who is responsible for ensuring
16 that the Secaucus Fire fighters get training
17 related to discrimination and harassment in the
18 workplace?
19 A Ultimately, it would be the policy that
20 is set in place by the Fire Chief submitted to
21 the Mayor and Council for approval.
22 Q What policy is that?
23 A Whatever policy exists or did not exist.
24 Q There is a policy specific to the
25 Fire Department?
54
1 A Whatever policy exists or does not exist
2 is made up through the code of the Town of
3 Secaucus.
4 Q You are losing me. Is there a
5 policy or is there not a policy which applies to
6 the Secaucus Fire fighters --
7 MS. SMITH: I'm sorry, I will read
8 it again, Your Honor.
9 Q You are losing me. Is there a
10 policy or is there not a policy in place which
11 applies to the Secaucus firefighters?
12 A What kind of policy?
13 Q Regarding harassment and
14 discrimination in the workplace.
15 A Prior to the incident? I'm confused.
16 Q Let's say currently. Is there
17 such a policy?
18 MR. MULLIN: And that's currently
19 was the date of the deposition July 7, 2006.
20 JUDGE CURRAN: That is not the
21 answer. That is an aside.
22 MR. MULLIN: That is just an
23 aside, yes.
24 JUDGE CURRAN: Please read the
25 question again.
55
1 MS. SMITH: Read it again?
2 JUDGE CURRAN: Please.
3 Q Let's say currently. Is there
4 such a policy?
5 MR. MULLIN: Answer.
6 A The code of the Town of Secaucus requires
7 that the Volunteer Fire Department are of good
8 moral character and conducts themselves in a
9 professional manner. But is there a policy as
10 it specifically relates to the Fire Department?
11 No.
12 Q Has there ever been?
13 A To the best of my knowledge, no.
14 Q Is that part of your
15 responsibility or not?
16 A Volunteer Fire Department falls under the
17 guidelines of the Town Code, which is governed
18 by the Mayor and Council. They are not
19 employees. I do not have direct responsibility
20 on volunteer firefighters.
21 Q Do you have indirect
22 responsibility?
23 A Through the Fire Chief, yes.
24 MS. SMITH: Sixty-six.
25 Q So it is your responsibility --
56
1 MR. MULLIN: Read it again.
2 Q So is it also your responsibility
3 to ensure that Town employees interact with the
4 general public in a way that is not
5 discriminatory?
6 A Yes.
7 MS. SMITH: Seventy-six. An
8 exhibit is marked Iacono-5. In this proceeding,
9 Your Honor, it's P-400?
10 JUDGE CURRAN: Thank you.
11 Q Have you had the opportunity to
12 review what has been marked as Exhibit Iacono-5
13 for Identification?
14 A Yes.
15 Q Are you familiar with this
16 document?
17 A Am I familiar with it? No.
18 Q Are you copied on it?
19 A Yes.
20 Q Do you recall receiving it on
21 April 29th, 2004 or any time thereafter?
22 A I don't recall receiving it; but as I'm
23 reading it now, I'm sure it was submitted, yes.
24 Q Does it refresh your recollection
25 that these firefighters threatened to resign?
57
1 A Again, I don't think anything ever came
2 of it, so I'm sure by the time that it was --
3 from the initial time it was written to the time
4 we received it, whether it was the same day or
5 day after, I don't think anybody ever resigned.
6 So I don't recall anything specifically like
7 that.
8 Q Does this letter indicate that
9 these firefighters are threatening to resign?
10 A Yes.
11 Q Do you remember how this incident
12 was handled by the Mayor? I'm sorry, it's
13 actually addressed to Chief Walters. Do you
14 know how it was addressed by the Chief?
15 A I think the Chief was probably trying to
16 find a happy medium.
17 Q What's a happy medium?
18 A I think certainly --
19 MR. MULLIN: Start --
20 Q What was the happy medium?
21 MS. SMITH: I'm sorry.
22 A I think certainly that the -- I think
23 that the time this was written I believe the
24 company quarters were off limits, and I think
25 the members wanted the company quarters to be
58
1 open. Again, the Chief had not made a decision
2 at that time yet.
3 Q Were you involved in that
4 decision-making process?
5 A Was I involved in the decision-making
6 process? I'm sure that I had offered an opinion
7 as to -- as it pertained to the issue, yes.
8 Q Do you recall what that opinion
9 was?
10 A Specifically, you know, I knew there were
11 some members in the company that weren't even
12 there that night that felt they were being --
13 they were being, you know, penalized for an
14 incident that happened that they weren't even
15 there.
16 I think there was a concern in the
17 neighborhood that the firehouse was closed, even
18 though the firehouse was never closed but the
19 quarters were. I think the perception was if
20 there was a fire, that fire company wasn't going
21 to respond, which obviously was not true.
22 But a lot of the stuff was what people
23 were hearing and reading about in the paper,
24 which was sometimes not a hundred percent
25 accurate.
59
1 Q Do you happen to know how many
2 members of Engine Company Number 2 were not
3 present in the early morning hours of April 25,
4 2004?
5 A Specifically, no.
6 Q Do you remember how many of the
7 members, even if you don't remember specifically
8 who they were?
9 A How many were there, or how many were not
10 there?
11 Q How many were not there.
12 A I don't know that number.
13 Q Did you ultimately make a
14 recommendation regarding the closure of Engine
15 Company Number 2?
16 A Could you repeat the question?
17 Q Sure. The letter dated
18 April 29th, 2004 indicated -- indicates that the
19 firefighters who signed off on this wanted their
20 company quarters to be opened; is that correct?
21 A That's correct.
22 Q Did you make any recommendation in
23 that regard?
24 A I'm sure at one point I asked the Fire
25 Chief to reconsider his decision in closing the
60
1 firehouse quarters.
2 Q Why did you do that?
3 A Again, I felt that the firefighters that
4 were not there that evening were being penalized
5 for something that they weren't even at. And I
6 thought that the perception of the Fire
7 Department being closed in general was not at
8 the time the best perception in that particular
9 neighborhood community.
10 Q Did the Fire Chief ask you for
11 your input on this matter?
12 A The Fire Chief and I had several
13 conversations and discussions during the course
14 of the incident, including while I was away in
15 Florida and when I came back. It was a concern
16 of his and a concern of mine.
17 Q So whose responsibility was it to
18 make the decision as to whether or not the
19 quarters should be opened?
20 A Ultimately it's the Fire Chief's
21 decision.
22 MS. SMITH: At this point we
23 marked Iacono-6, Your Honor. And that is in
24 this proceeding P-401.
25 JUDGE CURRAN: Thank you.
61
1 Q Have you had the opportunity to
2 review what has been marked as Iacono-6 for
3 Identification?
4 A Yes.
5 Q Are you familiar with this
6 document?
7 A Yes.
8 Q Did you author it?
9 A Yes.
10 Q Is it a letter dated April 30th,
11 2004 from you to Chief Walters?
12 A Yes.
13 Q And it is your recommendation that
14 the quarters be -- and is it your recommendation
15 that the quarters be reopened?
16 A Yes.
17 Q And after you sent this letter
18 were the quarters reopened?
19 A Sometime after that letter, yes.
20 Q Did you discuss this with Chief
21 Walters, or did you simply send him the letter?
22 A I discussed it with him, as well.
23 Q After you sent the letter did you
24 discuss it with him?
25 A I'm sure I did, yes.
62
1 Q Do you recall the substance of
2 those conversations?
3 A Similar to the concerns that I just
4 mentioned previously as to the perception of the
5 firehouse being closed, even though it wasn't
6 being closed. The perception in that
7 neighborhood in that part of the community was
8 the firehouse was closed. There were, you know,
9 firefighters that were not anywhere near the
10 alleged incident that were being penalized.
11 Those were just, I thought, were valid concerns
12 to point out to the Fire Chief. And at the same
13 time as to the opening of the quarters it would
14 have no bearing on the outcome of the incident.
15 Q Do you think that opening the
16 quarters would send a message to the Secaucus
17 community?
18 A In respect to?
19 Q Well, you indicated in your
20 testimony that you thought that having the
21 quarters closed would send a message to the
22 Secaucus community; is that right? Did you
23 testify to that?
24 A I think I said the perception that the
25 firehouse was closed, even though that was not
63
1 the case, the firehouse was open but the back
2 quarters was closed, the perception was the
3 firehouse was closed in general. And there was
4 some concern with closing a firehouse, even
5 though what we say the firehouse is closed
6 versus what the public perceived it as. That
7 was the message I was referring to.
8 Q Did you think that there would be
9 any perception of -- strike that.
10 Did you think the companies --
11 MR. MULLIN: Do you think.
12 Q Do you think the company's
13 quarters were closed as a punitive measure?
14 A I believe there was some great concern by
15 the Fire Chief over the incident, and he
16 probably closed the quarters for all of the
17 above reasons.
18 Q And do you think opening the
19 quarters had the potential to show a lack of
20 concern on the part of the Town of Secaucus?
21 A No.
22 Q Why not?
23 A I believe that the incident in question
24 would certainly go through the court systems.
25 And certainly, if anyone was guilty of anything,
64
1 they certainly would have to pay that penalty.
2 But certainly, to penalize all the firefighters
3 that weren't even there that night, that would
4 be just as wrong.
5 Q What about the firefighters who
6 were there that night?
7 A Again, it was always my belief that if
8 someone did anything wrong and they were guilty
9 of anything, certainly, they would have to face
10 the penalty. That would have no bearing on any
11 firefighters that didn't do anything wrong.
12 Certainly, I would hope in any case scenario one
13 or two bad apples wouldn't ruin the whole
14 company.
15 MS. SMITH: Page 89.
16 Q After the events of April 25th,
17 2004 there was mandatory sensitivity training
18 for the firefighters; is that right?
19 A Yes.
20 Q Did there come a time where a
21 number of those firefighters refused to attend
22 the training?
23 A I believe so, yes.
24 Q Do you recall the reason they
25 refused to attend?
65
1 A Various reasons from what I remember.
2 Q Can you tell me some of them?
3 A One reason was someone from the
4 Washington Hook and Ladder, his concern was why
5 do we have to go through something for some
6 mandatory training when we didn't do anything
7 wrong, when it was those guys? If they used
8 common sense, we wouldn't be here. That was
9 some of the reasons from other firehouses. I
10 think there was some resistance. Not many, but
11 there was some resistance.
12 Q Was it 14 members?
13 A It may have started at 14 and then
14 dwindled down to two or three.
15 Q Was it only members from
16 firehouses other than Engine Company Number 2?
17 A No, I believe there may have been one
18 maybe two members from Engine 2 that outright
19 refused.
20 Q Do you remember who?
21 A Mutschler might have been one of them.
22 Q Do you remember who the other one
23 was?
24 A I would probably have to take a look at
25 that list again.
66
1 Q What action was taken against the
2 firefighters who refused to attend?
3 A I don't know if the Chief imposed a
4 suspension. I know that was one of his options.
5 Q Did anyone confer with you
6 regarding this issue?
7 A Not specifically, no.
8 Q Why not?
9 A Again, I believe it was the
10 responsibility of the Fire Chief to see to it
11 that everybody received the required training.
12 Q Did the Fire Chief report to you?
13 A Yes.
14 Q Did the Police Chief report to
15 you?
16 A Yes.
17 Q And you report to the Mayor and
18 Council?
19 A That's correct.
20 Q And that's it?
21 A That is basically the flow chart of our
22 organization, yes.
23 Q So do you know whether these 14
24 firefighters ultimately took the training?
25 A I believe the best that I could remember,
67
1 I think at the end of the day there was maybe
2 two, maybe three that didn't.
3 Q And was any punitive action taken
4 against them?
5 A I don't recall. That would come from the
6 Fire Chief.
7 MS. SMITH: That concludes the dep
8 readings, Your Honor.
9 JUDGE CURRAN: Thank you.
10 MS. SMITH: We have a couple
11 Interrogatories to read into the record. I'm
12 sorry, I don't have an extra copy of those, Your
13 Honor.
14 JUDGE CURRAN: It's okay.
15 MR. MULLIN: Judge.
16 MS. SMITH: Do you want me to read
17 along with you?
18 MR. MULLIN: Judge, do you want to
19 explain what rogs are, Your Honor? I will show
20 it to you. These are rogs answered by the Town
21 of Secaucus.
22 JUDGE CURRAN: Who signed them on
23 behalf of the --
24 MR. MULLIN: I think someone did.
25 I don't have that certification. It's conceded.
68
1 JUDGE CURRAN: Ladies and
2 Gentlemen, I think I mentioned this earlier.
3 During a pretrial time, preparing for trial, the
4 parties and the attorneys engage in what we call
5 "discovery." Part of that is what we call
6 submission of Interrogatories and Answers to
7 Interrogatories. It's simply a question and
8 answer list. But as I said earlier, we lawyers
9 can't call them "questions and answers." We
10 call them "Interrogatories."
11 The Interrogatories have to be --
12 if it's an individual, they have to be signed by
13 the individual; and that individual has to
14 indicate they basically signed under a section
15 that indicates everything's to the best of their
16 knowledge and the answer is true.
17 In regard to the Town -- and the
18 first reading I believe is on behalf of the
19 Town?
20 MS. SMITH: Yes, Your Honor.
21 JUDGE CURRAN: A representative of
22 the Town certifies as to the truth of the
23 answers.
24 Thank you.
25 MS. SMITH: Thank you, Your Honor.
69
1 MR. MULLIN: Your Honor, I will be
2 reading the Town of Secaucus' Answers to
3 Interrogatories we served on behalf of our
4 clients.
5 JUDGE CURRAN: Thank you.
6 MS. SMITH: And I'll be reading
7 the plaintiffs -- the Mr. deVries' and
8 Mr. Carter's questions or Interrogatories.
9 Number seven. By what means did
10 the volunteer firemen travel to the function
11 described in Interrogatory Number 4?
12 MR. MULLIN: Attendees traveled
13 from Engine Company Number 2 to the function in
14 a Secaucus transportation bus operated by
15 Secaucus driver, Miss Linda Lunde.
16 MS. SMITH: Number 17. Describe
17 the application process for Secaucus
18 firefighters.
19 MR. MULLIN: All Secaucus
20 firefighters are required to fill out an
21 application with the Secaucus Office of
22 Emergency Management. The application is then
23 turned over to the Police Department for a
24 criminal background check. Provided the
25 applicant passes the criminal background check,
70
1 the Police Chief will sign off on the
2 application; and it is returned to the Fire
3 Chief.
4 Next the applicant is required to
5 attend fire training, specifically Firefighter
6 1, which consists of 140 hours of basic fire and
7 emergency training with either the Bergen County
8 Fire Academy, the North Jersey Volunteer Fire
9 Academy or the Middletown Fire Academy.
10 Once the applicant successfully
11 completes Firefighter 1, the applicant is
12 assigned to an engine company in a Secaucus Fire
13 Department as a probationary firefighter for a
14 period of one year.
15 Provided the applicant has good
16 job performance and there are no disciplinary
17 problems, he will be assigned as a regular
18 firefighter subject to the approval of the Mayor
19 and Council upon recommendation of the Chief.
20 MS. SMITH: Number 27. State
21 whether Secaucus firefighters receive any
22 compensation, including but not limited to
23 salary or commissions. For example, health
24 insurance, pension benefits and stock options.
25 MR. MULLIN: Any volunteer
71
1 firefighter who is not otherwise employed in a
2 full-time position with the Town of Secaucus is
3 entitled to an incentive of $300 per month, if
4 said firefighter responds to 35 percent or more
5 of the fire calls for that Town.
6 Any voluntary firefighter who is
7 also employed by the Town in a full-time
8 position must make at least 40 percent of the
9 monthly calls in order to qualify for the $300
10 bonus.
11 In addition, all Secaucus
12 firefighters -- all Secaucus' firefighters are
13 entitled to a yearly clothing allowance of $500.
14 Lieutenants are entitled to a yearly clothing
15 allowance of $600. Captains are entitled to a
16 yearly clothing allowance of $650. Battalion
17 chiefs and the deputy chief are entitled to a
18 yearly clothing allowance of a thousand dollars.
19 And the Chief is entitled to a yearly clothing
20 allowance of $1,500.
21 MS. SMITH: Number 31. Describe
22 the relationship between Defendant Secaucus Fire
23 Department and Defendant Town of Secaucus.
24 MR. MULLIN: The Secaucus
25 Volunteer Fire Department is not a separate body
72
1 politic; it is a department of the Town.
2 MS. SMITH: Number 33. Describe
3 the relationship between Defendant Frank
4 Walters -- I'm sorry, between Frank Walters and
5 Defendant Secaucus Fire Department.
6 MR. MULLIN: Frank Walters is
7 retired as Secaucus' Fire Chief. He continues
8 to be a Secaucus volunteer fireman.
9 MS. SMITH: Number 35. Describe
10 the relationship between Anthony Iacono and
11 Defendant Town of Secaucus.
12 MR. MULLIN: Anthony Iacono was
13 employed as the Secaucus's Town Administrator.
14 He is also a volunteer firefighter assigned to
15 Engine Company Number 3.
16 MS. SMITH: Number 37. State
17 Frank Walters' entire work history while
18 employed by Defendant Secaucus -- while employed
19 by Secaucus Fire Department and/or the Town of
20 Secaucus, including each promotion and each
21 demotion.
22 MR. MULLIN: We go to F on this
23 one and then to G.
24 MS. SMITH: Okay. For each
25 promotion, the job titles from which and to
73
1 which Frank Walters was promoted, the date of
2 the promotion, the reasons for the promotion and
3 the name, last known address, last known
4 telephone number, job title and current
5 employment status of each person involved in the
6 promotion decision.
7 MR. MULLIN: That's F. Once a
8 term is completed as a lieutenant, then there is
9 an automatic promotion to captain. Battalion
10 chief is an elected position. And from there
11 there is an automatic promotion to deputy chief
12 and chief at the end of each respective term.
13 G.
14 MS. SMITH: For each demotion the
15 job titles from which and to which Frank Walters
16 was demoted, the date of the demotion, the
17 reason or reasons for the demotion and the name,
18 last known address, last known telephone number,
19 job title and current employment status of each
20 person involved in the demotion decision.
21 MR. MULLIN: No demotions.
22 MS. SMITH: Number 41. State
23 whether the Secaucus Fire Department and/or the
24 Defendant Town of Secaucus maintained a system
25 or procedure for employee discipline.
74
1 MR. MULLIN: All Secaucus'
2 employees, including volunteer firefighters, are
3 subject to the disciplinary procedures for all
4 Secaucus personnel as set forth in the Secaucus'
5 Town Code.
6 MS. SMITH: Number 49. State
7 whether any member of Engine Company Number 2
8 was ever disciplined in relation to plaintiffs'
9 complaints against them. If so, identify and
10 provide true and accurate copies of any and all
11 documents relevant to each such action.
12 MR. MULLIN: No discipline was
13 administered by the Town of Secaucus arising out
14 of the plaintiffs' complaints against Engine
15 Company Number 2. The matter was handled
16 initially by the Secaucus Police Department for
17 investigation and depending upon the results of
18 the investigation, criminal prosecution. As set
19 forth in the police reports for the alleged
20 incident, which are in possession of plaintiffs
21 and defendants, having been released by the
22 Office of the Attorney General, Bias Crimes
23 Unit, the investigation was referred to the
24 Secaucus Police Department, to the Hudson -- was
25 referred by the Secaucus Police Department to
75
1 the Hudson County Prosecutor's Office and then
2 to the Office of the Attorney General, Bias
3 Crimes Unit.
4 MS. SMITH: That concludes the
5 readings, Your Honor.
6 JUDGE CURRAN: Thank you very
7 much.
8 Ladies and Gentlemen, you have
9 been very patient. I see that we're working our
10 way through the morning, so we will take the
11 morning break from now. If you will be kind
12 enough to come back at 11:30. Thank you.
13 Off the record.
14 (Whereupon, a brief recess is
15 taken.)
16 JUDGE CURRAN: Go back on the
17 record. I understand you have some issues
18 before we go back with the jury.
19 MR. MULLIN: Counsel asked if I
20 would this morning rest, and short -- subject
21 to, as we discussed yesterday, moving my
22 documents into Evidence -- we're working out
23 stipulated documents -- and subject to the
24 completion by the Town of the stipulation I have
25 asked for -- I know they're working on that --
76
1 which will include the jobs that all the folks
2 in the North End Firehouse at the relevant time
3 held with the Town, whether it be DPW or some
4 other department, the -- how they were advanced,
5 that is, their promotions and the dates of the
6 promotions and the same information as to the
7 same individuals with respect to the positions
8 they held as firefighters, when they were made
9 lieutenant, when they were made captain. I need
10 the dates. I need the tiles. We are in no mad
11 rush for it. I know they are preparing it.
12 Subject to that, Your Honor, I could get up in
13 front of the jury and say, "I now rest" with
14 this understanding on the record. I don't even
15 have to say it in front of the jury, but subject
16 to.
17 MR. PARIS: That's fine, Your
18 Honor.
19 MR. BEVERE: We don't have to do
20 it in front the injury, if Mr. Mullin does it
21 here.
22 MR. PARIS: It should just be done
23 in front of the jury.
24 JUDGE CURRAN: It can be done in
25 front of the jury.
77
1 MR. BEVERE: I misunderstood what
2 our preference was, I guess, because I usually
3 go along with the preference. So I guess I
4 misunderstood what the preference was, but
5 that's okay.
6 JUDGE CURRAN: I think we may have
7 changed the preferences. You weren't here this
8 morning to defend yourself.
9 MR. BEVERE: No, I was not.
10 JUDGE CURRAN: We did some
11 motions.
12 MR. BEVERE: That happens a lot.
13 JUDGE CURRAN: Going to be some
14 changes of side. You may be all by yourself
15 over there.
16 MR. PARIS: We wanted to make him
17 feel at home. No one has any regard for what he
18 prefers.
19 JUDGE CURRAN: I will say,
20 Mr. Paris at one point indicated that you would
21 be here, whatever. We made sure the record
22 indicated you were here, you had been seen, so
23 it's not that you had played golf for the
24 morning.
25 MR. BEVERE: No, no. I don't even
78
1 play golf, so --
2 JUDGE CURRAN: Okay.
3 MR. PARIS: Judge, the -- just
4 there is a long list of documents that I
5 received late last night. We're going to go
6 over that. If we have objections with regard to
7 documents, obviously, we will just -- you know,
8 we will either try to resolve it. If we can't
9 resolve them, we will abide by the Court's --
10 JUDGE CURRAN: Absolutely.
11 MR. PARIS: -- determination. But
12 other that, than we understand.
13 MS. SMITH: Your Honor, I request
14 a sidebar before the witness takes the stand
15 about a couple minor issues about what's in his
16 report.
17 JUDGE CURRAN: Absolutely.
18 (Whereupon, the following sidebar
19 discussion is held.)
20 JUDGE CURRAN: Before I forget,
21 may I return the deposition transcripts.
22 MS. SMITH: Thank you. You don't
23 want that for late night reading, Your Honor?
24 JUDGE CURRAN: No, thank you.
25 MS. SMITH: If you have insomnia,
79
1 might work.
2 In his report Dr. Goldwaser
3 discusses the Grand Jury did not indict. I
4 assume that we are not going to --
5 MR. BEVERE: I will remind -- I
6 will remind him of that.
7 JUDGE CURRAN: Miss Castelli, can
8 you hear?
9 COURT CLERK: Yes.
10 MR. BEVERE: I will remind him of
11 that.
12 MS. SMITH: Okay. So no
13 conversation about that.
14 There is also highlighted page 12
15 of Dr. Goldwaser's report.
16 MR. PARIS: Which one?
17 MS. SMITH: DeVries.
18 MR. BEVERE: Okay.
19 JUDGE CURRAN: I'm sorry, what are
20 the numbers for his report, so I can get them
21 out of the 75 pounds of exhibits?
22 MS. SMITH: I think this is 311.
23 MR. MULLIN: D.
24 MR. PARIS: That's a new document
25 number. Do we have an extra copy of it?
80
1 MS. SMITH: He just gave it to me
2 this morning.
3 MR. PARIS: The court --
4 JUDGE CURRAN: Is it in our -- in
5 the documents I have?
6 MR. BEVERE: No, but Dave is going
7 to give it to you. My apologies, Judge. I
8 didn't put it on your desk because I was -- as
9 you know, I was outside not defending myself
10 when everything was going on this morning.
11 JUDGE CURRAN: No --
12 MR. BEVERE: No need to apologize.
13 JUDGE CURRAN: Tracey, excuse us.
14 MR. BEVERE: 312, deVries's
15 report. Highlighted is --
16 MS. SMITH: 4/30/04 he has
17 highlighted the term "working class people," as
18 if that's part of the quote about what the
19 patient feels. In fact, that was a
20 parenthetical. I believe that that was Dr.
21 Almeleh's interpretation of Mr. deVries
22 describing people that he felt fearful of that
23 looked like firefighters. I assume you are not
24 going to elicit any testimony that -- that my
25 client had some fear of working class people.
81
1 MR. BEVERE: Well, Judge, let -- I
2 guess --
3 MS. SMITH: If you want to look at
4 the Almeleh records, I can show it to you.
5 MR. BEVERE: No, no, I have the
6 Almeleh records right in front of me.
7 MS. SMITH: Okay.
8 MR. BEVERE: And I am very
9 familiar with what Miss Smith is saying, Judge.
10 Here is the problem. My -- the expert in this
11 case is going to reference a lot of notations in
12 Dr. Almeleh's records. And many -- he relied
13 upon those in reaching his opinions and
14 conclusions, just as Dr. Bursztajn relied upon
15 them in reaching his opinions and conclusions.
16 So to the extent that Dr. Almeleh wrote
17 something in his note, I think it's fair for my
18 witness to be able to utilize that to the extent
19 he relied upon it.
20 JUDGE CURRAN: Well, my belief is
21 that there is only an objection to this, maybe
22 one or two others, I don't know; but there is no
23 objection in general. It's an objection to this
24 specific --
25 MR. BEVERE: To the term "working
82
1 class people"?
2 JUDGE CURRAN: Working class
3 people. I think it's a fair objection, if it
4 was the doctor's view, even if Dr. Goldwaser
5 relied on it.
6 MR. BEVERE: You see, here is the
7 thing.
8 JUDGE CURRAN: I think it is --
9 let me -- easy argument or easy answer. It's
10 more prejudicial than probative. And I think
11 that's fair to say with a jury I think it would
12 not be fair.
13 MR. BEVERE: All right, Judge.
14 But just so that my -- so that I'm on the
15 record, clearly, Dr. -- I don't think from the
16 note, itself, it's so clear that it's his
17 interpretation of what Mr. deVries is saying, as
18 opposed to writing down what Mr. deVries is
19 saying.
20 JUDGE CURRAN: Oh, I didn't
21 realize that.
22 MS. SMITH: It's specifically in
23 parentheses.
24 JUDGE CURRAN: Yeah, it is in
25 parentheses.
83
1 MS. SMITH: Specifically in
2 parentheses in the -- in the notes. The word
3 "working class people" is in parentheses. It's
4 not in this report, but it is in the notes.
5 MR. BEVERE: But, Judge --
6 JUDGE CURRAN: I will note that on
7 the record.
8 MR. BEVERE: I agree that that's
9 what it says; however, whether that's not
10 something Mr. deVries said or not, I don't know
11 how we determine that because it's in
12 parentheses.
13 JUDGE CURRAN: Well, that's what
14 it looks like. I don't know.
15 MR. BEVERE: But Judge --
16 JUDGE CURRAN: It does appear to
17 me. That's what it appears to me. Whether it
18 is or isn't, whether Mr. deVries said it or
19 whether it's the doctor's impression --
20 MR. BEVERE: Okay.
21 JUDGE CURRAN: -- I still think
22 it's more --
23 MR. BEVERE: Judge, I have no
24 problem telling the doctor not to --
25 JUDGE CURRAN: I understand. Your
84
1 argument is preserved for the record.
2 MR. BEVERE: We are going to run
3 into a lot of problems, if Dr. Goldwaser can't
4 comment in what's Dr. Almeleh's notes.
5 JUDGE CURRAN: No, I don't think
6 that is the motion. The motion is only in
7 regard to that phrase at this point. And that's
8 the only thing we are talking about at this
9 point.
10 MR. BEVERE: Okay. The objection
11 is to the fact that "working class people" we
12 believe is prejudicial?
13 JUDGE CURRAN: Unduly prejudicial.
14 MR. BEVERE: Not because Mr.
15 deVries might not have said it to Dr. Almeleh?
16 JUDGE CURRAN: Right. Oh, yep,
17 I'm not questioning the --
18 MR. BEVERE: Fine. That was my
19 only concern. Okay.
20 MS. SMITH: Okay. And the final
21 thing, on page 16 of the report Dr. Almeleh
22 refers to some dispute that Mr. deVries and
23 Mr. Carter had with their landlord after they
24 moved out.
25 MR. BEVERE: We are not going to
85
1 bring that up. I already talked to him about
2 that.
3 JUDGE CURRAN: Great.
4 MR. BEVERE: He has already been
5 instructed not to talk about Jersey City, any
6 blood towels and anything like that. So he is
7 not --
8 MS. SMITH: Too bad.
9 MR. BEVERE: I know you were
10 hoping he would stick it in there, open the door
11 but --
12 MR. PARIS: We are going to try
13 not.
14 JUDGE CURRAN: Thank you.
15 MS. SMITH: I was hoping that door
16 would crack open.
17 MR. BEVERE: I am not all that
18 smart, but I am smarter than that.
19 MR. PARIS: We hope.
20 MR. BEVERE: Judge, can I just
21 before --
22 JUDGE CURRAN: Surely.
23 COURT CLERK: Off the record.
24 (Whereupon, sidebar discussion is
25 concluded.)
86
1 (Whereupon, a discussion is held
2 off the record.)
3 (Whereupon, the jury is brought
4 into the courtroom.)
5 JUDGE CURRAN: Back on the record.
6 We appreciate your being back on time, Ladies
7 and Gentlemen. Some of you look a little
8 chilly. If you want to go get a sweater or coat
9 or whatever, feel free to do that, okay.
10 All right. Mr. Mullin, does the
11 plaintiff have any additional witnesses to call
12 or readings to do at this time?
13 MR. MULLIN: No, Your Honor. The
14 plaintiff now -- the plaintiffs now rest.
15 JUDGE CURRAN: Thank you very
16 much. What that means is that the plaintiffs
17 have completed their case. We will now move to
18 the defense case. Is the defense prepared to
19 proceed, Mr. Bevere?
20 MR. BEVERE: Yes, Your Honor.
21 JUDGE CURRAN: Thank you. Please
22 call your first witness.
23 MR. BEVERE: I will, Your Honor.
24 I will call Alberto Goldwaser to the stand.
25 JUDGE CURRAN: Thank you.
87
1 Good morning, sir.
2 THE WITNESS: Good morning.
3 JUDGE CURRAN: If you will please
4 put your left hand on the Bible and raise your
5 right hand.
6 A L B E R T O G O L D W A S E R, M.D. is duly
7 sworn by a Notary Public of the State of
8 New Jersey and testifies under oath as
9 follows:
10 JUDGE CURRAN: Thank you, sir.
11 Please be seated. Thank you, sir. You're under
12 oath. All your testimony must be truthful and
13 accurate to the best of your ability. Do you
14 understand?
15 THE WITNESS: Yes, I do.
16 JUDGE CURRAN: Thank you. Please
17 give me your full name for the record, spell
18 your last name and give us your professional
19 address.
20 THE WITNESS: My first name is
21 Alberto. Middle name is Mario. Last name is
22 Goldwaser, G-o-l-d-w-a-s-e-r. My office is in
23 Hackensack, is 24 Bergen Street, Hackensack, New
24 Jersey, 07601.
25 JUDGE CURRAN: Thank you, sir.
88
1 Your witness, Mr. Bevere.
2 MR. BEVERE: Your Honor, I am
3 going to stand -- it's difficult for me to see
4 the witness from my seat.
5 JUDGE CURRAN: Sure.
6 MR. BEVERE: So I am going to
7 stand over near the jury box. Try not to spill
8 my papers.
9 DIRECT EXAMINATION BY MR. BEVERE:
10 Q Good morning, Dr. Goldwaser.
11 A Good morning.
12 Q Doctor, where were you born?
13 A I was born in South America in Argentina.
14 Q And how old were you when you came
15 to the United States?
16 A Oh, I was 26.
17 Q Are you currently a U.S. citizen?
18 A Yes.
19 Q And what is your profession?
20 A I'm psychiatrist.
21 Q And what is a psychiatrist in
22 general terms?
23 A Okay. I'm a physician, medical doctor
24 that specializes in the branch of medicine which
25 is psychiatry, in the diagnosing and treating
89
1 mental disorders, mental illnesses.
2 Q And as a psychiatrist are you
3 authorized to prescribe medication?
4 A Yes.
5 Q And do you prescribe medication?
6 A Yes, I do.
7 Q Doctor, are you familiar with the
8 term called "forensic psychiatry"?
9 A Yes.
10 Q What is forensic psychiatry?
11 A It is a subspecialty of psychiatry.
12 Psychiatry is a subspecialty of medicine. It's
13 a branch of psychiatry that works at the
14 borderline between medicine or psychiatry and
15 the law.
16 Forensic psychiatrist is a medical
17 professional that participates in the
18 establishment of legal decisions, helping
19 juries, helping attorneys or judges understand
20 the mental status or the mental state of a
21 person when a decision based on that mental
22 state requires a medical expert or psychiatric
23 expert.
24 Q Are you familiar with the term
25 "clinical psychiatry"?
90
1 A Clinical psychiatry is also called
2 "general psychiatry." It's the actual practice
3 of psychiatry, the actual treating of a patient
4 that is suffering from a mental condition.
5 Q And are you both a clinical
6 psychiatrist and a forensic psychiatrist?
7 A Yes, I am.
8 Q Now, are you currently licensed to
9 practice medicine in New Jersey?
10 A Yes.
11 Q And are you licensed to practice
12 in any other state besides New Jersey?
13 A Yes, also the State of New York and in
14 the State of Maryland.
15 Q Maryland?
16 A Maryland, uh-huh.
17 Q Doctor, what medical schools did
18 you attend -- actually, why don't you give us
19 the benefit of your entire educational history
20 right up through medical school?
21 A Okay. I said earlier I was born in
22 Argentina. I studied medicine in Peru. When I
23 was 12 my whole family moved from Argentina to
24 Peru, and I did there my high school years. I
25 was 12, 12-and-a-half. And then I went to
91
1 college and medical school in Peru. I graduated
2 there in -- I graduated in 1975. Then I stayed
3 there for another year doing Civil Service.
4 And then I came to the United States in
5 1977 to Brooklyn, New York. And I trained as a
6 psychiatrist. I did what is called "residency
7 training program" in psychiatry at Kings County
8 Hospital in Brooklyn.
9 Q You can continue with your
10 educational background.
11 A At the same time that I did my
12 psychiatric training I did also psychoanalytic
13 training, which is another branch of psychiatry.
14 This is -- it's a modality of treatment. And I
15 did that training, as well also, at Kings County
16 Hospital.
17 Eventually the institution where I was
18 training moved to New York University. And I
19 moved with them, and I started working at New
20 York University Medical Center as a staff
21 psychiatrist. And at the same time I continued
22 my training until I completed it at NYU.
23 Q What years did you obtain your
24 licenses to practice medicine in New York and
25 New Jersey?
92
1 A In New York was in 1980. In New Jersey
2 was in 1989, when actually I moved -- I used to
3 live in New York in Brooklyn. And whole family
4 moved to New Jersey; and at that time I obtained
5 my license to practice medicine, psychiatry, in
6 New Jersey in '89.
7 Q Now, after your psychoanalytic
8 training in NYU School of Medicine did you
9 receive any further specialized training in
10 psychiatry?
11 A I pursued different -- different
12 trainings. Well, one of them --
13 Q Can you tell us about those?
14 A I'm sorry.
15 Q Can you tell us about those?
16 A Yeah, one was in forensic psychiatry.
17 Took courses, year-long courses; and then
18 eventually I took an exam that qualified me to
19 be a forensic psychiatrist.
20 And I did similar trainings in -- it
21 was a year-and-a-half training in child abuse
22 assessment, termination, treatment. I took a --
23 an institute course there, and I became
24 certified, as well as in a branch of cognitive
25 behavior therapy, which is another modality of
93
1 treatment.
2 Q Can you explain that, what that
3 means?
4 A It's based on a different model of how
5 the mind works, how -- the approach of treating
6 mental conditions without the use of medication,
7 in this particular situation based on learning
8 behavior that is maladaptive or doesn't really
9 lead to being happy and how to -- how to make
10 changes based on what we learn or how we learn
11 to behave in certain circumstances and how we
12 can confront that and change into different way
13 of relating or reacting. That is basically what
14 rational and motive behavior therapies are that
15 was that training.
16 Different than psychoanalysis, which is
17 based on understanding the -- and the line
18 experience that moves us to do things and the
19 unconscious conflicts that make us respond or
20 feel or act in certain ways.
21 Q Thank you, Doctor. Have you
22 received certifications as a specialist in any
23 field? I guess -- I guess the question --
24 A Board certification.
25 Q -- question is are you board
94
1 certified?
2 A Yes. Board certification is, again,
3 testing and proving that one knows enough to be
4 able to treat or to be able to work within that
5 particular specialty competently and we can be
6 entrusted to treat people and -- and see people
7 and all that. And I have -- I'm board
8 certified.
9 There is a board. There is a group of
10 people that take these tests and certified us,
11 and I am certified by the American Board of
12 Psychiatry & Neurology in the specialty of
13 psychiatry, also in the specialty of forensic
14 psychiatry. And I am certified by the American
15 College of Forensic Examiners in the specialty
16 of psychiatry and American Board of Forensic
17 Medicine.
18 Q Are you also a distinguished
19 fellow of the American Psychiatric Association?
20 A Yes.
21 Q What does that mean to be a
22 distinguished fellow of the American Psychiatric
23 Association?
24 A Well, it's -- it's an award given based
25 on the amount of work one does, not just in the
95
1 office clinically, seeing, treating patients but
2 being members of committees, participating,
3 educating the community, going to religious
4 groups and, again, making them aware of certain
5 mental health issues and all that. And based on
6 all those different type of jobs, not just
7 working, seeing patients in the office, one is
8 granted this distinction as a distinctive --
9 distinguished fellow.
10 Q Now, since you've received your
11 license to practice medicine have you continued
12 to practice psychiatry in addition to acting as
13 a forensic psychiatrist? I mean, do you
14 continue to treat patients?
15 A Yes.
16 Q And you currently maintain a
17 private practice?
18 A Yes, I do.
19 Q And where is that private practice
20 located?
21 A Currently it's in Hackensack, New Jersey.
22 Q And how long have you been in
23 private practice?
24 A For about, I would say, close to 30
25 years. A little before 30 years in private
96
1 since I left my residency training program,
2 yeah.
3 Q In the course of your -- I'm
4 sorry, Doctor.
5 A No, no, that's -- thank you. Thanks.
6 Q Can you quantify for us the
7 portion of your practice that's spent doing
8 clinical psychiatry, as opposed to forensic
9 psychiatry?
10 A Right now I would say perhaps 35 percent
11 or I would say little more of my practice is
12 clinical work with -- directly with patients,
13 and about 65 or a little less is the forensic
14 work. That requires a great deal of reading and
15 great deal of time preparing.
16 Q And in your clinical practice have
17 you had the opportunity to treat people with
18 depression?
19 A Yes.
20 Q Could you tell us how many times?
21 A Oh, well, in the last 30 years numerous
22 times in the inpatient service when I was
23 working at Kings County. After my training I
24 worked there for two more years in the inpatient
25 service. People that were hospitalized. Also
97
1 in Bellevue Hospital, when I moved to NYU, New
2 York University Medical Center, I was working
3 both at NYU and also at Bellevue in the
4 inpatient service for a number of years and then
5 the outpatient service and then in my practice.
6 So in the last 30 years or so exactly I don't
7 know. I would say maybe hundreds but --
8 Q And have you had the opportunity
9 to treat patients with posttraumatic stress
10 disorder?
11 A Yes.
12 Q And I am going to have to ask you
13 the same question about are you able to quantify
14 that for us?
15 A Exactly I don't know. Probably would
16 say -- I don't know a number, but I would say
17 maybe 70, 80 cases.
18 Q And have you had the opportunity
19 to treat patients with attention deficit
20 disorder?
21 A Yes.
22 Q And on a quantification?
23 A Between 50 and 100.
24 Q And have you -- as a forensic
25 examining psychiatrist have you had the
98
1 opportunity to examine people who have
2 depression?
3 A Yes.
4 Q And with posttraumatic stress
5 disorder?
6 A Yes.
7 Q And how about attention deficit
8 disorder?
9 A Also, yes, the three.
10 Q And I will ask you the
11 quantification question with respect to each of
12 those, if you can do it?
13 A I would say most of the cases
14 forensically were in the area of posttraumatic
15 stress disorder. Depression would be the second
16 one. Attention deficit disorder would be close
17 to depression, maybe third, about that.
18 Q Now, do you currently have staff
19 privileges in any hospitals?
20 A Right now at this moment no. I had a
21 privilege at Barnert Hospital. That was the
22 last one. But this hospital just closed about
23 maybe be two months ago, in Paterson, New
24 Jersey. I --
25 Q You had staff privileges before?
99
1 A Yes, I had. And the hospital closed.
2 And right now I don't have any other privilege.
3 I just do private practice.
4 Q And was that your choice?
5 A It was my choice. If I -- if the patient
6 needs to be hospitalized, I work about two
7 blocks away from Hackensack University Hospital
8 and I admit a patient there; but I would not
9 follow. I just --
10 Q Admit?
11 A -- participate in giving my clinical
12 impression from the outpatient treatment to the
13 doctors that treat the patient.
14 Q Now, do you currently belong to
15 any professional groups?
16 A Yes.
17 Q Can you tell us about those?
18 A Well, I belong to the American
19 Psychiatric Association. I am a member of
20 Psychiatric Association, New Jersey Psychiatric
21 Association. Here in New Jersey, New Jersey
22 Psychoanalytic Society. I am a member of the
23 American Bar Association. I am not an attorney.
24 I am not a lawyer. I am an associate member
25 because I am a physician. And I am there. I am
100
1 a member of the Health Law section of the
2 Membership Committee of the Health Law section
3 of the American Bar Association.
4 I am a member of the American Academy
5 of Forensic Sciences and also a member of the
6 American Academy of Society and the Law, which
7 is the Forensic Psychiatric Group belonging to
8 the American Psychiatric Association. And some
9 others.
10 Q Now, do you hold any positions
11 within the American Psychoanalytic Association?
12 A Yes, the American Psychoanalytic
13 Association. I'm a member of the Ethics
14 Committee of the American Psychoanalytic
15 Association. Also member of the malpractice --
16 Professional Malpractice Committee of that
17 American Psychoanalytic Association. The local
18 committees or the local groups, chairman of the
19 Ethics Committee of the New Jersey
20 Psychoanalytic Society.
21 I'm also the chairman of the
22 Psychoanalytic Association of New York. And
23 within the Psychoanalytic Institute at New York
24 University Medical Center, which is where I
25 trained and where I teach right now, I'm also
101
1 the chairman, I head Professional Ethics
2 Committee of the institute.
3 Q Do you currently do any teaching?
4 A Yes.
5 Q Where do you do teaching?
6 A I do teaching at New York University
7 School of Medicine.
8 Q What do you teach there?
9 A I teach there -- I supervise residents.
10 Residents are doctors that are training to
11 become psychiatrists in this case. I supervise
12 their work with their patients. And I teach a
13 course that is called Psychopathology 2. It's a
14 course on understanding the different medical --
15 medical diseases and how they present and so on.
16 I teach that to psychotherapy group.
17 Psychotherapy.
18 And I do teach ethics, professional
19 ethics at the Psychoanalytical Institute at NYU
20 Medical Center.
21 Here in New Jersey I teach a course in
22 forensic psychiatry at the Bergen Regional
23 Medical Center Department of Psychiatry, the
24 residency training program there.
25 Also at UMDNJ, University of Medicine &
102
1 Dentistry of New Jersey, I teach their
2 psychiatric residents course on psychoanalytic
3 psychotherapy concepts. And I also teach their
4 medical students -- the second-year medical
5 students start going -- leaving the classroom
6 and start going to hospitals. And I lead a
7 group of six students for a period of eight
8 weeks interviewing patients, meaning it is the
9 first approach to patients. And what we
10 discuss, what they learn is how to approach
11 them, how to ask questions, what not to ask, how
12 to ask it and then how to put together the
13 presentation. We don't deal with diseases per
14 se because they are very young in their
15 training. But how to approach, how -- how to
16 understand the patient's suffering, that is the
17 basic thrust, the basic idea of my working with
18 them. That is at UMDNJ.
19 And I also am a guest lecturer at Seton
20 Hall School of Law in the mental health law
21 section, this mental health law course conducted
22 by Professor Deedy, Raymond Deedy.
23 Q Now, have you lectured or given
24 presentations on psychiatry?
25 A Yes.
103
1 Q If you -- could you just tell us
2 about that generally? I don't want to go
3 through every one you have ever done. Just give
4 us a general overview, if you can.
5 A I -- I present papers or presentations in
6 different -- within the organizations that I
7 belong in different areas. Lately my main
8 occupation in terms of presenting papers is in
9 the forensic and ethical areas. And I go to
10 different places, different societies or groups.
11 Right now I'm organizing -- I started
12 about two years ago. I'm a member of the
13 International Committee Forensic Society,
14 International Committee of the American Academy
15 of Psychiatry and the Law and also Cross
16 Cultural Committee. And within that I work with
17 two countries in South America -- I speak
18 Spanish -- Chile and Argentina.
19 And I organize and help from -- I mean,
20 I'm not sponsored directly from American Academy
21 of Psychiatry and the Law; but I organize
22 lectures and give courses both in Chile and in
23 Argentina, trying to -- I cannot say raise the
24 level but certainly for me to learn from them
25 and from them to learn from what we do and how
104
1 we do things here.
2 I remember when I was a student down
3 there and somebody came from -- a doctor that
4 trained here came to, in this case was Peru. We
5 all look up, we all wanted to learn, we all
6 really tried to suck as much as possible from.
7 So it's my way of paying back in a way.
8 And I have family in Argentina. I
9 don't have any family in Peru, but in Argentina
10 I do -- Chile, I mean. But I enjoy doing it.
11 And next week I am going to be there doing that,
12 next week on Thursday and Friday.
13 Q Now, Doctor, do you serve as an
14 editor in any journals on psychiatry?
15 A I was the associate editor of the
16 bulletin of the Psychoanalytic Association of
17 New York from '91 to '96. And currently from
18 2006, when I started doing these groups in
19 Chile, the editor of -- the international editor
20 of the Chilean Journal of Forensic Psychiatry,
21 that they had something; but now it's becoming a
22 little more organized and papers are differently
23 presented.
24 Q Now, Doctor, have you been
25 retained by the New Jersey Department of Human
105
1 Services to provide forensic psychiatric
2 evaluations?
3 A Yes.
4 Q Since when?
5 A I would say -- I would have to look at --
6 at my -- I would say perhaps for about 10 or 12
7 years; I'm not sure. I have to look at my CV.
8 This is working for DYFS.
9 Q Can you tell us about that, what
10 that means?
11 A It is actually working and providing for
12 DYFS, the Division of Youth and Family Services,
13 doing evaluation, forensic evaluations for
14 court. It comes related to child abuse, child
15 neglect, parental fitness, termination of
16 parental rights. So when those are the
17 questions, I -- I do the examination for DYFS.
18 Sometimes I do it for the Department Of
19 Defendants Office, cases that have to do with
20 DYFS, as well.
21 Q Now have you done any
22 presentations?
23 A Yes.
24 Q I -- I understand. We don't want
25 to go through every presentation. Just if you
106
1 could highlight a couple that are -- are -- that
2 you believe to be relevant here.
3 A I did presentations in -- in the area of
4 forensic psychiatry on many different topics.
5 civil topics, criminal topics, guardianship,
6 assessment of -- one of them is, "Assessment of
7 Psychiatric Disorders Following Trauma and the
8 Conditions That Mimics Them." In this case was
9 malingering. And --
10 Q Would one of those topics be
11 posttraumatic stress disorder?
12 A I did -- I did one of them. And it's
13 something that I quoted Humpty Dumpty
14 affliction, when it is and when it is not in
15 terms of posttraumatic stress disorder. And
16 following a little bit that rhyme, of their
17 breaking and trying to put it together again,
18 whether it's possible or not. And I did a few
19 with different titles of that particular
20 aspects, as well. Those particular aspects
21 of --
22 Q So -- so you have done
23 presentations in the area of posttraumatic
24 stress disorder?
25 A Yes.
107
1 Q Now, Doctor, have you been
2 qualified as an expert in forensic psychiatry by
3 any other court?
4 A Yes.
5 Q So you have been qualified as an
6 expert in forensic psychiatry by courts before
7 today?
8 A Correct, yes.
9 Q In the courts of New Jersey?
10 A Yes.
11 Q Have you been qualified as an
12 expert in forensic psychiatry in courts in any
13 other state?
14 A Yes.
15 Q Can you tell us those, please?
16 A In the State of New York, in
17 Pennsylvania, Louisiana, Puerto Rico,
18 California, Florida. And I have done work that
19 right now didn't -- didn't move on to any kind
20 of either deposition or trial for -- in many
21 other states, as well, Illinois and Ohio and in
22 New Mexico that I was qualified.
23 Q Now, Doctor, have you evaluated or
24 testified on behalf of both plaintiffs and
25 defendants?
108
1 A Yes.
2 Q As -- can you quantify for us how
3 much of your forensic psychiatric practice is --
4 is on behalf of plaintiffs or on behalf of
5 defendants?
6 A It's pretty much even. It's pretty much
7 50/50. It's -- it depend on how they get to me,
8 who -- who calls me first, let's say. And if I
9 can do the job, I'm retained to -- to examine,
10 to do the -- to do the work.
11 Q And Doctor, you currently see and
12 treat patients, as well?
13 A Yes.
14 MR. BEVERE: At this time, Your
15 Honor, I move to qualify Dr. Goldwaser as an
16 expert in the field of forensic psychiatry.
17 JUDGE CURRAN: Thank you. Any
18 questions or objections?
19 MR. BEVERE: I'm sorry, Judge, and
20 clinical, as well.
21 MS. SMITH: Just a few questions,
22 please.
23 JUDGE CURRAN: Sure.
24 VOIR DIRE EXAMINATION BY MS. SMITH:
25 Q Good morning, Dr. Goldwaser.
109
1 A Good morning.
2 Q We haven't met. I'm Nancy Smith.
3 I think you met Kelly Smith from my office at a
4 deposition.
5 A Okay.
6 Q Dr. Goldwaser, I just want to be
7 clear. You have no staff privileges at any
8 hospital today?
9 A No.
10 Q Okay. And you're currently an
11 editor -- I'm sorry, is it a -- is it -- what's
12 the -- I'm sorry, I don't know the name of it.
13 Is it a newsletter?
14 A No, no, it's -- it's a forensic
15 psychiatric journal that is published in Chile.
16 Q Is that -- that's not a
17 peer-reviewed journal, is it?
18 A Yes, it is.
19 Q It's a peer-reviewed journal?
20 A Yes.
21 Q Have -- can you please explain --
22 let me start. A peer-reviewed journal, just so
23 we're on the same page, that's when you send
24 something you've written blind -- blind copy
25 without your name on it out to experts in the
110
1 field and they review it before it gets
2 published; is that your understanding of what a
3 peer-reviewed journal is?
4 A Yes, although sometimes my understanding
5 that can also be -- author is identified.
6 Q Okay. But it has to be reviewed
7 by your peers?
8 A Yes.
9 Q Right people who do what you do
10 out in the field, right?
11 A Yes, exactly.
12 Q Okay. And on your CV, which has
13 been marked D-310, there are no publications by
14 you in peer-reviewed journals; is that correct?
15 A That's correct.
16 Q Okay. And you represent or
17 have -- do you currently represent DYFS in child
18 abuse cases?
19 A I don't know if the term is
20 "presentation." I'm a provider --
21 Q Do you --
22 A -- so yes.
23 Q Do you get paid?
24 A Yes, I get paid for the work from DYFS,
25 yes.
111
1 Q You get paid by the State to
2 interview a child or look at the situation?
3 A Exactly.
4 Q You also get paid sometimes by the
5 person who's accused of the child abuse and you
6 do an analysis and you testify?
7 A Well, in the case of DYFS, no, it's not
8 the case. But if -- if it is not related to
9 DYFS, yes.
10 Q I thought you said -- told the
11 jury that sometimes you were retained by the
12 Public Defender's Office?
13 A That's right. That's right, the Public
14 Defendant -- Public Defendant's Office is the
15 one who pays me, not the person I interviewed or
16 the patient or whoever.
17 Q Doesn't the Public Defender
18 represent the patient or whoever has been
19 accused of the abuse?
20 A Yes, but I'm not paid directly in this
21 particular case from DYFS. I am not collecting
22 from the parents or the children of anybody. I
23 agree to the fee that they assign to me.
24 Q I'm sorry, there is no question
25 pending.
112
1 MR. BEVERE: Judge, I think he was
2 finishing his answer.
3 JUDGE CURRAN: If it is a
4 continuing answer.
5 Q Go ahead. Go ahead. You want --
6 go ahead, Doctor, I'm sorry. You want to say
7 some more about that topic?
8 A No, I am complete.
9 Q You have never published an
10 article in a peer-reviewed journal with regard
11 to posttraumatic stress disorder; is that
12 correct?
13 A No.
14 Q Okay. And the two articles that
15 you discussed in 2002, you did a presentation
16 on, "The Assessment of Psychiatric Disorders
17 Following Trauma and of the Conditions That
18 Mimics Them: Malingering," right? You just
19 discussed that with Mr. Bevere?
20 A Yes, yes.
21 Q You did that presentation to the
22 Travelers Property & Casualty Insurance
23 Company's --
24 MR. BEVERE: Judge, come to
25 sidebar.
113
1 Q -- Workers' Compensation Unit?
2 JUDGE CURRAN: Sure.
3 MR. BEVERE: Thank you.
4 (Whereupon, the following sidebar
5 discussion is held.)
6 JUDGE CURRAN: Mr. Bevere.
7 MR. BEVERE: I have an objection
8 to the insurance reference.
9 MS. SMITH: Come on, a reference
10 to an -- that's who he gave the presentation to.
11 JUDGE CURRAN: It's -- if that's
12 who he gave -- I can understand that, but there
13 is not even -- not even a, I don't think, a fair
14 inference that insurance, which we all pretend
15 doesn't exist, would be involved here. But
16 thank you.
17 MR. BEVERE: Thank you, Judge.
18 JUDGE CURRAN: The objection is
19 noted.
20 MR. BEVERE: Thank you.
21 (Whereupon, sidebar discussion is
22 concluded.)
23 BY MS. SMITH:
24 Q Okay. Doctor you -- you gave that
25 presentation at the Travelers Property &
114
1 Casualty Insurance Company's Workers'
2 Compensation Unit, right?
3 A Right, yes.
4 Q Okay. And the other one you
5 discussed with Mr. Bevere, it's called, "Humpty
6 Dumpty Versus The Emperor's New Clothes, PTSD
7 and TBI Versus Deception." Is that the other
8 one you talked to Mr. Bevere about?
9 A I guess I did. This is another
10 presentation that I did do.
11 Q Okay. That was also in the year
12 2002, correct?
13 A Let me see.
14 Q I think it's on page 15 of D-310,
15 Doctor, if we have the same --
16 A No, we don't. I have --
17 Q Sorry.
18 A I have the latest one. I don't have that
19 one. Yes, I have it.
20 Q Okay. You have it now?
21 A Yes, I found it.
22 Q Okay. And that was sponsored by
23 the Bergen County Bar Association Continuing
24 Legal Education Committee, right?
25 A Yes.
115
1 Q And that was in the year 2002?
2 A Yes.
3 Q Doctor, let's talk about your
4 areas of expertise. You talked a little bit
5 with Mr. Bevere about your areas of expertise.
6 You have expertise in agoraphobia, correct?
7 A Yes, I could say you're correct.
8 Q And Alzheimer's disease?
9 A Yes.
10 Q And Americans with Disabilities
11 Act?
12 A Yes.
13 Q And amnesia?
14 A Correct.
15 Q And you -- you've listed -- your
16 areas of expertise include anxiety disorders?
17 A That's correct.
18 Q And back pain?
19 A Yes.
20 Q And brain jury?
21 A Yes, what it -- back pain and brain
22 injury is not related to --
23 Q No, I'm sorry, I didn't make it
24 sound like they were --
25 A I have to qualify, so it's clear. It's
116
1 not related to orthopedic problems or
2 neurological problems. It has to do with
3 psychological or psychiatric component of these
4 two conditions, yes.
5 Q And bulimia?
6 A Correct.
7 Q And child custody?
8 A Yes.
9 Q And child psychology?
10 A Yes.
11 Q And Civil Rights? Again, as a
12 forensic psychiatrist?
13 A Correct.
14 Q These are your areas of expertise
15 within forensic psychiatry?
16 A Yes.
17 Q Okay. And competency valuations?
18 A Yes.
19 Q And concussion?
20 A Yes.
21 Q And correctional psychiatry?
22 A That's correct, yes.
23 Q And criminal responsibility?
24 A Yes.
25 Q And damages?
117
1 A Yeah, you're reading the different
2 aspects of the work I do.
3 Q These are -- this is what you --
4 A Yes.
5 Q -- yourself say are your areas of
6 expertise --
7 A Correct, yes.
8 Q -- correct?
9 A I do.
10 Q And malpractice?
11 A Yes.
12 Q And medical malpractice
13 separately, correct?
14 A Correct, yes.
15 Q Okay. And mood disorders?
16 A Yes.
17 Q And your expertise includes
18 Munchausen's Syndrome, correct?
19 A Correct, or fictitious disorder.
20 Q That's when people pretend to be
21 sick and they're not really sick, they go to the
22 hospital all the time for the attention?
23 A Well, yes and no. They do have a
24 sickness, but it's different. It's not a
25 pretension. They do have a sickness that makes
118
1 them manifest in -- in -- in a physical form;
2 but it's a psychiatric condition, yes.
3 Q And pain management?
4 A Yes.
5 Q And panic disorder?
6 A Correct.
7 Q And personal injury?
8 A Yes.
9 Q And personality disorders?
10 A Yes.
11 Q And pharmacology?
12 A Psychopharmacology.
13 Q Okay. Pornography addiction --
14 A Yes.
15 Q -- is one of your areas of
16 expertise?
17 A Yes.
18 Q Postpartum depression is one of
19 your areas of expertise? Premenstrual syndrome,
20 right?
21 A Yeah.
22 Q Psychiatric malpractice is one of
23 your areas?
24 A Yeah, which you mentioned it earlier. I
25 mean, these are different categories. This is a
119
1 listing most likely you are reading from, and
2 this is -- these are categories where people
3 that are looking for an expert can find me. So
4 there are different ways of presenting it. But
5 for example, malpractice, you did it two or
6 three times. Or traumatic brain jury or
7 concussion, all that -- all those are different
8 ways of calling a same -- same problem.
9 Q This is a paid advertisement,
10 right? I'm reading from a paid advertisement
11 that you put on the internet, right?
12 A This is that I have for attorneys to be
13 able to find me, yes.
14 Q And this is what you put down as
15 your areas of expertise, correct?
16 A Correct.
17 Q Dissociative identity disorder --
18 A Yes.
19 Q -- right? Divorce proceedings,
20 right?
21 A Again, what relates to my specialty.
22 Q Okay. Eating disorders?
23 A Yeah.
24 Q Elder abuse?
25 A Yes.
120
1 Q Family law?
2 A Yeah.
3 Q Female genital mutilation?
4 A As a matter of fact, I am a member of the
5 family law section of the American Bar
6 Association, as well, yes.
7 Q Okay. Female genital mutilation?
8 A Yes.
9 Q Headaches?
10 A They are not related to the procedure,
11 itself, but related to the problem that it
12 brings along, yes.
13 Q This is all related to the
14 psychiatric implications of these, right?
15 A You're right.
16 Q This is all your areas of
17 expertise?
18 A Yes.
19 Q Headaches?
20 A Uh-huh, yes.
21 Q I'm sorry. Heirs, probate. That
22 means wills, right?
23 A Wills and undue influence, mental
24 capacity and all that, yes.
25 Q You have listed as you are area of
121
1 expertise kidney cancer?
2 A No. Actually, it was brought to my
3 attention during the deposition; and I called
4 the people. And somehow it went -- went
5 through. I have nothing to do with kidney
6 cancer, but I am not listed -- if you look --
7 this is not a current one, right? This is an
8 old one, correct?
9 Q This is the only one we've ever
10 discussed. It's marked Gold -- Goldwaser-6 at
11 your deposition.
12 A That's right. When --
13 Q Okay.
14 A When attorney called my attention to it
15 said kidney problem, kidney cancer, I called the
16 agency; and I said, "I don't want to be listed
17 there because I have nothing to do with kidney
18 cancer."
19 Q So we take kidney cancer off your
20 areas of expertise?
21 A That is not my area of expertise, no.
22 Q Insomnia?
23 A Yes.
24 Q Reactive attachment disorder?
25 A Yes.
122
1 Q Schizophrenia?
2 A Correct.
3 Q School violence?
4 A Yes.
5 Q Sensory deprivation?
6 A Yes.
7 Q Sexual addiction?
8 A Yes.
9 Q Sexual disorders --
10 A Yes.
11 Q -- right? Shaken baby syndrome is
12 another area of your expertise --
13 A Yes.
14 Q -- right? Sleep disorders is an
15 area of your expertise, right?
16 A Yes.
17 Q Social phobia is part of your
18 areas of expertise?
19 A Correct.
20 Q Sports medicine is part of your
21 areas of expertise, right?
22 A Yes. As a matter of fact, up until two
23 years ago I was member of the Sports Medicine
24 Committee of the New Jersey Psychiatric
25 Association. I'm not any longer because I don't
123
1 have the time to do it, since I am doing other
2 things, yes.
3 Q Stalking is part of your areas of
4 expertise --
5 A Correct.
6 Q -- right?
7 A Yes.
8 Q Stress management is part of your
9 areas of expertise, right?
10 A Yes.
11 Q Violence risk assessment is part
12 of your area of expertise, right?
13 A Corrects.
14 Q And workers' compensation is part
15 of your areas of expertise, right?
16 A Yes.
17 Q And -- but you have never
18 published a peer-reviewed article on any of
19 these topics, right?
20 A I am not associated to an academic place,
21 like in this case the New York University. I'm
22 an associate professor of psychiatry. I am
23 not -- I don't work full-time at this place
24 anymore. I am not interested in moving up
25 academically, which is one of the things that
124
1 people do when they move up academically to a
2 professorship, a full professorship. I am not
3 pursuing that particular avenue.
4 My avenue is primarily clinical and
5 forensic right now. So I am not in the -- in
6 the mode of publishing. My publications are
7 mainly related to, again, teaching or
8 instructing or -- or preparing or presenting or
9 making more available to the public, in this
10 case would be attorneys, what -- what type of
11 work forensic psychiatrists do because, believe
12 it or not, it's not all that clear even for
13 lawyers.
14 Q Okay. My question was: You
15 haven't published in a peer-reviewed journal on
16 any of the topics that you advertise you have
17 expertise in, right?
18 A No, I do not.
19 Q Okay. You haven't published any
20 books, have you, Doctor?
21 A No.
22 Q Any chapters in any books?
23 A No, not yet.
24 MS. SMITH: I have no further
25 questions, Your Honor.
125
1 JUDGE CURRAN: Thank you.
2 Anything else, Mr. Bevere?
3 MR. BEVERE: Judge, just --
4 CONTINUED DIRECT EXAMINATION BY MR. BEVERE:
5 Q Doctor, is it fair to say that as
6 a psychiatrist you are qualified to diagnose any
7 psychiatric disorder?
8 MS. SMITH: Objection, leading.
9 JUDGE CURRAN: Sustained.
10 Q Doctor, why is it that so many
11 categories of psychiatric disorders are listed
12 under your area of expertise?
13 A Because these are the areas that I work
14 with in clinical settings and also in forensic
15 settings. I have done all these areas of
16 expertise. All these areas that Miss Smith --
17 THE WITNESS: Right --
18 MS. SMITH: Right.
19 A -- mentioned are areas in which I did
20 work and currently work on in the forensic
21 field, as well.
22 Q When you evaluate a patient in a
23 clinical setting or an examinee in a forensic
24 setting, do you have to keep an open mind as to
25 what, if any, type of disorder that person
126
1 you're evaluating is suffering from?
2 MS. SMITH: Objection, leading.
3 MR. BEVERE: I don't think that's
4 leading, Judge.
5 JUDGE CURRAN: It's leading. Any
6 question that can be answered -- law school.
7 Yes or no answer is the easiest way.
8 MS. SMITH: And I object to him
9 ruling on my objections.
10 JUDGE CURRAN: Noted on the
11 record.
12 MR. BEVERE: I will try not to do
13 that again, Judge. All right. Now I have to
14 get my train of thought about how to get back to
15 asking this.
16 JUDGE CURRAN: You did fine last
17 time, sustained it and --
18 MR. BEVERE: Showing my
19 inexperience, but I'm trying.
20 BY MR. BEVERE:
21 Q Doctor, when you examine a patient
22 in a clinical setting or evaluate a patient in a
23 forensic setting, what do you have to do as far
24 as evaluating that patient, if you can
25 understand that?
127
1 A Uh-huh.
2 Q I don't know if I understood it;
3 but if you understand, you can tell us.
4 A The first and most important thing is to
5 be able to be objective, not to -- not to mix
6 whatever we think or feel as people when we are
7 in the role of a professional, a physician of
8 any kind, being clinical or forensic.
9 What I do in the process of evaluating
10 first is what we call an "examination." I
11 examine a patient or what we call an "examinee"
12 in the forensic area. In the clinical area we
13 call it "patient" because the relationship is
14 totally different when I treat somebody than
15 when I examine somebody.
16 In case of a treatment, well, I have to
17 listen to their complaints, their symptoms,
18 meaning what -- what they feel that I am not
19 able to see because it comes from within. And
20 as we go along, based on my knowledge of the
21 field, my knowledge of psychiatry, how mental
22 illnesses present themselves, I have to ask
23 different questions to put it together in a --
24 in a diagnostic category. I mean, all these
25 symptoms can be part of this illness or this
128
1 illness or this illness. And this is what we
2 call "differential diagnosis." We rule out
3 different ones, and eventually we come up with
4 one.
5 Q And do you have to have expertise
6 in all those areas in order to do that properly?
7 A Yes, this is one of the things that we go
8 through in our training for these three, four
9 years and then through our courses and -- and --
10 and lectures and all that that we take to -- to
11 learn more about it.
12 In the case of the forensic field, it's
13 the same thing.
14 Now, being neutral, this is extremely
15 important because, again, whatever we feel will
16 interfere. I mean, we are here to be able to
17 explain something that is not easy to explain.
18 If I explain it based on what I feel about a
19 particular situation, I may be misleading. So I
20 have to -- to be able to, again, hold on to my
21 professionalism; and I have to be able to use
22 the psychiatric concepts, all -- everything that
23 we know about psychiatry when we play the role
24 of a forensic expert and apply it to this
25 particular case.
129
1 So what we do is we -- in the clinical
2 setting it's not as important. Sometimes it is;
3 but generally speaking, it's not as important
4 to -- to -- to learn from as many sources as
5 possible of what's going on with the patient.
6 We trust the patient. The patient is coming to
7 see us because the patient is sick and the
8 patient wants to get better. We -- we start a
9 relationship like that. And we take plenty of
10 time to be able to develop that relation, to be
11 able to treat and so on.
12 In the forensic field it's totally
13 different. It's something that has to do with
14 an open forum, that the principle of
15 confidentiality, which is a very -- a must in
16 the clinical setting, is very different in the
17 forensic setting because it's open to -- I'm
18 here talking about somebody. So the rules
19 change very substantially, very dramatically;
20 but the principle is the same.
21 Applying my clinical, my psychiatric
22 knowledge and reading as much what we call
23 "collateral sources," as much -- as many
24 records, as many sources that will tell me about
25 this particular person that I'm about to see.
130
1 So I'm familiar, more or less, through the eyes
2 of other people and through the interpretation
3 of a lot of different sources, as many as
4 possible.
5 And then I sit with this person. I
6 examine this person. I observe. I listen to
7 what the person tells me. I observe how it is
8 said, when it is said, the effect and tone, so
9 on, what we call a "mental status exam." And
10 then we put -- we put everything together to
11 arrive at a conclusion.
12 Q In order to be a -- an effective
13 clinical and forensic psychiatrist, do you have
14 to have expertise in these areas?
15 A Yes.
16 Q I have no further questions.
17 JUDGE CURRAN: Thank you.
18 Ladies and Gentlemen -- I am so
19 sorry, Miss Smith.
20 MS. SMITH: That's okay, Judge. I
21 will be brief. Everybody wants lunch. I just
22 have two short ones, I promise.
23 JUDGE CURRAN: I'm sorry.
24 MS. SMITH: I'm so sorry.
25 JUDGE CURRAN: I think the jurors
131
1 are writing a note saying --
2 MS. SMITH: I am so sorry. I
3 promise too because then we are going to move
4 completely off this topic. I'm sorry, just two.
5 CONTINUED VOIR DIRE EXAMINATION BY MS. SMITH:
6 Q Doctor, doing an analysis of a
7 particular diagnosis in one forensic case, that
8 doesn't make you a -- particularly specialized
9 in that, does it? Aren't there -- I'm sorry, I
10 will just start with that question?
11 A What was the question?
12 Q Doing an analysis in a forensic
13 case for anybody of -- the whole analysis you
14 just talked to Mr. Bevere about, that doesn't
15 give you a particular expertise so that you're a
16 specialist in that particular topic after one
17 analysis, does it?
18 A The answer is yes. And if you want to
19 explain why -- what I mean by "yes," I will tell
20 you. In order to -- one of the questions that I
21 was asked before is I was qualified as an expert
22 before in -- in different courts and in
23 different cases. And the answer was yes. I was
24 always qualified. I did all these cases that
25 you read; I -- I have done it. I have done it.
132
1 I cannot tell you exactly all of them how many
2 times I did -- I did them, but I -- I did work
3 on all those cases.
4 And the preparation and the study
5 and -- and basically the preparation that goes
6 into doing that is -- is inordinate. So the
7 bottom line is yes, I am applying my psychiatric
8 knowledge on all these matters that you -- all
9 these titles that you read and I applied to this
10 particular person. Again, I am applying my
11 clinical knowledge to this particular legal
12 issue forensic case. So the answer is yes.
13 Q Okay. Aren't some psychiatrists
14 well known specialists in a subspecialty like
15 PTSD? Can we agree on that?
16 A Yes.
17 Q No? Okay. Some -- some
18 psychiatrists teach at well known institutions
19 about PTSD, right?
20 A Absolutely.
21 Q And some publish regularly in
22 peer-reviewed journals about PTSD --
23 A Yes.
24 Q -- right? And they're recognized
25 in their -- by their peers as having a real
133
1 expertise in a subspecialty, right?
2 A Yes.
3 Q Okay. And you don't have that in
4 PTSD, do you?
5 A Yes, I do. I said at the very beginning,
6 when Mr. Bevere asked me what I teach and where
7 I teach, I teach at New York University School
8 of Medicine, among other places. And in that
9 place in particular the course that I teach on
10 psychopathology, I teach Psychopathology 1,
11 Psychopathology 2. And PTSD is a major topic
12 that -- and is something that, again, was part
13 of my training in the Psychoanalytic Institute
14 at NYU. First was Downstate Medical Center,
15 then became NYU.
16 Trauma is one of the basic tenets, one
17 of the basic points that we study when we talk
18 about mental function. And I did go through
19 that training. I completed that training in
20 several years. And again, trauma is one of the
21 most important elements of that particular
22 theory, that particular way of -- modality of
23 treatment. And I teach it every year. I am
24 teaching at NYU for I don't know exactly, but my
25 CV says. It's probably ten years or more. I
134
1 don't know.
2 Q The last conference -- the last
3 lecture you gave was, "Competence to Consent to
4 Sexual Intercourse Legal and Psychiatric
5 Interviews "-- "Issues" at Hackensack University
6 Medical Center on your resume, rights?
7 A Yes.
8 Q And prior to that it was,
9 Professional Malpractice Committee meeting of
10 the American Psychoanalytical Association,
11 winter meeting in 2006, right?
12 A Those are lectures that you are reading
13 from?
14 Q This is under, "Conferences and
15 Lectures."
16 A Yeah, yes.
17 Q Prior to that it was "Criminal
18 Angst, as Diminished Responsibility?" That was
19 at Bellevue Hospital Center in the Tristate of
20 AAPM, right?
21 A The try -- yeah, Tristate section of the
22 American Academy of Psychiatry and the Law.
23 Q And prior to that it was, "Drugs,
24 Mental Health and Competence, The Role of the
25 Clinical Forensic Psychiatrist," right?
135
1 A Right.
2 MS. SMITH: Okay. I have no
3 further questions, Your Honor.
4 JUDGE CURRAN: Thank you, Mr.
5 Bevere?
6 MR. BEVERE: Judge, I have no
7 further questions.
8 JUDGE CURRAN: Thank you. Ladies
9 and Gentlemen, based on the doctor's testimony,
10 his experience, his education, all of the
11 professional information he put on the record, I
12 find that it is appropriate to qualify him as an
13 expert in forensic and clinical psychiatry.
14 Thank you.
15 I, having no psychiatric
16 background or whatever, can just sort of
17 ascertain the mental attitudes that I am seeing
18 over there, if not every place in the courtroom,
19 so we will take the lunch break. I would
20 appreciate it if you could be back at 1:45 after
21 lunch.
22 Please don't discuss the case.
23 Thank you. Off the record.
24 (Whereupon, the jury is excused.)
25 JUDGE CURRAN: You may step down.
136
1 THE WITNESS: Thank you.
2 (Whereupon, a luncheon recess is
3 taken.)
4 JUDGE CURRAN: I will note that
5 Juror Number 1 was in court.
6 What was your problem downstairs
7 with the sheriff?
8 JUROR NUMBER 1: I have a digital
9 camera, and I brought it because I am going to
10 event this afternoon. And I wasn't stopped this
11 morning, but I was stopped today. And they said
12 I can't leave it there -- if I leave it, it;
13 will be gone -- and I can't bring it up. So
14 another juror, I put it in his motorcycle. He
15 was kind enough to --
16 JUDGE CURRAN: They wouldn't let
17 you bring it up, even after I called and talked
18 to them?
19 JUROR NUMBER 1: No, I don't know,
20 because I went to put it in the bag. So they
21 didn't stop me after I came back. They didn't
22 say anything to me about that.
23 JUDGE CURRAN: They may have just
24 had it known, or maybe I called in the meantime.
25 Because Mr. Bevere said, just so it's clear, one
137
1 of the jurors addressed him and said that
2 another juror was stopped because she couldn't
3 get back up.
4 MR. BEVERE: Actually, one of the
5 jurors addressed Tracey.
6 JUDGE CURRAN: I'm sorry. Oh,
7 poor Tracey was the only one here, right? Well,
8 I'm sorry. I mean, it was not a picture phone;
9 it was a camera.
10 MR. BEVERE: I realized that after
11 I spoke to you, but I figured you were already
12 on the phone.
13 JUDGE CURRAN: I was, anyway. I'm
14 sorry. Had I known they were stopping people
15 with cameras -- I never heard that before.
16 JUROR NUMBER 1: I don't
17 understand why they do that because cell phone
18 has cameras. So it's --
19 JUDGE CURRAN: I know.
20 JUROR NUMBER 1: -- basically same
21 thing.
22 JUDGE CURRAN: I'm sorry you had
23 that problem.
24 JUROR NUMBER 1: It's okay.
25 JUDGE CURRAN: You can go into the
138
1 jury box.
2 We will bring out the other
3 jurors, Miss Castelli.
4 I wanted it to be clear because I
5 knew there was some conversation at lunchtime.
6 I didn't realize, Tracey, that
7 you were stuck with that.
8 MR. BEVERE: Tracey was the
9 intermediary.
10 COURT CLERK: Jurors are
11 approaching.
12 (Whereupon, the jury is brought
13 into the courtroom.)
14 (Whereupon, a discussion is held
15 off the record.)
16 JUDGE CURRAN: Sir, I understand
17 you are now the guardian of the camera; is that
18 right? Okay. That's a very big responsibility.
19 Thank you. We will proceed with
20 the questioning of Dr. Goldwaser by Mr. Bevere.
21 Mr. Bevere.
22 MR. BEVERE: Thanks, Judge.
23 CONTINUED DIRECT EXAMINATION BY MR. BEVERE:
24 Q Dr. Goldwaser, at my request did
25 you perform a forensic psychiatric examination
139
1 of Mr. Peter deVries?
2 A Yes, I did.
3 Q Okay. And I think you've told us
4 before in the voir dire what a forensic
5 psychiatrist does. What was the purpose for
6 your examining Mr. deVries?
7 A Well, the specific question that was
8 presented to me by you to -- to determine was
9 whether Mr. deVries and also Mr. Carter, whether
10 they were suffering from psychiatric condition
11 known as "posttraumatic stress disorder" as a
12 result or directly connected, related to event
13 that was reported that took place on April 25th,
14 2004. And that was what I was asked
15 to determine.
16 Q Now, did I also ask you to
17 determine whether or not Mr. deVries or
18 Mr. Carter were suffering from any psychiatric
19 disorder as a result of the or caused by the
20 incidents of April 25th, 2004?
21 A Yes.
22 Q Now, Doctor, in connection with
23 your examination of -- we'll start with
24 Mr. deVries. Were you provided with certain
25 information?
140
1 A Yes, I was.
2 Q Okay. And as you're sitting here
3 do you have a copy of your report?
4 A Yes.
5 Q Do you need to use that report to
6 refresh your recollection?
7 A I may need it, yeah.
8 MR. BEVERE: Okay. I would just
9 ask if there is an objection to the doctor
10 referring to his report?
11 MS. SMITH: No, no objection.
12 MR. BEVERE: Thank you.
13 MS. SMITH: You want to put the
14 number on the record?
15 MR. BEVERE: It's D-311, Your
16 Honor.
17 JUDGE CURRAN: Thank you very
18 much.
19 BY MR. BEVERE:
20 A Yes, I have it.
21 Q Okay. Thank you, Doctor.
22 Starting with just with Mr. deVries, what
23 information were you provided with by me in
24 connection with your examination?
25 A Okay. What I received from you were a
141
1 bunch of medical records and some legal records,
2 as well. The medical records were the office
3 notes of Dr. Almeleh, the psychiatrist that
4 Mr. deVries was seeing, was treating with.
5 Also, the psychotherapy records of Barbara
6 Hines, a psychotherapist that Mr. deVries was in
7 treatment with from May 2004 to about May, June,
8 2005. I also received records from Dr. Pumill.
9 He is a cardiologist. Mr. deVries was treating
10 with him, as well.
11 I received the complaint of the legal
12 issues were complained -- they complained of,
13 both Mr. deVries and Mr. Carter. And also the
14 answers and the reply to those answers related
15 to the complaint. I also received the
16 deposition transcripts. I mean the typed
17 deposition of Mr. deVries. There were four
18 volumes adding up to about 23 hours. And also I
19 received the deposition transcript of -- oh, for
20 Mr. deVries?
21 Q We will start with Mr. deVries
22 first?
23 A Okay. That's pretty much -- I also
24 received -- I think that it was also the
25 disability, long-term disability request. I
142
1 believe this is -- this is pretty much it. And
2 also I received psychiatric report prepared by
3 Dr. Bursztajn.
4 Q Now, Doctor, with regard to the
5 medical records that you were provided -- I
6 think you referred to them as notes from Dr.
7 Almeleh -- did those notes cover periods both
8 before and after April 25th, 2004?
9 A Yes.
10 Q And the records of Dr. Pumill with
11 which you were provided, were those records that
12 also were for treatment that occurred both
13 before and after April 25th, 2004?
14 A Yes, correct.
15 Q To your understanding as you are
16 sitting here, did Mr. deVries treat with Barbara
17 Hines, the psychotherapist, before April 25th,
18 2004?
19 A No, it started afterwards.
20 Q Now, Doctor, I want to start by
21 talking about the medical records of Dr.
22 Almeleh. What is your understanding as to who
23 Dr. Almeleh is?
24 A My understanding is that he is a
25 psychiatrist in New York City and that he was
143
1 the psychiatrist -- I believe he started seeing
2 the -- being the psychiatrist of Mr. deVries
3 prior to Mr. Carter and eventually became also
4 the psychiatrist of Mr. deVries as far back as
5 August '94. It was '94 I think the treatment
6 started with Mr. deVries.
7 Q All right. Now, Doctor, based
8 upon your review of the medical records of Dr.
9 Almeleh from -- I think the period of time you
10 just related to us was 1994?
11 A Yes.
12 Q Through April -- let's say
13 April 24th, 2004. I won't say there was a visit
14 on the 24th, but the period of time from the
15 time that Mr. deVries first started seeing Dr.
16 Almeleh until just before the incidents in
17 question here. Do you have an understanding as
18 you're sitting here as to what, if any, medical
19 condition Mr. deVries suffered from in that
20 period of time?
21 A Yes, he was being treated for condition
22 known as major depressive disorder recurrent,
23 meaning it comes and goes.
24 Q Well, let's -- first let's define
25 what major depressive disorder is, and then you
144
1 can tell us what recurrent means.
2 A Major depressive disorder describes a
3 major psychiatric illness that is considered as
4 it has a biological basis, something in the --
5 the brain is not working all that well; and this
6 illness is characterized by, basically, feeling
7 depressed. Not just feeling sad, not just
8 feeling down, but feeling, let me say, very sad
9 or very down for a sustained, for a prolonged
10 period of time, but down to the point of the
11 functioning of the person in society in general
12 becomes compromised at some point, meaning a
13 person cannot function well, doesn't see much
14 reason living, sometimes eats too much or eats
15 too little, sometimes sleeps too much or sleeps
16 too little.
17 So there are a lot of problems,
18 physical problems, like appetite, sleep. But
19 it's primarily a deep sense of despair that can
20 go all the way to feeling hopeless and helpless,
21 meaning it cannot feel better, I cannot feel
22 better and helpless, nobody can help me. I
23 mean, the sense is very, very severe, very, very
24 deep. It's not something that we can say,
25 "Well, snap out of it" or, "Come on" or, "I will
145
1 take you for an ice cream" or whatever like
2 that. It's something, again, it's determined
3 biologically, something in the brain. It is a
4 chemical imbalance that we have to find a way of
5 balancing in the brain for a person to come out
6 of it.
7 And there are different types of it.
8 One of them is called "recurrent," meaning it
9 doesn't happen only once and good treatment,
10 good medication, good psychotherapy solves it
11 and never happens again. The recurrent type is
12 the type that is chronic, meaning it lasts for
13 very long time and it goes in waves. There is a
14 period where one feels very, very bad and then
15 one feels okay. Sometimes one feels okay
16 without much treatment, one feels okay because
17 it has its own cycle, that is brain-determined
18 more than whatever happens around us.
19 Q All right. Doctor, what is --
20 what is your understanding as to the first time
21 that Mr. -- sorry, let me rephrase it. What is
22 your understanding of when Mr. deVries first saw
23 Dr. Almeleh following his moving from Minnesota
24 back to New Jersey?
25 A I believe it was in 2003. He moved back
146
1 to New Jersey 2001. He was still treating with
2 medication, antidepressant medication; but he
3 was not treated -- he was not treating with Dr.
4 Almeleh. He was being treated by his primary
5 care physician. His internist, let's say,
6 provided medication.
7 Q What is your understanding as to
8 how long Mr. deVries was on antidepressant
9 medication prior to November of 2003?
10 A My understanding is that pretty much he
11 was on this type of medication all the way back
12 to the very beginning, 1994.
13 Q Now, I want to talk about the
14 period of time from -- I thought you said it was
15 2003. In your report do you have the date of
16 when it was in 2003 that Mr. deVries first saw
17 Dr. Almeleh again?
18 A Yes, November 7th, the end of the year of
19 2003.
20 Q Okay. And if you could tell us,
21 what was the condition of Mr. deVries'
22 depression between the period of November 7,
23 2003 up until his last psychiatric visit with
24 Dr. Almeleh prior to the incident of April 25th?
25 A Okay. He was in the throws of a relapse,
147
1 a depressive relapse when he came to see him.
2 Dr. Almeleh has indicated the depression has
3 come back and was taking medication. He had
4 stopped taking medication sometime back. So
5 there were periods in which he didn't take
6 anything, but throughout all these years he --
7 he took. When he was in Minnesota he also took
8 medication, antidepressant medication.
9 He was feeling very severely bad. As I
10 said earlier, he saw very little purpose in
11 continuing living. This is what I was talking
12 about before, when one feels in the throws of a
13 major depressive episode, hope is -- is not a
14 word that is part of what -- what a patient
15 feels. There is no -- no hope. There is no
16 purpose in living.
17 He wanted to retire. He didn't want to
18 work. He felt that he was worse after his
19 surgery. He had surgery some months earlier,
20 heart surgery. Sleeping problems. The
21 medication was raised substantially to the
22 maximum amount, Zoloft, which is 200 milligrams.
23 And he continued on that same mode of
24 feeling depressed. At work he was not feeling
25 comfortable. He wasn't getting along with his
148
1 boss. He wasn't getting along with people. He
2 could not concentrate. He was very tired,
3 sleeping, taking a lot of naps. He could not
4 stay up; he -- he had to lie down.
5 One thing that is interesting is that
6 at some point briefly he felt better. And he
7 started in November. In December he started
8 taking a -- another medication, a new medication
9 that is called Adderall.
10 Q Now, Doctor, not to cut you off;
11 but was that in addition to antidepressant
12 medications?
13 A In addition to the antidepressant
14 medication. The antidepression medication was
15 Zoloft. Antidepressant medication that was
16 replaced by Dr. Almeleh for another, that is
17 called Lexapro. Let me say they are similar in
18 a way. They work similarly, but they have a
19 little different properties. But they are both
20 antidepressant. And -- and Dr. Almeleh changed
21 Zoloft for Lexapro and was going to start him
22 on -- on a medication that is called Ritalin.
23 Ritalin is a medication that is used
24 for people that suffer from attention deficit
25 disorder. Helps -- it is a stimulant that
149
1 people that suffer from AADD or ADHD, attention
2 deficit disorder, because of, again, certain
3 abnormalities in the brain, the brain can pull
4 itself together and people can focus better, can
5 pay more attention and so on. So Dr. Almeleh
6 was planning to do that, to -- to include that
7 as a -- as a way of stimulating him,
8 start-jumping him.
9 Q Now, Mr. deVries to your knowledge
10 prior to this point, had he had a diagnosis of
11 ADD?
12 A No.
13 Q So what was the purpose of the
14 Adderall?
15 A Well, the purpose of the Adderall was not
16 introduced by Dr. Almeleh. Dr. Almeleh did not
17 prescribe Adderall for the first time for his
18 patient. His patient actually took it from
19 Mr. Carter. Mr. Carter was taking Adderall.
20 And Mr. Carter was taking Adderall prescribed
21 for the treatment of ADD, but Mr. Carter gave
22 him this medication.
23 And Adderall is also stimulant.
24 It's -- it's a combination of different types of
25 amphetamines. Amphetamines are stimulants of
150
1 the -- of the brain, of the central nervous
2 system. He started taking this medication,
3 which is potentially a very dangerous medication
4 for -- for many reasons.
5 When he went to see Dr. Almeleh in
6 December, middle of December, December 18, he
7 had started to take this medication and wanted
8 to continue. Dr. Almeleh had some questions
9 about this medication because people that have
10 hypertension -- and Mr. deVries has
11 hypertension -- people that have heart
12 conditions -- I mean actual, the structure of
13 the heart, not just that the heart doesn't pump
14 well, but there are problems with the heart,
15 itself -- there are cases of sudden death, there
16 are cases of serious bad effect when people take
17 Adderall.
18 And Adderall is actually -- is
19 discouraged to be taken when people have these
20 kind of problems. And Mr. deVries had those
21 kind of problems. He had heart surgery. He had
22 a valve of the aorta, main artery of the heart
23 was changed. So he was not a good candidate to
24 receive this kind of medication. But he did
25 take it. When he went to see doctor, he told
151
1 him that he had been taking it for about a week
2 or so. And he told him that he took his pulse
3 and things are okay. So he continued taking it.
4 He was at the same time taking some
5 medication for the blood pressure, to lower the
6 blood pressure, some medication for the heart
7 to -- to beat well and so on. And that was
8 the -- this -- the other medication that was
9 added to the Lexapro.
10 Q All right. So you began to tell
11 us about a feeling that Mr. deVries developed
12 sometime after December of 2003. Is it your
13 understanding from reading Dr. Almeleh's records
14 that there was a period of time after
15 November 2003 and before April 25th where
16 Mr. deVries was feeling better?
17 A Okay. There was -- there was a time, and
18 that was the beginning of January. He started
19 taking this medication, again, stimulant. And
20 in January, which is the -- the session or
21 the -- the treatment visit that followed the one
22 in which he said, "I'm taking the Adderall," he
23 was still struggling with sleeping issues and
24 all that. He was taking the Lexapro.
25 But he mentioned that he started
152
1 feeling better, he was able to concentrate
2 better, he was -- he was more active and also
3 that he -- another -- another good thing about
4 this and he was happy for that was that he had
5 started to lose weight. And that was something
6 that his cardiologist had told him the previous
7 year, in July, I believe, of '03, had told him
8 that he needed to exercise. He had put on
9 weight. So he was feeling glad of that. He was
10 feeling better that he was losing weight and he
11 was -- he was a little more active.
12 Q To your knowledge did that feeling
13 last?
14 A No, that feeling did not last. In --
15 in -- that was during the month of January that
16 he felt better on the combination of Lexapro,
17 which is the new antidepressant, and Adderall.
18 He was feeling better at that time, and he
19 preferred to stay on Adderall and not to take
20 Ritalin.
21 In February was when he was happy of
22 losing weight and feeling good about it. Still
23 taking naps, but they are shorter.
24 And towards the end of the month,
25 towards the end of February, which is that --
153
1 that following session, he started feeling down
2 again. And he had started -- this is
3 February 27th.
4 So we started in November. He went to
5 see him. He was feeling very badly, and he
6 didn't see any -- any hope, any reason to go on
7 living and all that. The medication was
8 changed, and at the same time Adderall was
9 introduced by Mr. Carter. That meant that new
10 medication -- and he was taking it at a high
11 dose. Normally people start at very low dose,
12 but he started at 40 milligrams a day. So he
13 was taking a lot for somebody that didn't take
14 them before. And responded.
15 Q Now, at some point was the Lexapro
16 discontinued?
17 A Yes, the problem was that he -- in
18 February he was feeling good on the -- on the
19 antidepressant and the Adderall. Towards the
20 end of the month, also February, he came to Dr.
21 Almeleh and told him that he had relapsed in
22 terms of his cigarette smoking. He started
23 smoking again. He had started some days back or
24 some week back or so, and he was smoking ten
25 cigarettes a day. And he -- he knew that he had
154
1 to give it up because he had shortness of
2 breath, periodic tightness of the chest, a sense
3 of lack of oxygen, mild coughing. He was aware
4 of the heart condition that he had.
5 He was taking 70 milligrams of
6 Adderall. Generally speaking, the maximum
7 somebody who needs Adderall is about
8 70 milligrams. He is taking 70 without a very
9 clear indication for that, and he started it on
10 his own.
11 He -- he started developing
12 light-headedness. And Dr. Almeleh thought that
13 maybe it's related to the Lexapro, but maybe
14 it's also related to another medication that is
15 for the heart. It's called Toprol. That is for
16 the heart. A side effect of this other
17 medication, Toprol, to help the heart is
18 fatigue, sluggishness and all that. So Dr.
19 Almeleh was not clear whether this
20 light-headedness was due to the Lexapro or due
21 to the Toprol, but he knew that Toprol he needed
22 to take for the heart to work.
23 So what he did is he stopped the
24 Lexapro at that moment, thinking that the
25 Lexapro was creating this light-headedness. And
155
1 that is potentially serious.
2 And then, the next month, which is in
3 March of '04, he had a conference with Dr.
4 Pumill, the cardiologist. And Dr. Pumill said,
5 "Look, there is no question about the Toprol.
6 He has to take it for the rest of his life, so I
7 am not going to do anything for that other than
8 reduce." They reduce a little bit the
9 medication the Toprol, but the Lexapro was taken
10 off. So he was not taking Lexapro, hoping that
11 the Adderall alone would carry him on.
12 Q Now, how did Mr. deVries'
13 depression symptoms progress following the
14 discontinuation of the Lexapro in either late
15 February or early March of 2004?
16 A Okay. The following visit he started to
17 decline again. On the 14th, March 14th he was
18 having trouble at work. He was starting again
19 having the difficulties that he wasn't having.
20 When he came in January he was talking about
21 liking his -- his work. Now he started going
22 back down, not liking it.
23 Q Did Dr. Almeleh indicate whether
24 or not Mr. deVries had been reprimanded at work
25 in March of 2004?
156
1 MS. SMITH: Objection, Your Honor,
2 leading.
3 JUDGE CURRAN: Sustained.
4 MR. BEVERE: I will rephrase, Your
5 Honor.
6 BY MR. BEVERE:
7 Q Did Dr. Almeleh indicate in March
8 of 2004 one of the reasons why Mr. deVries was
9 having problems at work?
10 A Yes, in March, March 19th -- and again,
11 he started showing problems in February. He
12 started smoking again, knowing that he
13 shouldn't; but he -- he couldn't stop it. On
14 March 19th he was -- he was having problems at
15 work. He -- he had been reprimanded at work.
16 And he described having hard time at work. The
17 way he decided to -- to make it up for it,
18 whatever, he started as of March 19th, around
19 that time, to work more hours, to go to work and
20 stay there longer to complete the assignment and
21 so on he was --
22 Q What was the indication in Dr.
23 Almeleh's notes how many hours Mr. deVries was
24 spending at work as of March 19th, 2004?
25 A Twelve to 13 hours a day he began -- he
157
1 began working. As of March 19 or around
2 March 19 he started working 12 to 13 hours a
3 day, putting -- putting this time at work.
4 Q When was the next visit after the
5 March 19th visit?
6 A It was April 9 -- I'm sorry -- yes, April
7 9.
8 Q And what was -- according to Dr.
9 Almeleh's notes, what was Mr. deVries' condition
10 as of April 9th, 2004?
11 A He still he was feeling depressed again.
12 And he related that he was feeling depressed
13 about not liking work. Now, that would be a --
14 the explanation that he is giving, the point of
15 not liking work most likely is related to
16 feeling depressed, rather than the other way
17 around. Being depressed, not just sad or down,
18 implies lack of energy, lack of enthusiasm, lack
19 of ability to -- to go do things. And at work
20 we have to perform. And that was one of the
21 problems he was complaining on 4/9, on
22 April 9th.
23 Q Did Dr. Almeleh indicate whether
24 or not he was considering reinstituting the
25 antidepressant medication on April 9th, 2004?
158
1 MS. SMITH: Objection, leading.
2 JUDGE CURRAN: Sustained.
3 MR. BEVERE: Judge, the question
4 was whether or not --
5 JUDGE CURRAN: No.
6 MR. BEVERE: I will be happy to
7 rephrase.
8 JUDGE CURRAN: Well --
9 BY MR. BEVERE:
10 Q Doctor, what, if any, indication
11 Did Dr. Almeleh make as to medication as of the
12 office visit on April 9th, 2004?
13 A April 9th, 2004 Dr. Almeleh was really at
14 a loss with his patient. He was depressed. He
15 was not functional at work. He didn't like
16 work. He -- he was saying, "Work makes me
17 depressed." And doctor in his note, he is -- he
18 wonders -- he writes down that he is not sure
19 whether this is, as he put it, an environmental
20 factor, meaning there is something about work
21 that makes him depressed and maybe that is what
22 I should be focusing on right now; or is the
23 biological depression, as he put it, that makes
24 him depressed, therefore not to work well and to
25 get in trouble with people at work. So that was
159
1 what he was wondering.
2 And he was, again, thinking of
3 reinstating the medication and wondering about
4 the possible problems with the heart or not -- I
5 mean what to do.
6 But it is that -- it was recognized
7 that throughout all this period from November
8 '03 through April '04 he was not stable. His --
9 his depressive, major depressive condition,
10 major depressive disorder was not -- he was not
11 what we call "compensating," meaning he was not
12 put together and he was not better.
13 And this is how we do it. We treat to
14 get the patient to feel better and then to be
15 stable, to continue being better. He was not
16 only unstable by all this, but he was not
17 compensating. His depressions were still there.
18 In other words, the -- the other worked
19 momentarily, was a new medication, was a mix of
20 amphetamines, was a stimulant that worked for a
21 moment, made him lose some weight, made him feel
22 confident, made him feel he liked working, then
23 immediately he went down again.
24 Q Now, Doctor, in the office notes
25 for Dr. Almeleh between November 7, 2003 and
160
1 April 9th, 2004, which was the last visit prior
2 to April 25th, 2004, is there any reference in
3 Dr. Almeleh's notes to firefighters?
4 MS. SMITH: Objection, leading.
5 JUDGE CURRAN: It really is
6 leading.
7 MR. BEVERE: Judge, my smile
8 was -- my smile as an acknowledgment that I had
9 led and I would rephrase.
10 JUDGE CURRAN: Well, Miss Smith is
11 not about to follow, so you may as well change
12 the leading. So if you will please rephrase.
13 MR. BEVERE: Yes.
14 BY MR. BEVERE:
15 Q Doctor, do you know from your
16 review of Dr. Almeleh's treatment notes if there
17 is any reference to firefighters prior to
18 April 9th -- prior to April 25th, 2004?
19 A Yes, I know; I know it. I know that
20 there is none whatsoever.
21 Q Do you know if there is any
22 reference to the Town of Secaucus in
23 Mr. deVries' psychiatric records that predate
24 April 25th, 2004?
25 A No, as a matter of fact, this is -- these
161
1 are the type of notes or this is the type of
2 treatment that he has been providing all along.
3 He is treating this condition, and in his mind
4 he is trying to -- he is struggling with how to
5 treat major depressive disorder.
6 MS. SMITH: Objection as to what's
7 in Dr. Almeleh's mind.
8 JUDGE CURRAN: Sustained.
9 THE WITNESS: Okay.
10 JUDGE CURRAN: I am going to
11 strike the last part of that answer. You may
12 continue questioning.
13 MR. BEVERE: Sure.
14 BY MR. BEVERE:
15 Q Doctor, what is your understanding
16 based upon the review of Dr. Almeleh's records
17 as to what condition Mr. deVries was being
18 treated for up until April 25th, 2004?
19 A Major depressive disorder recurrent
20 severe.
21 Q Now, Doctor, in addition to
22 reviewing Dr. Almeleh's records you also
23 reviewed the records of Dr. Pumill that were for
24 treatment that occurred before April of 2004,
25 correct?
162
1 A Correct, yes.
2 Q What, if anything, did Dr.
3 Pumill's records indicate about either weight
4 gain or weight loss?
5 A He writes in the notes that on the
6 visit -- the visit 7 -- July 13 of '03 he had
7 put on weight and he was not exercising and he
8 was -- that -- that is not a good thing for
9 somebody that has a heart disease, that had
10 surgery, that is being monitored. He was -- so
11 far he was stable.
12 He also suffered -- he also had
13 hypertension. So he had a heart that was
14 working well, blood vessels that were working
15 well; but is something that his heart was still
16 sick. So it's a good idea not to force the
17 heart by being overweight, to help the heart by
18 being lean or by being -- by exercising and so
19 on. And that was one of the things that he
20 noticed and that he suggested that he do, that
21 he exercise and that he lose weight.
22 Q Now, in Doctor -- I believe you
23 testified earlier about something in Dr.
24 Almeleh's notes regarding smoking. Did Dr.
25 Almeleh indicate anything in his notes prior to
163
1 April 25th, 2004 about smoking? Dr. Almeleh,
2 not Dr. Pumill, Dr. Almeleh.
3 A If he indicated before when?
4 Q April 25th, 2004.
5 A Yes, yes, it was in February that Dr.
6 Almeleh wrote down that he had a relapse,
7 smoking relapse and that he had been smoking ten
8 cigarettes every day.
9 Q Now, and did Dr. Almeleh's notes
10 before April 25th of 2004 indicate any problems
11 that Peter and Tim may have been having?
12 A Yes.
13 Q Can you tell us about those?
14 A Okay. One thing I want to mention -- and
15 I -- on the -- when I received the records for
16 both, I received also the records of Dr.
17 Almeleh's treatment with Mr. Carter and their
18 reference of Mr. deVries and -- in both. So I
19 know some aspects from the treatment of
20 Mr. Carter about some -- some of the
21 circumstances about the Adderall and so on.
22 But from the very beginning there
23 was -- there was some bickering. There was
24 disagreement. There -- there were issues
25 between Mr. Carter and Mr. deVries primarily
164
1 coming from Mr. deVries feeling very upset that
2 he was not contributing financially, that
3 Mr. Carter was not working. And from the very
4 beginning he felt that was --
5 MS. SMITH: Objection to what Dr.
6 Almeleh felt.
7 JUDGE CURRAN: Sustained.
8 A Okay. He noted that there were problems
9 in their relationship from the very beginning.
10 Q Now, Doctor, you also reviewed the
11 treatment records of Dr. Almeleh from the first
12 visit following April 25th, 2004 going forward
13 up until, I believe it was, early 2006?
14 A Yes.
15 Q Now, based upon your review of Dr.
16 Almeleh's records do you know when the first
17 time -- let me ask you this -- this question.
18 Do you know whether Mr. deVries sought
19 any emergency medical treatment following the
20 April 25th, 2004?
21 A Yes I know based on the records that I
22 have he did not seek out any emergency medical
23 treatment.
24 Q Okay. When was his first visit
25 with Dr. Almeleh after April 25th, 2004?
165
1 A It was on April 30th, 2004.
2 Q Do you know as you are sitting
3 here today whether that was a regularly
4 scheduled appointment?
5 A I don't know.
6 Q With what frequency had
7 Mr. deVries been seeing Dr. Almeleh prior to
8 April 25th, 2004?
9 A Generally speaking, every other week,
10 twice a month.
11 Q And when was the -- and the last
12 time he had seen him prior to April 30th was?
13 A Was April 9th.
14 Q And then when was the next time
15 that Mr. deVries saw Dr. Almeleh after
16 April 30th?
17 A It was on May 21st, three weeks later.
18 Q Now, do you have an understanding
19 as you're sitting here as to whether the
20 frequency of Dr. -- of Peter deVries' visits
21 with Dr. Almeleh changed after April 25th, 2004?
22 A I would say no, it was loosely described
23 every other week. Sometimes it's every three
24 weeks, sometimes there is a month in between;
25 but it's about every two to three weeks.
166
1 Q And would that be true through the
2 end of 2004?
3 A Yes, uh-huh, yes.
4 Q Now, Doctor, as you're sitting
5 here do you have an understanding as to when
6 Mr. deVries' antidepressant medication was
7 reinstituted?
8 A It took a while. He was not -- he stayed
9 on Adderall for all this time. And what was
10 added to that was medication like Provigil.
11 Provigil is another medication that has to do
12 with helping people be alert. Those people that
13 feel sleepy or tired during the day, this
14 medication tends to help them be up. So it was,
15 again, something to help him deal with that
16 lethargy that he has been suffering all along.
17 If I'm correct, he gave -- he
18 prescribed Adderall -- I'm sorry, Lexapro, which
19 is, again, an antidepressant, the following
20 year, in April of '05.
21 Q Now, Doctor, I want to talk about
22 in addition to seeing Dr. Almeleh after
23 April 25th, 2004, it's your understanding that
24 he also saw Barbara Hines, as well?
25 A Yes.
167
1 Q Okay. And what was Barbara Hines?
2 A Barbara Hines was a psychotherapist.
3 Q Is that different than a
4 psychiatrist?
5 A Yeah, it's -- a psychiatrist can also
6 perform psychotherapy -- I mean provide that
7 modality of treatment that --
8 Q Well, what is psychotherapy?
9 A It's basically understood as talk
10 treatment, talk therapy, helping, again,
11 understand what makes us do certain things or
12 what makes us feel certain things. And if it is
13 not related to a brain disease, it's very
14 effective and can treat without the use of
15 medication.
16 Generally speaking, the best treatment
17 approach is a combination of medication and
18 psychotherapy. That, generally speaking, works
19 best. And this was the case here. He was
20 referred for psychotherapy after this event
21 while he continued treating.
22 Q As you are sitting here do you
23 have an understanding of what -- from reviewing
24 Dr. Hines's records --
25 A Yeah.
168
1 Q -- what she was treating him for?
2 A Yes, I don't believe that he went to see
3 her by recommendation of Dr. Almeleh. He
4 just -- he decided to start psychotherapy, and
5 he found her. She was -- after her evaluation
6 she was treating him for two conditions as she
7 saw it. The first one is called dysthymia or
8 dysthymic disorder.
9 Q Which is what?
10 A Which is a mild form of depression,
11 depressive disorder. It has pretty much -- some
12 people call it "minor depression." It's pretty
13 much like a major depressive disorder that I
14 mentioned earlier, being deep in -- there is
15 lack of energy, lack of ability to plan and lack
16 of projecting into the future and all that. In
17 dysthymia that really is not as strong, as
18 intense. The patient tends to feel down,
19 depressed but can pull himself or herself
20 together without -- generally speaking, without
21 the need of medication. Sometimes medication
22 helps, but it's -- it's not as mandatory as a
23 major depressive disorder in which we do have to
24 try medication.
25 So she thought that his depression was
169
1 really not all that bad, basically. And this is
2 why she called him -- called it dysthymia.
3 And the second diagnosis that she gave
4 was based on his history more than what she
5 found, was anxiety, general anxiety disorder.
6 In other words, a state of being nervous all the
7 time about anything. And that was mainly by
8 history.
9 He did mention that he had -- he felt
10 awkward in -- in -- in open -- open places, he
11 was not a sociable person, he felt very awkward,
12 he felt very uncomfortable. So he was general
13 anxious. General anxiety disorder refers to
14 anxiety related to any aspect of one's life.
15 So she -- she decided on those two
16 diagnoses. That was her opinion and that was
17 how she treated, based on those two things. She
18 did not make a diagnosis of major depressive
19 disorder. She did not make a diagnosis of
20 posttraumatic stress disorder .
21 Q Now, Doctor, with regard to the
22 treatment records of Dr. Almeleh following
23 April 25th, 2004 through early 2006, what
24 condition is Dr. Almeleh's treatment records
25 consisting of?
170
1 A What?
2 Q What condition, what psychiatric
3 condition are Dr. Almeleh's treatment records
4 consistent with?
5 A Major depressive disorder, recurrent.
6 Q Now, Doctor, do you have an
7 understanding as to -- what is your
8 understanding as to when Mr. deVries and
9 Mr. Carter moved from the Town of Secaucus?
10 A When they moved?
11 Q Yes.
12 A They moved in -- I believe was November.
13 Q Of?
14 A Of '04, 2004.
15 Q And when they moved from the Town
16 of Secaucus, was Mr. deVries still working?
17 A He was still working.
18 Q And is it your -- do you have an
19 understanding as to whether he was working
20 full-time?
21 A My understanding was that he was kind
22 of -- he was working full time but without -- he
23 was always thinking of transitioning. He
24 actually told the psychotherapist that he felt
25 very ambivalent about the job and he really felt
171
1 stressed or pressed to go to a job that he did
2 not like. That was in October of '04.
3 Q All right. And did -- is there an
4 indication in Dr. Almeleh's treatment records as
5 to what, if anything, happened at work in either
6 end of November, early December 2004?
7 A Yes, the problem was -- and it was a big
8 upset for him and in the records -- he was not
9 promoted. He was passed up for a promotion that
10 he was hoping for. Again, that is in -- in
11 about November of '04. The previous month he
12 really didn't want the job. He didn't really
13 like it. He felt pressured to go and work, as
14 he had felt all along, whenever he was
15 depressed. But when he did not get this
16 promotion, he felt very big upset. Dr. Almeleh
17 relates to that as major mood swing or something
18 along these lines. And I think at that time he
19 readjusted his medication.
20 Q Do you have an understanding as to
21 whether or not it was following the -- I will
22 rephrase.
23 Do you know whether the antidepressant
24 medication was reinstituted before or after the
25 denial of the promotion?
172
1 MR. BEVERE: Your Honor, while he
2 is looking I am going to get a sip of water.
3 A Yeah, in --
4 Q I'm sorry, Doctor, you are -- you
5 can answer; I am just getting myself some water.
6 A Sure. This -- this visit was December 7,
7 '04 that he describes a really bad mood swing.
8 Patient did not get promotion at work and so on.
9 At that time he decided to try -- to start him
10 again on an antidepressant medication, which was
11 Lexapro.
12 Q So it was at the same visit at
13 which he reported being passed over for the
14 promotion at work?
15 A Yes, uh-huh.
16 Q Now, Doctor, I believe you
17 testified that you had the opportunity to see
18 Mr. deVries' disability application?
19 A Yes.
20 Q Okay. And was there a medical
21 form that was filled out by Dr. Almeleh in
22 connection with Mr. deVries' disability
23 application?
24 A Yes.
25 MR. BEVERE: Before you do it,
173
1 Dave, let me just -- it's P -- I will tell you
2 what it is.
3 MR. PARIS: P-102.
4 MR. BEVERE: P-102.
5 BY MR. BEVERE:
6 Q Dr. Goldwaser, is this a copy of
7 the physician statement that accompanied
8 Mr. deVries' disability application?
9 A Yes.
10 Q Okay. And you reviewed that?
11 A I did.
12 Q All right. And under the
13 diagnosis what does Dr. Almeleh list as
14 Mr. deVries' -- first of all, what's -- what's
15 the date of the -- do you have it in front of
16 you?
17 A No.
18 Q I can show it to you.
19 A Thank you.
20 Q What's the date of the form?
21 A The date of the form is November 28,
22 2005.
23 Q And what diagnosis does Dr.
24 Almeleh list for Mr. deVries?
25 A Major depressive disorder recurrent
174
1 severe. Under two.
2 Q Excuse me. Under two?
3 A Uh-huh.
4 Q Now, at the top of the form it
5 says, "When did symptoms first appear or
6 accident happen?" And what does it say?
7 A And it says, "April 2004."
8 Q And it says -- well, let's start
9 with that. That April 2004, is that consistent
10 with Dr. Almeleh's treatment notes?
11 A Absolutely not.
12 Q And there is a notation on the
13 side, and what does that say?
14 A It says, "Patient has been treated for
15 major depression in the past."
16 Q Now, does Dr. Almeleh, based upon
17 your review of the form, does Dr. Almeleh make
18 the diagnosis of posttraumatic stress disorder
19 anywhere on the disability application?
20 A No.
21 Q And there are some medications
22 that are listed on the form under four, "Nature
23 of treatment"?
24 A Yes.
25 Q Can you tell us what those
175
1 medications are?
2 A Yeah, first he describes a weekly
3 procedure treatment.
4 Q And what -- what is your
5 understanding of when Dr. Almeleh started to see
6 Mr. deVries on a weekly basis?
7 A It was in the fall of '05, in September.
8 More -- perhaps -- no, much later, in November.
9 Q Doctor, check your report because
10 you have it in your report.
11 A Again, what I have here is it was the end
12 of the year; and I have here as perhaps
13 November 1 that he was -- he has session
14 November 1, the other one, November 7.
15 Q Of what year?
16 A 2005.
17 Q Go back to page 14 of your report.
18 MS. SMITH: Objection, Your Honor,
19 leading.
20 MR. BEVERE: Judge, all I am doing
21 is asking him to refer to a page in his report.
22 JUDGE CURRAN: Okay. I am going
23 to overrule it just in regard to the direction.
24 MR. BEVERE: Thank you.
25 BY MR. BEVERE:
176
1 Q All right. Doctor, does this
2 refresh your recollection as to when -- oh, I'm
3 sorry, the next page, 15. Does this refresh
4 your recollection as to when Mr. deVries started
5 seeing Dr. Almeleh on a weekly basis?
6 A In the -- in the month of April, in April
7 '05.
8 Q Okay. Now, and it's your -- is it
9 your understanding that Mr. deVries was no
10 longer living in Secaucus at this time?
11 A That's right; at this time he was not
12 living in Secaucus.
13 Q Now, we were talking about some
14 medications that were on the attending physician
15 statement; and you started out by telling us
16 about the individual psychotherapy sessions.
17 But what medications are listed?
18 A Okay. The first one is Lexapro.
19 Q And what is the dosage?
20 A The dosage is 20 milligrams a day.
21 Q And what is Lexapro?
22 A Lexapro is an antidepressant medication.
23 He was getting this medication at much lower
24 dose, half this dose, all the while; but now he
25 is taking it at much higher dose.
177
1 Q And I'm sorry, did you finish? I
2 apologize.
3 A Yes.
4 Q And the next medication?
5 A The next medication is Adderall.
6 Q And what is Adderall?
7 A Adderall --
8 Q I think you told us about --
9 A -- is a stimulant. And that he is taking
10 at 60 milligrams a day. And he also takes
11 Provigil, 200 milligrams a day. And Provigil is
12 also a stimulant. It's -- it's -- it's a
13 medication aiming at trying to get a person to
14 be more alert. It doesn't always work that way,
15 but that's the -- that's the idea.
16 Q On the disability form is there
17 any indication of either a sleep aid or an
18 antianxiety?
19 A No.
20 Q And this was as of November 2005?
21 A That's November 2005, yes.
22 Q There is another page of the
23 disability application. It will be P-462.
24 A Can you give me --
25 Q I will take that back, and I will
178
1 show you mine. Now, Doctor, is it your
2 understanding that this form was also submitted?
3 A Yes.
4 Q And on this form there are some
5 doctors listed?
6 A Yes.
7 Q Okay. And there's also a date of
8 the form of what?
9 A Eleven -- November 28th, '05.
10 Q And who is the form signed by?
11 A Peter deVries.
12 Q Okay. And there is some
13 medications listed?
14 A Yes.
15 Q And I think we have gone over the
16 Lexapro, the Provigil and the Adderall?
17 A Yes.
18 Q What are the other three
19 medications listed?
20 A Basically for -- the first two are for
21 cardiovascular disease. The first one is for
22 the heart, itself, to help functioning of the
23 heart. The second one is Altace, the blood
24 pressure, to lower the blood pressure. And the
25 third one, Lovastatin, is to lower cholesterol
179
1 levels in the blood.
2 Q And on that form is there any
3 indication of either a sleep aid or an
4 antianxiety?
5 A No.
6 Q Okay. Thank you, Doctor. Now,
7 Doctor, after April 25th, 2004 do you know
8 whether Dr. Pumill, Mr. deVries' treating
9 cardiologist, made any reference regarding
10 either weight gain or weight loss?
11 A Yes, he visited, actually, Dr. Pumill
12 in -- in May. Actually, in May he visited the
13 three, Dr. Almeleh, Miss Hines and Dr. Pumill.
14 And when he visited Dr. Pumill, he told
15 Dr. Pumill that he was dieting, that he felt
16 well, physically well and that he was doing
17 exercises, that he was taking his two dogs for a
18 walk as a form of exercise.
19 Q This was in May of 2004?
20 A This is May 13, 2004.
21 Q And -- oh, and did Dr. --
22 MS. SMITH: Your Honor, can we ask
23 what the witness is referring to? He has been
24 allowed to refer to his report, but it looks
25 like there is another entire document of notes
180
1 in front of him.
2 JUDGE CURRAN: Doctor.
3 THE WITNESS: Yes.
4 JUDGE CURRAN: What is it to which
5 you are referring?
6 THE WITNESS: It's my notes on
7 the -- on the --
8 JUDGE CURRAN: Handwritten notes
9 on a pad?
10 THE WITNESS: Yes.
11 MR. BEVERE: I have no problem if
12 counsel sees it, Judge.
13 MS. SMITH: I don't want to see
14 it. I don't want him referring to anything but
15 his report.
16 JUDGE CURRAN: What are those
17 notes, Doctor.
18 THE WITNESS: The idea is to
19 simplify things; otherwise, it may take me a
20 long time to -- to look at all these things, so
21 I have it here. That -- if you don't want me to
22 use it, I won't use it.
23 This -- this is the records; but
24 Dr. Almeleh doesn't have necessarily very easy
25 handwriting, not that mine is much better. But
181
1 because of that I just took note here on the
2 certain dates to answer fast.
3 JUDGE CURRAN: So you basically
4 translated onto your --
5 THE WITNESS: Exactly.
6 JUDGE CURRAN: -- legal pad is
7 what's on that?
8 THE WITNESS: Yes.
9 MS. SMITH: He was just testifying
10 about Dr. Pumill, not Dr. Almeleh.
11 JUDGE CURRAN: I understand that.
12 If you want to take a look at that --
13 MS. SMITH: Sure.
14 JUDGE CURRAN: -- Miss Smith, and
15 we will know what we are arguing.
16 MS. SMITH: Your Honor, can we be
17 seen at sidebar?
18 JUDGE CURRAN: Surely.
19 (Whereupon, the following sidebar
20 discussion is held.)
21 MS. SMITH: Your Honor, basically
22 this witness has made what I would call a cheat
23 sheet, including lots of information in a
24 different way than his report; and he has been
25 sitting here referring to it and testifying to
182
1 it. Nobody asked him if he could refresh his
2 recollection. I have never seen this document
3 before. It hasn't been marked.
4 MR. MULLIN: Certainly need copies
5 of it.
6 MS. SMITH: This is totally
7 outrageous.
8 JUDGE CURRAN: Well, let's all not
9 fall apart here. Let's all not fall apart.
10 Okey-dokey. First of all, Mr. --
11 MR. BEVERE: Because I will tell
12 you I didn't make any remarks, even though he
13 was looking at --
14 JUDGE CURRAN: He asked him if he
15 needed to refer to his report to refresh his
16 recollection. I think he said yes. And I am
17 assuming that Mr. Bevere thought, when he was
18 looking down, that that's -- that's what I
19 thought when he was looking down, he was looking
20 at his report. It's clear now he was looking at
21 a note pad, like a legal note pad that's got how
22 many pages, Mr. Mullin? A lot of pages.
23 MR. MULLIN: We have legal size
24 and smaller size here. One, two, three, four --
25 excuse me -- five, six -- six legal size pages.
183
1 And there is one small blue page.
2 JUDGE CURRAN: I mean, it appeared
3 to me, when he held it up, Mr. Bevere, he was
4 basically talking about an outline that he had
5 prepared, but not a six-page outline. I think
6 what he is actually -- what he actually said was
7 it's kind of a translation of Dr. Almeleh's
8 notes. But if it's a translation and they have
9 never seen it --
10 MS. SMITH: Go on the record this
11 is not a translation of Almeleh's notes. This
12 is --
13 MR. PARIS: You know what --
14 MS. SMITH: Pumill. He has
15 relationships. He has done an outline of his
16 testimony. This is not what he said it was.
17 This is not a translation of Almeleh's notes.
18 MR. MULLIN: Your Honor, could we
19 start by --
20 MR. BEVERE: Judge, I have never
21 seen this, so I don't know what it is, quite
22 frankly.
23 MR. MULLIN: Can we start by
24 making a copy of it --
25 JUDGE CURRAN: Sure.
184
1 MR. MULLIN: -- take a moment and
2 look at it and read it?
3 JUDGE CURRAN: We will go off the
4 record for a moment.
5 Off the record, Miss Castelli.
6 (Whereupon, a discussion is held
7 off the record.)
8 JUDGE CURRAN: Ladies and
9 Gentlemen, we are going to let the jury go
10 inside to take the lunch break. We have some
11 other matters, that they are sending up the
12 jurors again. So if you'd like to take 15
13 minutes, that would be great. Thank you.
14 (Whereupon, the jury is excused.)
15 (Whereupon, a brief recess is
16 taken.)
17 JUDGE CURRAN: Mr. Paris.
18 MR. PARIS: Counsel has a copy of
19 the writing. The witness indicated what he had
20 done. The writing looks extremely consistent
21 with that.
22 MR. MULLIN: Excuse me, Your
23 Honor, can we ask the witness to leave the room
24 when we have this argument?
25 JUDGE CURRAN: Sure.
185
1 (Whereupon, the witness is
2 excused.)
3 MR. PARIS: The witness had
4 indicated on the record what he had done. When
5 I looked back on the transcript, it appears that
6 this document is consistent with that. It looks
7 like he is -- basically has dates and things
8 that he has noted with regard to those dates.
9 Some of it seems to be organized by subject
10 matter. But it doesn't seem to be inconsistent.
11 Rule 612 talks about writings
12 used to refresh memory. Says, "Except as
13 otherwise provided by law in criminal
14 proceeding, the witness while testifying uses a
15 writing to refresh the witness' memory for the
16 purpose of testifying, an adverse party is
17 entitled to have the writing produced at the
18 hearing for use of inspection and
19 cross-examining the witness."
20 I think, if anything, the only
21 thing that's at issue here is that initially the
22 witness was told you can use your report. He
23 apparently -- his report, and just so Your Honor
24 is aware -- I don't know if you have a copy of
25 the reports there; but the report on
186
1 Mr. deVries, the report just on Mr. deVries is
2 80 pages.
3 JUDGE CURRAN: I have the -- Mr.
4 Bevere gave me the report before the witness --
5 MR. PARIS: I guess I should just
6 put on the record. But the report on Mr. Carter
7 is 53 pages.
8 So, frankly, when the -- when the
9 witness says that, you know, he doesn't have
10 very good handwriting, because of that I just
11 took note here on certain dates to answer fast,
12 frankly, I'm glad that he did. But I don't see
13 the problem with this Rule 612 going on. They
14 have a copy of it. If they want to
15 cross-examine him on it, that's fine. But to
16 make a big production in front of the jury as
17 though he has done something wrong here, I think
18 that's inappropriate.
19 JUDGE CURRAN: Well, frankly,
20 before the plaintiffs speak -- and I'm sure they
21 have other things to indicate -- I've -- I've
22 seen lots of expert witnesses; and most of them
23 know enough to say, "I'm referring to this" or,
24 you know, most of them -- I have had a few who
25 have made their own outlines, if it was a very
187
1 complicated case. I could think of one where
2 there was a mold case and it was replete with
3 names of chemicals that were about two inches
4 long. But he indicated that.
5 I thought -- and I could have
6 been mistaken -- that what the doctor said when
7 I asked him, because I could see from here that
8 he had a -- a legal pad or a -- wasn't really
9 legal size, but it is a lined white pad. And he
10 had what appeared to be sort of Xeroxed copies
11 that were smaller. And he had those clipped
12 together. I thought he said that he had really
13 simply -- I used the word "translate"; he did
14 not -- translated or made notes on Dr. Almeleh's
15 notes because Dr. Almeleh's notes were hard to
16 understand. This doesn't appear to be that.
17 What it appears to be is, at the
18 very least, an outline that he may have prepared
19 using different headings and topics and then
20 maybe he got the information from Dr. Almeleh's
21 notes. But it doesn't appear to me that he just
22 basically --
23 MR. PARIS: Well --
24 JUDGE CURRAN: -- went through
25 those notes.
188
1 MR. PARIS: -- it would appear
2 that what he did was he went through the notes,
3 but he didn't necessarily do it totally
4 chronologically. What he did was he grouped
5 them.
6 JUDGE CURRAN: Right, exactly. So
7 it's different.
8 MR. PARIS: But again --
9 JUDGE CURRAN: I thought a
10 translation is --
11 MR. PARIS: But again, you know,
12 I -- I don't know that that's -- you know, he
13 said, "The idea is to simplify things;
14 otherwise, it may take me a long time to look at
15 all these things, so I have it here. If you
16 don't want me to use it, I won't use it."
17 JUDGE CURRAN: Okay.
18 MR. PARIS: This is the records.
19 But Dr. Almeleh doesn't necessarily -- "have
20 necessarily very easy handwriting, not that mine
21 is much better. But because of that here I just
22 took notes here on dates to answer fast." And
23 he grouped it together.
24 But Your Honor said, "So
25 basically you translated onto your" -- and he
189
1 said, "Exactly" -- "pad" -- the transcript isn't
2 entirely clear at this point. "Pad" is what's
3 on that.
4 JUDGE CURRAN: Okay.
5 MR. PARIS: So I don't really see
6 the horrible transgression here. He was told he
7 could refer to his report. Frankly, if counsel
8 said that he is testifying to things that are
9 not in his report, that's a whole different
10 issue. But so far there has not been one bit of
11 testimony that's been given that anyone has
12 objected to as going beyond the scope of his
13 report.
14 So, you know, to make it -- to
15 make it look somehow that Doctor -- and Your
16 Honor can clearly see the importance of his
17 testimony. But to take the time to say that
18 this is some horrible transgression, that
19 somehow my witness is now tainted, I don't think
20 that that's fair. I really don't think that
21 that's fair. I think that's the impression
22 counsel was trying to give the jury. "What is
23 he looking at?" We could have gone to sidebar.
24 I didn't even know it. I didn't notice it. I
25 don't think Mr. Bevere noticed it.
190
1 MR. BEVERE: Did not.
2 MR. PARIS: You know, could have
3 gone to sidebar and, "Your Honor, you know, what
4 are we" -- instead, "What" -- "What are you
5 looking at?" "What is he looking at?" As if
6 there is something wrong here. I don't think
7 the witness was trying to do anything wrong.
8 JUDGE CURRAN: Okay. Miss Smith.
9 MS. SMITH: We have an expert
10 witness who's extremely experienced being an
11 expert witness sitting on the witness stand with
12 a script. This is a script. It follows Mr.
13 Bevere's direct by topic. It's a script, and he
14 is sitting there with it. I have never seen it
15 before. I don't know if it's things that aren't
16 in his report because I have never seen it
17 before. He is reading a script. He is looking
18 at it.
19 And then, when he is asked what
20 it is by the Court, he says, "This is the
21 records by Dr. Almeleh. He doesn't" -- "Dr.
22 Almeleh doesn't have necessarily very easy
23 handwriting." And I want to make the record
24 reflect he held up Dr. Almeleh's records in his
25 hand. So he told this Court under oath that he
191
1 had just made some notes regarding -- "Dr.
2 Almeleh doesn't have necessarily" -- but that --
3 "mine is not" -- "because of that I just took
4 notes here on the certain dates to answer fast."
5 That's what he told this Court under oath.
6 Instead, he had many things on these notes.
7 Frankly, Judge, in the time we
8 have taken a break I haven't had a chance to go
9 through all -- all the many, many notes on here.
10 But I can tell you this; it's much more than Dr.
11 Almeleh's notes. It patterns the testimony by
12 topic.
13 It's outrageous. To say that's
14 not outrageous from somebody who objected to
15 Mr. Carter being shown his own police statement
16 to refresh his recollection, Mr. Paris, it is
17 outrageous to suggest an expert can testify in
18 front of the jury with a script in front of him.
19 JUDGE CURRAN: Well, as far as the
20 topics that have been covered so far, there were
21 no objections raised that what was asked and
22 answered was not in the report. I'm not asking
23 you to indicate that all of the notes are
24 complete because I don't think anybody could do
25 that in this amount of time. I will note that
192
1 we're talking here about, what is it, six?
2 MR. MULLIN: 612, Your Honor.
3 JUDGE CURRAN: Not all the pages
4 are completed; but you know, there are a lot of
5 notes here. And the writing is also not that
6 easy to understand. So I'm not asking anybody
7 to look at it in the time you've had and comment
8 fully on what's in here.
9 But I will note that one of the
10 pages -- more than one, actually, has -- they
11 all pretty much have dates. They seem to follow
12 certain topics. Whether they follow Mr.
13 Bevere's questions or not, I don't honestly -- I
14 couldn't say from having listened and taken some
15 notes that they follow exactly the order that
16 would appear to be a script. He has listed a
17 number of dates, and it looks like he basically
18 took a certain issue and then went down and
19 listed all the dates. And he crossed out some
20 things, added some things. He has got "X"s and
21 arrows and that kind of thing.
22 MR. PARIS: Frankly, Judge, it
23 appears that some of the pages are almost -- are
24 duplicates of other pages.
25 JUDGE CURRAN: It does.
193
1 MR. PARIS: So whatever we have
2 here, looks like some of it is duplicative.
3 MR. MULLIN: That is only because
4 your Court aide copied two pages.
5 MS. SMITH: Because it was cutoff
6 at the top.
7 MR. PARIS: Okay. I'm just
8 saying --
9 JUDGE CURRAN: And I'll also note,
10 in fairness, there is one page that is a tiny
11 little page; and that's put in sideways. But
12 still --
13 MR. PARIS: And frankly --
14 JUDGE CURRAN: -- my concern at
15 this point is you have every right to go over
16 all of these, Miss Smith. My -- my concern is
17 really practical now. Normally I would say,
18 "Look, when he comes back tomorrow" or "Come
19 back tomorrow, and you can do your
20 cross-examination." That is not going to happen
21 with this --
22 MR. BEVERE: I'm not done with
23 my --
24 JUDGE CURRAN: -- witness.
25 MR. BEVERE: I am not done with my
194
1 direct yet, Judge.
2 JUDGE CURRAN: I know that.
3 MR. BEVERE: I have a whole other
4 plaintiff to cover.
5 JUDGE CURRAN: But my concern
6 is -- forget for a moment about this. What
7 about scheduling of the doctor?
8 MR. PARIS: He is apparently
9 giving a presentation in, what is it, Buenos
10 Aires.
11 MR. BEVERE: He is not going to be
12 here next week at all.
13 JUDGE CURRAN: I know that. I
14 know that.
15 MR. BEVERE: Originally I had --
16 originally I had him lined up for today, but
17 then I changed it to June 3rd.
18 JUDGE CURRAN: I got that.
19 MR. BEVERE: Then I made him
20 change it back to today.
21 JUDGE CURRAN: When is he leaving?
22 MR. BEVERE: What?
23 JUDGE CURRAN: When is he leaving?
24 MR. BEVERE: Want me to find out?
25 COURT CLERK: Off the record?
195
1 JUDGE CURRAN: Thank you. Off the
2 record.
3 (Whereupon, a discussion is held
4 off the record.)
5 JUDGE CURRAN: I'm sorry,
6 Mr. Mullin, I didn't mean to ignore you.
7 MR. MULLIN: That's all right.
8 JUDGE CURRAN: I knew Miss Smith
9 was handling this.
10 MR. MULLIN: Just wanted to add my
11 2 cents.
12 JUDGE CURRAN: This cross --
13 MR. MULLIN: Rule 612, which is
14 what counsel for the defense relied upon when
15 they successfully prevented me from refreshing
16 my -- Tim Carter's recollection with his police
17 report, does, as the Court pointed out, require
18 a foundation.
19 JUDGE CURRAN: I just relooked at
20 it inside before just --
21 MR. MULLIN: And you were right.
22 And of course, the foundation you know; and as a
23 trial lawyer, I certainly know that. And you
24 ruled that foundation hadn't been laid. The
25 foundation requires that before document is
196
1 offered to refresh the recollection of a
2 testifying witness first he has to testify he
3 had prior knowledge of the subject at issue, and
4 then he has to testify that his memory is now
5 impaired.
6 Well, of course, neither of those
7 things were done here. We have the doctor
8 looking surreptitiously, I would say, looking
9 down at this, what I think is a script. I don't
10 know how long he was doing it. It really does
11 pattern what he testified to.
12 The point is the witnesses have
13 to get on the witness stand and testify from
14 their recollection. And we're allowed to test
15 that recollection, the strength of it, in order
16 to question -- have the jury assess the
17 credibility and value of their testimony.
18 When you have a witness reading
19 from a script and doing it surreptitiously, that
20 completely and materially compromises that --
21 that whole process, the whole spirit of Rule
22 612.
23 Now, the issue of remedy is one
24 thing. Issue of what should be done is one
25 thing. The issue of the violation I don't think
197
1 is -- is unclear.
2 And it's very troubling that the
3 doctor didn't tell the complete truth when he
4 was asked what this was by the Court and that he
5 held up Dr. Almeleh's notes and gave the
6 impression that all he had was a transcription
7 of some notes -- of some of Dr. Almeleh's notes
8 because, as he said, the handwriting is bad.
9 And what he -- what he has been
10 doing for the last hour or so is referring to
11 something that is highly scripted. It's exactly
12 what he talked about, the diet, cigarettes,
13 relations, work issues, the depression and the
14 dates. It's exactly as he testified. So
15 instead of a fella testifying under oath, using
16 his recollection, he is giving the impression to
17 the jury that his recollection is much stronger
18 than it is. The jury now has that gross
19 misimpression. And he is not using his mind as
20 an expert in front of the jury to evaluate the
21 evidence.
22 I think it's rather serious
23 violation of Rule 612. So that -- that's one
24 issue. And the question is -- and I know Your
25 Honor is trying to strike -- achieve -- to
198
1 handle this in a balanced way. And we have a
2 jury. And the issue is should a curative be
3 issued? That's one issue. My -- you know, as
4 an advocate, my gut is, my God, his testimony
5 should be stricken. But that would be an
6 extreme remedy, and that would require him
7 starting all over. And I wouldn't -- I wouldn't
8 suggest that.
9 But I think the jury should be
10 told in some form or fashion that it was
11 improper for him to be relying on this document,
12 that no foundation was laid for it, that it
13 hadn't been turned over to counsel, to us
14 beforehand, as the rule requires and -- and
15 that -- that the witness has engaged in -- that
16 that was improper.
17 You can use language you think is
18 appropriate, Your Honor; but I don't want the
19 jury to have the impression that his -- his
20 smooth and flowing testimony was the product of
21 a powerful recollection. I want them to know
22 that his smooth and flowing testimony is a
23 product of a script. You don't have to call it
24 a script. That's what I think it is.
25 But I think clearly Rule 612 was
199
1 violated. If a witness is -- first of all, the
2 foundation wasn't laid. Second of all, we
3 weren't given the document that he was using to
4 refresh his recollection. And then he -- he
5 made an inaccurate and dishonest statement about
6 what the document was, which really casts doubt
7 on whether this isn't a script or not. Why
8 would he give such a dishonest answer?
9 And I should say for the record,
10 the railing of the box where he is sitting is so
11 high that it wasn't possible at all for me and
12 Miss Smith to see this document. I never saw
13 it.
14 So, Your Honor, I think one issue
15 is, well, I'm requesting a strong curative. I
16 think that would be appropriate.
17 The second issue is we have run
18 into a serious issue with respect to rule
19 4:36-3C concerning adjournments and expert
20 unavailability.
21 Now, Your Honor, with the consent
22 of all counsel, has told this jury that this
23 trial is running until the end of May and -- and
24 you know, there is a rule; and that's the rule
25 on -- on what you do when you think your expert
200
1 is going to be unavailable. And what you do is
2 you give a certain amount of notice, and then
3 you do a videotaped dep. What doesn't happen is
4 you don't create the danger of a mistrial by --
5 by using your expert to run past the end date
6 that the jury is committed to. That's what you
7 don't do. That's why this rule is in the books.
8 So as we consider what the
9 problem that's been created by this doctor being
10 unavailable all of next week, I think that it's
11 important that the Court take that rule into
12 account. It's very important that we don't
13 endanger this trial with -- with scheduling
14 problems created by this expert's
15 unavailability.
16 This Court, Your Honor,
17 respectfully, should not take notice of the
18 unavailability -- unavailability of this expert
19 is the defense's problem. I'm -- my -- I'm --
20 we are, on this side of the table, ready,
21 willing and able to go with cross-examination of
22 this witness on Tuesday when court reconvenes or
23 tomorrow, if the Court would order it.
24 Absolutely we're ready to go tomorrow. We
25 cannot endanger, Your Honor, this trial with --
201
1 with this kind of scheduling problem.
2 JUDGE CURRAN: No, I couldn't
3 agree with you more about scheduling,
4 Mr. Mullin.
5 I'm going to ask -- if there is
6 no objection all around, I am going to ask if
7 Tracey could go back to the beginning because
8 it's clear nobody knew that this -- you call it
9 a "script." I will call it an "outline." It's
10 certainly a very detailed outline, at best. I
11 think even the defense would agree with that.
12 But it's clear nobody, not counsel nor the
13 Court, knew that he was using this. I could see
14 him referring, bending his head down; but I
15 couldn't possibly see what he was looking at. I
16 do, however, believe, because I usually -- I
17 have series of notes I make in the margin, and I
18 do believe Mr. Bevere asked him about did he or
19 did he not. And I am not -- very specifically
20 he did need to use his notes or report -- I
21 think he said "report" -- to refresh his
22 recollection.
23 MR. BEVERE: I said, "report,"
24 Judge, because I didn't know he was using notes.
25 MR. MULLIN: We consented to him
202
1 using the report.
2 MR. BEVERE: That's what I said.
3 JUDGE CURRAN: My concern is the
4 doctor then may have thought --
5 MS. SMITH: He lied.
6 JUDGE CURRAN: I got it. My
7 concern --
8 MR. BEVERE: Judge, I don't think
9 he lied to this Court.
10 JUDGE CURRAN: Wait a minute.
11 Wait a minute. I don't know whether -- frankly,
12 maybe he thought that this outline was okay. I
13 certainly want to put on the record that I do
14 not in any way think that counsel for the
15 defense knew about this outline or -- or
16 whatever or -- okay. I will just put that on
17 the record, number one.
18 Number two, maybe he thought that
19 this was okay.
20 Number three, an expert who is --
21 has testified in as many states as he has should
22 have figured out this was not okay.
23 And then we have the problem
24 number four. I won't use the word "lying"; but
25 he certainly didn't seem to me, when I asked him
203
1 the question, to respond appropriately. He
2 never used the word "outline." He never used
3 the word -- never used the phrase, something
4 like, "these are my notes for court" or
5 whatever. He basically showed me Dr. Almeleh's
6 notes -- and I could see them from here, not
7 more than, what, six feet away -- and said,
8 "Well, he" -- right, he was trying to --
9 MR. BEVERE: Judge, I think
10 before -- I think we should question him
11 because -- why don't you question him and find
12 out?
13 JUDGE CURRAN: I want to see where
14 we're going first. Frankly, my main concern is
15 not to cause him a problem or not a problem at
16 this point; I'm more worried about the trial.
17 What is his availability?
18 MR. BEVERE: Judge, he is still
19 available June 3rd.
20 MR. PARIS: Judge, can I --
21 JUDGE CURRAN: You know, everybody
22 tried to --
23 MR. PARIS: Judge.
24 JUDGE CURRAN: Everybody tried to
25 be accommodating, but that is not really an
204
1 option anymore.
2 MR. PARIS: Judge, can I speak to
3 you because we -- early in the day I said we
4 need to talk about scheduling; and the Court
5 said let's do that later, let's do that later,
6 okay. Today is considered, at least on our
7 transcripts, trial day number nine. Okay. Day
8 number one were the openings. Day number one.
9 We have had days two through nine until, let's
10 say, around noon, whatever and the plaintiff
11 rested.
12 Okay. We have -- now -- now, we
13 are entitled to put our case on. We have
14 approximately 14 witnesses without including
15 Dr. -- without including Dr. Goldwaser. So if
16 we look at our witness list, I wanted to tell
17 Your Honor that I foresaw us having witnesses on
18 June 2nd. And that's why I was --
19 JUDGE CURRAN: No, you did
20 indicate that.
21 MR. PARIS: Yeah, that's why.
22 JUDGE CURRAN: But that's not my
23 concern, really, going into the week -- the
24 first week in June is not my concern, frankly,
25 just so it's clear, because sometimes is not. I
205
1 have cleared my calendar. I start an
2 environmental trial, but I am not starting that
3 until the 9th. And if it doesn't start on the
4 9th, the world won't end either. So that's not
5 a problem. The jury is my concern. But also
6 now I am concerned to take him off the stand and
7 to then bring him back, what, eight days later,
8 whenever.
9 MR. PARIS: The 3rd, I know.
10 JUDGE CURRAN: Frankly, you know,
11 Mr. -- Mr. Mullin and Miss Smith have requested
12 a strong curative. We still have to discuss
13 that issue. You know, that -- that' my main
14 concern here. It is not just we couldn't fit
15 him in today. We already knew that. Frankly,
16 at like 2:30 I was looking at the clock and
17 thought, This is not going to work out well. We
18 are going to have to feel -- you know, we are
19 going to have to do something because the
20 scheduling is not going as it is. So we were
21 probably going to reach a scheduling problem
22 with him, anyway.
23 MR. BEVERE: Judge, this is why I
24 wanted to bring him in on 9:00 in the morning on
25 June the 3rd.
206
1 JUDGE CURRAN: Yeah, I know,
2 but --
3 MR. BEVERE: Judge, just -- in my
4 defense, because it seems like as this trial
5 goes on all the accusations start coming towards
6 me. But you know, this trial was scheduled to
7 start April the 14th. Through no one's fault we
8 got pushed to the 21st.
9 JUDGE CURRAN: Well, not your
10 fault. I think I had a trial.
11 MR. BEVERE: Wasn't your fault,
12 Judge. I am not --
13 JUDGE CURRAN: Not the parties,
14 okay.
15 MR. BEVERE: I am not saying
16 anyone's fault. So now, you know, there --
17 originally when witnesses were told to --
18 JUDGE CURRAN: I know.
19 MR. BEVERE: -- give me their
20 availability, we were talking April, early May.
21 Then the trial got pushed; and now I am trying
22 to squeeze people in, you know. And -- and
23 it's -- you know, they made plans based upon
24 this trial being long done --
25 JUDGE CURRAN: I know that.
207
1 MR. BEVERE: -- by this time.
2 JUDGE CURRAN: We have gone
3 through this. And Tracey can reread to us what
4 happened the other morning or not. You made all
5 the arrangements. And frankly, I thought we
6 were going with him on the 3rd. Then the
7 plaintiffs indicated they were not going to call
8 too many witnesses, try to go ahead. I think it
9 was mutual agreement they would finish today and
10 Dr. Goldwaser would be in. And I thought
11 Everybody thought, gee, that was a decent
12 resolution.
13 MR. BEVERE: And I scrambled to
14 get him. You saw me. I went out. I was on the
15 phone. I was trying to get him.
16 MS. SMITH: Judge, it was no
17 surprise to defendants because we discussed it
18 on the 14th of April this trial was, in our
19 minds, going until the end of May. That's
20 why -- what we said to this jury. The end of
21 May is what we all started this trial with.
22 Last Friday at 5 p.m. I have an
23 e-mail from Mr. Bevere telling me this doctor
24 was available this Thursday. Even then he did
25 not say until then -- I think he called me about
208
1 a little after 5, oh, we may have a problem the
2 following week.
3 It was his job -- we -- if he
4 thought it was going late two weeks ago, it was
5 his job to find out this expert's availability;
6 and we could have taken his video dep. It's not
7 the fact -- it's bad enough that we are going
8 longer than we told this jury, but now they are
9 going to push it even longer by pushing this
10 witness into the future. I'm prepared to take
11 his videotaped dep tomorrow.
12 JUDGE CURRAN: The videotaped dep
13 I am perfectly willing to order. One of my
14 concerns is that means that there can't be jury
15 questions. And in fairness, there were jury
16 questions asked of the plaintiffs' expert
17 witness. That is my main concern. Otherwise,
18 I'd have no qualms about ordering that tomorrow.
19 That would be an easy way out, if everybody
20 agrees on the record that there will not be --
21 MR. BEVERE: But Judge, Dave is
22 going to go outside and talk to the doctor and
23 find out if he can make himself available
24 tomorrow. I didn't think we were having court
25 tomorrow, so that's why I didn't tell him
209
1 tomorrow.
2 JUDGE CURRAN: Talking about a
3 video dep tomorrow.
4 MR. BEVERE: I understand that. I
5 didn't know that when I went outside to the
6 hallway. You know, Judge, it's now May -- what
7 is it -- 22nd.
8 JUDGE CURRAN: Yes.
9 MR. BEVERE: Okay. This is our
10 first witness.
11 JUDGE CURRAN: I know.
12 MR. BEVERE: Was it really
13 expected that we would do all our witnesses in
14 three days? It's not our fault that it took
15 five days to pick a jury, that it took nine days
16 to get to this point. I mean --
17 JUDGE CURRAN: I don't think it's
18 a matter of fault in any regard. I do not
19 think -- and frankly, sometimes I do think that
20 certain people drag their feet, certain
21 people -- no, no, that certain people are not
22 prepared or whatever. I think everybody has
23 been working hard. I think if we can just
24 everybody calm down, we will figure this one
25 out.
210
1 MR. BEVERE: And Judge, with no
2 disrespect to you --
3 JUDGE CURRAN: No.
4 MR. BEVERE: -- I don't -- I
5 really don't want to be here after the first
6 week in June.
7 JUDGE CURRAN: I don't blame you.
8 MR. BEVERE: But I got -- got to
9 make my record and put my witnesses on and put
10 my case in.
11 JUDGE CURRAN: Absolutely. Why
12 don't we go off the record. Might be little
13 easier.
14 (Whereupon, a discussion is held
15 off the record.)
16 JUDGE CURRAN: What is the
17 request.
18 MS. SMITH: I'm sorry, do we have
19 a C number yet? Just so I could put it in.
20 COURT CLERK: C number?
21 MS. SMITH: Yes.
22 COURT CLERK: Yes, C number is --
23 JUDGE CURRAN: 8 maybe?
24 COURT CLERK: C, Court Number 8.
25 JUDGE CURRAN: Right, thank you.
211
1 (Whereupon, Dr. Goldwaser's
2 handwritten notes is received and marked
3 as Court Exhibit C-8 for Identification.)
4 MS. SMITH: We would like the jury
5 to be advised, Your Honor, that it was improper
6 for a witness to have notes while he testified
7 in front of him, that the notes had been not
8 provided -- had not been provided to counsel for
9 Mr. Carter and Mr. deVries and that they are
10 free to take that into consideration when they
11 assess this witness' testimony.
12 JUDGE CURRAN: Mr. Paris.
13 MR. PARIS: I think that's
14 absolutely inappropriate. It is not improper
15 for a witness to have notes. A witness can have
16 notes. The thing that we didn't -- weren't
17 aware of, that he was using his notes to refresh
18 his recollection, instead of his report. We had
19 mentioned his report. Whether he was using his
20 report plus notes we didn't know. So that's --
21 that's the problem is that we didn't know that
22 he was using notes.
23 I don't know what was in the
24 witness' mind. I don't know if he was trying to
25 be deceptive. And in fact, under the rule, they
212
1 wouldn't have been entitled to pretrial
2 production of the notes. They would have been
3 entitled to the notes when he said, "I am
4 looking at my notes." And I think the problem
5 is almost like a lack of communication here,
6 rather than an intent to deceive anyone.
7 So if there is going to be a
8 curative instruction, if there is going to be
9 one, which I object to, I think the curative
10 should be such that if a witness is going to use
11 notes to refresh the -- their recollection, that
12 we need to know that and we should have known
13 that he was using the notes in addition to his
14 report and at that moment copies, you know, at
15 that point could have been provided to counsel.
16 They have now been provided to counsel. And
17 that's where we're at.
18 MS. SMITH: C-8 is not refreshing
19 your recollection document. C-8 is an outline
20 of this expert witness testimony. Refreshing
21 your recollection is what he had in front of
22 him, his report, which we consented to. But
23 it's certainly not a refresh your -- I can't
24 imagine Your Honor would have said it's okay to
25 refresh your recollection with an outline you
213
1 made of all the points you want to make on
2 direct. That's not a refresh your recollection
3 document.
4 And certainly, I can't imagine
5 that Your Honor wouldn't have made them give us
6 a document that he intended to use to refresh
7 his recollection, if it was six very detailed
8 single-spaced with -- the handwriting on C-8
9 will be clear to any court, whoever looks at
10 this in the future. It's a long document that I
11 have never seen before.
12 JUDGE CURRAN: No, in fairness, if
13 he had come in with it and told his own counsel,
14 I would have said before -- as soon as they
15 knew --
16 MR. PARIS: Of course.
17 JUDGE CURRAN: -- "Please give it
18 to them." And I don't think they would have
19 objected. I don't think I would have had to
20 have said that.
21 All right. I'm not going to use
22 the word "improper." I will note your objection
23 to that on the record. I will give a curative
24 indicating that a witness is not allowed to have
25 notes to outline his testimony without making,
214
1 A, his own attorney and then, B, the other
2 attorneys aware, et cetera.
3 I am not going to use the word
4 "improper." And then you can fight it out with
5 him as far as what he is or isn't going to use
6 when we get back. I'm assuming that if he
7 decides to do any other note-taking, he will
8 have those copies Xeroxed and -- and faxed to
9 the plaintiffs. But I doubt that should be
10 necessary.
11 MR. MULLIN: And then, Judge, you
12 are going to also ask the jury about the --
13 MR. BEVERE: Their scheduling.
14 JUDGE CURRAN: That's main reason
15 for bringing them out, right?
16 MS. SMITH: And next Friday.
17 JUDGE CURRAN: Mr. Paris, if you
18 want to let him go, just so that he is not
19 standing out there.
20 MS. SMITH: In other words, we are
21 not going to stay late today?
22 JUDGE CURRAN: No.
23 MR. PARIS: That's fine,
24 absolutely fine.
25 JUDGE CURRAN: We will bring the
215
1 jury out.
2 MR. PARIS: He is going to need to
3 collect his stuff, so --
4 JUDGE CURRAN: I thought he took
5 his briefcase?
6 MR. PARIS: No. Want to let the
7 jury go first?
8 JUDGE CURRAN: Sure, we will let
9 the jury go first.
10 MR. PARIS: Is it okay if we bring
11 him in for the instruction or --
12 JUDGE CURRAN: Sure.
13 MR. MULLIN: No objection.
14 (Whereupon, the witness re-takes
15 the stand.)
16 JUDGE CURRAN: Bring out the jury,
17 please.
18 COURT CLERK: Jurors are
19 approaching.
20 MS. SMITH: Judge, did you just
21 ask the witness to sit?
22 (Whereupon, the jury is brought
23 into the courtroom.)
24 COURT CLERK: Jurors are
25 approaching. Remaining on the record.
216
1 JUDGE CURRAN: Thank you.
2 Ladies and Gentlemen, we are back
3 on the record again. While you were out we had
4 a number of things to do, including some
5 additional jurors who didn't show up. So, you
6 know, showing them your pictures almost -- not
7 really your pictures, but letting them know you
8 applied and you got here on time.
9 There are a few things I want to
10 go over with you. The first is in regard to Dr.
11 Goldwaser's testimony. Witnesses are allowed to
12 bring reports. They're allowed to have notes,
13 if they give copies of those notes to their own
14 attorneys and to the attorneys for the other
15 side prior to testifying. That wasn't done
16 here, and that was the issue that was raised.
17 So we are addressing that issue.
18 I wanted to address with you, so
19 we didn't keep you in that lovely jury room any
20 longer than necessary, some scheduling
21 questions. When we first called the jury, how
22 many of you -- if you could just refresh my
23 recollection, is there anyone who was here from
24 the first day of jury service? Like -- I don't
25 have it in my notes. You were, all of you?
217
1 That many of you from the first day -- you poor
2 things -- from the first panel? Because we had
3 four panels.
4 Well, then you heard me say that
5 the trial was going to end at the end of May.
6 It is definitely not going to end the end of
7 May. It is definitely going to go into the
8 first week in June. The first week in June
9 is -- and I got my calendar out so that I can
10 give you the dates -- those are the days of
11 Monday, June 2nd; Tuesday, June 3rd; Wednesday,
12 June 4th; Thursday, June 5th and Friday,
13 June 6th. So we just wanted to alert you to
14 that.
15 As far as notifying your
16 employers or anything, be certain we will take
17 care of that with the letters that we promised
18 you just for the regular length of the trial.
19 In order to make sure that this does not create
20 a special problem -- I am not looking to let you
21 out of injury service; but I need to know if
22 there is anyone who, just as you did in the
23 beginning, has a reason to be excused for cause.
24 We will talk with you privately at the end of
25 these comments.
218
1 Another question I have is we
2 told you that you would not have to report on
3 Fridays, and you have not had to report on
4 Fridays. In order to, again, just try to be
5 accommodating for your overall schedule, we are
6 asking if it would be a problem for any of you
7 if you had to report for jury service on next
8 Friday, which is May 30th. Is there any problem
9 if you would have to report here on May 30th?
10 Not that anybody knows right now? Okay.
11 If -- is there anyone who needs
12 to talk with us about being excused for cause in
13 regard to the overall calendar? You do? Okay.
14 Anyone else?
15 Okay. With that, we are not
16 going to keep you here any longer today. We
17 will excuse you. I know for some of you,
18 because you don't have to be here tomorrow, it's
19 kind of the beginning of the Memorial Day
20 weekend. We don't want to delay you, so we will
21 excuse you for the weekend.
22 I will remind you again, please
23 do not discuss the case among yourselves.
24 Please do not discuss it with anyone else. And
25 we will ask that you report back here on Tuesday
219
1 morning. The courthouse is closed for Memorial
2 Day on Monday at 9 a.m.
3 Just let me double-check. Did I
4 overlook anything? Is there anything else
5 counsel wants on the record?
6 MR. BEVERE: I don't believe so,
7 Your Honor.
8 MS. SMITH: Thank you, Your Honor.
9 JUDGE CURRAN: So we will see you
10 on Tuesday at 9 a.m. I hope you have a
11 wonderful weekend and that the weather is good
12 for you. Okay. Thank you.
13 Off the record.
14 (Whereupon, the jury is excused.)
15 (Whereupon, the witness is
16 excused.)
17 JUDGE CURRAN: We will go back on
18 the record, please. I will note that Juror
19 Number 2 asked to speak with us in regard to
20 scheduling.
21 (Whereupon, the following sidebar
22 discussion is held.)
23 JUROR NUMBER 2: I have a trip to
24 Las Vegas for a wedding where I already bought
25 tickets; and I would be leaving Thursday in the
220
1 afternoon of June 5th -- I believe that is the
2 Thursday -- and returning Monday in the evening.
3 So that is my only conflict with trial going
4 beyond.
5 JUDGE CURRAN: Okay.
6 JUROR NUMBER 2: I have already
7 purchased everything for that trip.
8 JUDGE CURRAN: These destination
9 weddings are becoming quite the thing.
10 JUROR NUMBER 2: They are quite on
11 the expensive side, but they are fun.
12 JUDGE CURRAN: Okay. Let me talk
13 with counsel for a moment, if you don't mind.
14 Okay. Thank you.
15 MS. SMITH: Your Honor, basically
16 this witness has made what I would call a cheat
17 sheet, including lots of information in a
18 different way than his report; and he has been
19 sitting here referring to it and testifying to
20 it. Nobody asked him if he could refresh his
21 recollection. I have never seen this document
22 before. It hasn't been marked.
23 MR. MULLIN: Certainly need copies
24 of it.
25 MS. SMITH: This is totally
221
1 outrageous.
2 JUDGE CURRAN: Well, let's all not
3 fall apart here. Let's all not fall apart.
4 Okey-dokey. First of all, Mr. --
5 MR. BEVERE: Because I will tell
6 you I didn't make any remarks, even though he
7 was looking at --
8 JUDGE CURRAN: He asked him if he
9 needed to refer to his report to refresh his
10 recollection. I think he said yes. And I am
11 assuming that Mr. Bevere thought, when he was
12 looking down, that that's -- that's what I
13 thought when he was looking down, he was looking
14 at his report. It's clear now he was looking at
15 a note pad, like a legal note pad that's got how
16 many pages, Mr. Mullin? A lot of pages.
17 MR. MULLIN: We have legal size
18 and smaller size here. One, two, three, four --
19 excuse me -- five, six -- six legal size pages.
20 And there is one small blue page.
21 JUDGE CURRAN: I mean, it appeared
22 to me, when he held it up, Mr. Bevere, he was
23 basically talking about an outline that he had
24 prepared, but not a six-page outline. I think
25 what he is actually -- what he actually said was
222
1 it's kind of a translation of Dr. Almeleh's
2 notes. But if it's a translation and they have
3 never seen it --
4 MS. SMITH: Go on the record this
5 is not a translation of Almeleh's notes. This
6 is --
7 MR. PARIS: You know what --
8 MS. SMITH: Pumill. He has
9 relationships. He has done an outline of his
10 testimony. This is not what he said it was.
11 This is not a translation of Almeleh's notes.
12 MR. MULLIN: Your Honor, could we
13 start by --
14 MR. BEVERE: Judge, I have never
15 seen this, so I don't know what it is, quite
16 frankly.
17 MR. MULLIN: Can we start by
18 making a copy of it --
19 JUDGE CURRAN: Sure.
20 MR. MULLIN: -- take a moment and
21 look at it and read it?
22 JUDGE CURRAN: We will go off the
23 record for a moment.
24 Off the record, Miss Castelli.
25 (Whereupon, a discussion is held
223
1 off the record.)
2 MR. PARIS: I'm hoping we can get
3 done by the 5th.
4 MR. MULLIN: I would think we are
5 done by the 5th.
6 MS. SMITH: If the 3rd is our last
7 witness --
8 JUDGE CURRAN: If the 3rd is the
9 last witness, let's just say the jury charge
10 conference takes most of the next day, the
11 charge is going to be long, that only gives the
12 5th, really, for the jury to deliberate.
13 MR. BEVERE: We may be able to
14 squeeze the charge conference in on that Friday.
15 Maybe we have a half day of testimony and we do
16 the charge conference.
17 MS. SMITH: Sometimes we do it
18 after court over a series of days.
19 MR. BEVERE: I have no problem
20 doing that.
21 JUDGE CURRAN: That's fine too;
22 but we don't want to waste our time going
23 through, okay.
24 MR. BEVERE: Judge.
25 JUDGE CURRAN: We have to resolve
224
1 that when we, you know, are finished or when we
2 have got all the evidence in or whatever.
3 MS. SMITH: We might be able to
4 get a lot of it done, Judge, in advance and have
5 intense one.
6 MR. MULLIN: I think, Judge, it's
7 very important to --
8 JUDGE CURRAN: I'm sorry?
9 MR. MULLIN: It's very important
10 to avoid a cascading event that comes from
11 releasing a juror in the middle of a trial.
12 Release one, and it's a signal to the others.
13 So, Your Honor, I would urge --
14 MR. BEVERE: Leave him on now. If
15 something happens and he has to go, then --
16 JUDGE CURRAN: I am cognizant of
17 the fact that this fellow is the one who is the
18 teacher of the special ed. kids; but you know,
19 maybe if we get to next Friday and we realize
20 the schedule --
21 MS. SMITH: That would be fair.
22 JUDGE CURRAN: Okay. Every
23 agrees?
24 MS. SMITH: Yes.
25 JUDGE CURRAN: Sir, at this point
225
1 we really believe the trial will be over. We
2 are not going to be at the gates at the airport
3 dragging you away from the plane. You know,
4 that is not our intention.
5 JUROR NUMBER 2: Okay.
6 JUDGE CURRAN: So I think it is
7 fair to keep you on the jury right now --
8 JUROR NUMBER 2: Okay.
9 JUDGE CURRAN: -- because we do
10 believe that the trial should be over by then.
11 JUROR NUMBER 2: Okay.
12 JUDGE CURRAN: Okay. We just
13 wanted to give all the dates of that week.
14 Okay?
15 JUROR NUMBER 2: Okay. Great.
16 Sounds good.
17 JUDGE CURRAN: Now, are you in
18 this wedding?
19 JUROR NUMBER 2: I actually am,
20 yes. It's a friend of mine that I have known
21 since I was ten years old, so getting married.
22 So should be a fun time.
23 JUDGE CURRAN: Well, we could not
24 in good conscience have anything to do with you
25 missing that weekend. Have a nice weekend.
226
1 MR. MULLIN: Can we just stay
2 sidebar for a minute, Judge.
3 JUDGE CURRAN: Yes.
4 MR. MULLIN: Let me go on the
5 record to the curative, Your Honor. You know we
6 wanted it to be declared inappropriate that he
7 had been using it before it came to our
8 attention, that he did make a statement that
9 wasn't accurate about what it was and that it
10 did, in my opinion, violate Rule 612. I
11 understand Your Honor's ruling. I just want to
12 preserve -- take issue with Your Honor.
13 The other issue, in order to
14 expedite this --
15 JUDGE CURRAN: Can we go back to
16 that issue first?
17 MR. MULLIN: Sure.
18 JUDGE CURRAN: Frankly,
19 Mr. Mullin, you're right. I made the curative
20 as mild as I could because I'm always concerned
21 about the court trying to find a balance between
22 what has to be said and tainting the issues.
23 However, that does not mean in any way that the
24 plaintiffs are not free to cross, to question
25 him under, you know, whatever circumstances you
227
1 think fair and, obviously, proper in regard to
2 those notes. I did not mean to --
3 MR. MULLIN: No, I understand.
4 JUDGE CURRAN: Just because I
5 wouldn't say, "improper" doesn't mean that you
6 all are not free to question him.
7 MR. MULLIN: Thank you, Your
8 Honor.
9 JUDGE CURRAN: That's certainly
10 clear.
11 MR. MULLIN: The other thing is,
12 of course, you know, I -- we -- we have agreed
13 to disagree on what the standard is for this
14 case. And I know you've gone with the
15 defendants on this deliberate indifference
16 standard. Well, it seems to me in order to
17 expedite this --
18 JUDGE CURRAN: Gee, they don't
19 think so.
20 MR. BEVERE: Note our strong
21 disagreement with that.
22 MR. MULLIN: Well, my impression
23 is I lost that battle because I lost the LAD
24 charge. But anyway, in order to expedite this
25 thing, if defendants will send me over the next
228
1 few days their proposed jury charge.
2 MS. SMITH: Yeah.
3 MR. MULLIN: It may be we are not
4 worlds apart.
5 MR. BEVERE: It's no problem.
6 MR. MULLIN: Because it's a charge
7 I am not going to agree with, but I understand
8 Your Honor's ruling.
9 MR. BEVERE: You know that Neil.
10 MR. MULLIN: Because it's going to
11 be -- it's going to be a charge on the 42
12 U.S.C., which every day I look at the complaint,
13 every night; and I can't find it but --
14 JUDGE CURRAN: How many times has
15 he said that at sidebar? "This is not a
16 1983" --
17 MR. MULLIN: I say it often. I
18 say it often.
19 MS. SMITH: And I think we'll try
20 to come in Tuesday having conferred about what's
21 going on.
22 MR. PARIS: Oh, the --
23 MS. SMITH: Consent and the
24 stipulations.
25 MR. PARIS: We do need to make a
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1 motion.
2 MS. SMITH: We can really try to
3 move things along this weekend.
4 MR. BEVERE: Are you going to be
5 down the shore? I will be in Bradley Beach.
6 MS. SMITH: Come on down. I will
7 make you a cosmo, get you to agree to a lot of
8 things.
9 JUDGE CURRAN: Tracey won't be
10 here.
11 MR. PARIS: Very fair resolution
12 with this witness to put it off until the 3rd.
13 I don't mean the instruction. I appreciate the
14 fact we are able to schedule him off to the 3rd,
15 thank you.
16 JUDGE CURRAN: Yeah, it will work
17 out. Of course, when he said today he is
18 basically going down there as a do-gooder, I
19 thought, Oh, the plaintiffs are going to object
20 to that. I didn't know what he was doing, where
21 he was going or what he was doing but --
22 MS. SMITH: He is going to visit
23 his family pretax is what he is doing.
24 JUDGE CURRAN: Exactly right.
25 MS. SMITH: Let's be real.
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1 JUDGE CURRAN: It sounds
2 do-gooderly. So you can ask him that. You can
3 ask him about his family, if you like.
4 MR. PARIS: Thank you, Judge.
5 JUDGE CURRAN: Have a very good
6 weekend, very safe weekend.
7 COURT CLERK: Off the record.
8 (Whereupon, the proceeding is
9 concluded at 4:20 p.m.)
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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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19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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