00001
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 16
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
- - - - - - - - - - - - - - - -
8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Wednesday, June 4, 2008
Commencing 9:50 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
14
15
16
17
18
19
20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
00002
1 A P P E A R A N C E S:
2
3
4 SMITH MULLIN, ESQS.
5 Attorneys for the Plaintiffs
6 240 Claremont Avenue
7 Montclair, New Jersey 07042
8 BY: NEIL MULLIN, ESQ.
9 NANCY ERIKA SMITH, ESQ.
10
11 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
12 Attorneys for the Defendants
13 360 Passaic Avenue
14 Nutley, New Jersey 07110
15 BY: DANIEL R. BEVERE, ESQ.
16 DAVID M. PARIS, ESQ.
17
18
19
20
21
22
23
24
25
00003
1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 ALBERTO GOLDWASER, M.D.
5 By: Mr. Bevere 117, 192
6 By: Ms. Smith 7 178, 198
7
8 FRANK LEANZA, ESQ.
9 By: Mr. Paris 220
10
11 E X H I B I T S
12 NUMBER DESCRIPTION PAGE
13 P-404 Transcription of the IME of Mr.
14 deVries, conducted by Dr. Goldwaser
15 on 9/29/06 5
16 P-405 Transcript of the IME of Mr. Carter
17 conducted by Dr. Goldwaser on.
18 10/13/06 5
19
20
21
22
23
24
25
00004
1 JUDGE CURRAN: We are on the
2 record, please.
3 MS. SMITH: Judge, I just want the
4 record to reflect that I am giving to Defense
5 counsel a copy of the certified shorthand
6 transcription of the independent medical exam of
7 Peter deVries conducted by Alberto Goldwaser on
8 September 29th, 2006. And I'm giving them a
9 certified transcript of the IME, independent
10 medical exam, of Mr. Carter conducted by
11 Dr. Goldwaser on October 13th, 2006.
12 MR. PARIS: Thank you very much.
13 I appreciate it.
14 JUDGE CURRAN: Are they marked?
15 MS. SMITH: I was going to mark
16 them, Your Honor; and I had a number. It's
17 P-404, please, for Peter, for Mr. deVries.
18 MR. PARIS: P-404.
19 MS. SMITH: And P-405 for
20 Mr. Carter.
21 JUDGE CURRAN: Thank you.
22 MR. PARIS: Thank you very much.
23 JUDGE CURRAN: Thank you.
24 Anything else, Mr. Paris, that you wish to put
25 on the record?
00005
1 MR. PARIS: No, thank you.
2 JUDGE CURRAN: Thank you go off
3 the record.
4 (Whereupon, a discussion is held
5 off the record.)
6 (Whereupon, transcription of the
7 IME of Mr. deVries, conducted by Dr.
8 Goldwaser on 9/29/06 and transcript of
9 the IME of Mr. Carter, conducted by Dr.
10 Goldwaser on 10/13/06 are received and
11 marked as Plaintiff's Exhibit P-404 and
12 P-405 for Identification.)
13 JUDGE CURRAN: Thank you. We will
14 bring out the -- never mind.
15 MS. HAWKS: You said to wait a
16 minute?
17 JUDGE CURRAN: I just want to wait
18 until Mr. Paris and Mr. Bevere are here, thanks.
19 (Whereupon, a discussion is held
20 off the record.)
21 JUDGE CURRAN: Any objection to
22 bringing out the jury?
23 MS. SMITH: No objection.
24 MR. BEVERE: No.
25 JUDGE CURRAN: Thank you. We will
00006
1 bring out the jury.
2 COURT CLERK: On the record.
3 MS. HAWKS: Jurors are
4 approaching.
5 (Whereupon, the jury is brought
6 into the courtroom.)
7 MS. HAWKS: Stand up, please.
8 Raise your right hand. Where is the Bible?
9 THE WITNESS: Here, sorry.
10 MS. HAWKS: Place your left hand
11 on the Bible.
12 A L B E R T O G O L D W A S E R, M.D. is duly
13 sworn by a Notary Public of the State of
14 New Jersey and testifies under oath as
15 follows:
16 MS. HAWKS: For the record, please
17 state your full name and spell your last name,
18 please.
19 THE WITNESS: Alberto Mario,
20 G-o-l-d-w-a-s-e-r, Goldwaser.
21 MS. HAWKS: Thank you. You may be
22 seated.
23 JUDGE CURRAN: Thank you. Please
24 be seated. And move a little closer to the
25 microphone, if you can.
00007
1 THE WITNESS: Yes.
2 JUDGE CURRAN: We will continue
3 now with the cross-examination by Miss Smith.
4 Miss Smith.
5 MS. SMITH: Thank you, Your Honor.
6 CONTINUED CROSS EXAMINATION BY MS. SMITH:
7 Q Dr. Goldwaser, yesterday we were
8 talking about Dr. Almeleh's notes, just to go --
9 to refresh where I'm going to start. And we --
10 I was discussing with you the 24 times that Dr.
11 Almeleh noted that Mr. deVries had nightmares,
12 and you said that was just a self-report. Do
13 you recall saying that?
14 A I said that, yes.
15 Q You said that, right? Do you know
16 how many hours Dr. Almeleh spent with
17 Mr. deVries just up until the time of the
18 records you got in February of 2006?
19 A No, I don't.
20 Q Okay. If I tell you it's 69
21 entries that you had, do you have any reason to
22 dispute that?
23 A No.
24 Q Okay. So 69 visits up until
25 February of 2006. Let me show you what's been
00008
1 marked P-30 for Identification. Now, this is a
2 report by Dr. Almeleh, right?
3 A No, this is not a report; it's a
4 letter --
5 Q Okay.
6 A -- to you.
7 Q This is a letter --
8 A Yes.
9 Q -- by Dr. Almeleh, right?
10 A Yes.
11 Q And at the very bottom of P-30 Dr.
12 Almeleh, who is his treating psychiatrist,
13 writes, "Mr. deVries' diagnosis is posttraumatic
14 stress disorder and major depression." That's
15 what he says, right?
16 A Yes.
17 Q He says, "Prior to the firehouse
18 events of the spring of 2004 Mr. deVries was
19 doing well and was taken off his antidepressant
20 medication"?
21 A One second. No, it doesn't say that.
22 Q It doesn't say that --
23 A I read --
24 Q -- on paragraph three?
25 A Oh, on paragraph three, yes.
00009
1 Q Doesn't it say -- okay. Then it
2 says, "Since the firehouse events of the spring
3 of 2004 there has been a dramatic deterioration
4 in Mr. deVries' functioning. He has disturbed
5 sleep with recurrent nightmares. He has become
6 hypervigilant and diffusely anxious, and his
7 concentration has deteriorated." That's what
8 Dr. Almeleh said, right?
9 A Yeah, it is what he wrote here.
10 Q "And Mr. deVries used to be an
11 avid reader, but he is no longer engaged in
12 leisure reading." That's what Dr. Almeleh said,
13 right?
14 A That is what he wrote, yes.
15 Q And that is what Mr. deVries told
16 you, right?
17 A Not exactly that, no.
18 Q Mr. deVries didn't tell you that
19 he had a severe lack of concentration since
20 April of 2004?
21 A He said that his concentration was not
22 good. I don't remember exactly since when. He
23 said that he was not reading primarily when he
24 was feeling very poorly, very badly.
25 Q He -- wait a minute. My question
00010
1 was simple. Are you testifying in front of this
2 jury today --
3 A Yes.
4 Q -- that Mr. deVries did not tell
5 you that he had difficulty reading after the
6 events of April of 2004? Is that your
7 testimony?
8 A From then on every single day to today is
9 what you are saying?
10 Q No, I'm just saying what I said.
11 A Oh, he had difficulties concentrating and
12 reading, yes, he had.
13 Q And he used to love reading,
14 right? He told you that too? He loved reading,
15 didn't he?
16 A I think he did. He did tell that to Dr.
17 Almeleh. I'm not sure if he told that to me. I
18 know he used to -- he loved to collect these
19 first editions, and reading was part of it. But
20 I don't remember if he told it to me. I do
21 remember that Dr. Almeleh wrote that. Maybe he
22 did --
23 Q Dr. Almeleh wrote, "Mr. deVries
24 works as an editor where concentration is
25 crucial, and his work performance has suffered,"
00011
1 didn't he, in January of 2005?
2 A This is in this letter?
3 Q "This is particularly troubling
4 since" --
5 A What paragraph?
6 Q -- "Mr. deVries" -- the next line.
7 The only --
8 A Yes, uh-huh.
9 Q Isn't it true that Dr. Almeleh
10 wrote, "This is particularly troubling, since
11 Mr. deVries has always been and continues to be
12 the primary breadwinner in his household"?
13 Isn't that true?
14 A He wrote that, yes.
15 Q Yes. "And since the firehouse
16 events of the spring of 2004 Mr. deVries has
17 lost 40 pounds." Dr. Almeleh wrote that, right?
18 A Dr. Almeleh wrote that, yes.
19 Q And the last paragraph, Dr.
20 Almeleh writes, "Prior to the firehouse events
21 of the spring of 2004 Mr. deVries was treated by
22 me once every two weeks. Since he worked long
23 hours and it was a long commute to my office, I
24 suggested that he get into more intense
25 treatment with a psychotherapist near his home,
00012
1 which he did." That was Miss Hines, right?
2 A Yes, I assume.
3 Q She is not a doctor, right?
4 A She is not a physician, no.
5 Q She is not a doctor of any kind?
6 She doesn't have a Ph.D., right?
7 A No, she is a non-physician therapist.
8 Q She is not a doctor, right?
9 A She is not a doctor, no.
10 Q So when you were talking yesterday
11 with Mr. Bevere about Mr. deVries only going to
12 therapy every other week or so, you were only
13 talking about Dr. Almeleh, right?
14 A Can you repeat the question?
15 MR. BEVERE: I am going to object
16 to the grounds that it mischaracterizes my
17 question. My question was specifically with
18 regard to Dr. Almeleh.
19 JUDGE CURRAN: Miss Smith.
20 BY MS. SMITH:
21 Q Okay. It wouldn't -- it certainly
22 wouldn't be fair to characterize Mr. deVries as
23 being lackadaisical about trying to get
24 treatment, would it? He wasn't lackadaisical
25 about trying to get treatment, was he?
00013
1 A No.
2 Q Now --
3 A Do you want this back?
4 Q You can leave it up there.
5 A Okay.
6 Q I'll get it later, thank you,
7 Doctor. You have written, haven't you, that
8 depression frequently co-occurs with PTSD?
9 A Yes.
10 Q So the fact that Mr. deVries has
11 major depression doesn't preclude him from also
12 having PTSD, does it?
13 A No, it does not.
14 Q Now, yesterday you talked about --
15 you said that Mr. -- in Miss Hines' notes
16 Mr. deVries said that he stopped treating with
17 her because his insurance ran out. Do you have
18 any evidence that that's not why he stopped
19 treating with her?
20 MR. BEVERE: Judge, I'm going to
21 object. I think that the question is confusing;
22 and I think you're asking about evidence, which
23 I think is a legal term.
24 Q Have you --
25 JUDGE CURRAN: Please rephrase.
00014
1 MS. SMITH: Yeah, I'll rephrase
2 it, thank you, Your Honor.
3 BY MS. SMITH:
4 Q You said yesterday in front of the
5 jury, you made the point that Mr. -- that Miss
6 Hines said that Mr. deVries said he stopped
7 treating with her after a year because his
8 insurance ran out. That's true, isn't it, that
9 his insurance ran out?
10 A I don't know if that's true.
11 Q You have -- do you have any
12 evidence that you have reviewed, any document,
13 anything at all to indicate that that's not
14 true?
15 A Neither way. Either way; I don't have
16 any evidence that it is true or it is not true.
17 Q Now, you had Dr. Hines' records in
18 front of you yesterday?
19 A Yes, I think I have them today too.
20 MS. SMITH: And that's P-100, Your
21 Honor, for the record.
22 Q Mr. deVries went less than a month
23 after the incident to -- to try to get more
24 therapy, didn't he?
25 A I think so, yes.
00015
1 MR. BEVERE: Can we have the Bates
2 stamp number that counsel is referring to,
3 Judge, because they are Bates stamped?
4 MS. SMITH: 398.
5 MR. BEVERE: Thank you.
6 JUDGE CURRAN: Thank you.
7 BY MS. SMITH:
8 Q Let's look at Bates stamp 399.
9 You see the little numbers in the corners?
10 Those are called "Bates stamps," Doctor.
11 A Yes.
12 Q You didn't tell the jury when you
13 testified about Dr. -- Miss Hines' checklist
14 when you reviewed this record, did you?
15 A I believe I addressed this. We can have
16 it -- I did mention. I think I did mention. I
17 did talk about this.
18 Q On the checklist Mr. deVries
19 indicated that he could indicate recently or
20 ever for various problems and symptoms, right?
21 A Right.
22 Q And he indicated that he recently
23 had excessive and uncontrollable anger, right?
24 A Yes.
25 Q I think the one that you mentioned
00016
1 to the jury -- correct me, if I'm wrong. I
2 think the only one you mentioned to the jury was
3 agoraphobia and extreme social isolation, which
4 he both said recently and ever, right?
5 A Yes, this -- this is what it says here.
6 Your question -- what did you ask me?
7 Q That is the one you discussed with
8 the jury in your testimony last week, right,
9 agoraphobia and social isolation?
10 A Not the only one, no.
11 Q Okay. Did you tell the jury that
12 he put -- that he recently has frequent crying
13 and sadness?
14 A Yes, and I -- I mentioned that is not --
15 sadness is not depression. Sadness is --
16 Q No, no, my question is did you
17 tell the jury when you were discussing the Hines
18 checklist that Mr. deVries checked off that he
19 has frequent crying and sadness? Yes or no or
20 you don't recall?
21 A Yes, I mentioned -- I mentioned the
22 depression. I mentioned the work stress that
23 was also -- certainly I mentioned the -- the
24 conflicts over his sexuality. All those things
25 I believe I mentioned when I testified
00017
1 one-and-a-half, two weeks ago.
2 Q You mentioned everything on this
3 checklist; that's your testimony today?
4 A I'm not sure if I mentioned everything.
5 I don't think -- I mentioned the -- the tobacco
6 and alcohol. I remember mentioning that, as
7 well. Yes, I did.
8 Q Okay. On this checklist,
9 Mr. deVries, the area where it says, "problems
10 with a partner or spouse," it only checks off
11 recently, right?
12 A It only checks off recently, yes. What
13 number is this?
14 Q Nineteen.
15 A Yes, it only is -- yeah, he does suggest
16 recently; that is what he checked.
17 Q And, "other," he checks recently
18 mood -- he writes in -- he hand writes in, "mood
19 swings, lack of concentration, paranoia and
20 anhedonia," which means lack of pleasure, right?
21 A That's right. Which is not true,
22 according to the records.
23 Q I'm going to ask you questions
24 that mostly have yes or no answers.
25 A I'm sorry.
00018
1 Q Okay?
2 A You're right.
3 Q Good.
4 A Yeah.
5 Q Now -- and you noted when you were
6 testifying that there was nothing in Dr. -- in
7 Miss Hines' records about the anniversary of the
8 attack on Mr. deVries, right?
9 MR. BEVERE: Judge, I am going to
10 object. That is absolutely a
11 mischaracterization of his testimony.
12 JUDGE CURRAN: Do you want to
13 rephrase? Otherwise --
14 MR. BEVERE: The -- the question
15 was, was there any reference to the anniversary
16 of the attack? That's a mischaracterization.
17 JUDGE CURRAN: Thank you.
18 Sustained. Would you rephrase?
19 MS. SMITH: Okay. Thank you, Your
20 Honor.
21 BY MS. SMITH:
22 Q You didn't note that on Dr. -- on
23 Miss Hines' notes, that she found Mr. deVries to
24 be compliant and stable, despite the anniversary
25 of the event? Did you note that yesterday for
00019
1 the jury? My testimony is about -- my question
2 is about yesterday's testimony. It's not in
3 your notes?
4 A Okay.
5 Q Yesterday did you tell this jury
6 that in Miss Hines' notes that she found my
7 client, Mr. deVries, to be compliant and stable,
8 despite the anniversary of the event? Did you
9 say that yesterday?
10 A Don't remember exactly my words, but I
11 did talk about it. I don't remember my words.
12 Q That was notable, right?
13 A That there was no symptomatology related
14 to the anniversary reaction to this assault?
15 Yeah, I did mention that, and that was --
16 Q In Dr. Almeleh's notes the day
17 after the anniversary, on 4/26/05, Dr. Almeleh
18 notes, "Patient feeling very tired and fatigued.
19 Patient explained to employer he is unable to
20 work." That's the first such record of the
21 patient saying -- of Mr. deVries saying he is
22 unable to work, isn't it?
23 A This is in May of '05?
24 Q No, this is in April 26th. The
25 event happened on April 25th, 2004?
00020
1 A Uh-huh.
2 Q You want to look at Dr. Almeleh's
3 notes of April 26th, 2005?
4 A Yeah, I remember he saw him the day
5 after. Yes, I have it.
6 Q April 26 -- you have that?
7 A Uh-huh.
8 Q On April 26, 2005 Dr. Almeleh
9 notes, "Patient feeling very tired and fatigued.
10 Patient explained to employer he is unable to
11 work. Today he has severe psychomotor
12 retardation. Concentration and memory are very
13 poor. Remembers only one out of three in five
14 minutes. Will increase Lexapro. Patient trying
15 to repair relationship with Tim." That's Dr.
16 Almeleh's notes on April 26th, 2005, is it not?
17 A Yes.
18 Q Now, yesterday you testified with
19 regard to Dr. Almeleh's records regarding what
20 happened at Peter's work in November and
21 December of 2004. Do you recall that testimony?
22 A What happened at his work?
23 Q Yeah, do you want me to -- let me
24 refresh your recollection, Doctor. Question,
25 "Is there an indication in Dr. Almeleh's
00021
1 treatment records as to what, if anything,
2 happened at work in either end of November or
3 early December 2004?"
4 And your answer was, was it not, "Yes,
5 the problem was -- and it was a big upset for
6 him and in the records -- he was not promoted.
7 He was passed up for a promotion that he was
8 hoping for. Again, that is in -- in about
9 November of '04. The previous month he really
10 didn't want the job. He didn't really like it.
11 He felt pressured to go and work, as he had felt
12 all along, whenever he was depressed. But when
13 he did not get this promotion, he felt very big
14 upset. Dr. Almeleh relates to that as major
15 mood swing or something along these lines. And
16 I think at that time he readjusted his
17 medication"? That was your testimony to this
18 jury about November of two -- of 2004; is that
19 correct?
20 A You are reading it, so I did that, I did
21 say that.
22 Q Question -- and then you talked
23 about specifically -- you talked about the
24 promotion, some more with regard to
25 December 7th, 2004. Do you recall that?
00022
1 A It should have been 2005. That was --
2 that -- the promotion, being passed for
3 promotion happened to him in '05.
4 Q This is what you said yesterday.
5 MR. BEVERE: Judge, can we have a
6 page and line? I'm sorry.
7 MS. SMITH: Page 172, top of the
8 page.
9 BY MS. SMITH:
10 A Yeah, and I was actually reading from the
11 notes of --
12 Q Well, I'm going to ask questions,
13 Doctor, all right. And this is a yes or no.
14 Yesterday did you testify under oath to
15 this jury this visit, December 7th, '04, he
16 describes a really bad mood swing, patient did
17 not get a promotion at work and so on. At that
18 time he decided to try to start him again on an
19 antidepressant medication, which was Lexapro.
20 You said that yesterday in front of this jury,
21 right?
22 A Yes. You are reading the transcript, so
23 yes.
24 Q Now, let's start with your claim
25 that the month before he didn't like the job
00023
1 very much, the previous month he really didn't
2 want the job. Let's start with October 1st,
3 2004. There is no notation October 1st, 2004
4 that Mr. deVries didn't want his job, is there?
5 MR. BEVERE: Judge, I'm sorry,
6 could he have time to look at Dr. Almeleh's
7 notes, please?
8 JUDGE CURRAN: Yes.
9 MR. BEVERE: Thank you.
10 BY MS. SMITH:
11 A On October 1st, '04?
12 Q Yeah, the question is this.
13 A Pain --
14 Q Is there any notation in Dr.
15 Almeleh's notes that he didn't want the job?
16 MR. BEVERE: Are we looking for a
17 note dated October 1st, 2004?
18 MS. SMITH: We're going to go
19 through all of October because the statement
20 that the month before he didn't want the job.
21 MR. BEVERE: Okay.
22 BY MS. SMITH:
23 Q So there is nothing in
24 October 1st, Dr. Almeleh's notes, to support
25 that statement? Can we agree to that, Doctor?
00024
1 MR. BEVERE: Judge, my question is
2 I don't see a visit for October 1st, 2004 in Dr.
3 Almeleh's notes. I see one for October 8th,
4 2004.
5 A I don't see one.
6 MS. SMITH: Go back a page.
7 JUDGE CURRAN: I think, Mr.
8 Bevere, that would be the page you have on the
9 bottom, the other way.
10 MR. BEVERE: Judge, I'm looking at
11 Bates stamp 426, which is the visit of 9/13/04;
12 and I'm --
13 MS. SMITH: It's 4/27.
14 MR. BEVERE: 4/27.
15 MS. SMITH: Top left corner,
16 "Patient has trouble sleeping and nightmares."
17 Right here.
18 JUDGE CURRAN: Mr. Bevere, maybe
19 you can look at --
20 MR. BEVERE: Mine is cut off.
21 That's why. Mine was cut off, Judge. It
22 appeared to be a nine to me, I apologize.
23 JUDGE CURRAN: Thank you, no
24 problem.
25 BY MS. SMITH:
00025
1 Q All right. Let's look at
2 October 8th, 2004, Doctor. On October 8th, 2004
3 Dr. Almeleh notes, "Patient continues upset and
4 frustrated over the firefighter incident.
5 Continues disturbing dreams and general
6 fearfulness when he walks the streets of
7 Secaucus. Planning to move to Jersey City.
8 Eager to move. Also upset about the effects of
9 the incident on Tim." It doesn't say he doesn't
10 want his job, does it?
11 A No, it doesn't.
12 Q And you didn't tell the jury
13 anything that was said by Dr. Almeleh on
14 October 8th, 2004, did you?
15 A No, I did not read that note.
16 Q Okay. And on October 22nd, 2004
17 Dr. Almeleh notes, "Patient planning to move."
18 Now, let me stop for a minute. Yesterday you
19 said that my clients didn't even think that up
20 themselves, that Dr. Almeleh had to suggest that
21 they move?
22 A Yes, that's correct. And it's on
23 June 4th, 2004. On June 4th, 6/4/04, it says,
24 "I suggested patient move to another Town." And
25 over there on June 4th it starts by saying that,
00026
1 "Patient has trouble sleeping, disturbed sleep,
2 nightmares and restlessness." That same time he
3 was mobilizing the gay community. And also at
4 the same time he was planning to make a movie on
5 June -- on July. The following month he was --
6 already on July 8th he told the therapist he was
7 planning to make a movie on July 22nd or 24th.
8 He told her that was bringing him joy, to
9 prepare a movie about all these events. And on
10 June 4th he said, "I suggested" -- I continue
11 reading -- "patient move to another Town." And
12 then it says, "to decrease anxiety and symptoms
13 of PTSD." So it was his suggestion on June. He
14 didn't run from the Town. He didn't escape. It
15 was not his idea. It was his therapist's idea,
16 Why don't you move? I suggested to do it; and
17 then he went, yes.
18 Q Okay. I'm going to come back to
19 that.
20 A Please, yeah.
21 Q All right. We're -- let -- we're
22 talking about right now October 8th, 2000 --
23 let's go to October 22nd, 2004.
24 A Give me just a second.
25 Q You know what, I'm sorry, Doctor.
00027
1 I'm really sorry. I just had to get my partner
2 to help me to find something that I knew was
3 there, and he helped me find it. On May 21st,
4 2004, can we agree that's before June 1st, 2004?
5 A Yes.
6 Q June 4th?
7 A Yes.
8 MR. BEVERE: Bates stamp 425, Your
9 Honor.
10 JUDGE CURRAN: Thank you.
11 BY MS. SMITH:
12 Q Doesn't Dr. Almeleh note that
13 Mr. deVries said, "Feels very uncomfortable
14 living next to the firehouse. Feels they will
15 have to move. Feels very distraught, as well as
16 angry. Feels sense of humiliation. Patient
17 can't concentrate on reading anymore"? You see
18 that on May 21st, 2004?
19 A Yeah, that was the second visit after the
20 event.
21 Q No, Doctor, it says that, right?
22 Okay. And May is before June, right?
23 A Yes.
24 Q Okay. All right. Let's go back
25 to October of 2004. October 22nd, 2004, that's
00028
1 the last visit in October, right?
2 A Appears to be.
3 Q Can we agree that October 22nd,
4 2004 it doesn't say anywhere that he didn't want
5 his job anymore? Let's go through it.
6 A Yeah.
7 Q "Patient planning to move. Very
8 upset that he has been forced to leave."
9 "Forced" in quotation marks, right?
10 A Yes.
11 Q "Very anxious and nervous about
12 the move. Will prescribe Valium. His
13 neuromotor was not strong enough"?
14 A You missed something there.
15 Q Uh-huh.
16 A Oh, okay.
17 Q "Patient states" -- something --
18 "was not strong enough to help him calm down."
19 Can you figure out what that word is?
20 A Which word?
21 Q Some kind of a -- of a drug I
22 think.
23 A Oh, Neurontin.
24 Q That wasn't enough -- strong
25 enough to help him calm down. Then he talks
00029
1 about he would prescribe something else, but he
2 is always concerned about the heart, right?
3 A Yeah, something -- an anti -- an
4 antidepressant medication, antianxiety,
5 tranquilizing, antidepressant medication.
6 Q So that's October. That's all of
7 October 2004. And nowhere in the Almeleh notes
8 does it say that he didn't want the job? We can
9 agree to that, can't we?
10 A Yeah, they are talking about his med --
11 his psychiatric condition here.
12 Q No, you testified yesterday that
13 based on the Almeleh notes in October of 2004 he
14 didn't want the job? Didn't we start there?
15 Don't you remember that a few minutes ago? Do
16 we have to do it again? Didn't you --
17 A Yes.
18 Q Okay. Now, these -- we just went
19 through the Almeleh notes of October of 2004.
20 This is my question. Nowhere in the Almeleh
21 notes of October of 2004 does it say Mr. deVries
22 didn't want the job, does it?
23 A No, I mentioned --
24 Q That's it, thank you. All right.
25 Now let's go on to what else she said. The
00030
1 really big upset in November of 2004 was not
2 getting a promotion; that's what you told this
3 jury yesterday under oath, right? Is that what
4 you said?
5 A That is what you said I said, and I will
6 take it. That was -- it's '05, instead of '04.
7 But if I said '04 --
8 Q Well, we'll go through it because
9 you make a very specific reference to a very
10 specific date. So we'll see what you were
11 telling the jury yesterday.
12 A Okay.
13 Q October of -- in November 5th of
14 2004, "Patient was very upset." And there is no
15 comment about work, November 5th, 2004, is
16 there? "Patient very upset. Closed on new
17 apartment today, but patient and lover are
18 bickering attributed to the stress they are
19 undergoing. Tried to calm patient down. Takes
20 Valium and Adderall." That is the note on
21 November 5th, 2004, right?
22 A That is not the entire note.
23 Q November 5th, 2004, that's not the
24 note?
25 A That's not the entire note, no.
00031
1 Q "Patient very upset. Closed on
2 new apartment today, but patient and lover are
3 bickering attributed to stress they are
4 undergoing. Tried to calm patient down. Takes
5 Valium and some p.m." or --
6 A Prn, meaning as needed. If -- if he
7 needs it, he will take it.
8 Q "Prn, Adderall 20 milligrams TID?"
9 A That is mandatory. "TID" means he has to
10 take it every day. The other one is if and when
11 he feels.
12 Q That's what I just read?
13 A No, "prn" you didn't say. You didn't
14 read, "prn," which, medically speaking, is very
15 important.
16 Q October -- November 19th, 2004.
17 You didn't mention this to the jury yesterday
18 when you talked about him being upset about a
19 promotion? You did not mention what Dr. Almeleh
20 wrote on November 19th, 2004; isn't that true,
21 Doctor?
22 A I did not?
23 Q You didn't mention to this jury
24 yesterday after you testified under oath that my
25 client, Mr. deVries, was upset about not getting
00032
1 a promotion in November of 2004, you didn't
2 mention what Dr. Almeleh said in November 19th,
3 2004; isn't that true? Yes or no? You didn't
4 mention November 19th, 2004; isn't that true?
5 A I don't remember if I did or not.
6 Q You don't remember --
7 A I do remember it was '04 --
8 Q -- for the jury, "Patient had a
9 severe emotional breakdown, laying down on the
10 floor in a ball crying during the move from
11 Secaucus. Patient cried during the session.
12 States that, 'the pressure has been too much.'
13 Having disagreements with lover, feels like a
14 victim. Nightmares continue." He didn't
15 mention a promotion, did he, Doctor?
16 A No.
17 Q Now, you specifically mention --
18 you're telling the jury today, apparently, that
19 you were in the wrong year? Is that what you
20 are telling the jury, that you were in the wrong
21 year when you were testifying yesterday?
22 A Yes.
23 Q So when you talked about the
24 promotion and you specifically quoted
25 December 7th, 2004, you weren't talking about --
00033
1 MR. BEVERE: Judge.
2 Q -- December 7th, 2004?
3 MR. BEVERE: I am -- I am going to
4 object. I would like the witness to be able to
5 read the note for December 7th, 2004.
6 MS. SMITH: Why? This is
7 cross-examination.
8 MR. MULLIN: And he is reading the
9 note now, Your Honor.
10 JUDGE CURRAN: You mean read it as
11 to himself?
12 MR. BEVERE: Yes.
13 THE WITNESS: Okay.
14 MR. BEVERE: Because Your Honor --
15 JUDGE CURRAN: It is
16 cross-examination.
17 MR. BEVERE: Yes, I understand
18 that. I understand that. But I believe that
19 there is --
20 MS. SMITH: He has read it.
21 MR. BEVERE: -- confusion about
22 the dates, and I want him to read the note
23 before he answers the question to refresh his
24 recollection.
25 JUDGE CURRAN: Doctor, have you
00034
1 read the note?
2 THE WITNESS: I am reading it
3 right now, and I -- I recognize the -- that
4 there was now mistake --
5 JUDGE CURRAN: Sir, there is no
6 question. Have you read the note?
7 THE WITNESS: Let me read it.
8 JUDGE CURRAN: When you have read
9 the note, let me know, please.
10 BY MS. SMITH:
11 Q You weren't mistaken --
12 JUDGE CURRAN: Hold on.
13 MS. SMITH: I'm sorry, I thought
14 he said he finished.
15 JUDGE CURRAN: Have you finished
16 reading the note?
17 THE WITNESS: No, just a second,
18 please.
19 JUDGE CURRAN: Off the record for
20 a moment.
21 MS. HAWKS: Off the record.
22 (Whereupon, a discussion is held
23 off the record.)
24 BY MS. SMITH:
25 Q Doctor, you were talking about --
00035
1 JUDGE CURRAN: Hold on one second.
2 MS. SMITH: Oh, I'm sorry, Your
3 Honor.
4 JUDGE CURRAN: I apologize. Sorry
5 for delaying you.
6 MS. SMITH: Thank you, Your Honor.
7 BY MS. SMITH:
8 Q Dr. Almeleh, have you had an
9 opportunity to review the note from Dr. Almeleh
10 of December 7th, 2004?
11 A You made a confusion; I'm Dr. Goldwaser.
12 Q I'm so sorry. Dr. Goldwaser --
13 A Yeah.
14 Q -- have you had a -- an
15 opportunity to review Dr. Almeleh's note of
16 December 7th, 2004?
17 A Yes.
18 Q Okay. So -- and can we agree now
19 that you actually were talking about November
20 and December of 2004?
21 A Yes, I was.
22 Q You were not --
23 A No.
24 Q -- talking about 2005, right?
25 A No.
00036
1 Q Because there is a mention --
2 A Yes.
3 Q -- of not getting a promotion on
4 December 7th, 2004, right?
5 A Yes.
6 Q Mr. -- Dr. Almeleh writes, "real
7 bad mood swings" in quotes, right?
8 A Yes.
9 Q "Doesn't know what precipitates
10 them. On Adderall and Propovil"?
11 MR. BEVERE: Provigil.
12 A Provigil.
13 Q I'm sorry?
14 A Provigil. It's fine.
15 Q Provigil?
16 A Yes.
17 Q "Patient has not" -- something?
18 A Has not added to -- has not -- "added"
19 maybe? I'm not sure -- "to take Altace," which
20 is for blood pressure.
21 Q Then it has his blood pressure
22 reading. And then there is the note, "Patient
23 did not get promotion at work," right?
24 A Yes.
25 Q And then it says, "Patient has
00037
1 lost 40 pounds," right?
2 A Yes, it says that, yeah.
3 Q And then it says, "To treat mood
4 swings will try Lexapro"; and then there is some
5 more discussion about his meds, right?
6 A Yes.
7 Q In November and December of 2004
8 that's the only mention of not getting a
9 promotion at work, isn't it?
10 A Now I need to find December. If you have
11 the number at the bottom, I can find it for the
12 December.
13 Q I think that he is the only
14 December, Your Honor -- Doctor; but if you find
15 another one, I stand corrected. I think that's
16 the only December.
17 A Oh, okay.
18 Q Okay. So can we agree that that's
19 the only reference in October, November or
20 December to his work?
21 A Yes.
22 Q I think yesterday you testified to
23 the jury that hypervigilance is a symptom of
24 PTSD, right?
25 A Yes.
00038
1 Q And the startle reflex is also a
2 symptom of PTSD, right?
3 A Yes, it is.
4 Q And Peter told you about his
5 startle reflex, didn't he, when he met with you?
6 A I believe he did.
7 Q In fact, he told you that the
8 hypervigilance combined with the startle
9 reflux -- reflex, it's just awful? Didn't he
10 tell you that?
11 A This is what he said, yes.
12 Q And he said, "Any expected noise
13 or whatever, the phone sort of -- I jump. It
14 even happens in my sleep, for heaven's sakes; I
15 will jerk. I feel it's not like the startle
16 reflex years ago, which, you know, everyone has.
17 I mean, it's like I -- I mean, like a really --
18 it's -- it's an overreaction. It's an
19 overreaction to noise and anything unexpected."
20 He told you that when he met with you, right?
21 A He talked about the startle reflex, and
22 he -- he mentioned it in those words, "startle
23 reflex."
24 Q Now, yesterday you pointed out
25 that you thought it was unusual that Mr. deVries
00039
1 knew the terms associated with posttraumatic
2 stress disorder. Do you remember saying that?
3 A Yes.
4 Q Okay. Did -- Mr. deVries for his
5 entire working life has been a medical editor,
6 hasn't he?
7 A Correct, yes.
8 Q It wouldn't be unusual for a
9 medical editor to be aware of medical terms,
10 would it?
11 A Well, actually, yes, according to what he
12 told me, he was doing medical editing and not
13 psychiatric editing. In fact, the magazines
14 that they were publishing were not psychiatric
15 magazines. And he actually mentioned the name
16 of some of those journals, and he said that I
17 would not be familiar with those because were
18 for general hospital settings and things like
19 that. I remember he said that.
20 Q So regular medical journals don't
21 discuss PTSD; is that your testimony?
22 A They -- they may, but that is a
23 particularly important psychiatric diagnosis,
24 psychiatric entity.
25 Q Well, he had been discussing PTSD
00040
1 with Dr. Almeleh, wasn't he? It's in the
2 records, isn't it?
3 A Yes.
4 Q And when he met with you,
5 Mr. deVries also discussed his recurring
6 thoughts, reliving the attack, didn't he?
7 A Yeah, he mentioned that. He went through
8 the list of symptoms that --
9 Q He didn't just go through a list
10 of symptoms; he told you that sometimes he would
11 drive really fast and turn the radio really loud
12 to try to block out of his head we, "Will kill
13 you. We will kill you. We will kill you";
14 didn't he tell you that?
15 A Yes, he did say. He did actually said --
16 sorry.
17 Q It's a yes or no answer; it's
18 cross.
19 A Yes, he did say that.
20 Q And in fact, Dr. Almeleh noted
21 that he was having flashbacks in his records,
22 didn't he?
23 A Yes, he mentioned that.
24 Q Let's talk about the criteria for
25 PTSD, Doctor. The Diagnostic and Statistical
00041
1 Manual --
2 MR. BEVERE: Judge, can we just
3 have five seconds while I get my checklist?
4 JUDGE CURRAN: Sure.
5 MR. BEVERE: Thank you.
6 JUDGE CURRAN: Go off the record
7 for a moment.
8 MR. BEVERE: You don't have to go
9 off the record, Judge; it's right here.
10 JUDGE CURRAN: It's okay.
11 (Whereupon, a discussion is held
12 off the record.)
13 JUDGE CURRAN: Back on the record.
14 BY MS. SMITH:
15 Q The Diagnostic and Statistical
16 Manual, it's a reference guide for doctors with
17 regard to diagnosing illnesses and diseases; is
18 that correct?
19 A Yes.
20 Q Okay. Now, when we talk about the
21 diagnostic criteria for posttraumatic stress
22 disorder, the first criteria is the person has
23 been exposed to a traumatic event in which both
24 of the following present. One, the person
25 experienced, witnessed or was confronted with an
00042
1 event or events that involved actual or
2 threatened death or serious injury or a threat
3 to the physical integrity of self or others,
4 correct?
5 A Yes.
6 Q Can we agree that that happened?
7 A That there was a threat, yeah, but to --
8 not -- not entirely, not entirely that there was
9 a threat.
10 Q You don't agree that on
11 April 24th, 2004 that Mr. deVries and Mr. Carter
12 experienced, witnessed or were confronted with
13 an event that involved actual or threatened
14 death or serious injury or threat to the
15 physical integrity of self or others? You don't
16 agree with that; yes or no?
17 A Not entirely.
18 MR. MULLIN: April 25th.
19 Q April 25th, I'm sorry. Okay. The
20 second criteria. The person's response involved
21 intense fear, helplessness or horror. Do --
22 can -- do you -- can we agree at that
23 Mr. deVries and Mr. Carter felt intense fear,
24 helplessness and horror or no?
25 A Yes, intense fear.
00043
1 Q They did, okay. The second
2 criteria would be the traumatic event is
3 persistently reexperienced in one or more of the
4 following ways. One, recurrent or intrusive or
5 distressing recollections. Isn't it true that
6 Dr. Almeleh's records note that both Mr. deVries
7 and Mr. Carter have recurrent and intrusive
8 distressing recollections?
9 A That is the report of these two
10 individuals, yes.
11 Q Number two, current and
12 distressing dreams. We went through that
13 yesterday?
14 A That is the report.
15 Q A lot of evidence in Mr. -- there
16 is a lot of notation in Dr. Almeleh's records of
17 nightmares. And Mr. deVries told you very
18 specifically about his nightmares, didn't he?
19 A Yes.
20 Q Okay. Number three, persistent
21 avoidant -- C, persistent avoidance of stimuli
22 associated with the trauma and numbing of
23 general responsiveness as indicated by three or
24 more of the following. One, efforts to avoid
25 thoughts, feelings or conversations. Can we
00044
1 agree that sleeping all the time might be an
2 effort to avoid?
3 A Might be.
4 Q Yeah, can we agree that
5 sleeping --
6 A In this particular case or in general?
7 Q No, just in general.
8 A Yes, in general, yes.
9 Q And Mr. deVries -- we will just
10 talk about Mr. deVries right now. He described
11 avoidance for you, didn't he?
12 A He reported that.
13 Q He reported avoidance, right?
14 A He reported that.
15 Q And in fact, he told you what I
16 just mentioned, blasting the music so loud to
17 get the intrusive thoughts of, "We'll kill you.
18 We'll kill you" out of his head? He told you
19 that when he met with you, right?
20 A He reported that.
21 Q Okay. Two, efforts to avoid
22 activities, places and people that arouse
23 recollections of the trauma. Mr. deVries
24 stopped going to his doctors in Secaucus, didn't
25 he?
00045
1 A Eventually he stopped, yes.
2 Q And in May 21st of 2004, less than
3 a month after the attack, he said to his doctor,
4 Dr. Almeleh, "We know we're going to have to
5 move," right? Didn't he?
6 A In May he had a feeling he had to move.
7 He didn't know he had to move.
8 Q Let me ask you, Doctor --
9 A He had a feeling.
10 Q -- is moving your home stressful
11 and difficult?
12 A Yes.
13 Q Difficulty concentrating is C. We
14 can agree that there is lots of notation in the
15 record about Mr. deVries' difficulty
16 concentrating?
17 A Yes, all along, since 1985 on.
18 Q Hypervigilance. Mr. deVries
19 described to you his hypervigilance, didn't he?
20 A All along, yes.
21 Q And Doctor -- what do you mean?
22 There is something in the records prior to 1994
23 about hypervigilance with regard to Mr. deVries;
24 is that --
25 A Yes.
00046
1 Q -- your testimony?
2 A Yes, he -- actually, he told it to me;
3 and he told it in his deposition. He grew up in
4 an environment that was anti-homosexuals; and he
5 was harassed as a teenager, an older teenager in
6 Canada because he was homosexual. And he was
7 hypervigilant. He actually said all along,
8 including when he moved in, that he was in a --
9 next to a power kick -- this was a bunch of -- I
10 don't remember what he said. He expected all
11 that. He actually said that he had the antennas
12 up because of that all along. He grew up with
13 the antennas up.
14 Q So he wasn't any more
15 hypervigilant after his house was attacked and
16 he was threatened to be killed? That's your
17 testimony to this jury, right?
18 A We have to assume -- we have to accept
19 that he was threatened to be killed because he
20 didn't say to Dr. Almeleh --
21 Q No, this is my question, Doctor,
22 are you telling this jury he was -- you're
23 claiming he was hypervigilant all along, right?
24 That's your testimony to the jury?
25 A Yeah, he was.
00047
1 Q That's what the records will
2 reflect?
3 A Yes.
4 Q Now, are you telling this jury he
5 was no more hypervigilant after his house was
6 attacked on April 25th, 2004 than before? Is
7 that your testimony?
8 A He was probably more, yeah.
9 Q Okay.
10 A Sure.
11 Q And number five, exaggerated
12 startle response. We already discussed his
13 statements to you about his startle response,
14 didn't we?
15 A His report that he had an exaggerated
16 startle response, like --
17 Q He did?
18 A -- like the book says, yeah.
19 Q There is such a thing as chronic
20 PTSD, isn't there?
21 A Yes.
22 Q That is if the symptoms go on for
23 three months or more, right?
24 A Yes.
25 Q And you talked to the jury a
00048
1 little bit about how the -- Mr. Carter and
2 Mr. deVries were so competent after the event
3 and they just sort of -- their lives didn't
4 change. Isn't it true that even the diagnostic
5 and -- manual, the DSM, says sometimes there is
6 a delay of the onset -- onset of symptoms of
7 PTSD?
8 MR. BEVERE: Judge, I want to
9 object as to the characterization of this
10 witness' testimony.
11 JUDGE CURRAN: On -- in which way?
12 MR. BEVERE: In other words, the
13 particular -- we can do it at sidebar. I will
14 be happy to do it here.
15 JUDGE CURRAN: Why don't we do it
16 at sidebar?
17 MR. BEVERE: I don't want to be
18 accused of --
19 (Whereupon, the following sidebar
20 discussion is held.)
21 MR. BEVERE: Judge, I believe we
22 had this issue yesterday. And the question was
23 that he didn't believe -- his opinion was they
24 hadn't changed psychiatrically.
25 JUDGE CURRAN: I'm sorry, I
00049
1 couldn't hear.
2 MR. BEVERE: The question was has
3 their life changed at all; and the question came
4 down, he clarified --
5 MS. SMITH: Absolutely false.
6 MR. BEVERE: -- psychiatrically.
7 MS. SMITH: Let's get the record.
8 He said his life hadn't changed.
9 MR. MULLIN: He said the fact is
10 the event hasn't changed his life.
11 MS. SMITH: That's what he said
12 yesterday.
13 MR. MULLIN: It's page 101.
14 MR. BEVERE: I'll -- I'll --
15 MR. MULLIN: Get the transcript.
16 JUDGE CURRAN: Do you want to get
17 101?
18 MR. BEVERE: Just to look at it.
19 (Whereupon, a discussion is held
20 off the record.)
21 (Whereupon, sidebar discussion is
22 concluded.)
23 MR. BEVERE: All right. Judge, we
24 don't have to go back to sidebar; but we found
25 the reference.
00050
1 JUDGE CURRAN: Any argument at
2 sidebar?
3 MR. BEVERE: No.
4 JUDGE CURRAN: Okay. Sorry.
5 (Whereupon, a discussion is held
6 off the record.)
7 JUDGE CURRAN: Just so the record
8 is clear, can you give us a page and beginning
9 line for the reference that you did find that
10 resolved the issue?
11 MR. BEVERE: I think it was 113.
12 JUDGE CURRAN: 113.
13 MR. BEVERE: And it was -- starts,
14 I believe, on line 8.
15 JUDGE CURRAN: Okay. Thank you.
16 MR. BEVERE: Okay.
17 MS. SMITH: Tracey, can you read
18 back the last question, please?
19 (Whereupon, the requested portion
20 is read back by the reporter as follows:
21 "QUESTION: And you talked to the
22 jury a little bit about how the -- Mr.
23 Carter and Mr. deVries were so competent
24 after the event and they just sort of --
25 their lives didn't change. Isn't it true
00051
1 that even the diagnostic and -- manual,
2 the DSM, says sometimes there is a delay
3 of the onset -- onset of symptoms of
4 PTSD?")
5 BY MS. SMITH:
6 A Yes.
7 Q Now, let me ask you this. You
8 keep saying, you know, "This is what Mr. deVries
9 said," "That's what Mr. deVries told Dr.
10 Almeleh."
11 We already established that as of
12 February of 2006 Dr. Almeleh had spent 69 hours
13 with Mr. deVries, right? We talked about that
14 earlier?
15 MR. BEVERE: Judge, I'm going to
16 object because I think it was 69 entries. I
17 don't think the doctor gave testimony as to how
18 many hours Dr. Almeleh spent with him.
19 JUDGE CURRAN: Please ask the
20 doctor --
21 BY MS. SMITH:
22 Q He had 69 visits with Dr. Almeleh,
23 we agreed to that, by February of 2006, right?
24 A I didn't count them. I agree with you,
25 but I don't know if it's true.
00052
1 Q Okay.
2 A I think if you say so, I will say yes;
3 but I --
4 Q Okay.
5 A -- I didn't count them.
6 Q Now, Dr. Almeleh wasn't just
7 taking dictation, was he?
8 A No, he was not.
9 Q No, he is a psychiatrist, right?
10 A He is a psychiatrist.
11 Q He is observing Mr. deVries,
12 right?
13 A Yes.
14 Q And you spent three hours with
15 Mr. deVries, right?
16 A Three hours-and-a-half, yes.
17 Q Now, you don't disagree, do you,
18 that Mr. deVries was frightened after the events
19 of April the 25th, 2004?
20 A He must have been.
21 Q Another symptom of PTSD is
22 disturbed sleep, right?
23 A Yes.
24 Q You didn't tell the jury about all
25 the entries in Dr. Almeleh's records about
00053
1 disturbed sleep, did you?
2 A All along from the very beginning I did
3 say, actually, from the very beginning that was
4 one of the problems he was having.
5 Q You only mentioned it with regard
6 to before the attack. You never mentioned
7 disturbed sleep to the jury after the attack,
8 did you?
9 A All along he -- even with -- I did
10 mention, by the way, because I remember when I
11 met with him he told me that he had to sleep too
12 much, he couldn't get out of bed. I remember
13 him mentioning his example of going to the
14 bathroom and not being able to get up from the
15 toilet seat and so on and having to sleep. The
16 disturbed sleep, yes, I did mention; I remember
17 that.
18 Q Are you telling the jury that in
19 all the Almeleh notes you discussed with them
20 yesterday when Mr. Bevere and -- and the first
21 time with Mr. Bevere, are you going to tell the
22 jury today that you talked about the disturbed
23 sleep references on June 4th, 2005; June 18th,
24 2004; June 18th, 2004; July 2nd, 2004;
25 August 13, 2004; October 1st, 2004;
00054
1 February 18th, 2004; September 12th, 2005;
2 January 23rd, 2006? You didn't mention one of
3 those notes of Dr. Almeleh to this jury on
4 direct examination, did you?
5 A I didn't talk about the 69 or 96 visits
6 or how many visits one by one.
7 MS. SMITH: Judge.
8 Q Could you please answer the
9 question? The question is about those entries,
10 not about the number of visits.
11 MR. BEVERE: Judge, the witness
12 was answering the question.
13 MS. SMITH: No, he wasn't.
14 JUDGE CURRAN: Question was, "You
15 didn't mention" -- that's how it started, so
16 it's a yes or no question.
17 THE WITNESS: No. I'm sorry, Your
18 Honor. I'm sorry.
19 BY MS. SMITH:
20 Q Is disturbed sleep --
21 A I'm sorry?
22 Q Disturbed sleep is a symptom of
23 PTSD, isn't it?
24 A Yes, of course.
25 Q Now, back to major depression.
00055
1 You don't disagree, do you, that Mr. deVries
2 suffers from major depression, do you?
3 A I do not.
4 Q Now, prior to the events of April
5 of 2004 Mr. deVries worked full-time and
6 continuously, did he not?
7 A No, not continuously. He changed jobs
8 and had problems at work but not continuously.
9 Q Wait a minute. Your testimony
10 today is that Mr. -- prior -- he had problems at
11 work other than wanting to change his job in
12 2003? He wanted to go back to his old job --
13 A At the beginning of 2004 --
14 Q -- in Secaucus?
15 A I believe was in March or April of 2004
16 he was having problems at work that he was
17 admonished or reprimanded, and he had to -- he
18 decided -- he began working 12 to 13 hours a
19 day. That was at the beginning of April he
20 started doing that. And he continued doing this
21 same thing at that job in Montvale.
22 Q In the beginning of April of 2004
23 he was admonished at work? Where does that say
24 that?
25 A Let me -- let me -- yeah, on March 19th,
00056
1 2004 is where I found that.
2 Q Where does it say he was
3 admonished?
4 A "Stopped Lexapro, adjust" -- "as well
5 adjust Adderall. Patient having problems at
6 work, being reprimanded, being" --
7 Q Where does it say, "being
8 reprimanded"?
9 A That is what I read, "being reprimanded.
10 Began working 12 to 13 hours a day. Old boss
11 quit, whom patient did not like." And his --
12 his difficulty sleeping and how he would take
13 naps and all that was in March 19, '04. Then we
14 will go into April 9th.
15 Q Just a second. One, you're
16 talking about March 19th of 2000 --
17 A Yeah.
18 Q March 19, 2004?
19 A Yes, that is what I -- my reading of
20 this.
21 Q That's your reading of March 19th,
22 2004?
23 A "Patient having problems" --
24 Q Just one second.
25 JUDGE CURRAN: Excuse me one sec.
00057
1 When everybody has found -- do you have the
2 exhibit number, Mr. Bevere?
3 MR. BEVERE: I do, Judge. And I
4 believe it is Bates stamped -- well, I can't
5 find the Bates stamp on it, one; but I can just
6 show Miss Smith, if that's easier.
7 Q That's "reprimanded"? That's not
8 "overworked"? That word right there?
9 A Yeah, that is the one that I said.
10 Q You think that says, "reprimanded"
11 and not, "overworked"?
12 A It could be either one. I -- I
13 understood it as that, and then that he began
14 working 12 to 13 hours a day.
15 Q "Patient having problems at work,
16 being overworked, been working 12 to 13 hours a
17 day."
18 A I didn't interpret it as "overworked" but
19 "reprimanded." But it could be "overworked"
20 too. I don't know. That never changed, by the
21 way.
22 Q Before the attack of April 2004
23 Mr. deVries and Mr. Carter traveled, didn't
24 they?
25 A I'm not aware of that.
00058
1 Q Really? You're not aware that --
2 Mr. Carter didn't tell you extensively about
3 their travels?
4 A Perhaps if you found it -- yeah, he did,
5 I don't remember.
6 Q He didn't tell you about being in
7 the Middle East? He didn't tell you about all
8 his travels when he met with you? He didn't
9 tell you about where Peter's brother lived --
10 A Exactly, that he did.
11 Q -- and visiting them?
12 A Yes, I remember that. I remember.
13 Exactly the traveling as you put it, that I
14 don't remember. I know that they went to
15 Minnesota for work and they stayed there, they
16 traveled within New York, upstate and all that
17 for work.
18 Q You don't remember them traveling
19 around the world, do you? Mr. Carter didn't
20 tell you about that; is that your testimony?
21 A My testimony is I don't remember. I do
22 remember his brother living in Jordan and
23 working there as an anthropologist or
24 sociologist or something.
25 Q And you know that prior to the
00059
1 events of April 25th, 2004 you know Mr. deVries
2 collected books and enjoyed reading, don't you?
3 A Yes.
4 Q And you know that -- let me go
5 back. Is it your claim to this jury that
6 Mr. deVries had periods of unemployment?
7 A No.
8 Q Okay.
9 A I -- I am not sure. I don't know about
10 that, but I know he changed jobs.
11 Q Do you know that he got promoted?
12 A Yeah, he was an editor or managing
13 editor.
14 Q He was a manager editor, right?
15 A Yes, yes.
16 Q And Mr. deVries and Mr. Carter,
17 they had a home and a life together prior to
18 April 2004, didn't they?
19 A Yeah, all along, up until now.
20 Q They decorated and celebrated
21 holidays together, didn't they?
22 A Decorated and celebrated?
23 Q Yeah, didn't they talk to you
24 about that?
25 A Yeah, I guess.
00060
1 Q And Mr. deVries told you how
2 significantly his job -- his life is now, didn't
3 he?
4 A I'm sorry?
5 Q He told you how significantly
6 different his depression is now, didn't he?
7 A No, actually, he didn't say that it was
8 significantly different.
9 Q He didn't?
10 A He described very graphically his
11 depression. And it was pretty much the same as
12 he described it in 1990 -- in 1989 or '94 to Dr.
13 Almeleh.
14 Q So your testimony to this jury is
15 he didn't say before, "I was on maintenance
16 therapy and in the sense I was seeing him once a
17 month and he had taken me off all the
18 medications. I was off antidepressant
19 medications. Now it's different, the depth of
20 it. The depth of it. I feel like I have lost
21 something permanently"? He didn't say that to
22 you?
23 A He reported that to me, yes.
24 Q "And I know before, you know, the
25 depression was sort of -- it was not nearly --
00061
1 nearly as severe. And it would -- it was like
2 overtime. I mean, you know, there were periods
3 even, you know, I was still taking medication,
4 whatever." He didn't tell you that?
5 A Yes, he did tell me that.
6 Q That it was very different?
7 A He did report that it was very different
8 and that he was not taking medication and he was
9 on maintenance. He did say that.
10 Q All right.
11 A Which is --
12 Q That's my question.
13 A Yes, he did.
14 Q Now, you also testified that his
15 life didn't change. You said that, his life
16 didn't change?
17 A Clinically speaking, yes.
18 Q All right.
19 A Psychiatrically speaking.
20 Q So are you aware that they stopped
21 using their backyard?
22 A Yeah, living in a -- in a different place
23 now, is that what you mean?
24 Q No. After the event before they
25 were able to move in November of 2005 --
00062
1 MR. MULLIN: 2004.
2 Q -- 2004, from April until November
3 of 2004, are you aware that that whole summer
4 Mr. deVries and Mr. Carter didn't use their
5 backyard?
6 A I don't think they told me that, but it
7 wouldn't surprise me.
8 Q And they didn't use their kitchen?
9 A They didn't use?
10 Q Their kitchen.
11 A Their kitchen? I don't think I knew
12 that.
13 Q They didn't use any rooms on the
14 side of the house next to the firehouse; are you
15 aware of that?
16 A That they reported or that they didn't?
17 Because nobody is aware of that. This is what
18 he -- if he reported that, I don't think he
19 reported that to me.
20 Q But you didn't read all their
21 depositions, right?
22 A I read four -- the 23 first hours of the
23 deposition, yes.
24 Q You didn't read all of their
25 depositions, did you?
00063
1 A No.
2 Q Now, at the end of your testimony
3 yesterday you talked about various things, mood,
4 affect, speech, stuff like that, right, things
5 that are in your report? Do you recall
6 testifying in front of the jury about those
7 items?
8 A I do recall that.
9 Q Now, with regard to Mr. deVries,
10 at page 66 of your report you wrote, "Affect was
11 not constricted nor intense. It was appropriate
12 to the situation and to the ideation" --
13 ideation or iteation?
14 A Ideation. Ideas, the way of thinking is
15 ideation.
16 Q "Mr. deVries did not describe or
17 display presently any debilitating psychiatric
18 symptoms, so no quantifiable alteration of his
19 affect was expected"; you see that?
20 A Yes.
21 Q And then on Mr. Carter's page 43,
22 every -- Mr. Carter is -- I'm sorry,
23 Mr. Carter's report is D-312, 312. And
24 Mr. deVries is 311. Mr. Carter's affect, word
25 for word, is exactly the same, right?
00064
1 A Yes.
2 Q Okay. And Mr. deVries, with
3 regard to mood, "was for the most part neutral.
4 Mr. deVries displayed no signs of depression or
5 anxiety throughout the entire time our meeting
6 lasted." Mr. deVries over there, he didn't
7 express -- he didn't display any signs of
8 depression when he met with you, right; that's
9 your testimony?
10 A Yes, that's correct, yes.
11 Q Throughout the entire time?
12 A He reported --
13 Q "He appeared bitter when
14 describing his not having gotten validity and
15 justice concerning the events of April 24th,
16 2004," that's what you wrote for Mr. deVries on
17 page 66, right?
18 A Yes.
19 Q And you wrote the exact same words
20 on page 43 for Mr. Carter, right?
21 A Correct, yes.
22 Q "Speech was coherent, clear,
23 coherent, not pressured and relevant. He was
24 spontaneous, articulate, fluent, vivacious"?
25 A Yes.
00065
1 Q "Mr. deVries was quite engaging
2 and productive in his descriptives" --
3 "descriptions," right?
4 A Yes.
5 Q That's what you wrote about
6 Mr. deVries?
7 A Yeah.
8 Q Mr. deVries was vivacious?
9 A Oh, yes.
10 Q That's your testimony?
11 A Yes.
12 Q And Mr. Carter was exactly the
13 same, right? Same words exactly --
14 A Yes.
15 Q -- right? Do you have this on a
16 form on your computer?
17 A No, I don't have a template. I don't
18 have a form for my reports.
19 Q And then you wrote, "There was no
20 formal thought disorder or loosening of
21 associations listed. Mr. deVries denied all
22 hallucinations or delusions. He also denied
23 current suicidal or homicidal ideation. There
24 was no evidence of any symptoms or signs
25 indicating risk of suicide." You wrote that on
00066
1 page 67 for Mr. deVries, right?
2 A Yes.
3 Q And you wrote that on page 43 for
4 Mr. Carter, right?
5 A Exactly, yes.
6 Q "Memory, recent, remote and
7 immediate, were intact, as tested throughout the
8 interviewing period." You wrote that for
9 Mr. deVries; and you wrote the exact same words
10 for Mr. Carter, right?
11 A Yes.
12 Q Now, on attention and
13 concentration for Mr. deVries, you wrote
14 "Mr. deVries was quite able to participate in a
15 210-minute interview without becoming
16 distracted, inattentive or losing his
17 concentration. I did not have to repeat a
18 question or bring him back to any subject
19 because of distractibility or inattentiveness.
20 Not once did he lose the thread of thinking.
21 Mr. deVries was able to calculate in a timely
22 fashion."
23 A Yes.
24 Q You wrote that for Mr. deVries,
25 right?
00067
1 A Yes.
2 Q And except for changing the number
3 of minutes, you wrote the exact same thing --
4 A I also had changed the --
5 Q -- for Mr. Carter?
6 A -- the names. The names were different.
7 Q Right, you changed the names?
8 A Yes.
9 Q And the minutes?
10 A Yes.
11 Q And that's it?
12 A Exactly.
13 Q And --
14 A Yes.
15 Q -- you didn't find Tim Carter to
16 be the least bit distractible, right? That's
17 your testimony?
18 A Yes.
19 Q Okay. Now, on page 44 of
20 Mr. Carter's report, where you say, "psychiatric
21 diagnosis" --
22 A Yes.
23 Q -- "I found no psychiatric
24 diagnosis proximally related to Mr. deVries'
25 reported events"?
00068
1 A Yes.
2 Q Wrong client?
3 A I'm sorry?
4 Q Wrong person?
5 A What do you mean?
6 Q You hadn't changed it to
7 Mr. Carter yet?
8 MR. MULLIN: Which report are you
9 referring to?
10 Q I'm referring to --
11 A Oh, here?
12 Q Yeah.
13 A Yeah.
14 Q Also, on your report of
15 Mr. Carter, page six, you thought that
16 Mr. Carter had an alcohol problem, right?
17 A Wait a minute.
18 Q Said he went to AA?
19 A He did go to AA, absolutely. Not because
20 he had an alcohol problem but because his
21 partner had an alcohol problem.
22 Q Where in the records is that?
23 A I believe he told it to me or it was in
24 Dr. Almeleh's records.
25 Q Or it's the wrong person?
00069
1 A Well, I have to spend the time, then, to
2 look -- look for it. Let me see if I can find
3 it. I think in Dr. Almeleh's records they are
4 two -- two mentions of that.
5 MS. SMITH: Well, you know what,
6 maybe we can take a break and go to the
7 restroom, Your Honor, if this is a good time.
8 Q And you can find where Dr. Almeleh
9 talks about Mr. Carter going to AA.
10 MS. SMITH: Is that okay, Your
11 Honor --
12 JUDGE CURRAN: Sure.
13 MS. SMITH: -- to take a break?
14 JUDGE CURRAN: Ladies and
15 Gentlemen, we will take the morning break. You
16 have been here for a while. If you will be back
17 in 10 or 15 minutes, we'd appreciate it.
18 Off the record.
19 (Whereupon, the jury is excused.)
20 (Whereupon, a brief recess is
21 taken.)
22 MS. HAWKS: Jurors are
23 approaching.
24 COURT CLERK: On the record.
25 (Whereupon, the jury is brought
00070
1 into the courtroom.)
2 JUDGE CURRAN: Miss Hawks, if I
3 can see you for a moment when you're finished.
4 When you're finished.
5 MS. HAWKS: Oh, all right.
6 JUDGE CURRAN: Thank you. Please
7 be seated. We're back on the record.
8 Miss Smith.
9 MS. SMITH: Thank you, Your Honor.
10 BY MS. SMITH:
11 Q Doctor, in Dr. Almeleh's notes for
12 sometime in 1989 he writes, "When he is meeting
13 with Mr. Carter, lover -- we have a lot of
14 ambition, are not here to enjoy own life.
15 Alcoholic in AA. Dutch Calvanist. 'There for
16 him,'" right?
17 A Yes.
18 Q He is talking -- Mr. Carter is
19 telling Dr. Almeleh that Mr. deVries is in AA,
20 right?
21 A It's possible. What I -- what I
22 understood here, that is this is treatment that
23 Mr. Carter is having with Dr. Almeleh. I don't
24 know --
25 Q He is not describing his lover --
00071
1 lover dash -- Mr. Carter is not a Dutch
2 Calvanist, is he?
3 A Mr. Carter?
4 Q Yeah.
5 A I don't know what he is, but he is a
6 religious person. I don't know -- I don't know
7 what he is.
8 Q He didn't -- Mr. deVries didn't
9 tell you he was Dutch?
10 A Yes.
11 Q Okay. Let's talk about weight.
12 You pointed out to the jury a couple times on
13 direct that Mr. deVries wanted to lose weight
14 prior to April of 2004. Do you recall that you
15 did that?
16 A Yes.
17 Q And you pointed out Dr. Pumill,
18 his cardiologist's records where he was trying
19 to lose weight and exercise; do you recall doing
20 that?
21 A Yes, he was also advised by the doctor.
22 Q You didn't point out to the jury
23 Dr. Pumill's records, page Bates stamp number
24 79, did you, where it says, "been under stress,
25 40 pounds, appetite decrease"?
00072
1 A This is when? I'm sorry, I don't have it
2 here. I have it in my briefcase. I don't have
3 it here.
4 Okay. December 2nd, 2004.
5 Q You didn't point out to the jury
6 where it says, "been under stress, 40 pounds,
7 appetite decrease," did you? When you read to
8 them some portions of Dr. Pumill's records, you
9 did not read that to them, did you?
10 A No.
11 Q Okay. Can we agree, Doctor, that
12 there is a difference between exercising and
13 trying to lose a few pounds and being unable to
14 eat and losing 40 pounds? Can we agree to that?
15 A If they are different, yeah, in general.
16 Q Different?
17 A Not in this case; in general, yeah.
18 Q Let's talk about Mr. Carter. You
19 didn't do any testing on Mr. Carter, right?
20 A You're talking about psychological
21 testing?
22 Q Yes.
23 A No.
24 Q Okay. And you didn't even review
25 the raw data of the testing that Dr. Bursztajn
00073
1 conducted, did you?
2 A No, I reviewed all the data that he
3 shared with us.
4 Q No, you didn't review any of the
5 raw data from all the testing that Dr. Bursztajn
6 conducted, did you?
7 A No.
8 Q Okay. Now, one of your -- correct
9 me, if I'm wrong; but I think one of your major
10 arguments with regard to Mr. Carter is he
11 doesn't have PTSD because he is working
12 full-time and even overtime at the time of your
13 interview in October 2006? Is that a fair
14 statement?
15 A For six months going, yes.
16 Q Okay. In fact, when he met with
17 you on October 2006, he hadn't even finished the
18 training for the job you're claiming he did
19 overtime in? He hadn't even started it; isn't
20 that true?
21 A Say it again, please.
22 Q You told this jury that in October
23 of 2006 Mr. Carter had for six months been
24 working full-time and even overtime doing
25 digital documents retention, right?
00074
1 A Yeah, that is what he told me.
2 Q Well, actually, he told you that
3 he hadn't even finished his course yet to be
4 trained to do documents retention?
5 A No, that is -- let me just check on that
6 because I remember even in his deposition he
7 actually said that he had been working on this.
8 Since April of 2006 he was working.
9 Q He was working? He said that
10 on --
11 A On these jobs, yes.
12 Q You didn't even review the last
13 two days of his deposition, did you?
14 A I reviewed the first one, those three
15 hours or so.
16 Q Those three hours out of -- out
17 three days, right?
18 A That was when he said that he was working
19 in April of 2006.
20 Q Let me -- let me show you what he
21 told you when you met with him. Let's look at
22 page 78, line 13. Isn't it true that Mr. Carter
23 tells you --
24 A I'm sorry, say it again. Page 78?
25 Q Page 78, line 13. And this is
00075
1 your interview with Mr. Carter on October 13th,
2 2006. Page 78. Isn't it true that he said to
3 you, "I am finishing my course, which is very
4 difficult in this digital imaging thing"? He
5 said that to you, didn't he? Didn't he, Doctor?
6 A Yes, he said that.
7 Q Okay. He said that. And you
8 said -- you also told the jury that although you
9 claim that he was working and doing fine working
10 full-time after the incident, before the
11 incident he had problems with employment? You
12 told them that, right?
13 A Yes.
14 Q So the incident actually made him
15 more competent in your view, right?
16 A I don't think that he --
17 MR. BEVERE: Judge, I am going to
18 object to the characterization, "make him more
19 competent."
20 JUDGE CURRAN: I will sustain
21 that. Just rephrase it.
22 BY MS. SMITH:
23 Q Okay. Do you think that
24 Mr. Carter did better in his life, specifically
25 in his work, after the events of April 2004? Is
00076
1 that your testimony?
2 A At the time that I saw him in 2006, yes.
3 Q He was doing better than before
4 the incident; is that's your testimony?
5 A He actually completed training in I
6 believe was 2005, early 2006 completed training.
7 Q What kind of training?
8 A As a paralegal.
9 Q And he never got a job as a
10 paralegal, right?
11 A He never got a job, but he did complete
12 the training at St. Peter's College by suggested
13 recommendation and support of his doctor and
14 that he went --
15 Q Isn't it true --
16 MR. BEVERE: Judge, he was
17 answering it, was in the middle of a question.
18 MS. SMITH: He was not answering.
19 It was a real simple question, and he was going
20 on and on.
21 JUDGE CURRAN: Please, if you will
22 indicate, Doctor, if there is anything else you
23 wish to say in specific answer to the question.
24 THE WITNESS: Okay.
25 JUDGE CURRAN: Is there anything
00077
1 else, specific answer?
2 THE WITNESS: The question was
3 about his working. Whether he was better
4 because of his work was the question. And yeah,
5 I was -- I was specifically answering that.
6 MS. SMITH: That wasn't the
7 question, actually.
8 JUDGE CURRAN: All right.
9 MS. SMITH: Can I move on?
10 JUDGE CURRAN: Move on to the next
11 question, then.
12 BY MS. SMITH:
13 A Okay.
14 Q Isn't it true, Doctor, that
15 Mr. Carter had a full-time position as a
16 permanent substitute teacher for 18 months and
17 he told you that at your interview prior to
18 April of 2004?
19 A As a substitute teacher?
20 Q Permanent substitute teacher. He
21 told you that, didn't he? Yes?
22 A That was -- I don't remember exactly, but
23 that was one of the things he mentioned.
24 Q And he also told you about the
25 charitable work he was doing for people with
00078
1 ADD? He told you about that, right?
2 A He never took off, so he was never --
3 Q He never what?
4 A He never took off. He never collected
5 the funds. He never did any work on that.
6 Q He never did any work on that?
7 A He had a plan that was called ADD-UP,
8 A-D-D up. And he actually mentioned in his
9 deposition and to me that it never really took
10 off. That was an inaccurate thing or
11 misunderstanding, what he told the other -- the
12 other psychiatrist about this. It never took
13 off, but the other doctor --
14 Q Wait a second. Are you saying he
15 didn't do any work with regard to establishing
16 ADD-UP? Is that your testimony today; he did
17 nothing to establish ADD-UP?
18 A It never transformed into anything, yes,
19 yes.
20 Q Are you telling this jury that he
21 didn't do anything to set up a charitable
22 organization called ADD-UP; is that your
23 testimony?
24 A Did he do something or he had a plan?
25 Q Did he do anything? You're saying
00079
1 he didn't do anything to start it?
2 A I said it never took off. I didn't say
3 he didn't do anything.
4 Q Okay.
5 A He never got -- he never had funds.
6 Q Let me ask you something else. He
7 has his masters degree from Harvard Divinity
8 School, doesn't he, Mr. Carter?
9 A This is what he told me.
10 Q Well, he -- are you telling the
11 jury that he doesn't?
12 A I don't know. This is what he told me,
13 yes.
14 Q And he worked as a pastor, didn't
15 he?
16 A I don't think he worked as a pastor. He
17 worked as a fund-raiser for the Divinity
18 Department at Harvard University.
19 Q You are not aware of his working
20 as a pastor?
21 A I'm not aware. I'm aware only working as
22 a fund-raiser. He had an office or he was
23 working in an office of fund-raising for the
24 Divinity School or -- or something like that.
25 And he was eventually transferred from there to
00080
1 New York City to do the same kind of work in
2 fund-raising.
3 Q Now, Doctor, you said that his
4 affect was fine and everything was fine with
5 Mr. Carter when he met with you, right?
6 A No, I never said, "fine." What I said is
7 I did not find a psychiatric condition, an
8 affect that was related to the debilitating
9 psychiatric condition that was new or appeared
10 on April 24th, 2004.
11 Q You said, "affect was not
12 constricted nor intense. It was appropriate to
13 the situation and to the ideation. Mr. Carter
14 did not describe or display presently any
15 debilitating psychiatric symptoms, so no
16 quantifiable alteration of his affect was
17 expected." That's in your report of page 43;
18 isn't that correct.
19 A You want me to explain that?
20 Q No, I don't. I want you to answer
21 my questions.
22 A Yes.
23 Q Isn't that correct; that's what
24 you wrote?
25 A Yes, this is what I wrote.
00081
1 Q In fact, he had taken Xanax? Dr.
2 Almeleh gave him a Xanax because he was so
3 anxious about meeting with you, hadn't he?
4 A I -- I think he mentioned something like
5 that with me and with Dr. Bursztajn also.
6 Q So is that a yes, he told you that
7 he had taken -- he actually showed you the
8 bottle of Xanax, didn't he?
9 A I don't remember this.
10 Q You don't remember?
11 A I don't remember if he showed me a bottle
12 of Xanax.
13 Q And when he visited Dr. Bursztajn,
14 he told you that he hadn't slept at all prior to
15 that visit for five-and-a-half days, didn't he?
16 A This is what he said. And that Dr.
17 Almeleh gave him Paxil at that time to do that.
18 As a matter of fact --
19 Q He said Dr. -- Mr. Carter told you
20 that it was very hard to relive the events of
21 April 2004; didn't he say that to you?
22 A I have impression he did report that,
23 that it was very hard, contrary to what happened
24 in the session.
25 MS. SMITH: Judge, could you ask
00082
1 the witness, please, just to answer the
2 questions and not give speeches afterwards?
3 JUDGE CURRAN: Thank you.
4 Doctor, if you would please
5 answer the questions, not give editorial
6 comments. Thank you.
7 THE WITNESS: Yes.
8 BY MS. SMITH:
9 Q And another example you gave
10 yesterday to support your opinion that
11 Mr. Carter doesn't have PTSD, you gave the
12 example of his ability to sit through
13 depositions in this court, right, in this
14 action, right? You said that yesterday, didn't
15 you?
16 A Yes.
17 Q Okay. Now, you never even
18 reviewed the last two days of depositions that
19 were taken of Mr. Carter, did you?
20 A No, I did not.
21 Q So you don't know how many breaks
22 he took, right?
23 A No.
24 Q And you don't know whether he
25 broke down crying, right?
00083
1 A No.
2 Q You don't know whether he was able
3 to continue, whether the deposition had to be
4 stopped, do you?
5 A No.
6 Q And the last day of Mr. deVries'
7 deposition, you have no idea whether Mr. deVries
8 broke down during that deposition, do you?
9 A No, I don't.
10 Q You don't know how many breaks
11 were taken, do you?
12 A No, I don't.
13 Q Even in the three-hour dep that
14 you did review, how many breaks did Mr. Carter
15 need?
16 A I don't remember.
17 MR. BEVERE: Judge, I'm going to
18 object to the form because if -- there could be
19 a lot of reasons for a break in a deposition.
20 And for this witness to testify as to the
21 reasons for breaks -- there is a lot of reasons
22 we break in a deposition; somebody gets a phone
23 call, somebody has to go to the bathroom --
24 JUDGE CURRAN: I --
25 MR. BEVERE: -- someone needs a
00084
1 break.
2 MR. MULLIN: Your Honor, I object
3 to the testimony by this lawyer.
4 JUDGE CURRAN: Sustained.
5 I am going to overrule your
6 objection. The question did not ask him the
7 reasons for it; just asked him how many. I
8 understand your argument that how many is a
9 function of why, but I'm going to overrule the
10 objection.
11 BY MS. SMITH:
12 Q Dr. Goldwaser, yesterday you
13 specifically mentioned breaks, didn't you, with
14 regard to depositions, didn't you? Yesterday in
15 your testimony in front of this jury didn't you
16 specifically mention breaks?
17 A Can you refresh my memory; what did I
18 say?
19 Q Didn't you mention the ability to
20 sit down and take a deposition and not need
21 constant breaks? Didn't you testify that way in
22 front of this jury?
23 A About Mr. Carter?
24 Q About Mr. Carter --
25 A Both?
00085
1 Q -- and Mr. deVries, both. Wasn't
2 that one of the examples of why they don't have
3 PTSD? Don't you remember from yesterday?
4 A I said -- I was here the whole day. If
5 you can read for me, I will -- I will be able to
6 remember.
7 Q Well, is it your opinion today
8 that one of the reasons you don't think
9 Mr. Carter has PTSD was because he was able to
10 sit through a three-hour deposition?
11 A It's one of the components.
12 Q Okay.
13 A It's not a main reason. It's one of the
14 components.
15 Q The -- the only deposition that
16 you read, the three-hour deposition, there were
17 five breaks during that deposition, weren't
18 there?
19 A I don't remember how many; but if you say
20 so, yes.
21 Q Now, you relied on Dr. Almeleh's
22 notes, right, with regard to telling this jury
23 that Mr. Carter was having panic attacks in July
24 of 2003, right?
25 A Yes.
00086
1 Q You said that yesterday, right?
2 A Yes.
3 Q Let's look at the notes of
4 July 17th, 2003.
5 A If you can tell me the number, I'd
6 appreciate it.
7 Q You mean the Bates stamp numbers?
8 A Yes.
9 Q I think it's 448, Doctor. Okay.
10 You see that?
11 A Yes.
12 Q You told the jury yesterday at
13 page 140 of the transcript that Dr. Almeleh in
14 July of 2003 noted that Mr. Carter was having
15 panic attacks? Didn't you say that yesterday?
16 Remember your testimony yesterday?
17 A Yes.
18 Q Didn't you say that yesterday?
19 A Specifically about July '03 I think -- I
20 don't remember exactly I mentioned that as one
21 of the dates in which is --
22 Q Okay. In fact, what the notes
23 really say on July 17th, 2003 is, "used to have
24 storms -- panic attacks. Would have to leave
25 work and go home," doesn't it?
00087
1 A It starts by saying, "Paxil being" --
2 Q Doesn't it say --
3 A Yeah, because of treatment.
4 Q Used to have, "storms/panic
5 attacks. Would have to leave work and go home."
6 Isn't that what it says? You didn't tell --
7 A What you read, yes.
8 Q You didn't tell the jury yesterday
9 Mr. Carter was describing panic attacks in the
10 past, did you? This is my question: Yesterday
11 you didn't tell the jury that on July 17th, 2003
12 Mr. Carter was describing having panic attacks
13 in the past? You didn't tell them that, did
14 you?
15 A I did say that this is --
16 Q In your testimony.
17 A As I recall, I did mention that he had
18 panic attacks not only on one of the entries of
19 Dr. Almeleh; and actually, this is --
20 MS. SMITH: Judge, can we please
21 direct the witness.
22 A I don't understand.
23 MS. SMITH: My question --
24 JUDGE CURRAN: I will ask if you
25 will please rephrase it. The witness has said
00088
1 he can't answer it; he doesn't understand it.
2 BY MS. SMITH:
3 Q Yesterday, when you talked to Mr.
4 Bevere about Mr. Carter, you didn't specifically
5 relate that on July 17th, 2003 Mr. Carter
6 reported having panic attacks? Are you
7 telling -- was that your testimony yesterday?
8 A That in July he had panic attacks?
9 Q Yes. Yesterday on direct with Mr.
10 Bevere --
11 A Yes.
12 Q -- didn't you testify under oath
13 in front of this jury that in July --
14 specifically, didn't you tell them that on
15 July 17th, 2003 Mr. Carter told Dr. Almeleh that
16 he was having panic attacks? Didn't you say
17 that yesterday?
18 A I don't remember exactly.
19 Q Okay.
20 A If you read it, I will be able to
21 remember it.
22 Q Now, again, you relied heavily on
23 Dr. Almeleh's notes in your direct examination
24 with Mr. Bevere in formulating your opinions
25 about Mr. Carter; is that true?
00089
1 A Not only on Dr. Almeleh.
2 Q That's not what I said. So the
3 question was: You relied heavily on Dr.
4 Almeleh's notes?
5 A Yes.
6 Q Yes, right?
7 A Yes.
8 Q All right. Now, not once in any
9 of the testimony yesterday did you mention
10 nightmares with regard to Mr. Carter, did you?
11 A I don't recall if I did say, if I said
12 nothing about that.
13 Q You don't recall?
14 A I don't recall if I didn't say it or did.
15 Q Let's look at the word index of
16 your testimony. Are you telling the jury you
17 told them yesterday that Mr. Carter had
18 nightmares after --
19 MR. BEVERE: Judge, objection.
20 That's -- that is a mischaracterization.
21 JUDGE CURRAN: Sustained. Please
22 rephrase.
23 BY MS. SMITH:
24 Q Did you tell the jury yesterday
25 that Mr. Carter had nightmares after April of
00090
1 2004?
2 MR. BEVERE: Objection, asked and
3 answered.
4 JUDGE CURRAN: Overruled.
5 BY MS. SMITH:
6 A If I tell the jurors if he had nightmares
7 after 19 -- after 2004?
8 Q Yesterday did you tell them that?
9 A I don't remember.
10 Q Okay. Well, you didn't mention,
11 did you, that 45 of Mr. Almeleh's -- Dr.
12 Almeleh's entries with regard to Mr. Carter, 45
13 times he noted that Mr. Carter suffers from
14 nightmares? We can agree you didn't tell them
15 that, right?
16 A Yeah, I didn't say that.
17 Q And nightmares is a symptom of
18 PTSD, right?
19 A Could be a symptom of PTSD, yes.
20 Q For instance, on June 25th, 2004,
21 "Patient still has trouble sleeping,
22 nightmares," right?
23 A What page? Will you please give it, the
24 number?
25 Q I don't have the Bates stamp
00091
1 numbers. I have the dates.
2 A June -- this is on -- on Mr. Carter,
3 right?
4 Q Mr. Carter, June 25th, 2004.
5 MR. BEVERE: That would be Bates
6 stamp 445.
7 JUDGE CURRAN: Thank you.
8 A Yes.
9 Q "Still has trouble sleeping,
10 nightmares." June 25th, 2004, it says that,
11 doesn't it? Yes or no?
12 A June 25th, '04?
13 Q Yes.
14 A Yes, it says that.
15 Q And on July 9th, 2004, it says he
16 has victimization nightmares, right?
17 A Victimization nightmares on which --
18 when?
19 Q July 9th, 2004.
20 MR. BEVERE: Bates stamp 444.
21 A The two words exist, but there is a whole
22 sentence there.
23 Q Doesn't say he has nightmares on
24 July 9th, 2004?
25 A "Decreased victimization nightmares."
00092
1 Q On August 5th, 2005, "Patient
2 having nightmares of falling." See that?
3 A I'm sorry, 2005?
4 Q August 5th, 2004.
5 A 2004.
6 MR. BEVERE: 442.
7 Q I'm going in chronological order,
8 Doctor.
9 A That's fine; but as you know, this is not
10 chronologically, the -- the records here. Okay.
11 Once again, you said August?
12 JUDGE CURRAN: Thank you. With
13 all due respect, I don't know what Miss Smith
14 does or doesn't know, so that last comment is
15 stricken.
16 Miss Smith is now saying to you
17 she is questioning in chronological order. And
18 Mr. Bevere is giving you the Bates stamps in
19 chron -- Bates stamp numbers in chronological
20 order.
21 Q When Mr. Bevere questioned you,
22 you were able to find the notes, the Dr.
23 Almeleh's notes by date, right? Can we agree by
24 that?
25 A Okay.
00093
1 Q So now we are on September 7th,
2 2004. "Still has nightmares," right?
3 A Yes.
4 Q September 23rd, 2004, "Nightmares
5 continue," right?
6 A Yes.
7 Q October 7th, 2004, "Nightmares
8 continue," right?
9 A October 7th, 2004?
10 Q Uh-huh.
11 A Yes, let me just see. Yeah, "Nightmares
12 continue."
13 Q "Nightmares continue."
14 October 21st, 2004, "Nightmares continue,"
15 right?
16 A Yes, at the end of -- yeah, uh-huh.
17 Q November 18th, 2004, "Still having
18 nightmares," right?
19 A Yes.
20 Q November 30th, 2004, "Patient
21 still having nightmares. Nightmares continue,"
22 right?
23 A Yes.
24 Q January 13th, 2005, "Nightmares
25 continue," right?
00094
1 A January 7th?
2 Q January 13th --
3 A 13th.
4 Q -- 2005, "Nightmares continue"?
5 A Yes.
6 Q February 3rd, 2005, "Frightening
7 dreams continue"?
8 A That is related to something else. It
9 says here --
10 Q Wait a minute. Wait a minute.
11 You're on February?
12 A 3rd.
13 Q 3rd. "Stress, intolerance and
14 frightening dreams continue"?
15 A But that's related to something else.
16 Q How do you know that's related to
17 something else?
18 A Well, it says -- this is called the --
19 his report starts here, "Patient" and so on.
20 Q Yeah, he is describing an incident
21 which, you know, the Court has said is not
22 admissible.
23 A This is what you are addressing.
24 Q No, "Patient is extremely
25 frightened. Patient wants to leave apartment.
00095
1 Frightened to be there. Feels torn. Does not
2 want to put dogs in kennel. Stress, intolerance
3 and frightening dreams continue."
4 It doesn't say the frightening dreams
5 are only related to the one thing that, you
6 know, this jury has been told they can't hear?
7 A You brought --
8 MR. BEVERE: Judge, I am going
9 to -- objection.
10 A Leave apartment --
11 JUDGE CURRAN: Sir, just answer
12 her question.
13 Mr. Bevere --
14 THE WITNESS: Okay.
15 JUDGE CURRAN: -- will follow-up
16 if that's necessary.
17 The question is?
18 BY MS. SMITH:
19 Q It says, "frightening dreams
20 continue," doesn't it?
21 A Yes.
22 Q February 10th, 2004, "Frightening
23 dreams continue," right?
24 A Yes.
25 Q February 17th, 2005, "Frightening
00096
1 dreams continue," right?
2 A Yes.
3 Q February 24th, 2005, "Patient
4 continues with nightmares"?
5 A Yes.
6 Q March 10th, 2005, "Continues with
7 disturbed sleep and diffuse anxiety. Nightmares
8 continue," right?
9 A Yes.
10 Q March 24th, 2005, "Nightmares
11 continue," right?
12 A The date, please?
13 Q March 24th, 2005.
14 A Yes.
15 Q 4/25/05, April 25th, 2005,
16 "Nightmares continue," right?
17 A On the anniversary, yes.
18 Q Yeah, and -- and Mr. Carter was
19 aware of the anniversary, wasn't he? See how he
20 says, "Today is anniversary of firehouse event?"
21 You see where it says that --
22 A Yes.
23 Q -- in Dr. Almeleh's notes?
24 A Yes.
25 Q Let's start 4/25/05. "Patient
00097
1 taking Prozac and Adderall," right? "Very upset
2 about Peter, who is a 'basket case,'" right?
3 A Yes.
4 Q Is that what Dr. Almeleh wrote?
5 A Yes.
6 Q "Peter is not his old self," in
7 quotes, right?
8 A Yes.
9 Q "They are not getting along.
10 Peter feels overwhelmed. 'He used to be so
11 meticulous.' Patient states, 'Peter can't even
12 concentrate now.'" You see that?
13 A Yes.
14 Q "Patient still taking Valium prn
15 5 milligrams and Adderall. Discussed his
16 relationship with Peter." And then it says,
17 "Today is anniversary of firehouse event.
18 Patient very upset how his life has changed so
19 much since then." You didn't tell the jury
20 about that reference yesterday when you were
21 talking about Mr. Carter, did you?
22 A I'm not sure. Probably -- specifically
23 this, probably not.
24 Q Okay. And then it says,
25 "Nightmares continue," right?
00098
1 A Yeah, at the end of every -- yeah.
2 Q And on May 9th, 2005, "Patient
3 still has nightmares of Secaucus events."
4 That's what it says, right?
5 A Yes.
6 Q And on May 17th, 2005, "Feelings
7 of helplessness and vulnerability has increased
8 and so has nightmares relating to firehouse
9 event." You see that?
10 A Yes.
11 Q May 23rd, 2005, "Still has
12 nightmares." See that?
13 A On May 23rd?
14 Q May 23rd, 2005.
15 A Yes.
16 Q June 2nd, 2005, "Has trouble
17 sleeping and has nightmares," right?
18 You're reading it. Let's read it
19 together. June 2nd, 2005. It says, "Patient
20 accepted for vocational rehabilitation," right?
21 A Yes.
22 Q "Problems with Peter continue, now
23 that Peter is now at home, although Peter seems
24 more relaxed," right?
25 A Yes.
00099
1 Q "PTSD symptoms continue," right?
2 That's what Almeleh -- Dr. Almeleh wrote, right?
3 A Yes.
4 Q "Patient hypervigilant, diffusely
5 anxious and has trouble sleeping and has
6 nightmares," he wrote that, right?
7 A Yes.
8 Q June 8th, 2005, "Nightmares
9 continue," right?
10 A Yes.
11 Q "Patient remains hypervigilant,"
12 right?
13 A Yes.
14 Q June 15th, 2005, the nightmares
15 are still continuing, right?
16 A On when? June?
17 Q June 15th, 2005.
18 A June 15th, yes.
19 Q Now, June 15th talks about
20 something else that you didn't mention to the
21 jury yesterday, an event that Mr. Carter related
22 to you in great detail when you met with him,
23 when he was called for jury duty, right? You
24 didn't tell the jury about that, did you?
25 A June 15th, you said?
00100
1 Q Don't the notes of June 15th read,
2 "Patient cried and was totally intimidated when
3 he reported for jury duty 12/15/04 and was
4 dismissed"? You see that?
5 A On -- on --
6 Q 6/15/04. You see that? On
7 June 15th --
8 A Yes, yes, I see.
9 Q Do you see the last entry?
10 A The last?
11 Q "Patient cried and was totally
12 intimidated when he reported for jury duty
13 12/15/04 and was dismissed," right?
14 A Uh-huh, yes.
15 Q Mr. Carter told you about that
16 event, didn't he?
17 A Yes.
18 Q It was significant to him, wasn't
19 it?
20 A Yes, he reported it.
21 Q He told you that he went to the
22 courthouse and he broke out in a cold sweat,
23 right?
24 A Yes.
25 Q And there was a woman there that
00101
1 has a -- supposed to run things and over the
2 microphone she said his name, right? Do you
3 have any recollection of this, Doctor?
4 A I recall this document, yes. Not in
5 details but --
6 Q If you can just pay attention to
7 my questions, then we'll get through this a lot
8 more quickly, okay?
9 And he told you that he was afraid
10 there were people there from Secaucus in that
11 jury room, right?
12 A I don't remember. Yes, I read it here.
13 Q Okay. Okay. And he saw somebody
14 who he thought lived in Secaucus, right?
15 A "I saw or thought I saw people from
16 Secaucus."
17 Q He went to the bathroom and
18 started vomiting, right? And someone came to
19 him and said, "Do I need to call an ambulance,"
20 right? And they took him to the court
21 administrator and the court administrator called
22 his doctor from the courthouse. Mr. Carter told
23 you that, right?
24 A I don't recall all those details, but he
25 did mention this.
00102
1 Q You didn't tell the jury about
2 that event yesterday, did you?
3 A No.
4 MR. MULLIN: I didn't hear the
5 answer.
6 THE WITNESS: I said no.
7 BY MS. SMITH:
8 Q June 27th, 2005, "Still has
9 nightmares of helplessness and vulnerability,"
10 Dr. Almeleh wrote that, right?
11 A Can you tell me the -- give me the date
12 again?
13 Q June 27, 2005.
14 A June 27th, what was the question?
15 Q The -- Dr. Almeleh noted that
16 Mr. Carter still has nightmares of helplessness
17 and vulnerability, right?
18 A Yes.
19 Q On July 15th, 2005, "Still has
20 recurrent nightmare of victimization," right?
21 Recurrent nightmare of victimization?
22 A On the --
23 Q That's what it says on July 15th,
24 2005, right?
25 A Yes, it does say that.
00103
1 Q That's -- and on July 21st, 2005,
2 "Still has nightmares of being chased," right?
3 A Yes.
4 Q And every visit -- the visit on
5 August 1st, 2005, "Still has recurrent
6 nightmares," right?
7 A Yes, it says that.
8 Q And September 7th, "Nightmares
9 continue," right?
10 A Yes.
11 Q September 13th, "Nightmares
12 continue," right?
13 A Right.
14 Q September 1, 2005, "Nightmares
15 continue," right?
16 A Right.
17 Q October 6th, 2005, "Nightmares
18 continue," right?
19 A When?
20 Q October 6th, 2005.
21 A Yes.
22 Q October 18th, 2005, "Nightmares
23 continue," right?
24 A Which date?
25 Q October 18th, 2005.
00104
1 A If you can tell me the number, it would
2 be faster. Okay. October when? 18? Yes.
3 Q October 25th, 2005, "Nightmares
4 continue," right?
5 A Right.
6 Q November 1st, 2005, "Nightmares
7 continue," right?
8 A On November when?
9 Q 1st.
10 A Oh, yes, yes.
11 Q November 7, "Patient still has
12 nightmares," right?
13 A Yes.
14 Q November 14, again, "Nightmares,"
15 right?
16 A Yes.
17 Q November 21st, 2005, Dr. Almeleh
18 again notes, "Nightmares continue," right?
19 A November -- November 21st?
20 Q Yes.
21 A Yes.
22 Q November 28th, 2005, "Nightmares
23 continue," right?
24 A Yes.
25 Q November -- December 16th, 2005,
00105
1 "Nightmares continue," right?
2 A November -- December 5th you said?
3 Q December 16th?
4 A I'm sorry. Yes, it says that.
5 Q December 22nd, 2005 the doctor
6 wrote, "Patient was up all night," right? You
7 see that?
8 A Yes, I do.
9 Q "Very depressed," you see that?
10 A Yes.
11 Q "Recalls events of the night at
12 the firehouse," right? This is --
13 A Yes, I see it.
14 Q This is December of 2005, right?
15 A Right.
16 Q "Cried," right?
17 A Yes.
18 Q Doctor wrote that he cried.
19 "States he was really scared"?
20 A States, yes.
21 Q Right?
22 A Yeah, he states that.
23 Q He states that, right?
24 A Yes.
25 Q And the doctor didn't say, "I
00106
1 don't believe him" in these notes, did he?
2 A No, he writes what his patient tells him.
3 Q Do you think he just writes down
4 whatever his patient tells him?
5 A This is actual -- an actual -- yeah, I
6 said.
7 Q Sometimes he puts things in
8 quotes, right? And sometimes he says, "Patients
9 states." Other times he says that he has PTSD,
10 right? It's his opinion?
11 A Talks about symptoms of PTSD, not the
12 diagnosis.
13 Q Let's show you what's been marked
14 P-29.
15 A This is not his medical record; this is a
16 letter to you.
17 Q Doctor --
18 MS. SMITH: Your Honor, can we
19 please?
20 JUDGE CURRAN: There is no
21 question, Doctor.
22 I am going to strike the last
23 comment.
24 BY MS. SMITH:
25 Q On January 19th, 2005 you want to
00107
1 add up all the hours -- all the visits that
2 Mr. Carter had or are you going to take my word
3 for it that he visited with Dr. Almeleh 85
4 times?
5 A I'll -- I'll accept it.
6 Q Okay. And in all the visits that
7 Mr. Carter had with Dr. Almeleh, Dr. Almeleh
8 decided that he has all the major symptoms of
9 posttraumatic stress disorder on January 9th,
10 2005; and he wrote that, right? Do you see that
11 Dr. Almeleh wrote that on January 9, 2005, yes
12 or no, in what I just gave you, P-29?
13 A Oh. Yes.
14 Q It says, "Prior to the firehouse
15 events in the spring of 2004 Mr. Carter had been
16 making tremendous progress with the use of
17 medication to treat his attention deficit
18 problem, and with psychotherapy his self-esteem
19 had risen and he had obtained a job." Do you
20 see that?
21 A Yes.
22 Q "After the firehouse events in the
23 spring of 2004 there has been a dramatic
24 deterioration in his psychiatric condition." Do
25 you see that?
00108
1 A I did -- I do, yes.
2 Q "His sleep is now very poor. He
3 has recurrent nightmares." You see that?
4 A Yes.
5 Q "His self-esteem has fallen
6 dramatically, and he is diffusely anxious. He
7 has all the major symptoms of posttraumatic
8 stress disorder," right? That's what this
9 doctor wrote, right?
10 A That is what he wrote.
11 Q "To this date Mr. Carter's
12 functioning remains very poor." That's what he
13 wrote, right? See the bottom paragraph?
14 A Oh. Yes.
15 Q "His symptoms of posttraumatic
16 stress disorder have not improved," that's what
17 the doctor wrote, right?
18 A Yes.
19 Q "He has lost his job. The stress
20 of recent events has caused a deterioration in
21 the relationship with his life partner. And I
22 have had to increase the frequency of his
23 treatment to once a week." See that?
24 A Yes.
25 Q And then Dr. Almeleh writes, "At
00109
1 our most recent treatment session I even
2 entertained the possibility of psychiatric
3 hospitalization." That's what his doctor wrote,
4 right?
5 A Yes.
6 Q And he spent more than two hours
7 with him, right?
8 A But it is not here. It's in this --
9 Q Doctor, could you please --
10 A Okay. I'm sorry.
11 Q -- answer my questions?
12 MS. SMITH: Judge, can we strike
13 that.
14 JUDGE CURRAN: Stricken.
15 Please answer the question. And
16 the question is: And he spent more than two
17 hours with him, right?
18 THE WITNESS: Yes.
19 BY MS. SMITH:
20 Q And in fact, the -- Dr. Almeleh
21 notes that he is treating Mr. Carter for PTSD in
22 his notes, doesn't he?
23 A Can you give me the reference?
24 Q How about -- the -- let's start
25 with May 13th, 2004.
00110
1 A May 13th, yes.
2 Q You see that?
3 A Okay.
4 Q He is continuing to treat him for
5 PTSD, you see that in the notes?
6 A Yes.
7 Q And in January of '06, January 3rd
8 of '06, "Still feels effects of PTSD," you see
9 that?
10 A January of '06?
11 Q January 3, '06.
12 A Yes.
13 Q January he also says, "He feels
14 people can hurt him, and he is frightened of
15 them," right? January 3, '06.
16 A "Intimidation," he says, not --
17 Q Doesn't say. "Feels people can
18 hurt him and is frightened of them" on
19 January 3rd, 2006? "Still feels effects of
20 PTSD." You see that?
21 A Yes.
22 Q Okay. And then it says, "Feels
23 people can hurt him and is frightened of them."
24 Do you see that?
25 A He says that, yes.
00111
1 Q Okay. And on January 11th, 2006
2 Dr. Almeleh notes, "Anxiety walking the streets
3 continues, as does nightmares." You see that?
4 A Yes.
5 Q January 17th, 2006, "Nightmares
6 intensify." You see that right in the middle?
7 A Yes.
8 Q And on January 24th, 2006 it says,
9 "Pressure of recent events, firehouse and their
10 own PTSD causes them to take it out on each
11 other." He is talking about his relationships
12 with Peter -- his relationship with Peter.
13 "Still anxious when outside. Nightmares of
14 vulnerability continue," right?
15 A Yes.
16 Q And -- and for purposes of this
17 trial we don't have any records after February
18 of 2006; is that right?
19 A That's right.
20 Q That's where they end for us?
21 A Yeah, for me too, February 20th, '06.
22 Q February of '06, right?
23 A Yes.
24 Q You said -- you said yesterday Tim
25 was content with the way his life was going. Do
00112
1 you remember saying that to this jury?
2 A I think so.
3 Q Yeah. And he told you when he met
4 with you that he had been so scared, didn't he?
5 A That he had been scared on -- on that
6 date?
7 Q He said, "I have been so scared,"
8 didn't he?
9 A On April, yes.
10 Q Huh?
11 A On April '04, April 25th.
12 Q And he said that it's difficult
13 for him to relive the events of April 2004,
14 didn't he?
15 A He probably said that to me. He
16 reported.
17 Q He told you he has suffered,
18 didn't he?
19 A I'm sorry?
20 Q He told you he has suffered?
21 A He has suffered, yes.
22 Q And he told you that Peter is
23 broken down, didn't he?
24 A Most likely he used that --
25 Q And he told you that he was very
00113
1 scared of coming to see you, right, "because
2 every time -- at least you can understand this.
3 Every time I have to relive this whole thing"?
4 He said that to you, didn't he?
5 A Most likely he did.
6 Q He said that in your testimony --
7 in your report at page 45 you said the opposite
8 of people with PTSD. "Immediately following the
9 events of April 2004 Mr. Carter acted
10 appropriately and did not panic." You said that
11 in your report, right?
12 A What number is this?
13 Q I -- page 45.
14 A Oh, 45?
15 Q Uh-huh.
16 A Okay. I found it, yes.
17 Q Okay. Were you aware that
18 Mr. Carter put newspaper up to cover the windows
19 so that the firefighters couldn't see in the
20 house?
21 A I don't think I was -- he didn't report
22 that to me.
23 Q Well, you only had one day of his
24 deposition, we can agree on that, right?
25 A Yes.
00114
1 Q Were you aware that Mr. Carter put
2 baking soda down on the porch and steps so that
3 if somebody left footprints, that he imagined
4 that he would be able to see the footprints?
5 Are you aware of that?
6 A He didn't tell me that, no.
7 Q You are aware that he would tell
8 Mr. deVries that he thought there was somebody
9 in the bushes, right? You're aware of that,
10 right?
11 A Yeah -- I'm sorry, not in the bushes
12 but -- no, that somebody rang the bell and ran
13 into the bushes, not that somebody was hiding in
14 the bushes.
15 Q Oh, he did tell you -- he told you
16 all about the ring and run, that the firemen
17 would ring their bell and run away? He told you
18 all about that, right?
19 A Yes, yes.
20 Q But you don't know from Dr.
21 Almeleh's notes or any of the interviews that
22 Mr. Carter would tell Mr. deVries that there was
23 somebody in the bushes, that he feared somebody
24 was right outside their house? You don't recall
25 that?
00115
1 A It wouldn't -- probably. I don't
2 remember exactly, but yes.
3 Q And you told the jury that Tim was
4 content with the way his life was going
5 yesterday, right?
6 A Yes.
7 Q When Mr. Carter met with you, the
8 last thing he said to you was, "Like Dorothy
9 Parker used to say, what fresh hell is this?"
10 That's what he said to you, didn't he? "What
11 fresh hell is this?"
12 A Probably. I remember vaguely.
13 Q You don't remember that?
14 A No.
15 MS. SMITH: I have no further
16 questions.
17 JUDGE CURRAN: Thank you.
18 Mr. Bevere.
19 MR. BEVERE: Judge, do you want to
20 take a lunch break?
21 JUDGE CURRAN: Sure.
22 MR. BEVERE: I mean, it might be
23 appropriate.
24 JUDGE CURRAN: Ladies and
25 Gentlemen, we will take the lunch break. Again
00116
1 I will remind you, please do not discuss the
2 case among yourselves. Please do not discuss
3 the case with anyone else.
4 Doctor, please sit down.
5 THE WITNESS: Oh, I'm sorry.
6 JUDGE CURRAN: Thank you.
7 Ladies and Gentlemen, one thing I
8 neglected to do earlier, and I apologize.
9 Obviously, Juror Number 2 is not here. And I
10 didn't want you to think anything nefarious had
11 happened to him. He has been excused from the
12 jury. He indicated to us at the very beginning
13 an obligation that he had that would preclude
14 his remaining here beyond, basically, the time
15 that he had given us. So he was excused
16 yesterday. And again, please don't in any way
17 speculate on it. He told us from the very
18 beginning about an obligation; and he,
19 therefore, has been excused.
20 Okay. Thank you. We will see
21 you at 1:30. Thank you.
22 (Whereupon, the jury is excused
23 for lunch.)
24 (Whereupon, a luncheon recess is
25 taken.)
00117
1 A F T E R N O O N S E S S I O N
2 MS. HAWKS: Jurors are
3 approaching.
4 JUDGE CURRAN: Thank you.
5 MS. HAWKS: You're welcome.
6 (Whereupon, the jury is brought
7 into the courtroom.)
8 JUDGE CURRAN: Back on the record.
9 COURT CLERK: On the record.
10 JUDGE CURRAN: Good afternoon,
11 Ladies and Gentlemen. We're going to continue
12 with the cross -- I'm sorry, the redirect of Dr.
13 Goldwaser.
14 And I am required to remind you
15 that you are still under oath.
16 THE WITNESS: Yes.
17 JUDGE CURRAN: Thank you.
18 Mr. Bevere.
19 MR. BEVERE: Thank you, Your
20 Honor.
21 REDIRECT EXAMINATION BY MR. BEVERE:
22 Q Dr. Goldwaser, how many pages was
23 your report for Mr. deVries?
24 A For Mr. deVries -- I am going to refer to
25 it -- it was 80 pages.
00118
1 Q And how long was your report for
2 Mr. Carter?
3 A Fifty-three.
4 Q Now, Doctor, what was the basis
5 for your understanding that Mr. deVries was on
6 antidepressant medication during the time that
7 he was living in Minnesota?
8 A For the treatment of mental depressive
9 disorder recurrent.
10 Q No, no, what was -- what was the
11 basis of your understanding?
12 A Oh, I see.
13 MS. SMITH: Objection, asked and
14 answered.
15 MR. BEVERE: Judge, he was clearly
16 confused by the question.
17 JUDGE CURRAN: I am going to
18 overrule the objection. The witness will be
19 allowed -- I will ask Mr. Bevere to repeat the
20 question.
21 MR. BEVERE: Sure.
22 JUDGE CURRAN: Then it will be
23 allowed. The objection is preserved.
24 BY MR. BEVERE:
25 Q What was the basis for your
00119
1 understanding that Mr. deVries was on
2 antidepressant medication while he was living in
3 Minnesota?
4 A He mentioned that. He actually said it
5 during his deposition time. He mentioned that
6 while he was there he was taking medication.
7 Q Did you review an entry in his
8 deposition to that effect?
9 A Yes.
10 Q Can you read to us from page 445
11 at the deposition starting with line 4?
12 MR. BEVERE: Objection.
13 JUDGE CURRAN: Sustained.
14 You can ask him a question, see
15 if he remembers or whatever. Why are you asking
16 him to read from --
17 MS. SMITH: Right.
18 MR. BEVERE: From Mr. deVries'
19 deposition.
20 JUDGE CURRAN: Okay. Well, you
21 have to go about that a little different way.
22 I'm sorry I interrupted you. Is
23 there any other objection?
24 MS. SMITH: I -- I object to the
25 leading; and I object to the reading of
00120
1 deposition testimony, both, Your Honor.
2 JUDGE CURRAN: Normally is
3 somewhat different. I frankly overlooked the
4 leading. I should not have. But you can't have
5 him read from Mr. deVries' deposition, certainly
6 not.
7 MR. BEVERE: Can I show him the
8 deposition to refresh his recollection?
9 JUDGE CURRAN: Any objection?
10 MS. SMITH: Yes, I have an
11 objection. This is redirect. This is beyond
12 the scope. Clearly, Mr. -- Dr. Almeleh didn't
13 claim that he relied on Mr. deVries' deposition
14 testimony for any specific --
15 JUDGE CURRAN: You mean
16 Dr. Goldwaser?
17 MS. SMITH: I'm so sorry, thank
18 you. Dr. Goldwaser has not claimed to rely
19 on -- other than that he didn't need to take
20 breaks, Dr. Goldwaser has not relied on anything
21 said in a deposition testimony in his testimony
22 either the Thursday before last or today. So
23 this is clearly beyond the scope of cross. And
24 there is no foundation either.
25 But this is clearly beyond. The
00121
1 only mention of deposition in the entire case so
2 far with regard to Dr. Goldwaser's testimony is
3 with regard to my clients didn't have PT -- one
4 example of why they didn't have PTSD is because
5 they could sit through depositions. Nothing
6 specific out of any deposition was -- has been
7 mentioned by Dr. Goldwaser.
8 JUDGE CURRAN: That's my
9 recollection, Mr. Bevere. If you want to go to
10 sidebar, we can go to sidebar?
11 MR. BEVERE: I don't want to go to
12 sidebar. He can quote from a deposition, part
13 of his report, part of the materials he reviewed
14 in and relied on in coming to the conclusions in
15 his case.
16 JUDGE CURRAN: What's the proffer,
17 then? You asked him a question. He answered
18 it. What's the basis for then having him read
19 the deposition testimony? Is it to refresh his
20 recollection? Because if so, it's not going
21 to -- it can't be done that way.
22 MR. BEVERE: I want the jury to
23 hear the testimony.
24 JUDGE CURRAN: That's what I was
25 thinking here, Mr. Bevere; but you can't do it
00122
1 this way.
2 MR. BEVERE: All right. Your
3 Honor.
4 JUDGE CURRAN: All right. I will
5 note your objection on the record.
6 BY MR. BEVERE:
7 Q Doctor, do you recall as you are
8 sitting here today what Mr. deVries said in his
9 deposition about medication while he was in
10 Minnesota?
11 MS. SMITH: Objection, beyond the
12 scope.
13 JUDGE CURRAN: Want to go to
14 sidebar?
15 MR. BEVERE: I don't think we need
16 to go to sidebar. I will show you the --
17 MS. SMITH: No, no. Judge, I want
18 to go to sidebar because I don't like this --
19 JUDGE CURRAN: All right.
20 (Whereupon, the following sidebar
21 discussion is held.)
22 JUDGE CURRAN: What page, Mr.
23 Bevere?
24 MR. BEVERE: Judge, I'm looking at
25 page 220 of the transcript. Miss Smith asks --
00123
1 JUDGE CURRAN: I'm sorry?
2 MR. BEVERE: Miss Smith asks, page
3 220 of the transcript, "You don't have any
4 medical records whatsoever from 1994 to 2003, do
5 you?"
6 "No, I don't."
7 "In fact, on November 7th, 2003
8 Dr. Almeleh mentions Mr. deVries had been off of
9 Zoloft for seven years, didn't he?"
10 Answer, "Dr. Almeleh said he had
11 been taking medication and he changed different
12 medications. And actually, his deposition,
13 Mr. deVries said he wasn't" --
14 Miss Smith says, "Judge.
15 -- "treatment receiving
16 antidepressant by his internist that his family
17 physicians all along in Minnesota and here. And
18 Dr. Almeleh said the same thing, that he had
19 been changing Effexor and other
20 antidepressants."
21 He referred specifically to the
22 deposition.
23 MS. SMITH: I withdraw my
24 objection, Your Honor.
25 JUDGE CURRAN: Thank you. We
00124
1 appreciate it. Thank you.
2 (Whereupon, sidebar discussion is
3 concluded.)
4 JUDGE CURRAN: Mr. Bevere.
5 MR. BEVERE: Your Honor, can I
6 just look at my last question?
7 JUDGE CURRAN: Surely.
8 BY MR. BEVERE:
9 Q Doctor, as you are sitting here
10 today do you recall what Mr. deVries said in his
11 deposition about medication while he was in
12 Minnesota?
13 A Yes, he said that he was taking -- he --
14 he was taking medication for the treatment of
15 depression while he was in Minnesota during
16 those years for several years he said.
17 Q Do you know what medication that
18 was?
19 A Zoloft.
20 Q Now, Doctor, why did you tell this
21 jury yesterday that in November -- on
22 November 7th, 2003 Mr. deVries was in the throws
23 of a depressive relapse?
24 A Because according to the notes of Mr. --
25 Dr. Almeleh that I reviewed, that was when he
00125
1 resumed, once again, the treatment and Dr.
2 Almeleh recognized that he had depressive
3 relapse. And he was feeling, again, very bad.
4 He was feeling -- without energy. He started
5 going downhill. And this is why he resumed the
6 treatment. He had stopped taking the medication
7 a few months before, and he suffered a relapse.
8 And that was the beginning of that relapse.
9 Q Now, Doctor, when you testified a
10 week-and-a-half ago, did you tell us that there
11 was a period of time between November 2003 and
12 April 2005 when Mr. deVries was feeling better?
13 A Yes, clearly.
14 Q And what did you tell us that that
15 feeling was attributed to?
16 A That -- that feeling better, that surge
17 of energy was related to his having taken, as I
18 said two weeks ago, a week-and-a-half ago, he
19 started taking without a prescription a product
20 that is a combination of different types of
21 amphetamines, which is a stimulant. He had
22 started taking it at -- at around that time, the
23 beginning of -- middle of -- of December. And
24 there was that surge of energy.
25 And also, at the same time, there was
00126
1 another effect that was positive for him. He
2 started losing weight, and his appetite started
3 to be curbed. Amphetamines, this particular
4 product, Adderall, causes stop -- decreases
5 appetite. People eat less because of that. And
6 the other thing is people have more energy and
7 they actually lose weight. And he had started
8 to lose weight, as his cardiologist had
9 recommended in July, a few months prior to that
10 he should do.
11 Q And what, if any, adjustments in
12 Mr. deVries' medication were made in or around
13 March of 2004?
14 A In March the antidepressant medication
15 was discontinued. There were -- there were two
16 issues, two reasons for that. One is that he
17 was taking the Adderall, the stimulant and that
18 provided that surge of energy. The other thing
19 is the Lexapro, together with the Toprol --
20 Toprol is the medication for the heart, for the
21 heart to beat in the -- regularly. Dr. Almeleh
22 was concerned that the Lexapro was causing side
23 effects. And one of them was light-headedness
24 that can cause one to fall and so on and get
25 hurt.
00127
1 So he had a conference with the
2 cardiologist, Dr. Pumill -- that was in March --
3 in which they discussed that. And Dr. Almeleh
4 did not want to stop the Lexapro, which at that
5 time Mr. deVries didn't care much about the
6 Lexapro because the Adderall was making him feel
7 good and he was taking rapidly a lot of
8 medication. And at that time he felt well, and
9 he said he -- he liked his job and -- and he
10 was -- he was feeling good. The conversation
11 with Dr. --
12 MS. SMITH: Objection. I don't
13 know what question is being answered anymore.
14 We were starting --
15 MR. BEVERE: Judge, I will be
16 happy to ask another question.
17 JUDGE CURRAN: Thank you.
18 BY MR. BEVERE:
19 Q Okay. And what happened after the
20 Lexapro was discontinued?
21 A He started -- his -- his mood, his
22 depressive mood started to surface again.
23 Q Now, Miss Smith asked you to read
24 a notation on cross-examination of Dr. Almeleh's
25 from March 19th, 2004. And I'm going to ask you
00128
1 to -- oh, you have it in front of you?
2 A I have it here, yes.
3 Q Okay. If you could read us that
4 entry from Dr. Almeleh.
5 A March 19th, 2004?
6 Q Yes.
7 A "Patient has stopped Lexapro. Feels just
8 as well with just Adderall. Patient having" --
9 "patient having problems at work, being" --
10 either "reprimanded" or "overworked" -- "began
11 working 12 to 13 hours a day. Old" -- "Old boss
12 quit, who patient did not like. Up at 6 in the
13 morning. Goes to sleep at 11, 11:30. No naps
14 in the evening. Adderall he was taking in
15 divided doses. He was taking 80 milligrams a
16 day." And then there is an aspect here that I
17 cannot read. He was -- Dr. Almeleh told the
18 patient something, but I cannot read it. It's
19 cut.
20 Q Doctor, how long prior to this
21 entry had the Lexapro been discontinued?
22 A The Lexapro was discontinued either at
23 the end of February or at the very beginning of
24 March of 2004.
25 Q All right. Now, Dr. Almeleh also
00129
1 made an entry on April 9th, 2004. If you could
2 read us that entry.
3 A Yes, "Patient is going for interview with
4 old job. Discussed strategy. Was" -- "want to
5 go back but would like benefits as before and
6 higher salary. Patient" -- "patient" -- "I
7 think, actually, is feeling more depressed,
8 sleeping longer. Is" -- "is this
9 environmentally" -- "environment" --
10 "environmentally related to dislike of present
11 job or biological depression? Patient will
12 be" -- "will be encouraged to sleep" --
13 "encouraged to cut sleep longer," I think it
14 says, "and hopefully with old job back
15 Adderall" -- "and Adderall, he'll feel okay."
16 Problem is the beta-blockers, the
17 Toprol, the medication for the heart, and
18 increased Adderall and antidepressants that
19 would -- antidepressants that would inhibit the
20 beta-blockers, the medication for the heart. So
21 he will -- will await change of job and make
22 decisions later.
23 Q All right. So what's your
24 understanding of what was going on at this
25 visit?
00130
1 A There was a question whether this was
2 environmentally related, meaning his dislike for
3 the job that was causing this depression or it
4 was the biological, the problem with the brain
5 that cyclically will trigger depression. And
6 Dr. Almeleh did not know for sure which one it
7 was. And he was trying -- he was trying to find
8 out what was the best combination of treatment
9 to treat his depression without conflicting with
10 the medication for the heart.
11 Q Now, Doctor -- all right. Now,
12 Miss Smith asked you some questions on
13 cross-examination about nightmares?
14 A Yes.
15 Q And my question to you is: When
16 you conducted your examination of Mr. deVries,
17 were you aware that Mr. deVries had reported
18 nightmares to Dr. Almeleh?
19 A Yes.
20 Q And did you discuss the issue of
21 nightmares with Mr. deVries in your examination?
22 A Yes.
23 Q What did you discuss with
24 Mr. deVries about the nightmares?
25 A That was a symptom or phenomenon he
00131
1 brought up when I asked him about what problems
2 he was having. And he brought up that one of
3 them was having nightmares. And in discussion
4 he really came up with three nightmare or
5 anxiety dreams that he had.
6 Q And did you include those
7 discussions in your report?
8 A Yes.
9 Q How do you account for
10 Mr. deVries' report of nightmares in regard to
11 your opinions and conclusions in this case?
12 A At the time that he was reporting it to
13 the treating psychiatrist back then, what we see
14 written here is the report of nightmares,
15 period. There is no description of a nightmare.
16 There is no interpretation of the nightmare. A
17 nightmare -- a dream, in general, means many
18 different things. It doesn't -- doesn't mean
19 what we remember. It means many other things.
20 There are many distortions in a dream. There is
21 no -- and -- and with Dr. Almeleh, he was doing
22 psychotherapy and medication, he told me. And
23 the same he was doing with Miss Hines.
24 There is no -- there is no exploration
25 of these dreams, which is one of the aspects
00132
1 that we do when we treat posttraumatic stress
2 disorder, because we have access to unconscious
3 processes, processes that we are not aware of,
4 that only manifest when we are sleeping. There
5 is nothing here other than the report of dreams,
6 including, when he later on went for a -- an
7 IME, he reported that he was having nightmares
8 also and he had reported for a long time
9 nightmares.
10 and when Dr. Bursztajn asked him for a
11 nightmare, he couldn't come up with any. And he
12 was given a homework assignment to bring a
13 dream. When he came to me, he already had three
14 dreams that he readily -- and one of them was a
15 classical one, as he saw it and as he defined
16 it, as he thought it to mean this is a very good
17 one.
18 Q Now, Doctor, you used a term
19 "self-reporting" in response to one of
20 Miss Smith's questions. What does
21 "self-reporting" mean?
22 A Meaning it's -- if it is -- if it is true
23 or it is not, if it exists or it does not exist,
24 there is no way of knowing because there is
25 somebody that is reporting. In a treatment
00133
1 situation it's different -- different than in a
2 forensic situation. In a treatment situation we
3 trust. We are supposed to trust because that is
4 how we build a relationship that is curative.
5 It helps to heal.
6 In a forensic setting it's very
7 different. It's something that the person tells
8 us who is in litigation situation. We need to
9 be able to -- to find it, to find objectively
10 what the person or the examinee is reporting
11 subjectively. It's totally different than
12 taking it at face value when we actually treat
13 somebody. They are two different procedures.
14 Q Now, Doctor, there was also -- I
15 guess, Doctor, my question was: How did you
16 account for the reports of nightmares in
17 reaching your conclusions and opinions in this
18 case?
19 MS. SMITH: Objection, asked and
20 answered.
21 JUDGE CURRAN: I will overrule it
22 at this point.
23 BY MR. BEVERE:
24 A Based on -- based on what he reported and
25 based on what at the same time I learn about him
00134
1 from all the other records, including my meeting
2 with him, but much later, at the time he was
3 reporting all this I couldn't give to -- to the
4 report of nightmares of either individual any --
5 any particular weight. It is described as in
6 PTSD, posttraumatic stress disorder, the
7 possibility they will note it; but it doesn't
8 happen all the time. But it does happen, the
9 presence of nightmares.
10 In this particular situation, where I
11 said, I remembered, two weeks ago that we
12 monitor for feelings, thoughts or thinking and
13 actions to be able to -- to understand and reach
14 a conclusion, a diagnosis of treatment. And is
15 on -- based on all that I could not give to this
16 report of dreams -- of anxiety dreams much
17 weight.
18 Q All right. Now, Doctor, we also
19 talked about the issue of avoidance. And
20 Miss Smith asked you if you were aware that
21 Mr. deVries stopped seeing Dr. Pumill because he
22 was in Secaucus. What, if any, discussions did
23 you have with Mr. deVries about that issue?
24 A Yes, he told me that months later --
25 right now I don't remember exactly when. It was
00135
1 after -- I believe after he moved out of
2 Secaucus he continued seeing his doctors, not
3 just the cardiologist but other doctors, even
4 though he was not living in the area anymore and
5 he was doing a lot of activities in that -- in
6 that area of Secaucus.
7 He said that he was in the waiting
8 room, sharing the waiting room with other
9 patients waiting for Dr. Pumill and somebody
10 came in that he thought was a fireman and then
11 he -- I believe this is what he told me -- I'd
12 have to read it again -- he went to the bathroom
13 or he immediately got up and pretended to go to
14 the bathroom and maybe he went to the bathroom
15 or maybe not, I'm not sure. But then he never
16 went back to that office because he felt very
17 afraid that that person that came to the office
18 of the doctor, he thought, was a fireman,
19 firefighter.
20 Q In your report does Mr. deVries
21 say when that happened?
22 A It was sometime months after he had moved
23 out of there, of Secaucus. Yes, it was in
24 January of 2006.
25 Q Okay. Doctor, I'm going to show
00136
1 you what was P-38, Bates stamp 483, and ask you
2 if you know what this is.
3 MS. SMITH: Sorry, what are you
4 showing him?
5 MR. BEVERE: Bates stamp 483 from
6 P -- Dr. Pumill's records, which is P --
7 JUDGE CURRAN: 38.
8 MR. BEVERE: -- 38.
9 MS. SMITH: What Bates stamp
10 number?
11 MR. BEVERE: 483.
12 BY MR. BEVERE:
13 A Yes, it's a --
14 MR. MULLIN: Hold it a second.
15 THE WITNESS: I'm sorry.
16 MR. MULLIN: That's okay.
17 What was the Bates again?
18 MR. BEVERE: 483.
19 MR. MULLIN: In P-38?
20 MR. BEVERE: Yes.
21 MR. MULLIN: Can you show it to
22 me, please?
23 MR. BEVERE: Sure.
24 MR. PARIS: What's the Bates
25 stamp, please?
00137
1 MR. BEVERE: 483.
2 MR. MULLIN: P-104.
3 MR. BEVERE: I'm sorry, P-104,
4 Bates stamp 483.
5 BY MR. BEVERE:
6 Q Doctor, can you tell us what this
7 is?
8 A Yes, this is -- it's called an
9 "echocardiogram." It's a test to see how the
10 heart is functioning, how the heart looks. It's
11 a test done on May 18th, 2006.
12 Q Who performed the test?
13 A Dr. Pumill.
14 Q And what office?
15 A In Secaucus.
16 Q What --
17 MS. SMITH: Where does it say --
18 objection. Where does it say where -- that's
19 where it was conducted?
20 MR. BEVERE: Office --
21 MR. MULLIN: That is the referring
22 doctor.
23 MS. SMITH: That is the referring
24 doctor. That doesn't say where it was
25 conducted.
00138
1 BY MR. BEVERE:
2 Q Doctor, who conducted the test?
3 MS. SMITH: And how do you know?
4 I would like foundation, please, Your Honor.
5 A This is --
6 JUDGE CURRAN: Well --
7 MR. BEVERE: Judge -- Judge, I
8 will be happy to come to sidebar, if you want to
9 do it there.
10 MS. SMITH: I would like to come
11 to sidebar, Your Honor.
12 JUDGE CURRAN: Thank you.
13 (Whereupon, the following sidebar
14 discussion is held.)
15 MS. SMITH: This is a report from
16 Cross-Country Cardiology in Edgewater, New
17 Jersey.
18 JUDGE CURRAN: May I just see it?
19 Oh, thank you.
20 MS. SMITH: The referring doctor's
21 office is in Secaucus. The referring doctor
22 is --
23 MR. BEVERE: Judge, let me get the
24 other cardiology records.
25 JUDGE CURRAN: Mr. Bevere, if you
00139
1 look at just the letterhead, forget the legal
2 aspects, it -- it's signed by Dr. Pumill --
3 Pumill.
4 MR. BEVERE: Yes.
5 JUDGE CURRAN: He is on the
6 letterhead, and he is on the letterhead only
7 with an Edgewater address.
8 MR. BEVERE: Every one of his
9 records has a heading of an Edgewater address.
10 And it was the testimony in this case that the
11 plaintiffs saw him in Secaucus. And it is --
12 the plaintiff's testimony was that he never saw
13 Dr. Pumill again after he saw those people in
14 the office. So he ran from his cardiologist.
15 JUDGE CURRAN: So he has more than
16 one office?
17 MR. BEVERE: Apparently --
18 apparently, there is an Edgewater office. But
19 importance of the testimony is that
20 Mr. deVries -- Mr. deVries said that he never
21 saw Dr. Pumill again after he ran out of his
22 office. That was the testimony.
23 MR. MULLIN: Who are you saying
24 did this?
25 MR. BEVERE: Dr. Pumill.
00140
1 MR. MULLIN: That's who signs off
2 on this document. Who actually did the test?
3 This is in an Edgewater office.
4 MR. BEVERE: Every --
5 MS. SMITH: There is no good faith
6 basis for this, Judge.
7 MR. BEVERE: Every one of the
8 records -- every one of the Cross -- if you
9 look --
10 MS. SMITH: What does that prove?
11 MR. BEVERE: Go to 12/14/04, when
12 we know he was seeing Dr. Pumill in Secaucus.
13 MS. SMITH: There is no good faith
14 basis for this. He was -- he should have done
15 this with my client, if he was going to do this,
16 Your Honor. There is no good faith basis that
17 my client went to Secaucus for this test, none.
18 MR. MULLIN: He is confronting
19 this witness with a prior inconsistent statement
20 he alleges of Mr. deVries. He should have
21 confronted Mr. deVries. This is an improper use
22 of a prior inconsistent statement.
23 MR. BEVERE: Judge, Mr. deVries'
24 statement as reported by this witness was that
25 he never saw Dr. Pumill -- never went back -- he
00141
1 was my cardiologist; I never went back to Dr.
2 Pumill again. That was the witness' testimony.
3 Now, here it is in May of 2006 --
4 MS. SMITH: That is not his
5 testimony. He said, "I had to change
6 cardiologists." He said he didn't go back to
7 Secaucus.
8 JUDGE CURRAN: He said he
9 basically had to give up his cardiologist.
10 Whether he said he never went back or not, I
11 don't know. You may be right about that. The
12 problem is I need a good faith basis for the
13 fact that there is something that happened in
14 Secaucus with Dr. Pumill. Either he did or
15 didn't do the test. Maybe the test -- sometimes
16 people send individuals to cardiac labs or
17 something for all I know.
18 MR. BEVERE: Judge, let me see if
19 I can find -- let me see if I can find something
20 because, first of all, it's signed -- it's
21 signed by Dr. Pumill. It's signed by --
22 Mr. deVries testified that he never went back to
23 Dr. Pumill, he lost his cardiologist, he had to
24 find a new cardiologist. That was his
25 testimony.
00142
1 MR. MULLIN: Is counsel going to
2 produce Dr. Pumill?
3 MR. PARIS: What difference does
4 that make?
5 MR. MULLIN: Counsel hasn't listed
6 Dr. Pumill as a witness. And why didn't counsel
7 confront Mr. deVries with this alleged prior
8 inconsistent statement, so he could explain? If
9 he had, Mr. deVries would have testified that
10 this test was done near the Palisades Hospital
11 on the Hudson in Edgewater. This -- I -- I make
12 that proffer. Mr. deVries, had he been
13 confronted, would have straightened this out in
14 a second. That's where -- he never went back to
15 get a test in Secaucus during this time period.
16 JUDGE CURRAN: Do you have
17 anything?
18 MR. BEVERE: Let me look for
19 something. Let me look for something.
20 JUDGE CURRAN: At this point in
21 the game -- I'm not saying it would be
22 dispositive; but if we had a Yellow Page ad that
23 listed a --
24 MR. MULLIN: Interesting.
25 JUDGE CURRAN: -- a Secaucus
00143
1 address currently, at least that would be a -- a
2 basis.
3 MR. BEVERE: Okay. Let me go to
4 the records. Okay. Let me go to --
5 MR. PARIS: Your Honor, in fact,
6 all of the records show an Edgewater address.
7 JUDGE CURRAN: Right, that's what
8 Mr. Mullin said.
9 MR. PARIS: Even when he was going
10 to Secaucus.
11 JUDGE CURRAN: I know. But I
12 don't know --
13 MR. BEVERE: Here is
14 echocardiogram report. Echocardiogram report --
15 MS. SMITH: So what?
16 MR. BEVERE: -- Peter deVries,
17 dated 7/27/01.
18 MS. SMITH: What does that prove
19 where it happened?
20 MR. BEVERE: I am going to show
21 you where it happened.
22 JUDGE CURRAN: Same letterhead?
23 MR. BEVERE: Same letterhead,
24 okay, Edgewater, New Jersey. Edgewater, New
25 Jersey. Here is Raffaelli.
00144
1 JUDGE CURRAN: That is at least a
2 decent proffer.
3 MR. BEVERE: Raffaelli.
4 Raffaelli. Here the office is Edgewater. Here
5 the office is Secaucus. Dr. Raffaelli isn't in
6 Secaucus.
7 MR. MULLIN: Your Honor, that
8 doesn't tell us where these tests were done.
9 You know, there was another office that -- there
10 was another office --
11 MR. BEVERE: Says, "Office:
12 Secaucus."
13 MR. MULLIN: Mr. deVries went
14 to -- to get tests, and that was in Edgewater.
15 MS. SMITH: If they cross-examined
16 Mr. deVries about this -- they are trying to
17 impeach Mr. deVries through this witness, and he
18 doesn't have a chance to answer.
19 MR. PARIS: What they tried to do
20 is impeach Dr. Goldwaser about his understanding
21 about losing Dr. Pumill, and Miss Smith
22 cross-examined extensively about Mr. deVries
23 walking out of the Secaucus office and losing
24 his cardiologist and never going back again.
25 MS. SMITH: No, I didn't say,
00145
1 "never going back again." He said he changed
2 cardiologists.
3 MR. PARIS: Yeah, and he said he
4 never went back to Secaucus again.
5 MS. SMITH: Right. And he will
6 testify to that again, if you would have
7 cross-examined him; but you didn't.
8 MR. PARIS: Your Honor, they want
9 to know a good faith basis for putting this
10 forward, when there is a echocardiogram
11 specifically saying Edgewater office and this
12 one says a Secaucus office. They want to know
13 if there is a good faith basis. They raised
14 question about Dr. Pumill.
15 JUDGE CURRAN: I mean, that's at
16 least good faith.
17 MR. PARIS: Of course, it is.
18 JUDGE CURRAN: I have never seen
19 letterhead -- you know, most of the time
20 doctors, like lawyers, like to put 14 locations
21 down; but that doesn't matter. They --
22 MR. MULLIN: I'm sorry?
23 JUDGE CURRAN: Is that '01.
24 MR. PARIS: The '01 report says
25 Edgewater.
00146
1 JUDGE CURRAN: Edgewater on --
2 MR. BEVERE: '06 report says
3 Secaucus.
4 JUDGE CURRAN: Poor Tracey, I
5 don't know how you can type with us waving
6 things in front of you.
7 Certainly, the letterhead on the
8 '01 and the '06 says, as an address only,
9 "Edgewater."
10 Now, in fairness, the '01 says as
11 office Edgewater --
12 MR. PARIS: Uh-huh.
13 JUDGE CURRAN: -- and the '06 says
14 as office Secaucus. So that's -- it's a --
15 MR. PARIS: Of course.
16 JUDGE CURRAN: -- a fair proffer.
17 MR. MULLIN: Your Honor, can I
18 make my objection under Rule 613, prior
19 statements of witnesses. "613B, Extrinsic
20 evidence of prior inconsistent statement of
21 witness. Extrinsic evidence of a prior
22 inconsistent statement made by a witness may, in
23 the judge's discretion, be excluded, unless the
24 witness is afforded an opportunity to explain or
25 deny the statement and the opposing parties
00147
1 afford an opportunity to interrogate on the
2 statement or the interests of justice as
3 otherwise required. This rule does not apply to
4 admissions of a party opponent as defined in
5 803B."
6 Let's start with this is not an
7 admission of Mr. deVries, so this is extrinsic
8 evidence. To -- this is what they claim to be
9 an inconsistent statement. What Mr. deVries
10 claimed, he didn't go back to Secaucus at some
11 point in time for treatment. So this is
12 extrinsic evidence. They did not afford
13 Mr. deVries an opportunity to explain or deny
14 this alleged prior inconsistent statement. We
15 did not have an opportunity to interrogate on
16 the statement.
17 MS. SMITH: Let me tell you
18 something else. Doesn't say what they said it
19 said. Mr. -- he -- we just heard the question
20 that he never went back again. Actually, the
21 statement was, "That's when I decided I have to
22 find another cardiologist."
23 JUDGE CURRAN: That -- that's what
24 Mr. deVries may have said. I didn't remember
25 his saying that. However, I thought you were
00148
1 referring to the question of Miss Smith this
2 morning about --
3 MR. PARIS: Of course.
4 JUDGE CURRAN: -- not going back
5 again, not Mr. deVries.
6 MS. SMITH: I don't think I said
7 not go back again. He changed cardiologists.
8 JUDGE CURRAN: Well, that I think
9 is the question.
10 MR. PARIS: Wait a minute.
11 MR. BEVERE: Judge, there is
12 another issue too.
13 MR. PARIS: Excuse me. Number
14 one, that rule does not apply. This is not an
15 extrinsic statement of Mr. deVries, so this is
16 not a prior inconsistent statement of
17 Mr. deVries, number one. So that rule doesn't
18 apply.
19 Number two, what Miss Smith seems
20 to be reading from is the interview between
21 Mr. deVries and the doctor, okay, not
22 Mr. deVries' testimony. This morning Miss Smith
23 went into great detail about how Mr. deVries
24 threw up and wouldn't go back again. And she
25 was questioning --
00149
1 MS. SMITH: No, I didn't.
2 JUDGE CURRAN: I think thrown up
3 was Mr. Mr. Carter, I think, in the courthouse.
4 And we can understand that for different reason.
5 MR. PARIS: No, no, she said
6 Mr. deVries went into the bathroom.
7 JUDGE CURRAN: Yes, she did -- or
8 headed for it. And there was a question as to
9 whether or not he used it.
10 MR. PARIS: Exactly. And he never
11 went back again. Now she is impeaching our
12 witness, when this is in the file, when this is
13 there and he has a basis for saying that's not
14 necessarily true. Didn't cross-examine him --
15 MR. BEVERE: Judge, there is
16 another basis too in --
17 JUDGE CURRAN: I'm sorry.
18 MR. BEVERE: In May of '06 there
19 is a medical record that at least indicates that
20 Mr. deVries was still going to the cardiologist
21 in Secaucus. I think that refutes a claim of
22 avoidance under PTSD. I think it's relevant on
23 that basis.
24 MR. PARIS: On the psychological
25 issue. He can give it whatever weight he wants.
00150
1 JUDGE CURRAN: I thought it was
2 being presented in regard to avoidance, but
3 maybe I'm just slow. That's what I thought --
4 that was my understanding. I will note your
5 objection on the record.
6 MS. SMITH: Okay, Judge.
7 JUDGE CURRAN: It's preserved, but
8 I am going to allow them. I find that -- hold
9 on. Just so the record is clear, I find that
10 there is a basis.
11 Can you just put the numbers of
12 those two documents, Bates stamp numbers, on the
13 record, so they can be located?
14 MR. BEVERE: P-00108 is the Bates
15 stamp number.
16 JUDGE CURRAN: And that's for
17 which date?
18 MR. BEVERE: That's under P-38.
19 And that is for the November 27 --
20 November 1st -- November 27th, 2001.
21 JUDGE CURRAN: Okay.
22 MR. BEVERE: And the second
23 document, which is under P-104, is Bates stamp
24 483; and it bears a date of May 18th, 2006.
25 JUDGE CURRAN: And the first
00151
1 document is the one that says --
2 MR. BEVERE: Edgewater.
3 JUDGE CURRAN: -- "Edgewater"?
4 The other document says, "Office: Secaucus."
5 MR. BEVERE: Secaucus.
6 JUDGE CURRAN: The objection is
7 preserved.
8 MS. SMITH: Thank you.
9 JUDGE CURRAN: Thank you.
10 (Whereupon, sidebar discussion is
11 concluded.)
12 MR. BEVERE: Judge, I'm sorry, I
13 need to look at my last questions and see what
14 was asked and what was answered and what wasn't,
15 so I won't run afoul.
16 BY MR. BEVERE:
17 Q I'm sorry, Doctor, only one more
18 question. Where on the form does it indicate
19 the test was conducted?
20 MS. SMITH: Don't point. I
21 object, Your Honor, to leading. He is pointing
22 to the document.
23 JUDGE CURRAN: Sustained.
24 MR. BEVERE: All right. Judge, I
25 won't lead the witness.
00152
1 BY MR. BEVERE:
2 Q Doctor, Miss Smith asked you
3 yesterday about Mr. deVries not wanting to take
4 a job in Secaucus after April 25th, 2004. And
5 my question to you is: How did you account for
6 that in reaching your opinions and conclusions
7 in this case?
8 A He started a new job a few months prior,
9 leaving one job for another; and then he did
10 not -- he was not comfortable in this job,
11 didn't like that job, wanted to go back to the
12 previous one and was negotiating, was conducting
13 some strategies with his psychiatrist. And he
14 wanted a better salary, he wanted same benefits
15 or things like that. Then eventually he did not
16 take that job.
17 Q I guess my question is, Doctor,
18 did Mr. deVries tell you in your interview that
19 he didn't want that job?
20 MS. SMITH: Objection, leading.
21 JUDGE CURRAN: Sustained.
22 The last question is stricken.
23 Please rephrase.
24 BY MR. BEVERE:
25 Q What, if anything, did Mr. deVries
00153
1 tell you as to the reasons why he didn't want
2 the job?
3 A He actually didn't tell me the reasons
4 why he didn't want that job. I don't recall
5 anything during my interview with him why he
6 didn't take that job in Secaucus. He might have
7 told me. I don't remember what he told me.
8 He kept on working at the job that he
9 had. And he was working 12 to 13 hours at that
10 job before the event, and he continued doing
11 that afterwards. There was nothing I remember
12 in the notes from Dr. Almeleh that indicates
13 that -- any reason why he did not take the job
14 in Secaucus. And nothing that I remember he
15 told me why he didn't take that job in Secaucus
16 either.
17 Q All right. Now, Doctor,
18 Miss Smith asked you if there were any notations
19 in Dr. Almeleh's notes from November 2003 to
20 April 2004 from Mr. deVries reference --
21 referencing any relationship issues that
22 Mr. deVries and Mr. Carter were having. And my
23 question to you is: What, if any, references
24 did you find in Dr. Almeleh's notes for
25 Mr. Carter in that period of time?
00154
1 A I remember reading in December of '03 --
2 if I'm not wrong, December 17, 18 or 19, one of
3 those three dates -- that Mr. Carter was upset,
4 saying that he was upset that Mr. deVries was
5 upset with him, the reason being because he was
6 not working, he was not financially productive.
7 And that was the subject of that visit.
8 Q Now, Doctor, I'm sorry; and when
9 was that again?
10 A December -- middle of December of '03.
11 MS. SMITH: What exhibit number?
12 MR. BEVERE: I'm going to tell
13 you. It's P-100, and it's Bates stamp 413.
14 JUDGE CURRAN: Can all the jurors
15 see that?
16 BY MR. BEVERE:
17 Q All right. Now, Doctor, do you
18 have the Barbara Hines' notes? If you can go to
19 Bates stamp 413.
20 A Yes, I have. 413?
21 Q Uh-huh.
22 A Yes, I do.
23 Q Okay. Do you know what this
24 document is?
25 A I'm sorry?
00155
1 Q Do you know what this document is?
2 A Yes.
3 Q What is it?
4 A It's a discharge summary.
5 Q Okay. For whom?
6 A For Peter deVries.
7 Q Prepared by whom?
8 A Prepared by Barbara Hines at the end of
9 the treatment.
10 Q Now, Barbara Hines writes some
11 presenting problems for Mr. deVries. Could you
12 read those?
13 MS. SMITH: Objection. Just
14 reading something into the record on -- this is
15 direct.
16 MR. BEVERE: I will rephrase.
17 JUDGE CURRAN: You need to go
18 back, okay.
19 Do you want some water?
20 BY MR. BEVERE:
21 Q Under the outcome of treatment
22 what, if anything, does Dr. Hines say about
23 Mr. deVries and Mr. Carter's relationship?
24 A She describes that the relationship has
25 been strained by the partner's, Mr. Carter's,
00156
1 unemployment and severe ADD.
2 Q Now -- sorry, Doctor, what was the
3 date of the discharge summary?
4 A May 24, '05.
5 Q Now --
6 A No, I'm sorry, session ending -- it's
7 interesting. Says 5/18/05, May 18th, '05.
8 Q Now, Doctor, you testified
9 yesterday on cross-examination about Mr. deVries
10 and Mr. Carter calling the police?
11 A Yes.
12 Q Why did you find that it was
13 significant that Mr. deVries and Mr. Carter call
14 the police while -- during the incident?
15 A Well, it's significant because they
16 called for help, to put an end to whatever was
17 going on that was threatening, frightening them.
18 They -- Mr. Carter woke up Mr. deVries.
19 Mr. deVries came downstairs. I believe this is
20 how sequence went. But the assessment was they
21 are not quieting down or the threats are not
22 less intense, and they decided that they had to
23 call the police.
24 Q And why was that significant to
25 you in your ultimate opinions and conclusions in
00157
1 this case?
2 A They took the appropriate action. They
3 took action. They did -- they were not
4 paralyzed with the fear that we would expect
5 when somebody that is paralyzed by a trauma that
6 will threaten one's sense of identity, that will
7 destroy us physically or destroy us mentally.
8 They were able to assess it and decide that the
9 proper action was to call the police. It
10 appears to be an insignificant event, but people
11 in the throw -- yeah, people, not patients,
12 people in the throw of an experience like that
13 most often don't react appropriately.
14 Q Now, Doctor, Miss Smith asked you
15 about two letters. One was a letter dated --
16 and I'll get it. P-101. One was a letter dated
17 January 23rd, 2005. And the other was a letter
18 dated January 9th, 2005. And can you tell us
19 what these letters are, first, starting with the
20 one of January 9th and second with the one dated
21 January 23rd?
22 A Yes, the first letter of January 9th,
23 2005 is a letter from a Dr. Almeleh to Smith
24 Mullin, to the attorneys, concerning Mr. Timothy
25 Carter. And the other letter, couple of weeks
00158
1 later, was also from Mr. -- Dr. Almeleh to the
2 same, Smith Mullin, attorneys, concerning
3 Mr. deVries.
4 Q And in the letter for Mr. deVries
5 does Dr. Almeleh -- what -- what does Dr.
6 Almeleh say about posttraumatic stress disorder?
7 A Essentially, he says that Mr. deVries'
8 diagnosis is posttraumatic stress disorder and,
9 secondarily, major depressive disorder.
10 Q I'm sorry, Doctor, the date of the
11 letter, again, is?
12 A The date of the letter is January 23 --
13 23rd, '05.
14 Q Okay. Now, Doctor --
15 MS. SMITH: Do you want to tell
16 me, please, what you have in front of the jury?
17 MR. BEVERE: Yes, this is P -- the
18 Bates stamp is 461, and the exhibit number is
19 P-102.
20 MS. SMITH: Thank you.
21 BY MR. BEVERE:
22 Q Doctor, I'm going to show you
23 what's been marked as P-102, Bates stamp 461 for
24 Identification and ask you if you recognize
25 that?
00159
1 A Yes.
2 Q What is that?
3 A It's a request for disability benefits.
4 Q And what's the purpose of this
5 form?
6 A To describe the --
7 MS. SMITH: Objection. Objection,
8 foundation, what the purpose of the form is.
9 JUDGE CURRAN: Sustained.
10 MR. BEVERE: Okay.
11 BY MR. BEVERE:
12 Q Do you know -- from reading this
13 document do you have an understanding of what
14 the function of this form is?
15 MS. SMITH: Objection. It's the
16 same question.
17 MR. BEVERE: Judge, I asked him
18 for his understanding.
19 JUDGE CURRAN: I understand that,
20 but you have to -- good flip. You have to lay a
21 more significant foundation.
22 BY MR. BEVERE:
23 Q Doctor, did you review any
24 disability records for Mr. deVries?
25 A Yes.
00160
1 Q And what -- what did you review?
2 A I reviewed form that Mr. deVries filled
3 out for temporary disability in May of 2005, he
4 himself did, filled out. And also this one
5 that -- another disability form, a form to
6 request disability completed by Dr. Almeleh.
7 Q All right. And is D -- I'm sorry,
8 is P -- P-102, Bates stamp 461, a copy of that
9 form?
10 A Yes.
11 Q Does that form list a diagnosis by
12 Dr. Almeleh?
13 A Yes.
14 Q All right. And what is that
15 diagnosis?
16 A The diagnosis under number two is major
17 depressive disorder recurrent severe.
18 Q And what is the date of the form?
19 A The date of the form is November 28,
20 2005.
21 Q Does Dr. Almeleh list
22 posttraumatic stress disorder as a diagnosis
23 anywhere on the form?
24 A No.
25 Q Now, Doctor, on your
00161
1 cross-examination Miss Smith asked you to look
2 at a checklist that was in Dr. Hines' records?
3 A Yes.
4 Q Okay. What's your understanding
5 of -- well, let me ask it this way.
6 Based upon your review of the documents
7 do you have an understanding as to what the
8 purpose of that checklist is?
9 MS. SMITH: Objection, no
10 foundation.
11 JUDGE CURRAN: Sustained.
12 BY MR. BEVERE:
13 Q Doctor, did you review the
14 checklist?
15 A Yes.
16 Q Okay. What -- what's your
17 understanding as to who filled out that
18 checklist?
19 A I am going to refer to it. My
20 understanding is that Mr. deVries filled out the
21 form, this checklist.
22 Q Now -- now, Doctor, we were
23 talking before about Dr. Hines' discharge
24 summary?
25 A Yes.
00162
1 Q Okay. Based upon your review of
2 Dr. Hines' records do you know whether Dr. Hines
3 diagnosed Mr. deVries with posttraumatic stress
4 disorder?
5 A Yes, I do know.
6 Q And did she?
7 A No, she did not.
8 MS. SMITH: Excuse me. It is not
9 a doctor. Dr. Hines is not a doctor.
10 MR. BEVERE: I apologize.
11 BY MR. BEVERE:
12 Q Do you know whether the therapist,
13 Miss Hines, diagnosed Mr. deVries with
14 posttraumatic stress disorder?
15 A She did not diagnose.
16 Q Do you know what, if any,
17 condition Dr. -- I'm sorry, the therapist,
18 Barbara Hines, diagnosed Mr. deVries with upon
19 the completion of the treatment?
20 A Yes, there were two diagnosis. One was
21 called dysthymia, and the other one was
22 general -- generalized anxiety disorder.
23 Q Now -- and I'm sorry, what is
24 dysthymia?
25 A Dysthymia is a state of low mood and
00163
1 having less energy than usual, being -- feeling
2 depressed most of the time. Used to be called
3 something like "minor depressive disorder," as
4 opposed to "major depressive disorder." So she
5 diagnosed depression, basically, and anxiety as
6 the diagnosis.
7 Q Now, Doctor, you were also asked
8 by Miss Smith whether you saw any notations in
9 Dr. Almeleh's records before November of 2004
10 wherein Mr. deVries expressed displeasure with
11 his job. And I'm going to --
12 MS. SMITH: That's absolutely
13 false. I asked about October 2004 because
14 that's what he testified about. This is beyond
15 the scope. I read his testimony. His testimony
16 was November, December and a month earlier he
17 didn't like his job. A month earlier than
18 November is October, and we went through every
19 record of October.
20 JUDGE CURRAN: You want to check
21 or rephrase?
22 MR. BEVERE: Judge, I will
23 rephrase the question.
24 JUDGE CURRAN: Thank you.
25 BY MR. BEVERE:
00164
1 Q Did you note -- were there any
2 notations in Dr. Hines' records in October --
3 JUDGE CURRAN: Miss Hines'
4 records.
5 A Miss.
6 Q Miss, I apologize. Were there any
7 notations in the therapist, Barbara Hines'
8 records in October of 2004 about Mr. deVries
9 liking or not liking his job?
10 A Yes, from the very beginning --
11 Q I'm asking you about October of
12 2004.
13 A Oh, I'm sorry. October you said?
14 Q Yes -- well, Doctor, specifically
15 I'll draw your attention to the note of
16 October 13th.
17 MS. SMITH: Objection, leading.
18 JUDGE CURRAN: Sustained.
19 MR. BEVERE: Judge, if I want to
20 point his attention to a note, that's not
21 leading.
22 JUDGE CURRAN: Okay. But frankly,
23 you have to rephrase it or you have to go about
24 the whole thing in a different way --
25 MR. BEVERE: Okay.
00165
1 JUDGE CURRAN: -- because the
2 original question was more general.
3 MR. BEVERE: All right.
4 BY MR. BEVERE:
5 Q Doctor, what, if anything, did the
6 therapist, Barbara Hines, note in her notes of
7 October 2004 regarding Mr. deVries' employment?
8 MS. SMITH: I need a Bates stamp
9 number.
10 MR. BEVERE: 423.
11 BY MR. BEVERE:
12 A "Feels pressure to stay at a job that he
13 doesn't like."
14 Q And what's the date of that entry?
15 A October 13 of 2004.
16 Q What year?
17 A 2004.
18 Q Okay. All right. Now, Doctor,
19 Miss Smith asked you some questions about
20 hypervigilance and startle response. How, if at
21 all, did you account for hypervigilance and
22 startle response in reaching your opinions and
23 conclusions in this case?
24 A Yes, I paid attention to those two and
25 all the other symptoms and signs of PTSD; and I
00166
1 did not find either one. I did not find an
2 exaggerated startle response, and I did not find
3 the hypervigilance that was not there before the
4 event of 4/25/2004.
5 Q And what did you base that
6 conclusion on?
7 A An increased startle response is -- is a
8 stimulus or anything that the majority of
9 people, most people will not even be aware of
10 that people that are traumatized are so
11 sensitized to it, so sensitive that something
12 that for us really doesn't get to our radar, for
13 the people that were traumatized, that is enough
14 to trigger a very intense response.
15 And that goes along with the
16 hypervigilance, I mean, trying to minimize the
17 possibility of being subjected to something that
18 was as traumatic as that, as what -- as whatever
19 it is that caused the trauma.
20 That goes along with intrusive
21 recollections, meaning one is expecting so much
22 for this to happen that one cannot function
23 well.
24 And primarily goes along with
25 avoidance. One escapes or tries to avoid being
00167
1 in a situation where this can happen. Being in
2 the same place with -- where something happened,
3 talking about it, discussing about it, hearing
4 about it will trigger a very dramatic response.
5 And based on the fact that this
6 individual soon after the event of April 25th,
7 2004, he started a whole process of trying to
8 get people together with him, the gay community,
9 police and report and other authorities, he
10 started -- he started a lawsuit, in -- at the
11 end of June, beginning of July he started
12 creating a movie -- again, a person that needs
13 to avoid, a person that has an increased startle
14 response, a person that is hypersensitive will
15 not get involved into details of how to
16 communicate, how to spread it, how to create --
17 he was, again, as I said at the very beginning,
18 he was very upset by what happened; but there
19 was no avoidance.
20 Actions speak louder than words. He
21 says he has an exaggerated startle response.
22 His behavior throughout showed the opposite. He
23 said he could not -- he was a prisoner of his
24 home -- this is what he told Dr. Bursztajn --
25 yet he was walking his dogs. And that is what
00168
1 he told the cardiologist in May, he was walking
2 his dogs in the Town. And he was going to work
3 every day 12 to 13 hours a day, as he had been
4 doing from before.
5 Those -- all these facts go against all
6 the symptoms that DSM-IV TR, the manual, the
7 psychiatric manual, points to. And they are not
8 present here.
9 Q Now, Doctor --
10 MS. SMITH: Would you move this?
11 MR. BEVERE: Sure, sure, I'm
12 sorry.
13 MR. PARIS: I'll get it. I'll get
14 it.
15 BY MR. BEVERE:
16 Q Now, Doctor, with regard to the
17 DSM-IV and the second criteria, which is the
18 response involving intense fear, helplessness or
19 horror, how did you account for that criteria in
20 reaching your opinions and conclusions in this
21 case?
22 A The DSM presents us with a lot of
23 different symptoms, a lot of different
24 reactions. All together will make a diagnosis
25 or -- or a number of them will make a diagnosis
00169
1 of PTSD. Would help us arrive at that
2 diagnosis.
3 Here we are talking about, I'm sorry,
4 being faced with threat, helplessness or
5 horror -- fear, helplessness or horror. Based
6 on what I read that happened that night, both
7 Mr. deVries and Mr. Carter felt fear, intense
8 fear. But there was not helplessness or horror
9 as their behavior. They went outside. They
10 wanted -- they confronted the people that were
11 causing all this upheaval, all these problems.
12 They want the police to take the names, to do
13 this. They were proactive.
14 It's very different than what we see --
15 than what we see in people with PTSD,
16 posttraumatic stress disorder. They become very
17 mute. They become very shy, very fearful. They
18 want to avoid -- they want to escape, actually.
19 That is the initial response, which in this case
20 was the opposite. Mr. deVries went upstairs in
21 anger, in frustration because he understood that
22 he was not going to get the apology or they were
23 not going to be punished and so on.
24 Q All right. Now, Doctor, briefly,
25 with regard to Mr. Carter, when you saw him in
00170
1 your office, was his level of functioning
2 consistent with someone who hadn't slept in
3 five-and-a-half days?
4 A No.
5 Q Can you explain that?
6 MS. SMITH: Objection. That's a
7 complete mischaracterization of the testimony.
8 Was that Mr. Carter hadn't slept for the
9 five-and-a-half days before he saw Dr.
10 Bursztajn.
11 JUDGE CURRAN: You can check, if
12 you wish, Mr. --
13 MR. BEVERE: No, Judge, then I
14 must have misunderstood the question and I
15 will --
16 JUDGE CURRAN: The objection will
17 be sustained.
18 MR. BEVERE: I will withdraw it.
19 BY MR. BEVERE:
20 Q Doctor, did Mr. Carter report to
21 you if he was ever mugged?
22 A He was ever mugged?
23 Q Ever mugged?
24 A Yes.
25 Q Do you know when?
00171
1 A I believe it was, if I'm not wrong, in
2 April of 2005, I think.
3 Q Did Mr. Carter relate to you
4 anything about his feelings about that incident?
5 A Yes, he -- he told me that he was mugged
6 in the street, that he was -- he was afraid, as
7 naturally, and that he avoided pressing charges,
8 avoided -- I mean going on with that for fear of
9 retaliation. And he actually did not do
10 anything else about this.
11 Q Now, Doctor, when you were
12 speaking to Mr. Carter, did he have difficulty
13 in relating the events of April 25th, 2004 to
14 you?
15 A No, he did not have any difficulty
16 relating that and other events that happened at
17 that time.
18 Q Now, Doctor, I think that
19 Miss Smith had asked you a question. Can you
20 explain what you meant when you said you didn't
21 find Tim distractible?
22 A I'm sorry, say it again.
23 Q What did you mean when you said
24 you didn't find Tim distractible?
25 A During the time he spent with me, we met
00172
1 for, as I said, approximately three-and-a-half
2 hours. We did not interrupt our meeting at all.
3 And there were times -- I mean, his style is
4 to -- to be somewhat, let me use the word,
5 perhaps, exaggerated. But to make it clear,
6 flamboyant. I mean, he talks, he -- he -- he
7 adorns his speech in a way. And that was his
8 characteristic way. That is his style, and he
9 is proud and pleased with it.
10 There were times, oftentimes he would
11 look at his watch. And he explained to me at
12 some point the reason why he looks at his watch
13 is because he learned a strategy in his
14 psychiatric treatment of dealing with his ADD,
15 attention deficit disorder. And that was what
16 pulled him together.
17 Q When you -- why did you believe at
18 the time of your examination that Mr. Carter was
19 content with the way his life was going?
20 A He explained that he was able to -- he
21 was very pleased of having gone to -- to college
22 and -- and -- and completed a training as a
23 paralegal.
24 He was displeased at the fact that he
25 could not get a job.
00173
1 And then he went into a different kind
2 of training, and for about six months at that
3 time he told me he had been working full-time.
4 And he mentioned 40 hours and then some overtime
5 in a job that he told me in a very pleasant tone
6 of voice he could do in his sleep. That was
7 what he told me, that he could do it in his
8 sleep.
9 He actually said that he was training
10 other people in doing this digital -- and he
11 tried to explain to me. It was not easy for me
12 to understand it because it had to do with
13 numbers and -- and how to -- to put into CDs or
14 whatever data, primarily library data.
15 And he said that it was actually all
16 these developed after 9/11. 9/11 is another
17 aspect, another trauma in the history of this
18 country. He was able to talk about 9/11 and
19 because of 9/11 and a lot of data was destroyed
20 was -- the towers were destroyed, that the
21 government started this -- this program. That
22 was my understanding.
23 And he was very pleased. And he
24 explained what he was doing. And this was going
25 on for about six months, which goes along with
00174
1 what he said in his deposition, as well.
2 Q Okay. Doctor, I may be done. Let
3 me just check one or two more of my notes.
4 Oh, Doctor, the last question I wanted
5 to ask you -- let me go back to my -- beginning
6 of my notes. Why didn't you do any
7 psychological testing of Mr. deVries or
8 Mr. Carter?
9 A For more than one reason. One of them
10 and the most important one was at the -- both of
11 them had taken a battery of psychological
12 testing within four or five months before they
13 came to see me. For forensic reasons it is not
14 advisable to take the same tests and -- and Dr.
15 Bursztajn administered himself -- not as a
16 psychologist. He administered all these tests
17 about -- probably 13 or more. And he provided
18 interpretation of all these tests. And it was,
19 again, way below usually what is advisable for
20 this kind of setting, which is a forensic
21 setting.
22 An IME setting it is between six and 12
23 months. It is not testing that is done for
24 medical reasons, for treatment reasons, which
25 the procedure is different for forensic reasons.
00175
1 It's not visible because the person that -- that
2 is testing, it all relates to -- to -- to the
3 honesty of the person that is checking. This
4 is -- these are questionnaires, and one checks
5 yes or no on questionnaires or things like that.
6 People tend to remember their answers when it
7 is, let's say, within a lapse of time, which is,
8 let's say, six months. So what is advised is
9 not to do that.
10 And -- well, the other thing is that,
11 again, I was able to use everything that I
12 reviewed, plus my own examination, to arrive at
13 my conclusions and taking from everything that
14 Dr. Bursztajn noted in his report.
15 Q I have no further questions at
16 this time. Thank you, Doctor.
17 JUDGE CURRAN: Thank you.
18 Miss Smith.
19 MS. SMITH: Could we take a short
20 break, Your Honor?
21 JUDGE CURRAN: Sure. We will take
22 the ten-minute afternoon break, please. Thank
23 you.
24 (Whereupon, the jury is excused.)
25 JUDGE CURRAN: If I might see
00176
1 counsel at sidebar.
2 (Whereupon, the following sidebar
3 discussion is held.)
4 JUDGE CURRAN: Juror Number 3.
5 JUROR NUMBER 3: I have only one
6 question. You don't know how long it's going
7 to -- to be? Because I have tickets to do my
8 closing of my house in Florida in the 11th,
9 June 11. I don't see --
10 MS. SMITH: June 11?
11 JUDGE CURRAN: If we are still
12 here on June 11th, all of us will contribute to
13 the down payment on your house, okay.
14 JUROR NUMBER 3: Okay. It's next
15 week.
16 JUDGE CURRAN: If you would be
17 kind enough not to discuss -- we have already
18 been discussing that, and we are going to talk
19 to all the jurors. But trust me, if we're here
20 on June 11th --
21 JUROR NUMBER 3: Okay. Okay. I'm
22 safe, okay.
23 MR. BEVERE: We'll be joining you.
24 JUDGE CURRAN: Okay.
25 (Whereupon, sidebar discussion is
00177
1 concluded.)
2 (Whereupon, a brief recess is
3 taken.)
4 (Whereupon, the jury is brought
5 into the courtroom.)
6 MR. BEVERE: Your Honor, we will
7 not be -- be recalling Mayor Elwell, so can he
8 stay?
9 JUDGE CURRAN: Just let me go on
10 the record. On the record, please.
11 COURT CLERK: Yes.
12 MR. MULLIN: We probably should be
13 sidebar on that issue.
14 COURT CLERK: On the record.
15 JUDGE CURRAN: Thank you.
16 (Whereupon, the following sidebar
17 discussion is held.)
18 MR. BEVERE: What I was saying,
19 Your Honor, was we are not going to recall Mayor
20 Elwell -- we're not going to call Mayor Elwell
21 in our case. He has testified. We want
22 permission to stay and watch the trial, how
23 it's --
24 JUDGE CURRAN: Mr. Mullin?
25 MR. MULLIN: I won't oppose.
00178
1 JUDGE CURRAN: Thank you. Thank
2 you. There is no -- the sequestration, just so
3 it's on the record, is lifted in regard to the
4 Mayor.
5 MR. BEVERE: Him only.
6 MR. PARIS: Thank you.
7 JUDGE CURRAN: Thank you.
8 (Whereupon, sidebar discussion is
9 concluded.)
10 MS. SMITH: I'm sorry, Your Honor.
11 JUDGE CURRAN: Thank you. You can
12 proceed.
13 MS. SMITH: Okay.
14 RECROSS EXAMINATION BY MS. SMITH:
15 Q Dr. Goldwaser, in your reports for
16 either Mr. Carter or Mr. deVries do you cite
17 even one authority of any kind, treatise,
18 article, anything for the proposition that
19 people who call for help in a trauma do not get
20 PTSD?
21 JUDGE CURRAN: Excuse me. Mr.
22 Bevere?
23 MR. BEVERE: My objection is that
24 he was asked and answered yesterday if he relied
25 upon any authorities outside his report.
00179
1 JUDGE CURRAN: He was. However,
2 that question was specifically just asked in --
3 well, the answer was given in redirect, so I
4 will note your objection.
5 MR. BEVERE: Thank you, Your
6 Honor.
7 JUDGE CURRAN: Preserved for
8 appeal.
9 You may answer the question.
10 MS. SMITH: I will ask it again.
11 JUDGE CURRAN: Thank you.
12 BY MS. SMITH:
13 Q In your report, either from
14 Mr. deVries or Mr. Carter, do you cite any
15 authority whatsoever, article, treatise, chapter
16 in a book, anything that says people who call
17 for help in a trauma don't get PTSD? Yes or no?
18 A No.
19 Q Okay. And do you cite -- you
20 haven't cited in your -- either one of your
21 reports any authority for the proposition that
22 people who file a lawsuit don't get PTSD, right?
23 A No, they can.
24 Q They can. In fact, you've
25 testified that people have PTSD --
00180
1 A And people don't.
2 Q -- that are involved in lawsuits,
3 haven't you?
4 A Yes.
5 Q And you think people can get PTSD
6 from being in a car accident, don't you?
7 A Yes.
8 Q But after what these men have
9 witnessed your testimony to this jury is that
10 they don't have PTSD; is that right?
11 A That's right. They could have had it.
12 Q That's your testimony, right?
13 A Yes.
14 Q And you don't claim that there is
15 any authority in either one of your reports that
16 people who reach out to Civil Rights
17 organizations after they've been victims of a
18 bias attack for some reason don't get PTSD?
19 There is no authority in your reports for that
20 proposition, right?
21 A I don't understand the question.
22 Q You don't understand the question?
23 A Can you -- can you --
24 Q You talked about a minute ago
25 about my clients reaching out to Civil Rights
00181
1 organizations --
2 A Yes --
3 Q -- after this attack, right?
4 A -- among other things.
5 Q You talked about that, right?
6 A Yes.
7 Q There is no authority whatsoever,
8 none, in either one of your reports for the
9 proposition that individuals that reach out for
10 support to Civil Rights organizations don't have
11 PTSD, that that's evidence that they don't have
12 PTSD; isn't that true? There is no such
13 authority in either report, right? Yes or no?
14 A I don't understand your question. You
15 make it shorter, so I can follow.
16 Q For the proposition -- you told
17 this jury just a few minutes ago that one of the
18 reasons that you -- some of the evidence you
19 have that Mr. deVries and Mr. Carter don't have
20 PTSD was the way they acted after the event;
21 isn't that correct?
22 A Yeah, one of them.
23 Q And one of the examples you gave
24 was they reached out to Civil Rights
25 organizations for gay people; isn't that
00182
1 correct? Isn't that what you just said a few
2 minutes ago?
3 A One of the examples, yes.
4 Q Okay. My question is: In either
5 one of your reports is there any authority of
6 any kind, any article, any book, any chapter,
7 any treatise, anywhere to support that
8 proposition? Yes or no?
9 A Yes.
10 Q There is authority in your
11 reports?
12 A I submitted my report with my CV.
13 Q There is a treatise in your
14 report?
15 A Yeah, my report comes with my CV.
16 MS. SMITH: Your Honor, can we
17 order --
18 JUDGE CURRAN: Sir, please listen
19 to the question. You're an educated man; you
20 know the difference between a CV and a reference
21 to a treatise, a learned report, a book, a
22 chapter.
23 BY MS. SMITH:
24 Q You do know --
25 A I do know, yes.
00183
1 Q So could you please answer my
2 question?
3 A Your question is whether it happens or it
4 doesn't happen? It may happen or not.
5 Q No.
6 MS. SMITH: Your Honor --
7 JUDGE CURRAN: Sir, I am going to
8 ask that the last question be read back.
9 THE WITNESS: Please.
10 JUDGE CURRAN: It's been repeated
11 now about three times.
12 (Whereupon, the requested portion
13 is read back by the reporter as follows:
14 "QUESTION: My question is: In
15 either one of your reports is there any
16 authority of any kind, any article, any
17 book, any chapter, any treatise, anywhere
18 to support that proposition? Yes or
19 no?")
20 BY MS. SMITH:
21 A What proposition?
22 JUDGE CURRAN: He wants you to
23 repeat that part of the question, Miss Smith,
24 or --
25 MS. SMITH: Sure. Sure.
00184
1 BY MS. SMITH:
2 Q You forget your testimony a couple
3 minutes ago to this jury that one of the reasons
4 that you believe that neither Mr. Carter nor
5 Mr. deVries have PTSD, you just testified to on
6 redirect, was that they contacted Civil Rights
7 organizations after the attack of April 25th,
8 2004? You just said that --
9 A Yes.
10 Q -- a few minutes ago? Okay. Now,
11 you don't understand the question when I say
12 that isn't it true that there is not one
13 reference to any learned treatise whatsoever,
14 any publication of any kind that supports that
15 theory in either the report from Mr. Carter or
16 the report from Mr. deVries? Isn't it true that
17 there is no such reference?
18 MR. BEVERE: I'm going to object
19 because that wasn't the question.
20 JUDGE CURRAN: It was as close
21 as -- I'll note your objection, Mr. Bevere.
22 MR. BEVERE: All right.
23 BY MS. SMITH:
24 A It's a complex -- it's -- it's more than
25 one question. This is -- I have to explain it
00185
1 to be --
2 JUDGE CURRAN: Sir.
3 THE WITNESS: I don't understand
4 it.
5 JUDGE CURRAN: The question, I
6 find, is clear. It's been repeated. I would
7 appreciate it if you would try to answer it.
8 As I understand the question, it
9 is: Is there any reference in your report to a
10 treatise, a book, a chapter, anything of that
11 sort -- anything of that sort, a professional
12 publication, that indicates that an individual
13 does not have or could not have PS -- PTSD
14 because they reached out to Civil Rights
15 organizations?
16 Is that the question?
17 MS. SMITH: Yes, it is, Your
18 Honor.
19 THE WITNESS: No.
20 JUDGE CURRAN: The answer is no?
21 THE WITNESS: The answer is no.
22 BY MS. SMITH:
23 Q The answer is no, right? The
24 answer is not -- that's not in your report,
25 right?
00186
1 A Right.
2 Q No. Okay. Now, in your report do
3 you cite any authority whatsoever for the
4 proposition that you should not give
5 psychological tests four to five months after a
6 previous administration of a psychological test?
7 That's -- is that in either one of your reports?
8 A No.
9 Q Now, you just testified, "He told
10 the cardiologist in May he was walking his dogs
11 in the Town." You just testified to that,
12 right --
13 A Yes.
14 Q -- just a couple minutes ago? You
15 have Dr. Pumill's notes up there, P-38?
16 A No, I have them -- I can bring them. I
17 have them in my briefcase. I don't have it here
18 with me.
19 MR. BEVERE: He can have my
20 copies.
21 MS. SMITH: Okay.
22 JUDGE CURRAN: Thank you, Mr.
23 Bevere.
24 MR. BEVERE: Let me take out my
25 tabs.
00187
1 JUDGE CURRAN: Are you talking
2 about P-38?
3 MS. SMITH: P-38, Your Honor.
4 JUDGE CURRAN: Thank you.
5 BY MS. SMITH:
6 Q If you can turn to page -- Bates
7 stamp page 81. See on page 81 where it says,
8 "social history"?
9 A The page is 00081?
10 Q 81, right. Down the bottom it
11 says --
12 A Yes.
13 Q -- "social history," right?
14 A Yes.
15 Q "History" means history, right?
16 Does "history" mean history? Can we agree that
17 "history" means history?
18 A Yes.
19 Q Okay. And it says, "walks two
20 dogs," right?
21 A Yes.
22 Q Where does it say, "in the Town"?
23 It doesn't, does it?
24 A No, it doesn't.
25 Q And that's May of 2004, right?
00188
1 A May 13th, 2004.
2 Q Now, it's your testimony just a
3 few minutes ago -- just a few minutes ago that
4 Mr. deVries did not tell you that he didn't want
5 to go back into Secaucus, that he avoided
6 Secaucus? That was your testimony, right?
7 A That he told me that he did not want to
8 work --
9 Q Your testimony was that
10 Mr. deVries did not tell you that he avoided the
11 Town of Secaucus? I think you actually used the
12 words he did a lot of activities there, right?
13 A Yes.
14 Q Didn't you just testify to that?
15 A Yes, I remember.
16 Q Lots of activities in Secaucus,
17 right?
18 A Yes.
19 Q In fact, Mr. deVries got his old
20 job back in Secaucus and had to call up and say
21 he couldn't take it because even though he
22 wanted that job back, he couldn't take a job in
23 Secaucus because of what happened to him in
24 April of 2004 in Secaucus; isn't that correct?
25 A I was not aware of that, no.
00189
1 Q In fact, Mr. deVries -- I'm not
2 going to reread what we read about what happened
3 in the cardiologist's office; I'm sure the jury
4 remembers. But what we didn't read this morning
5 is, "We find ourself either alone or Tim, if we
6 have to drive to Secaucus, it's so
7 uncomfortable. It's extremely uncomfortable."
8 He told you he didn't want to drive in Secaucus
9 anymore, didn't he? He told you that?
10 A It was uncomfortable he said. It's
11 different --
12 Q "I could not go back once we left.
13 It used to be coming home from work I'd get
14 nervous." He didn't he tell you that, just
15 driving home from work, coming into Town, he
16 would get nervous coming into Secaucus? He told
17 you that, didn't he?
18 A He reported that, yes.
19 Q Now, you talked about disability
20 records in November of 2004. You have not
21 seen --
22 A I'm sorry, say it again. The -- the date
23 is?
24 Q I think -- I think the one you
25 looked at was November of 2004. Do you recall?
00190
1 A I believe it was --
2 MR. BEVERE: It was '05.
3 Q Oh, I'm sorry.
4 A Yeah.
5 Q I'm sorry.
6 A That's fine.
7 Q So the one we looked at was
8 November of 2005, right? Have you seen any
9 subsequent disability records? Anything after
10 that?
11 A No.
12 Q And you don't disagree that you
13 can have both PTSD and depression, right?
14 A Right.
15 Q And you can have different
16 things -- disabling conditions at once, can't
17 you?
18 A Yes, it's possible.
19 Q Now, you were talking about my
20 client's, Mr. deVries', major depression.
21 Mr. deVries had never been on disability before
22 in his life prior to May of 2005; isn't that
23 true?
24 A I -- I cannot tell you for sure.
25 Q You have no records whatsoever of
00191
1 him ever being on disability before in his
2 entire life; isn't that correct?
3 A Correct.
4 Q And he didn't tell you he was and
5 it is not in Dr. Almeleh's records or the
6 cardiologist's records or anything else you
7 reviewed, right?
8 A Right.
9 Q Now, the call for help, that was
10 another example you gave of your evidence of why
11 Mr. deVries doesn't have PTSD, the fact that he
12 called for help. In fact, when he tried to call
13 the police for help, lying on the floor, crying
14 in his living room, he dropped the phone and
15 couldn't complete the call; isn't that correct?
16 A I remember reading or hearing that, yeah,
17 that report, yeah.
18 Q And you said before, just on
19 redirect, that Mr. deVries went upstairs in
20 anger? That's what you said just before, right?
21 A Yes.
22 Q He was told to go upstairs because
23 he was crying, wasn't he?
24 A He was -- he went upstairs. I remember
25 him saying he was frustrated, he was angry, he
00192
1 knew that he wasn't -- nothing was going to
2 happen, as he felt. And that point he was told
3 to go upstairs by the police or his partner, I'm
4 not sure. But he left Mr. Carter and the
5 sergeant talking in the house and he went
6 upstairs, once he realized that there was no use
7 talking to the sergeant.
8 Q Dr. Goldwaser, didn't Mr. deVries
9 tell you, "I started crying"? "I started
10 crying" -- "I started crying. He suggested I go
11 inside"; isn't that what he told you? Didn't we
12 even read it to the jury earlier today?
13 A He said a lot of inaccurate things.
14 Q He didn't say, "I went upstairs
15 angry"; he said, "I was crying." Didn't he say
16 that to you?
17 A Yes.
18 MS. SMITH: No further questions,
19 Your Honor.
20 JUDGE CURRAN: Thank you.
21 Mr. --
22 MR. BEVERE: Just one quick
23 question.
24 FURTHER REDIRECT EXAMINATION BY MR. BEVERE:
25 Q Doctor, if you did not cite any
00193
1 treatises in your report, what did you rely
2 upon?
3 A I relied upon my training, my education,
4 my updating my education constantly. And when I
5 said my CV earlier, I was not relying on the CV
6 as something separate; but I included as part of
7 my report because it cites --
8 MS. SMITH: Objection, Your Honor.
9 A It cites --
10 MS. SMITH: Objection, Your Honor.
11 He keeps talking.
12 JUDGE CURRAN: I am going to
13 sustain the objection.
14 You can ask him another question,
15 if you'd like.
16 But Doctor, please listen to Mr.
17 Bevere's question carefully rephrased.
18 Mr. Bevere.
19 MR. BEVERE: Okay.
20 BY MR. BEVERE:
21 Q Doctor, if you did not cite any
22 medical treatises in your report, what, if any,
23 medical information did you rely upon in
24 reaching your opinions and conclusions in this
25 case?
00194
1 MS. SMITH: Objection, asked and
2 answered.
3 MR. BEVERE: Judge, he was
4 answering the question on the record.
5 JUDGE CURRAN: He was answering
6 the question. I am going to allow that question
7 again.
8 BY MR. BEVERE:
9 A I was relied -- I relied on basically the
10 DSM, which is --
11 MS. SMITH: Objection, Your Honor.
12 It's not in his report.
13 THE WITNESS: I do mention the
14 diagnosis.
15 JUDGE CURRAN: Hold on. If you
16 would please include in your question what is in
17 the report, if you want that to be part of the
18 question.
19 He has a right to ask the
20 question outside the report. It's up to what
21 Mr. Bevere wants to do.
22 MR. BEVERE: Well, Judge, at --
23 BY MR. BEVERE:
24 Q Doctor, did you refer to the DSM
25 in your report?
00195
1 A I referred to the DSM when I referred to
2 the diagnosis. Those are diagnoses presented or
3 discussed in the DSM. The numbers, the codes --
4 the codes, the diagnostic code is a DSM
5 diagnostic code, so I have to rely on that. I
6 did not --
7 MR. MULLIN: Can we have the page
8 cite, please?
9 JUDGE CURRAN: Where in the
10 report, Doctor?
11 THE WITNESS: Major depressive
12 disorder recurrent severe is a DSM diagnosis and
13 not any other. On page eight, for example, of
14 Peter deVries' report I talked about the
15 diagnosis, the dysthymia diagnosis, DSM-IV TR
16 300.4 and generalized anxiety, DSM-IV TR 300.2.
17 I used -- I used this concept,
18 and I used work from people in the field that I
19 quoted in -- in -- again, in my curriculum that
20 is a part of it about PTSD, all the different
21 courses.
22 MS. SMITH: Objection. Objection.
23 You have ruled what's in his curriculum vitae is
24 not in the report, and he keeps referring to it.
25 He said it again. Move to strike.
00196
1 JUDGE CURRAN: The curriculum
2 vitae accompanies the report; it is not part of
3 the report. It could -- there could be the same
4 information.
5 MR. BEVERE: Judge, let me ask the
6 question differently.
7 BY MR. BEVERE:
8 Q Doctor, what, if anything, did
9 you -- did you use as far as your education,
10 your background and your training?
11 A Okay. Works prepared by Dr. Philip
12 Resnick from Case Western Reserve.
13 MS. SMITH: Okay. This is beyond
14 the scope of his report. I wasn't allowed to
15 cross-examine on this in his dep or do any
16 research regarding this. He never cited any
17 authority whatsoever in his report.
18 JUDGE CURRAN: In fairness, you
19 can't say what the doctor said, you can't talk
20 about it in detail. But I allowed Mr. Bevere to
21 go beyond the report, which is, I understand, a
22 little beyond -- or a lot beyond recross.
23 MR. BEVERE: Judge, my question
24 was very specific. And that was: What, if
25 anything, in his training and experience and
00197
1 education did he use to reach his opinions and
2 conclusions?
3 JUDGE CURRAN: That is the
4 problem. Did you understand the question?
5 THE WITNESS: Yes.
6 JUDGE CURRAN: Thank you.
7 BY MR. BEVERE:
8 A My clinical practice of 31 years treating
9 patients with posttraumatic stress disorder, my
10 being professor at NYU, teaching courses on
11 psychopathology at New York University School of
12 Medicine, the Department of Psychiatry, the
13 psychiatric residency training, the Psych One
14 Institute and also the institute of NYU. I
15 teach courses of psychopathology. I teach
16 courses on dreams. And I teach courses on
17 ethics. And all my training and education as a
18 forensic psychiatrist, as well as a clinician
19 and as a forensic expert.
20 MR. BEVERE: No further questions,
21 Your Honor.
22 JUDGE CURRAN: Miss Smith,
23 recross?
24 MS. SMITH: Just a couple, Your
25 Honor.
00198
1 FURTHER RECROSS EXAMINATION BY MS. SMITH:
2 Q You have a copy of -- you actually
3 referred to Dr. Bursztajn's report in your
4 report, right, Doctor?
5 A Yes.
6 Q So you know that he relied upon
7 Co-morbidity of Psychiatric Disorders and
8 Posttraumatic Stress by Brady, Killeen and
9 Brewerton, right?
10 A You mean all this -- all these
11 articles --
12 Q Number two on page five, you see
13 that report?
14 A Yes, it's a clinical paper.
15 Q Okay. And that's in -- that's in
16 the Journal of Clinical Psychiatry, a
17 peer-reviewed journal, right?
18 A It's a clinical paper, yes. It's not a
19 forensic paper.
20 MS. SMITH: Your Honor.
21 JUDGE CURRAN: Sir, the question
22 was: It's a peer -- or the reference, it's a
23 peer-reviewed journal, isn't it?
24 THE WITNESS: It is.
25 JUDGE CURRAN: It is, right.
00199
1 BY MS. SMITH:
2 Q And recognize -- another relevant
3 literature cited by Dr. Bursztajn, "Recognizing
4 Posttraumatic Stress In Patient Care" by Dr.
5 Bursztajn, right? You see that? That's here in
6 reference in Dr. Bursztajn's report, is it not?
7 A Which -- which number?
8 Q Number three.
9 A Yeah, patient -- yeah.
10 Q Okay. And "Guidelines to the
11 Evaluation of Permanent Impairment in the
12 American Medical Association Press," that number
13 four, that was relied upon by Dr. Bursztajn,
14 right?
15 A It's all reported, enumerated here, yes.
16 JUDGE CURRAN: Sir, it's a yes or
17 no.
18 A Yes, yes.
19 Q "Toward a Limited Definition of
20 Psychiatric Trauma, the Reconstruction of
21 Trauma, its Significance in Clinical Work" in
22 the American Psychoanalytic Association meeting
23 in Madison, number five, that's relied upon by
24 Dr. Bursztajn, right?
25 A He cited it here, yes.
00200
1 Q Right? In fact, Dr. Bursztajn
2 lists 31 separate references of relevant
3 literature in which he relied making his report,
4 finding that both Mr. Carter and Mr. deVries
5 have posttraumatic stress disorder; isn't that
6 correct?
7 A No, not entirely.
8 Q He doesn't cite 31 pieces of
9 relevant literature?
10 A It's not relevant, all of it. He cites
11 it. But you ask whether it's relevant, no.
12 Q Okay. You don't have staff
13 privileges anywhere today, do you, Doctor?
14 MR. BEVERE: Judge, objection.
15 That is certainly beyond the scope of my
16 re-redirect.
17 MS. SMITH: No, it's not. You
18 asked him what he based everything on, and he
19 talked about all the patients he treats.
20 BY MS. SMITH:
21 Q You don't have staff privilege
22 anywhere today, do you, Doctor?
23 A Staff privileges?
24 Q Yeah, do you know what that means?
25 A To admit patients in a hospital, no, I
00201
1 don't.
2 Q You don't know what staff
3 privileges means?
4 A Yes, to admit patient in a hospital. No,
5 I don't.
6 Q You do not have staff privileges
7 anywhere today; is that right?
8 A No, I don't.
9 Q That's correct. Okay. Dr.
10 Bursztajn lists 31 pieces of literature that he
11 refers to as relevant to his diagnosis of
12 posttraumatic stress disorder in Mr. Carter and
13 Mr. deVries; isn't that true?
14 A He cites all of that, yes.
15 MS. SMITH: No further questions.
16 JUDGE CURRAN: Mr. Bevere?
17 MR. BEVERE: No further questions,
18 Judge.
19 JUDGE CURRAN: Thank you.
20 Is there anyone on the jury who
21 has a question for this witness? If so, please
22 raise your hand or take one of the question
23 cards. Anyone on the jury who has a question?
24 Thank you. I see no questions;
25 therefore, the witness may step down.
00202
1 (Whereupon, the witness is
2 excused.)
3 JUDGE CURRAN: Ladies and
4 Gentlemen, there are a few short issues I have
5 to discuss with counsel. If you would just
6 retire to the beautiful jury room, thank you.
7 Off the record.
8 (Whereupon, the jury is excused.)
9 (Whereupon, a discussion is held
10 off the record.)
11 (Whereupon, the following sidebar
12 discussion is held.)
13 MS. SMITH: Your Honor, my client
14 is going to go down and make a police report.
15 One of the sheriffs in this courthouse called
16 him a homo.
17 MR. PARIS: A sheriff's officer?
18 MS. SMITH: Yes.
19 JUDGE CURRAN: Out in the hall
20 here? Where?
21 MS. SMITH: In this building.
22 JUDGE CURRAN: Do you know where?
23 MS. SMITH: I don't. I was just
24 told this second. I didn't get the details. I
25 just wanted you to be aware of it because he is
00203
1 going to leave and make a report of it, and I
2 didn't want anybody --
3 JUDGE CURRAN: I appreciate your
4 telling --
5 MS. SMITH: -- not let you know.
6 JUDGE CURRAN: Anything you can
7 find out, it would just help to make a record,
8 if nothing else, because he could have been on
9 first floor, he could have been out of the back
10 door. Did he -- did you get any information,
11 some sort of --
12 MS. SMITH: That is the only thing
13 I heard. I just wanted to let you know right
14 away because I -- I have advised him to go make
15 a report about it. I know we want to get Mr.
16 Leanza on, and I didn't want any time to go
17 without --
18 JUDGE CURRAN: Just one last
19 thing. I'm not cross-examining you --
20 MS. SMITH: Yes.
21 JUDGE CURRAN: -- but it was
22 reported to you that the sheriff's officer
23 called him that, not referred -- I'm not saying
24 referred to would be okay.
25 MS. SMITH: I don't -- I don't --
00204
1 I don't even know.
2 JUDGE CURRAN: Okay. Thank you.
3 MS. SMITH: It was upsetting. I
4 just repeat --
5 JUDGE CURRAN: I appreciate that.
6 Thank you. Thank you very much.
7 I will note that all counsel are
8 at sidebar. Thank you.
9 MR. BEVERE: Thank you, Judge.
10 COURT CLERK: Off the record.
11 JUDGE CURRAN: Off the record.
12 (Whereupon, sidebar discussion is
13 concluded.)
14 (Whereupon, a brief recess is
15 taken.)
16 JUDGE CURRAN: Mr. Paris.
17 MR. PARIS: Your Honor, in
18 preparation for putting Mr. Leanza on the stand
19 there are a couple of preliminary matters that I
20 would like to address, so they don't -- so we
21 can get rulings on them, so they don't become a
22 problem later on.
23 One of them is with regard to a
24 document that was within Mr. Leanza's file which
25 should not -- is not going to be the subject of
00205
1 direct examination, certainly shouldn't be the
2 subject of cross-examination. I want to be
3 clear on that. There was a letter dated
4 August 14th of 2006 from Mr. Leanza to Thomas
5 Cammarata, an attorney with Cammarata, Nulty --
6 JUDGE CURRAN: I'm sorry, what was
7 the name?
8 MR. PARIS: It's Thomas Cammarata.
9 JUDGE CURRAN: Okay.
10 MR. PARIS: With Cammarata and
11 Nulty and Garrigan, which confirms that Mr.
12 Cammarata is representing Charles Snyder, Sr.,
13 Jr. and Mutschler regarding a notice to be
14 deposed. And it refers to a letter of July 10th
15 from David Grubb of the suburban Essex Joint
16 Insurance Fund to Mayor Elwell. And I don't
17 know whether -- and I'll leave it at that.
18 "That the Fund will reimburse for
19 counsel fees at the rate of $135 per hour up to
20 four hours"; and it goes on. It says that, "The
21 letter provides that my clients must execute a
22 document indicating that the reimbursement of
23 legal fees is not a waiver of any disclaimer on
24 indemnity claim that the Town of Secaucus may
25 have in this matter." And that he asked Mr.
00206
1 Leanza to forward an agreement to his office so
2 that the three clients and Mr. Cammarata could
3 sign it.
4 Mr. Leanza testified at his
5 deposition that he did not know anything about
6 this. He was surprised by it. He didn't
7 negotiate it. It wasn't negotiated with the
8 Town. But apparently, Mr. Cammarata dealt
9 directly with a David Grubb of the Joint
10 Insurance Fund with regard to this.
11 I want to make sure that this
12 does not become an issue with regard to Mr.
13 Leanza's testimony, as this certainly is not an
14 action taken by the Town and it also deals with
15 the issue of insurance. Really isn't relevant
16 to the underlying liability issues or the
17 underlying legal issues of the case.
18 JUDGE CURRAN: Mr. Mullin.
19 MR. MULLIN: Well, I can say this.
20 I won't cross-examine on this issue without
21 alerting the Court that I intend to. It could
22 be relevant. Depends on what Mr. Leanza says on
23 direct. But I -- I can commit not to
24 cross-examine on it without making an
25 application to the Court out of the jury's
00207
1 hearing.
2 JUDGE CURRAN: Thank you.
3 MR. PARIS: I'm certainly not
4 going to question him on this issue.
5 Next issue is with regard to the
6 tape of the caucus meeting of April 27th of
7 2004.
8 JUDGE CURRAN: The ominous
9 dangerous tape that your law clerk snuck into
10 this building, that tape?
11 MR. BEVERE: That was the tape
12 recorder, Judge, not the tape.
13 JUDGE CURRAN: That was the
14 recorder, right.
15 MR. PARIS: They let you bring in
16 tapes, as long as you can't do anything with
17 them.
18 JUDGE CURRAN: That's right.
19 MR. PARIS: In any case, in -- in
20 listening to the tape, reviewing the tape -- and
21 I don't know whether or not Mr. Mullin has had
22 it transcribed, whatever; but there are
23 references to the Joint Insurance Fund. It
24 talks about the training that -- the sensitively
25 training that was established. It mentions
00208
1 that, I believe it was, Chief Walters contacted
2 the safety liaison to the JIF to set up the
3 sensitivity training.
4 There is another reference to a
5 prior case, which I don't know that anyone knew
6 anything about it -- it certainly does not
7 appear to be a similar type of incident -- and a
8 consent judgment.
9 JUDGE CURRAN: In regard Secaucus?
10 MR. PARIS: Yeah. There is also a
11 reference to the discussion about lowering
12 insurance premiums. And then there is two more
13 references to the JIF as to the JIF encouraging
14 the sensitivity training.
15 And -- well, frankly, I would
16 have no problem playing the tape to the jury. I
17 am concerned about those references. And I
18 would suggest that if counsel is going to play
19 part of the tape or intends to play part of the
20 tape, that we play the entirety of the tape and
21 basically skip over those references and fast
22 forward the tape through those references.
23 JUDGE CURRAN: Mr. Mullin -- first
24 of all, is there a transcript of the tape?
25 MR. MULLIN: I don't have a
00209
1 transcript of the tape.
2 JUDGE CURRAN: Okay. What about
3 the second issue?
4 MR. MULLIN: I would have liked to
5 have a transcript of the tape but --
6 JUDGE CURRAN: I got it. I didn't
7 want to come to sidebar with a transcript
8 either. It's noted on the record.
9 MR. PARIS: You can go to Kinko's
10 and get it done in a half hour.
11 JUDGE CURRAN: I knew Mr. Paris
12 was going to say that.
13 MR. MULLIN: Well, I don't know --
14 I don't know that -- that the references are --
15 I think it's relevant. I think the -- if
16 they're playing this tape two days after this
17 incident, I think the jury is entitled to hear
18 what -- everything what the concerns of the --
19 of the leadership body are that night. They are
20 concerned about the issues that he is raising.
21 That's -- that's, you might say, right up front
22 and center.
23 JUDGE CURRAN: Mr. Paris.
24 MR. PARIS: It's not a question of
25 being concerned about the insurance. It's a
00210
1 question about the JIF encouraging training;
2 that's what it's about. And the questions,
3 well, who is the JIF? And it's the Joint
4 Insurance Fund. There is a reference to prior
5 cases; but the prior cases don't have any
6 relevance back to this, so I would --
7 JUDGE CURRAN: What was the prior
8 consent judgment?
9 MR. PARIS: I really don't know.
10 And frankly, when Mr. Leanza testified --
11 MR. MULLIN: Counsel appears to be
12 referring to a transcript. Does he have a
13 transcript?
14 MR. PARIS: I have got notes.
15 MR. MULLIN: Oh, notes.
16 MR. PARIS: That's what I've got.
17 It's not a verbatim -- I shouldn't say it's not
18 a verbatim transcript. It's not by a certified
19 shorthand reporter. Somebody listened to it and
20 tried to write down what was there.
21 Okay. So that's -- so that's the
22 concern. In other words, it's not a question of
23 they said, "Well, gee, what's going to happen to
24 our insurance as a result of this incident"; but
25 it's -- it is a reference to the fact that there
00211
1 is insurance, that there is a JIF for the Town.
2 So that's my concern.
3 If they had -- you know, if they
4 intend to play the tape, I think that those --
5 those portions of the tape -- I have no problem
6 playing the tape; but those portions should be
7 excluded, so that the relevant portions, which
8 are, you know, what -- you know, what were the
9 considerations in terms of taking action and,
10 you know, what -- and again, you know, I'm not
11 trying to hide the discussion. But I don't know
12 whether their intention was to play any portion
13 of the tape; and if so, I just want to say up
14 front that we -- you know, we need to be
15 circumspect about those issues.
16 MR. MULLIN: Well, I don't know
17 what "circumspect" means. If they're playing
18 the tape, under the completeness rule I would
19 ask they play the whole tape. If -- if they're
20 playing the tape, I assume they're offering it
21 for the concerns that were on the mind of the
22 leadership body on April 27th. Well, then the
23 jury shouldn't be given a misimpression about
24 the concerns of the leading body.
25 Now, as I recall the tape -- and
00212
1 I don't have a transcript -- I don't recall the
2 word "insurance" being used. Now, I could be
3 mistaken; they have -- counsel has listened to
4 the tape more recently. But I -- I suspect
5 there is nobody on this jury that knows what the
6 JIF is or the MEL is, and so I don't even think
7 it is an issue.
8 Now, if we want to agree on some
9 explanation, I don't know what we could give. I
10 don't know how -- how to word it or whether some
11 limiting instruction, but counsel isn't
12 proposing anything.
13 I mean, suppose that the concern
14 of the Council has -- has to do with insurance.
15 Two gay men are brutally attacked on April 25th,
16 and the concern of the leading body is
17 insurance. I think that's something the jury
18 ought to know. Should the jury know that there
19 is insurance for this case, of course not. Of
20 course not.
21 MS. SMITH: Is the witness there?
22 MR. MULLIN: That is not the
23 witness.
24 JUDGE CURRAN: No. I started out
25 not knowing anybody from Secaucus, but I at
00213
1 least know the three gentleman in the front row.
2 MS. SMITH: Thank you.
3 JUDGE CURRAN: In the interest of
4 full disclosure, I spoke to one of them at
5 lunchtime because I do answer the phone if no
6 one else -- I answer it all the time every day.
7 But we did discuss only what time the session
8 was starting this afternoon; is that correct?
9 MR. BARTOLOZZI: Correct.
10 JUDGE CURRAN: And the Mayor and
11 Mr. Drumeler and the individual --
12 MS. SMITH: I'm sorry, Your Honor,
13 I don't have all their faces -- I just took this
14 deposition, and I don't distinguish them. I'm
15 sorry.
16 MR. MULLIN: I would like an order
17 that no one in this room discuss what we're
18 discussing with the witness in the hallway.
19 JUDGE CURRAN: I am sure that no
20 one, whether -- none of the witnesses observing;
21 and certainly Mr. Bevere and Mr. Paris would
22 understand that. And I know as officers of the
23 Court they would not.
24 MR. MULLIN: Okay.
25 JUDGE CURRAN: As to the insurance
00214
1 question, the reference to insurance?
2 MR. PARIS: Well, I don't think
3 the -- I think the only reference is -- is the
4 JIF.
5 JUDGE CURRAN: Saying, "the JIF";
6 is that it?
7 MR. PARIS: The JIF.
8 JUDGE CURRAN: I'm fairly certain
9 they are not going to figure out -- we already
10 confused them totally with what is or isn't. I
11 don't think they will figure out what the JIF
12 is.
13 MR. PARIS: Then the other
14 reference is reference to some prior consent
15 judgment or consent decree, and I think that
16 clearly should be -- should be deleted. I mean,
17 it as absolutely -- to my understanding, has
18 absolutely nothing to do with this case, has
19 nothing to do with establishing liability in
20 this case. You know, it doesn't --
21 JUDGE CURRAN: Did Miss Smith ask
22 about the prior consent order at the deposition?
23 MR. PARIS: Yes, she did.
24 JUDGE CURRAN: Miss Smith, do you
25 remember anymore details about it?
00215
1 MS. SMITH: Yeah, he gave us a lot
2 of details about it.
3 MR. PARIS: What did he say?
4 JUDGE CURRAN: Just what was it?
5 MS. SMITH: Oh, God, Your Honor, I
6 feel like I don't have one brain cell left after
7 what I just did. Please bear with me. I will
8 find out. I -- I don't have an index to this
9 deposition.
10 JUDGE CURRAN: If it was
11 questioned --
12 MS. SMITH: Oh, consent order, I'm
13 so sorry.
14 MR. MULLIN: I have an index to my
15 version.
16 MS. SMITH: Consent decree, it was
17 an NAACP matter about no African-American police
18 officers.
19 MR. PARIS: Oh, there we go. That
20 was it. And it was about hiring.
21 JUDGE CURRAN: Okay. I -- I am
22 going to save time right now. We have already
23 talked about introducing race into this case in
24 any way is just going to be more inflammatory
25 than probative. So there won't be any reference
00216
1 to that, please.
2 Now --
3 MR. MULLIN: So he will skip over
4 that?
5 JUDGE CURRAN: How we avoid that
6 in the tape -- everybody know the number, so we
7 can avoid it?
8 MR. MULLIN: Counsel is playing
9 it.
10 MR. PARIS: I will play it. I
11 will play it.
12 JUDGE CURRAN: Thank you.
13 MR. PARIS: And the only other
14 thing that -- the only other comment is about --
15 the only other comment that I am aware of is it
16 does talk about sensitivity training lowering --
17 says, "lowering our premiums." That's a direct
18 reference to insurance. And again, you know,
19 the tape, itself, lasts about 40, 45 minutes, I
20 think. I think it's in about that range.
21 MR. MULLIN: Your Honor, I think
22 it's unavoidable. This is what's on the mind of
23 this body two days after this incident. I want
24 the jury to know that.
25 JUDGE CURRAN: Well, okay, let me
00217
1 ask you this, to get to the real nub of the
2 matter. Are you planning to play the whole
3 tape? Mr. Mullin has asked, for completeness,
4 that the whole tape be played. That basically
5 means that just playing the tape will take
6 really all of the time that the jury has today.
7 Again, I'm not in any hurry to leave, as we
8 indicated every day.
9 MR. PARIS: I understand.
10 JUDGE CURRAN: But I don't like to
11 keep the jury. And you know, we're kind of
12 instructed not to keep the juries beyond 4:30,
13 unless it's essential.
14 MR. PARIS: Your Honor.
15 JUDGE CURRAN: My concern would be
16 we would have to keep them a lot longer to get
17 all of Mr. Leanza's testimony in.
18 MR. PARIS: I -- I don't think
19 that you -- in other words, I can ask Mr.
20 Leanza -- Mr. Leanza has listened to the tape.
21 It is the first time he has ever heard it.
22 JUDGE CURRAN: I am not trying to
23 rush you or exclude whatever you want,
24 Mr. Paris.
25 MR. PARIS: No, I'm trying to deal
00218
1 with this practically. Mr. Leanza listened to
2 the tape. He could testify as to, you know,
3 what his refreshed recollection is with regard
4 to what was discussed at the meeting. That's
5 not -- that's not a problem. But, again, if
6 portions of the tape are going to be played in
7 cross, then what I'm going to want to do is play
8 the rest of the tape. So you know --
9 MR. MULLIN: You are now saying
10 you are not going to play the tape?
11 MR. PARIS: No, what I'm saying is
12 I'm trying to figure out a way to -- I'm trying
13 to --
14 JUDGE CURRAN: Why don't we go off
15 the record? It's always easier to do this off
16 the record. We'll put the findings on the
17 record.
18 Off the record, please.
19 COURT CLERK: Off the record.
20 (Whereupon, a discussion is held
21 off the record.)
22 JUDGE CURRAN: Thank you. We will
23 bring out the jury.
24 (Whereupon, the jury is brought
25 into the courtroom.)
00219
1 COURT CLERK: On the record.
2 JUDGE CURRAN: Thank you. We are
3 back on the record.
4 Thank you, Ladies and Gentlemen.
5 We will continue now with the defense case.
6 MR. PARIS: Thank you very much,
7 Your Honor. Defense would call Frank Leanza.
8 JUDGE CURRAN: Thank you,
9 Mr. Paris.
10 Sir.
11 MR. MULLIN: Your Honor, I
12 preserve all prior objections.
13 JUDGE CURRAN: Absolutely. All
14 reserved on the record.
15 MR. MULLIN: Just preserved prior
16 objections.
17 JUDGE CURRAN: Good afternoon,
18 sir.
19 THE WITNESS: Good afternoon, Your
20 Honor.
21 MS. HAWKS: Can you -- thank you.
22 Raise your right hand. Yes, thank you.
23 F R A N K M. L E A N Z A is duly sworn by a
24 Notary Public of the State of New Jersey
25 and testifies under oath as follows:
00220
1 MS. HAWKS: For the record, please
2 state your full name and spell your last name,
3 please.
4 THE WITNESS: Frank M. Leanza,
5 L-e-a-n-z-a.
6 JUDGE CURRAN: Thank you, sir.
7 And will you please give us your professional
8 address for the record?
9 THE WITNESS: 777 Terrace Avenue,
10 Hasbrouck Heights, New Jersey, 07604, Your
11 Honor.
12 JUDGE CURRAN: Thank you.
13 Your witness, Mr. Paris.
14 MR. PARIS: Thank you very much,
15 Your Honor.
16 DIRECT EXAMINATION BY MR. PARIS:
17 Q Mr. Leanza, are you a licensed
18 attorney in the State of New Jersey?
19 A Yes, sir.
20 Q Okay. Do you work for the Town of
21 Secaucus?
22 A I am the Town attorney for the Town of
23 Secaucus.
24 Q How long have you been the Town
25 attorney for the Town of Secaucus?
00221
1 A Since January 2000, sir.
2 Q Okay. Mr. Leanza, do you have any
3 other positions with any other public entities?
4 A Yes, I have been the municipal court
5 judge of Guttenberg, New Jersey since 19 --
6 Q I'm sorry, I didn't -- go ahead.
7 A I have been a municipal court judge of
8 Guttenberg, New Jersey since 1990. I have been
9 the attorney for the North Hudson Sewerage
10 Authority since 1988. I have also been the
11 attorney for the West New York Housing Authority
12 since 1997 and the Weehawken Housing Authority,
13 I believe, since 2005.
14 Q Mr. Leanza, what's your
15 educational background?
16 A I graduated in 1972 from Newark College
17 of Engineering with a Bachelor of Science summa
18 cum laude. In 1978 I graduated with Rutgers Law
19 School -- from Rutgers Law School with a doctor
20 of law cum laude. In 1979 I graduated from New
21 Jersey Institute of Technology with a masters
22 degree. And in 1984 I graduated from NYU with a
23 Masters in Law.
24 Q Okay. The NJIT, the masters, was
25 in what area?
00222
1 A It was in management science.
2 Q What are your duties as municipal
3 attorney for Secaucus?
4 A I have statutory duties, which are to
5 give advice and counsel to the governing body,
6 which is the Mayor and the Council. I also am
7 required under Department of Community Affairs
8 regulations to sign off and give opinions with
9 regard to bond ordinances, bonds that are
10 issued. And I also, according to the official
11 duties, represent the Town in both
12 administrative and judicial proceedings.
13 However, lawyers are like doctors now and
14 sometimes we have different specialists who
15 handle different proceedings; and somebody else
16 will handle that other than myself.
17 Q Did you -- were you of -- were
18 you -- did you appear as counsel in this
19 litigation?
20 A No.
21 Q Now, are you aware of the incident
22 that occurred at the North End Fire Company
23 Number 2 on April 25th, the early morning hours?
24 A Yes.
25 Q Were you consulted by Town
00223
1 officials from the time that you learned of the
2 incident until --
3 MR. MULLIN: Objection, leading.
4 JUDGE CURRAN: Sustained.
5 BY MR. PARIS:
6 A Yes, I was aware of it.
7 MR. MULLIN: Your Honor, can we
8 please have a new question because it was
9 sustained?
10 JUDGE CURRAN: Thank you.
11 BY MR. PARIS:
12 Q Mr. Leanza, after you learned of
13 the incident did you play any role in the Town
14 of Secaucus dealing with the incident?
15 A Yes, I did.
16 Q Okay. Can you tell the jury what
17 your role was from the time that you learned of
18 the incident?
19 A Okay. As I said, with respect to my
20 duties as Town attorney, I provided advice,
21 counsel and direction both to the Mayor and
22 Council in general, to the Police Department and
23 to the Fire Department. I don't know if you
24 want me to go into details.
25 Q Well, I'm going to go through
00224
1 that, so we can go through it in orderly way.
2 When did you first find out about the incident?
3 A I first found out Sunday afternoon, which
4 was the 25th, probably sometime in the
5 afternoon. I received a telephone call from
6 Mayor Elwell, who informed me that the night
7 before there had been an incident at the
8 North -- North End Firehouse. And he gave me a
9 brief description of what happened, as well as
10 mentioned that there had been a meeting that
11 morning.
12 Q Did he mention to you there
13 already had been a meeting or there was going to
14 be a meeting?
15 A He mentioned there already had been a
16 meeting.
17 Q Were you present at the meeting?
18 A I was not present at the meeting.
19 Q Okay. Now, once you found out
20 what had happened, what was your initial
21 involvement?
22 A My initial involvement was first giving
23 advice to the Mayor. And secondly, the first
24 thing Monday morning, meet with both the Police
25 Chief and the Detective Captain of Lieutenants
00225
1 to apprize them of my analysis of the
2 circumstances, that this should be viewed as a
3 bias crime by the Police Department of the Town
4 of Secaucus and that no one in the Town should
5 interfere with their investigation of the same
6 and that because it would be considered a bias
7 crime, this should be referred immediately over
8 to the Hudson County Prosecutor's Office.
9 Q Okay. And when did you have that
10 discussion?
11 A I had that discussion in my initial
12 telephone call with the Mayor on Sunday
13 afternoon. And the first thing, probably 9:00,
14 on that Monday morning, which must have been the
15 26th, with the Police Chief and Detective
16 Captain Buckley.
17 Q Now, do you recall any involvement
18 other than what you have already described to
19 the jury on April 26th?
20 A April 26th was that Monday. I researched
21 some of the statutes. And after I spoke with
22 the Police Chief and Police Captain, I believe I
23 spoke with the Mayor and gave him my directions
24 that, in no uncertain terms, no one from the
25 Town should interfere with the investigation,
00226
1 should even talk to the firemen or even talk
2 about the incident that happened.
3 My concern was all of this talking
4 among and between people from the Town would
5 somehow taint the investigation, as somebody
6 might think they were there but they really
7 remember what somebody else told me, something
8 of that nature.
9 And I was also concerned that if
10 officials from the Town talked to potential
11 witnesses or people that might or might not have
12 been there, they could be accused subsequently
13 of trying to suggest or change the testimony of
14 the witnesses.
15 Q Now, do you know -- did you
16 ever -- did you ever find out or learn that
17 Mayor Elwell, the Police Chief Corcoran --
18 MR. MULLIN: Objection, leading.
19 JUDGE CURRAN: I'll overrule it
20 for this question.
21 MR. PARIS: Thank you.
22 BY MR. PARIS:
23 Q Did you ever become aware that
24 Mayor Elwell, Chief Corcoran and Chief Walters
25 went to the home of Mr. deVries and Mr. Carter
00227
1 on Sunday?
2 MR. MULLIN: Objection, hearsay.
3 MR. PARIS: Your Honor.
4 JUDGE CURRAN: I'm going to allow
5 the question. The objections are preserved.
6 BY MR. PARIS:
7 Q My question is yes or no. Did you
8 ever find out that they went?
9 A Yes.
10 Q Okay. Do you know whether they
11 went before or after you provided the advice
12 that you did to Mayor Elwell?
13 A They went before I provided the advice.
14 Q Now, we've discussed Monday, the
15 26th. Is there anything else that you recall
16 about Monday the 26th?
17 A Yes, after I left the Police Department I
18 went upstairs. Police Department is on the
19 first floor. The Mayor's Office is on the
20 second floor. I spoke with the Mayor and -- and
21 told him basically that the Police Department
22 was on all fours with mine. They had already
23 determined that this would be a bias incident.
24 They were conducting their investigation. And
25 they were pleased that the administration was
00228
1 taking the same tact that, it was going to be
2 hands off and let the police handle this and --
3 MR. MULLIN: Objection to what
4 they thought.
5 JUDGE CURRAN: Sustained.
6 BY MR. PARIS:
7 Q Okay. Don't --
8 JUDGE CURRAN: Strike the last
9 answer.
10 Q Don't tell us what they thought.
11 Just tell us what you did.
12 A Okay.
13 Q Okay. Now, let's go on to the
14 next day, Tuesday. Okay. Do you recall
15 Tuesday?
16 A Yes.
17 Q Okay. Now, there was a Council
18 meeting Tuesday night, correct?
19 A Yes.
20 Q Okay. What do you recall, if
21 anything -- if anything, that you did before the
22 Council meeting?
23 A I may have brushed up on the New Jersey
24 antibias statute. I also looked up the
25 harassment statute because, in my opinion,
00229
1 that's probably where the initial crime would
2 have been categorized, had it not been for the
3 bias. And with the bias act there is also
4 another statute that allows the Attorney General
5 to bring a private civil action seeking damages
6 against -- against perpetrators of these bias
7 crimes.
8 Q Okay. Now, in brushing up on
9 those statutes did you make any notes?
10 A No.
11 Q Did you put anything in your file?
12 A Well, what I put in my file was the
13 statute. When I say, "brushing up," like all of
14 these gentlemen here, I have a laptop computer.
15 I'm hooked up to WestLaw. I found the statutes,
16 printed them out; and they were in my file.
17 Q Now, do you recall anything else
18 that you did before the Council meeting?
19 A Well, before the Council meeting we have
20 what's called a "caucus meeting" --
21 Q Okay.
22 A -- if that's what you were alluding to.
23 Q Okay. If you can tell us what's
24 the difference between a regular Council meeting
25 and a caucus meeting?
00230
1 A The difference between a regular Council
2 meeting and a caucus meeting is at the Council
3 meeting the governing body is allowed to take
4 action. They can take votes. They can pass
5 resolutions, and they can pass ordinances.
6 A caucus meeting is for discussion
7 purposes only. And we normally have them before
8 the general regular meetings, so the members of
9 the governing body have an opportunity to
10 discuss various items.
11 And these caucus meetings, as well as
12 the open public meetings, pursuant to New
13 Jersey's Open Public Meeting Act, are open to
14 the public. And the time, location and nature
15 of the meeting also has to be published, so the
16 public is aware of it.
17 Q So just so we understand, caucus
18 meeting is open to the public, correct?
19 A Yes.
20 Q And the regular Council meeting is
21 open to the public?
22 A Correct.
23 Q Okay. Now, is there something
24 called an "executive session" or a "confidential
25 session" of meetings of a governing body?
00231
1 A Yes, there is.
2 Q Can you explain to the jury --
3 A Okay.
4 Q -- what is an executive session?
5 A Okay. The Open Public Meetings Act
6 requires that all deliberations and votes of a
7 governing body be held in public. However,
8 there is a recognition that some actions or
9 deliberations or discussions or considerations
10 by the governing body may not be in the best
11 interests of that governing body to be
12 disclosed. So you're allowed to have an
13 executive session, which can be closed to the
14 public.
15 And if it's closed to the public, that
16 discussion can entail and -- items for which
17 items can be closed are personnel matters,
18 contract matters, potential litigation matters,
19 anything where public disclosure of the
20 discussion may come to the detriment of -- of
21 the governing body. And we -- there was an
22 executive session to discuss the incident, which
23 was then two days prior.
24 Q Okay. Now, what time is the
25 caucus meeting?
00232
1 A Generally the caucus meetings are 5:30
2 the evening of a Council meeting, and the
3 Council meetings commence at 7 p.m.
4 Q 5:30 caucus, 7:00 council?
5 A Yes, sir.
6 Q Okay. I want to show you two
7 documents, D-12 and D-13. Okay. I just want to
8 show you these two documents. And my question
9 for you is: Did you see these documents --
10 well, let's start with this.
11 D-12 is entitled, "Supplementary
12 Investigation Report," correct?
13 A Yes, that's what it says.
14 Q Okay. What's the date of the
15 report?
16 A The date of the report is 4/27/04.
17 Q Okay.
18 A And there is no time listed on here.
19 Q And this is -- this was a report
20 prepared by whom?
21 A It was prepared by then Lieutenant
22 Malanka.
23 Q Okay. And I'm showing you the
24 D-13, which is also Supplementary Investigation
25 Report. And who was that prepared by?
00233
1 A Also prepared by Lieutenant -- then
2 Lieutenant Malanka, also dated April 27th, 2004.
3 Q Okay. My question to you is: Did
4 you see either of these documents before the
5 caucus meeting?
6 A No.
7 Q Now, we're probably not -- I hate
8 to say it, but we are probably not going to
9 finish with your testimony today. And based
10 upon discussions with counsel I am not going to
11 go into a lot of detail with regard to the
12 caucus meeting. However -- at least at this
13 point. However, I asked you, I believe it was
14 yesterday, to listen to a tape of the executive
15 session of the caucus meeting from April 27th,
16 correct?
17 A I received the tape in my office probably
18 around lunchtime yesterday, and I had an old
19 cassette player and did listen to it.
20 Q Okay. Had you ever listened to
21 that tape before?
22 A Never.
23 Q Okay. Before you listened to the
24 tape did you have a specific recollection or
25 complete recollection of what went on at that
00234
1 meeting?
2 A I didn't have a complete recollection. I
3 had a cursory recollection of what happened four
4 years previous and mixed up with a lot of other
5 things that happened between April 27th of 2004
6 and June 3rd of 2008.
7 Q Okay. Now, can you tell the jury
8 what was discussed at the April 27th meeting?
9 A The discussion was closed session to
10 discuss the incident at the North End Firehouse
11 on April 25th. The Chief of Police was there,
12 gave a brief overview of -- of what had happened
13 without going into his detailed investigation.
14 Then I stressed to the governing body
15 and other people that were there the severity
16 and the seriousness of this because it would be
17 deemed a bias crime under New Jersey State law.
18 The fact that this is an investigation that's
19 going to be conducted by the Police Department,
20 they should be unhampered and unimpeded, which
21 means no matter how good-willed anybody is,
22 don't talk to anybody who is a potential witness
23 with this because you don't want to taint
24 anything with respect to the investigation.
25 I also indicated that because of the
00235
1 allegations, whether they were true or not, it
2 was incumbent upon the Mayor and Council to make
3 sure that the epithets as to the sexual
4 preference of the plaintiffs be addressed. And
5 we had discussed the idea of sensitivity
6 training for the volunteers of the fire company
7 who had not otherwise had that because they were
8 not Town employees.
9 Q Was there any discussion at that
10 meeting regarding the media?
11 A The discussion with respect to the media,
12 at my direction -- again, I was concerned of,
13 number one, tainting the investigation and that
14 a member of the governing body, again, in good
15 will and good faith, might say something that
16 would either hurt the investigation or hurt the
17 Town. I suggested that -- that the members
18 there decline from speaking with the media and
19 that it was determined that I would be the media
20 spokesman.
21 Q Okay. And were you?
22 A Yes, sir.
23 Q Okay. By that point had anyone
24 been contacted by the media?
25 A Yes, I believe someone said at that
00236
1 meeting that there had been at least one contact
2 from the newspaper. I believe that was The
3 Bergen Record.
4 Q At the time of this -- at the time
5 of the executive session what was the status of
6 the North End Fire Company, the firehouse?
7 A The North End Firehouse was closed.
8 Q When you say it was closed, what
9 do you mean by the fact that it was closed?
10 A It was closed for all activities except
11 emergency activities, which would be getting the
12 engine out to respond to a fire and whatever
13 equipment there. And it was closed first by
14 order of the Police Department, I guess early
15 morning on the evening of April 25th and then by
16 concurrence of the Fire Chief.
17 Q Was there any discussion with
18 regard to an administrative investigation?
19 A There was a discussion. And I told them,
20 as I had stated previously, because it was
21 important that we not impede, interfere with the
22 purposes of the then ongoing criminal
23 investigation, that any administrative
24 investigation be held over until the criminal
25 investigation or if there were any criminal
00237
1 proceedings, until they had been terminated.
2 Q Was there a discussion as to
3 whether -- what would happen if people did not
4 cooperate with the investigation?
5 A There were questions asked. And my
6 response to them is what was -- excuse me, is
7 that everybody has a Fifth Amendment right not
8 to incriminate themselves. This matter was
9 going to be sent over to the Hudson County
10 Prosecutor, who could and did have the power to
11 subpoena witnesses and make them appear and
12 testify before a Grand Jury.
13 Q Did you explain or did you discuss
14 the role of the Town, as compared to the role of
15 the Hudson County Prosecutor?
16 A I -- the role of the Town -- the Town
17 actually had no role in this. It was the Town
18 Police Department and the Police Chief -- and
19 the Town Police Department is also under the
20 direction of the Hudson County Prosecutor's
21 Office. As a matter of fact, the Prosecutor has
22 the authorities to take over the Police
23 Department any time it deems it necessary. And
24 I told the governing body that this was going to
25 be an investigation handled by the Police
00238
1 Department, and then everything was going to be
2 referred over to the Prosecutor's Department.
3 Q So when you say the Town had no
4 role or the Police Department had no role -- I
5 think those were the words you said -- what do
6 you mean by that?
7 A The Town had no role. It was the Police
8 Department basically acting as the initial
9 investigatory arm of the prosecutor's Office.
10 Q Did you discuss the potential for
11 civil litigation?
12 A Well, prior to the meeting, as I
13 discussed before, I had -- did some research on
14 the bias statute. My initial discussion of it
15 was with respect to the bias statute, which
16 provided that the Attorney General, itself, was
17 allowed to bring civil actions on behalf of
18 victim -- victims of bias crimes against
19 perpetrators.
20 And then I also alleded -- alluded to
21 the potential down the line that the victims, if
22 the Town didn't act correctly and with proper
23 dispatch, would also have a cause of action this
24 time against the -- the Town potentially or the
25 individual perp -- perpetrators for civil
00239
1 liabilities.
2 Q Was -- was there a Councilman
3 Kickey present at this meeting?
4 A Yes.
5 Q And was his son a member of the
6 Volunteer Fire Department at the time?
7 A I -- at the time I wasn't aware of it,
8 but subsequently I found out his son was a
9 member of the Volunteer Fire Department.
10 Q Now, that was on April 27th, which
11 was a Tuesday, correct?
12 A Correct.
13 Q Okay. I want to show you a
14 document which has been marked D-256 for
15 Identification, which is on your letterhead, and
16 ask if you can identify that, please?
17 A Yes, this is a letter --
18 Q It's actually D -- D-256 and
19 D-257.
20 A Okay. A letter dated April 28th to Mayor
21 Elwell, which is basically a follow-up of the
22 caucus discussion. I went back to the office.
23 I made copies of the bias statute. I made
24 copies of the harassment statute. And I made
25 copies of the Attorney General's power to
00240
1 institute civil liability.
2 Q Well, you know what, rather
3 than -- than paraphrasing the letter?
4 A You want me to read it?
5 Q Could you read the letter?
6 MR. MULLIN: Objection, Your
7 Honor.
8 JUDGE CURRAN: Basis?
9 MR. MULLIN: No foundation for
10 reading a letter.
11 JUDGE CURRAN: Sustained.
12 MR. PARIS: Your Honor --
13 BY MR. PARIS:
14 Q Well, Mr. Leanza did you send this
15 letter to the entire Mayor and Council?
16 A It was addressed to the Mayor with copies
17 to be distributed to the other Councilmen.
18 Q Was anyone copied on it other than
19 the Mayor and Council?
20 A Just to the Mayor and Council.
21 MR. PARIS: Okay. Your Honor, the
22 letter -- he has authenticated the letter. That
23 is the letter he sent. I don't see any reason
24 why, other than paraphrasing the letter, he
25 couldn't read the letter.
00241
1 JUDGE CURRAN: You can question
2 him on it.
3 BY MR. PARIS:
4 Q Mr. Leanza let's go through the
5 letter. You indicated initially this was a
6 follow-up to the caucus discussion the night
7 before?
8 A Yes. And as I testified previously,
9 immediately before the caucus session I did
10 research on New Jersey antibias statute. I did
11 research on the harassment statute, which was
12 where I felt these violations would fall under.
13 And also on the legislation that allows the
14 Attorney General to bring civil action.
15 So I enclosed in the letter -- with the
16 letter copies of those various statutes, both
17 for the Mayor and the other Councilmen, so they
18 would be apprized of exactly what the law was.
19 In addition to that, I told them that
20 this was a matter for the exclusive jurisdiction
21 and investigation of the Police Department, that
22 under the bias statute, because this was going
23 to be an indictable crime, this was -- would be
24 handled solely by the Hudson County Prosecutor's
25 Office and no matter how much they thought they
00242
1 were going to help, they should really not put
2 themselves in the middle, speaking with
3 witnesses or talking with anybody about this
4 because it could only hurt the investigation.
5 Q Now, did you have a conversation
6 with Mr. Carter after the caucus meeting of the
7 27th?
8 A Yes, I believe my discussion with
9 Mr. Carter was not on the 27th but the following
10 day, the 28th.
11 Q Now, can you tell us what you
12 recall about your conversation with Mr. Carter?
13 A Well, first of all, let me say -- let me
14 correct my answer. I'm not sure it was
15 Mr. Carter. I got a phone number, and I called
16 it. And I know it was the phone number of the
17 two alleged victims.
18 I called. I introduced myself as the
19 Town attorney. I wanted to assure him on behalf
20 of the Town that we were taking this seriously,
21 that there is a police presence, the police
22 presence was going to keep his house under
23 surveillance.
24 I explained to him that in my opinion
25 New Jersey probably had the strictest bias
00243
1 legislation of any state in the nation, that
2 these offenses, because of the bias and the
3 antigay epithets that were said, in my opinion,
4 now moved up to the level of indictable
5 offenses. It was going to be referred to and
6 handled by the Hudson County Prosecutor's
7 Office.
8 The gentleman reiterated to me his
9 concerns, because these were Town firemen, how
10 is the Police Department going to do it? I told
11 them about the -- the referral that was going to
12 be the Prosecutor and not the Town.
13 Then he said he can't live here
14 anymore, he wants to move out.
15 I told him there is no need. Again I
16 reiterated what I had told him about the police
17 presence and how the Mayor and Council, everyone
18 in the Town and the Police Department was taking
19 this as seriously as possible.
20 And again he says he can't live here
21 anymore, he wanted to move away.
22 And I think that was the essence of
23 that telephone conversation.
24 Q How did you respond when he said
25 he wanted to move out of Town?
00244
1 A I believe I told him, "I can't make you
2 stay here. If you want to move away, you know,
3 you have that right."
4 Q Did you provide him with any other
5 information?
6 A The only other information I provided him
7 with, towards the end of the conversation I
8 wanted to make clear that even though I was the
9 attorney and the Town attorney, I was not giving
10 him any independent legal advice.
11 I suggested that he get his own legal
12 counsel. I called him from my office. While I
13 was speaking on my office, I had my, you know,
14 desktop computer on. I Googled -- Googled the
15 Lambda Legal Defense Fund, who I had known from
16 previous experience was a group of attorneys and
17 a not-for-profit service that specialized in
18 helping people who were the victims of bias or
19 harassment because of their sexual preferences.
20 And I suggested -- I gave him the number, as I
21 looked it up, and suggested maybe he call them
22 or some other such group for some help that I
23 couldn't really give him, private help. I
24 just -- my purpose in calling was just to ensure
25 him that the Town was looking at it seriously.
00245
1 Q Mr. Leanza, did you tell either
2 Mr. Carter or Mr. deVries that, if you were
3 them, you'd leave Town?
4 MR. MULLIN: Objection, this is a
5 leading question.
6 MR. PARIS: Your Honor, there is
7 no other --
8 JUDGE CURRAN: Well, it is a
9 leading question. It is leading. There is
10 another way to approach it. There is no
11 question.
12 BY MR. PARIS:
13 Q Let me ask the question a
14 different way. Did you -- just tell the jury
15 what your response was when Mr. Carter and
16 Mr. deVries said on the 28th of April that he
17 felt that he had to leave Town.
18 A No offense, Mr. Paris; I think I already
19 answered the question. When he said that, I
20 told him about the seriousness which -- with
21 which the Town, myself and the Police Department
22 were taking this. I told him that it was going
23 to be handled by the Hudson County Prosecutor's
24 Office. I told him, "There is no need to leave
25 Town." And I told him, "However, I can't stop
00246
1 you from leaving Town, if that's what you want
2 to do." I would never tell anybody that they
3 had to leave Town.
4 Q Pardon me?
5 A I would never tell anybody they had to
6 leave Town. It sounds like high noon in the
7 cowboy movies, "You have to leave town" or
8 something like that.
9 Q I understand that. But did you
10 ever tell anybody that, if you were them, that
11 you would leave Town?
12 A No.
13 MR. PARIS: Okay. Your Honor, I
14 think this would probably be a good place --
15 JUDGE CURRAN: Thank you.
16 MR. PARIS: -- for us to do for
17 the day.
18 JUDGE CURRAN: Okay. We will end
19 for today. The witness may step down.
20 (Whereupon, the witness is
21 excused.)
22 JUDGE CURRAN: Obviously,
23 everybody is aware of the restrictions on the
24 witness who is in the middle of direct.
25 Ladies and Gentlemen, we will
00247
1 excuse you for today. Before we do that I just
2 want to do two things.
3 First of all, there was some
4 interplay this afternoon. We went to sidebar.
5 There were some questions in regard to the
6 doctor as far as a reference made to not
7 going -- having -- not having the witness or
8 witness going to areas that the Court doesn't
9 want the jury to know.
10 And I just want to assure you
11 there are no secrets here. All of the attorneys
12 are playing by the rules. But that's the
13 question. There are certain issues -- that's
14 why we have all these conferences -- that either
15 are or are not allowed under the rules. And
16 each attorney from a very responsible,
17 professional basis says this is or should be
18 allowed under the rules; and maybe the others
19 say it is not. And I make the call.
20 There is nothing secret. I
21 didn't want you just to take that phrase and
22 think there was anything secret in that regard.
23 And the other is that some of you
24 have asked about the continuation of the case.
25 I have to indicate to you that, as I have said
00248
1 to you before, these attorneys are working
2 extremely hard. You weren't here on Friday; but
3 as I indicated, we were here until late on
4 Friday. The attorneys worked all weekend. It
5 is a very serious case for both the plaintiffs
6 and the defendants.
7 So I am telling you now, just so
8 that you can plan. Juror Number 1 asked the
9 other day about Friday. We have indicated to
10 you that you would not be required to be here on
11 Fridays, and we are not going to change that.
12 We will be working on the case on Friday, but
13 the jury will not be required to be in here on
14 Friday.
15 You will be required to be here
16 tomorrow starting at 9:30. You will not be
17 required to be here on Friday. But I will tell
18 you now, for your own planning sakes, you will
19 be required to be here next Monday and possibly
20 even Tuesday. I don't know whether it would go
21 until Tuesday, but there is that possibility.
22 So you should plan for that for next week.
23 Are there any questions in that
24 regard? If not, thank you very much.
25 Again, please don't discuss the
00249
1 case among yourselves or anyone else.
2 We will see you tomorrow at 9:30.
3 Thank you.
4 (Whereupon, the jury is excused.)
5 JUDGE CURRAN: Off the record.
6 (Whereupon, the witness is
7 excused.)
8 (Whereupon, the proceeding is
9 concluded at 4:45 p.m.)
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00250
1 C E R T I F I C A T E
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3 I, TRACEY R. SZCZUBELEK, a Certified Court
4 Reporter and Notary Public of the State of New
5 Jersey, do hereby certify that the foregoing is
6 a true and accurate transcript of the
7 stenographic notes as taken by and before me, on
8 the date and place hereinbefore set forth.
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18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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