THE COURT REPORTER: As far as stipulations?
MR. SMOLER: I
don’t think there are any except I’m assuming we’re waiving reading and signing
as we usually do?
MR. LIDDLE: Yes.
…RICHARD PHILIP KLUFT, M.D., having been duly sworn as
a witness, was examined and testified as follows…
BY MR. SMOLER:
Q: State your name, please.
A: Richard Philip Kluft.
Q: Am I correct that you’re a medical doctor working
in the area of psychiatry?
A: That’s correct.
Q: I assume you’ve been deposed before?
A: Yes, sir.
Q: I assume then you know some of the routines and
protocols in a deposition like me talking and then you talking and such things
as that?
A: I know them from respectful civility, sir.
Q: Okay. And in that regard I assume you understand —
and, if not, I’m instructing you — I can ask some pretty hideous questions. I
can also sometimes be confusing. I simply want to make sure that if you’ve
answered a question you believe you understood it. So if there’s a problem with
a question, you let me know and I will try to rephrase it.
A: I’ll do my best.
A: I’ve reviewed some of the materials. Yes.
Q: Can you tell me what
material it is that you have reviewed?
A: I have reviewed the material which is being
presented here as the file.
Q: Then let me show you what has earlier been
indicated as Dr. Rachel Long’s Answers to Plaintiffs’ Second Set Of Written
Interrogatories, and contained on there there is a list of material that
supposedly was made available to you for your review.
If you would just take a minute to review that to see
if that sets forth comprehensively what it is that you had available to you.
And then I’m going to ask you whether you’ve actually reviewed all of that.
A: I have not received two of those items —
Q: Which of those?
A: — S and M.
Q: Can you tell me what they are since I don’t have
copies.
A: Copies of Dr. Michael Spierer’s notes along with
the typewritten version and a copy of the report of Dr. Clagnaz.
Q: Okay. Other than —
A: I have not seen every single moment of the
videotapes. I have gone passim.
Q: Other than the two items that you have indicated,
is everything else on that document correct in terms of what has been provided
to you?
A: To the best of my knowledge.
Q: Is there anything else in addition to that that’s
been provided to. you?
A: Yes.
Q: What else?
A: In order to give me some clarity about certain
matters of Wisconsin Law, I’ve been given approximately four sheets of papers
including definitions of informed consent and standard of care.
Q: Do you have those pieces of paper with you?
A: Yes, I do.
Q: Could I see those, please?
A: Sure.
(Document
marked for identification as Exhibit No. 239.)
BY MR. SMOLER:
Q: Doctor, I’m showing you what’s been marked as
Exhibit 239 which is actually four separate different sized pieces of paper
that purport to be a Jury Instruction Wisconsin 1023, Jury Instruction 1023.2
with some typewritten addition to it. It’s a small piece of paper. And then a
copy of Wisconsin Statute Section 448.30.
Would this be the additional material to which you
were referring?
MR. LIDDLE: Is that all one exhibit?
MR. SMOLER: Yes. I marked that all as one.
THE WITNESS: Yes. My page count differs from yours,
sir.
BY MR. SMOLER:
Q: How many do you get?
A: Five.
Q: Did I miss one? Oh, yes, I did. Thank you. I missed
the Wisconsin Administrative Code Chapter Med 18.Thank you for that.
Is there anything else in addition to Exhibit 239 that
you’ve been provided beyond what is identified in the responses to the
Interrogatories?
A: No.
Q: Okay.
MR. LIDDLE: I will interject —
MR. SMOLER: Sure.
MR. LIDDLE: —
he has Dr. Spiegel’s deposition.
THE WITNESS: Oh, yes.
MR. LIDDLE: But just.
BY MR. SMOLER:
Q: Have you reviewed Dr. Spiegel’s deposition?
A: Yes, I have.
Q: Now, as to all the material that’s set forth on
Rachel Long’s Answers to Plaintiffs’ Second Set of Interrogatories, have you,
in fact, reviewed all of the material other than as you indicated some limited
review of the videotapes?
A: To the best of my knowledge, yes.
Q: And how many times have you reviewed this material?
A: I would say from one to eight depending on the
material, sir.
Q: And can you give me some idea of what made you
review some material more than others?
A: I was trying to solve certain problems that I was
experiencing in understanding the sequence of events, and I was trying to cross
reference certain accounts given by one person as opposed to another.
Q: Are there certain things then that likely you
reviewed more than others, for example, specific depositions or the specific
medical records or therapy records?
A: It would be a paragraph here, a page there. I think
the treatment notes would be the only thing that would stand out as en masse
having been reviewed repeatedly.
Q: Fair enough. Did you create some notes based upon
your review?
A: No, I did not.
Q: Do you have a chronology that has been created
based upon your review to try to help you sort what the sequence of events
were?
A: No, I do not.
Q: So, if
you got it it‘s inside your head right now?
A: Yes, sir.
Q: Okay. Can you give me some idea the purpose for which
you were reviewing the information; that is, what is your mandate, whose care
were you reviewing, some idea?
A: Well, I was reviewing primarily to assess the care
rendered by Dr. Rachel Long.
Q: And as a part of that, have you assessed the care
rendered by anyone else?
A: I have read the records as they were given before
me and — but I have not assessed them as I would were that my mandate.
Q: So let me try to ask it very directly if I could.
What opinions are you prepared to offer today based upon your review of the
material in this case? And I’m just looking for the description, not for the
opinions themselves.
A: I don’t know how to answer your question. I am here
to answer any question you pose to me that’s reasonable.
Q: Well, you’ve been asked by someone, presumably, to
render opinions about something. I understand you to have been asked to render
opinions related to Dr. Long, and I assume it’s Mr. Liddle who’s asked you to
do that?
A: That’s correct.
Q: Has anybody else asked you to render opinions about
anybody else?
A: No, they have not.
Q: Are you prepared today to render opinions about
anybody else?
A: I can make a point — I can comment in terms of what
has been asked of me, but I have not reviewed the materials that I would
normally review to render an opinion on anyone else.
Q: Okay. So let me ask it directly. I’m going to ask
you about what opinions you’re going to offer and very directly. But are you
prepared today to give opinions about whether or not Dr. Bell was within the
standard of care in the treatment he rendered to Mrs. Daly?
A: I can only answer that in the context of what I’ve
read and reviewed.
Q: And based upon what you’ve read and reviewed are
you prepared to offer opinions in that regard?
A: What do you mean by an opinion, sir?
Q: An opinion by an expert. Do you have an opinion to
a reasonable degree of professional certainty whether Dr. Bell conformed to the
standard of care in his treatment with Marilyn Daly?
A: I have seen nothing in the materials that were
presented to me to indicate to the contrary; but, as I said before, I have not
reviewed all the relevant materials.
Q: Are you prepared to render opinions in the same
regard as to Dr. Beck?
A: Yes, sir.
Q: Okay.
A: I am prepared only to comment on the basis of what
materials I’ve reviewed, and I have not reviewed all the materials I would were
my mandate to render a firm opinion about that matter.
Q: Sure. But isn’t that also true as to Dr. Long? I
mean, you’re rendering your opinions as to Dr. Long based on the materials that
you have. You don’t know whether there’s additional material that might change
your opinion?
A: Well, I think that would be true of any situation —
Q: Sure.
A: — sir.
Q: Sure. Are you here for the purpose of rendering
opinions related to cause; that is, whether the care rendered by any of the
three providers that I’ve named caused damage to Marilyn Daly or Jonathan Daly?
THE WITNESS: Brad, I
would like to ask you about that question.
MR. SMOLER: I don’t
mind if you two confer in that regard. I just want to understand the scope of
what I’m asking about so —
MR. LIDDLE: Okay.
MR. SMOLER: Let’s go off the record.
(The witness confers with counsel outside the
deposition room.)
BY MR. SMOLER:
Q: Doctor, the question I was asking is whether you’re
rendering cause opinions in this case.
A: About certain things, yes.
Q: Can you tell me what those things are?
A: I think it’s going to be largely dependent on what
you ask me, sir.
Q: Well, you see, I’m going to ask you and let me be
very clear. The question that I want to have done by the time we’re done with
your deposition is: What opinions have you prepared in this case and what
opinions are you prepared to offer in this case. And that’s my question at this
point, and that’s my question throughout this deposition.
And I say that to you because we need to be preparing
for trial. We need to know what it is that you have prepared and you’re
prepared to offer at trial. So I don’t want to foreclose because I didn’t ask
this question, an opinion that you have offered that you have prepared and are
prepared to give. So that’s what my question is intended to ask.
A: I understand —
MR. LIDDLE: What is your question?
MR. SMOLER: My question is: Is he prepared to offer
cause opinions; and if so, which ones?
THE WITNESS: I have formed thousands of opinions, and
the way you’re asking the question continues to confuse me. Can you ask the
question another way because to me with my background cause means a whole
complex variety of influences that interact. And I think you’re asking it in a
much more pointed way. And I’m not trying to be difficult. I’m trying — I mean,
your frame of reference and mine are very different. I’m trying to get them
lined up.
BY MR. SMOLER:
Q: Sure. And while I’m
comfortable with that, please understand the question that I’m wanting to have
answered by the time we’re done with this deposition is: Have you given me
those opinions that you have prepared and are prepared to offer in this case?
So I need you to understand that’s where I’m headed whether my words
communicate that or not. Okay?
A: I think the comprehension problem is mine, sir.
Q: Okay. Let’s go to medical cause. Are you prepared to
offer opinions about whether or not the care rendered by any of the three
providers: Drs. Long, Beck, or Bell had a medical consequence to Marilyn Daly?
A: Yes, I am.
Q: Okay. And what, if any, opinions do you have about
the medical consequences to Marilyn Daly by the care of Drs. Long, Beck, and
Bell? And I’m looking for the broad brush stroke. We’re going to go back to all
of these in a few minutes.
MR. LIDDLE: I’m going to object to the form of the
question. You can answer, Doctor.
THE WITNESS: I don’t know how to
answer because I wish to know which medical consequences you’re asking me
about.
BY MR. SMOLER:
Q: Well, then we will break it down. I’ll come back to
this in a few minutes. Are you prepared or have you prepared any opinions about
any damages suffered by Marilyn Daly?
A: Yes, I have.
Q: Okay. And have you prepared any opinions about the
nature and condition of Marilyn Daly at present?
A: No, sir. I have not examined Marilyn Daly
personally, and I don’t have any grounds on which to offer an opinion like
that.
Q: By the way, I’m assuming that you do not have a
forensic psychiatry certification; is that right?
A: That’s correct.
Q: But you have testified a number of times. Can you
give me a ballpark of how many times you’ve testified?
A: At trial? At deposition? What are you asking?
Q: Both.
A: Probably in the neighborhood of between three and
four dozen.
Q: That’s trial and
deposition testimony inclusive?
A: Yes.
Q: And how many
different cases would that likely constitute?
A: A couple dozen.
Q: Okay. Let’s talk about the nature of those cases
for just a minute if you could, please.
A: Certainly.
Q: Have you been a defendant in any cases where you’ve
testified?
A: A defense expert or —
Q: No.
A: — a defendant?
Q: Defendant.
MR. LIDDLE: In cases where he’s testified?
MR. SMOLER: Yes.
THE WITNESS: Yes.
MR. LIDDLE: Been both sued and testified?
THE WITNESS: Yes.
MR. SMOLER: Correct.
BY MR. SMOLER:
Q: Okay. Let’s break that down for just a minute.
Okay. Let’s talk about suits brought against you. How many different suits have
you been brought against you?
A: There have been three.
Q: And what are the names of the plaintiffs in those
suits?
A: I cannot comment on the first one because I am
under a gag order about it.
Q: Okay.
A: I can tell you no more than generically a little
about it.
Q: We will come back to that in a minute. The second
one?
A: The second one was Burgus was the plaintiff.
Q: Okay. Third one?
A: Third one was Moore/Marietti and several first
names after that.
Q: And where was the Burgus case venued? A: The Burgus
— I don’t remember because I was dismissed within days of being sued.
Q: Okay. No deposition taken?
A: No. No deposition taken.
Q: No trial testimony?
A: No trial testimony.
Q: Moore/Marietti where was that venued?
A: Philadelphia.
Q: Was there deposition testimony?
A: Yes, there was.
Q: Was there trial testimony?
A: No, there was not.
Q: The gag order case, what is it that you can tell me
about that case?
A: I can tell you very
little. The judge said, basically, don’t talk about it. And I came back and
said, basically, my insurer wants to know, inquiring minds want to know or they
won’t renew my insurance.
Basically, the nature of the case was that a person
was being treated by a psychologist who consulted me, and then this person came
under my care and came to Philadelphia for treatment, then left Philadelphia
and insisted she would not see anyone else. And I continued to talk to her by
phone and to try and encourage her to see someone locally.
I was sued on, basically, three areas. One, I was said
to have supervised the psychologist, which I had not, and the plaintiff alleged
that the psychologist had initiated a sexual liaison with her. The second issue
was misdiagnosis. And the third issue was inappropriate treatment on the
grounds that my telephone contact with the patient, which was all she
would allow, was inadequate treatment.
Q: And I’m not asking you how
the case was resolved. I need you to understand that. I’m just wanting to know
if the case is done.
A: Yes.
Q: Or is there anything pending about the case?
A: No. That’s done a long time ago.
Q: Can you give me any ballpark idea when you say a
long time ago. How long ago was it that this case was resolved?
A: Early ‘90s, I believe.
Q: And Mr. Liddle may have told you that my co-counsel
— actually, the lead counsel in this case — is persistent. I too at times can
be persistent. I’m going to ask you some questions; I want some more
information about this case. And the reason is because I want to be able to
have the opportunity to check on what it is that you have told me. Okay. So
what I need to know is is the plaintiff in this case an adult or a minor?
A: This case being the gag order case?
Q: The gag order case.
A: An adult.
Q: Okay. I’d like you to tell me where this case is
venued?
A: All I have been told I am free to say is in
connection with the kind of things I’ve said already. I don’t think I’m free to
say that, sir.
Q: You understand there’s no way for me to check on
the validity of your statement that there is a gag order imposed on you without
knowing that there is a case and how to find that case to see if there is a gag
order?
A: That’s correct.
Q: So I am going to ask you — again, you can refuse to give me that
information. You’re welcome to consult with Mr. Liddle about whether you must
refuse to give me that information. But I believe that I’m entitled to that to
check to see that there is a gag order. So I’m going to ask you once again. Are
you willing to tell me where that case is venued?
A: No, sir.
MR. SMOLER: And, Mr. Liddle, do you endorse that
statement, or do you want to talk with him at all about that?
MR. LIDDLE: I will endorse it for the present time. I
will talk with him later. It’s not the purpose to preclude you from gaining any
information that you would lawfully be entitled to. I have a problem because I
don’t know the exact ramifications of the gag order, and I don’t want to
compromise Dr. Kluft in that regard. But I’ll explore the issue.
MR. SMOLER: Fair enough.
BY MR. SMOLER:
Q: By the way, Dr. Kluft, I’m assuming that it is Mr.
Liddle with whom you have dealt related to this case; is that correct?
A: That’s correct.
Q: Have you spoken to any of
the other defense firms that are involved in this case, any of the individuals
therein?
A: Other than yesterday afternoon briefly, no.
Q: Okay. So you didn’t correspond with them for the
purpose of setting up your testimony or deciding the parameters of your
testimony? Poor question.
Did you correspond with any defense firm other than
Mr. Liddle’s?
A: No, sir.
Q: And with whom did you meet yesterday?
A: I met with —
Q: Mr. Kurtz?
A: — Mr. Kurtz, Ms. Williams, and —
MR. LIDDLE: Gill.
THE WITNESS: — the gentleman whose name I’m forgetting.
MR. LIDDLE: Gill.
THE WITNESS: Gill, Mr. Gill.
BY MR. SMOLER:
Q: Other than yesterday, had you ever spoken to any
members of their firms related to this matter?
A: No, sir.
Q: Okay. Other than correspondence, has there been any
e-mail exchanges with any of the other firms in this case?
A: No, sir.
Q: Have there been any e-mail exchanges with the
technological wizard who is equal only to me in that regard sitting next to you
on e-mail?
A: I probably have you both beat. The answer is no.
Q: Okay.
MR. LIDDLE: That’s a stupid question.
MR. SMOLER: Well, I know it, and it’s true, Off the
record.
(Discussion off the record.)
BY MR. SMOLER:
Q: I want to go to the third case. I also want to
advise you, to the extent you’re willing to give me the information about this
gag order case, I’m going to want to know where it’s venued. I’m going to want
to know either the names of the parties so that I can check to see that there
is a gag order, or the names of the attorneys involved so I can check with them
to have them validate to me that there is a gag order. Okay.
So that’s the additional place I want to go after you
have an opportunity to talk with Mr. Liddle. If you choose to give me that
information, I would invite you to do so.
A: I will not choose to give you that information.
I’ve been over this many times over the years, and my understanding remains the
same.
Q: Okay. Let’s go to the Moore/Marietti. Can you spell
Marietti, please, for the court reporter?
A: Marietti.
Q: Marietti. Will you spell that, please?
A: M-a-r-i-e-t-t-i.
Q: And you told me that that was venued in
Philadelphia and that you did a deposition. What was the essence of the claim
against you in that case?
A: The essence was that I had misdiagnosed a patient,
mistreated the patient, implanted erroneous memories and beliefs and, as I’m
sure you know, a laundry list of other things, but they all come down to that.
Q: When you say you’re sure I know, are you meaning
because these same kind of allegations are consistent throughout these
different cases or —
A: No, because when the
counts are written down by an attorney, they’re usually many, many, many, many
ways of saying the same thing.
Q: Okay. And has that case been resolved?
A: Yes, it has.
Q: Was there a trial that at any time commenced in that
case?
A: Yes, sir.
Q: How long did that trial go?
A: Including witness selection?
Q: Yes.
A: Two to three days.
Q: Who were the attorneys involved in that case,
please?
A: The attorneys on the other side included Richard
Harrington and a local attorney whose name escapes me. My attorneys were Jeff
Lerman and Marianne Bechtle, B-e-c-h-t-l-e.
Q: Is that a local firm?
A: And also Mr. William O’Brien.
Q: And are those local attorneys here?
A: Yes.
Q: Was the case ultimately settled?
A: Yes, it was.
Q: And was there a payment of some sum of money as
between defendant and plaintiff to resolve the claim?
A: Yes, there was.
Q: Can you tell me what that is?
A: There was $200,000 against my insurer and 500 against
the CAP fund — CAT Fund, rather, which is a Pennsylvania umbrella agency very
much like the one you have in Wisconsin.
Q: Who is your insurer, please?
A: Whoever is insuring for the APA.
Q: Legion Insurance?
A: To tell you the truth, I don’t know.
Q: Whatever is the APA endorsed policy, you have used
for the last 20 years?
A: Make it 30.
Q: Okay. But otherwise what I said is correct?
A: Yes, sir.
Q: Would it be fair to say that the allegations in the
Moore/Marietti case are similar in their nature to the allegations in this case
meaning the Daly case?
MS. WILLIAMS: Object to form.
THE WITNESS: There are many
BY MR. SMOLER:
Q: What would the similarities be?
A: Well, the allegation of misdiagnosis.
Q: Was the misdiagnosis in the Marietti case MPD?
A: No. That was the accurate diagnosis.
Q: I’m sorry. Was the claim of the misdiagnosis, that
you misdiagnosed her as MPD?
A: The claim was that I had misdiagnosed her as
dissociative at all. My chart entries indicated that she fluctuated between DID
presentation and a DDNOS presentation.
Q: What other similarities are there?
A: Allegations that false memories were created,
allegations of use of techniques that the plaintiff felt were contraindicated.
Q: Are we speaking about hypnosis here or something
else?
A: Hypnosis. hospitalization, treating her as if she
had the condition that I believe she had.
Q: Okay. Any other
similarities between the Marietti case and the Daly case?
A: Well, of course, there was an allegation that the psychopharmacology
was in error. It was a similar laundry list.
Q: Okay. When did that case resolve, please, the
Marietti case?
A: Early in July or late June of 1998.
Q: Have we now dealt with all cases in which you have
been sued as a defendant?
A: Yes, we have.
Q: Are there any claims — and I’m not going to ask you
for the names. I just want to know are there any currently outstanding claims
against you that may ultimately turn into some kind of a suit?
A: No, sir.
Q: Now, you told me that you testified in three cases
against you. Can you give me some idea?
A: I’m sorry. Sir, that mischaracterizes my statement.
Q: Yes. Yes, it does. I’m sorry. Did you testify in
the first case, the one where there’s a gag order?
A: I gave a deposition, sir.
Q: So you testified in two cases against you?
A: Yes, sir.
Q: And then I think you
told me that you’ve testified in a total of somewhere between 36 and 48 cases,
the other ones would be cases where you were retained as an expert?
A: Yes, sir.
Q: Let’s talk about the expert cases then. In all of
those cases would your testimony have been related to issues surrounding any of
the following issues: Hypnosis, multiple personality disorder, memory
suggestion, satanic ritual abuse? Let me leave it at that.
MR. LIDDLE: Object to the form. Go ahead.
THE WITNESS: Yes to —
yes to all of the latter.
BY MR. SMOLER:
Q: Okay. The question I was trying to ask, and I agree
it wasn’t terribly artful was: In any of these cases where you’ve testified as
an expert, are they outside of this area that you’ve obviously worked in?
A: Yes.
Q: What other areas?
A: I’m sorry. I have not —
MR. LIDDLE: Excuse me. What do you mean by “this
area.”
MR. SMOLER: I’m talking about the area of MPD, memory
suggestion, hypnosis, these areas.
THE WITNESS: No.
BY MR. SMOLER:
Q: Okay.
A: Even though they may
have been peripheral, they were at least aspects of all the situations in which
I was involved.
Q: The question I’m,
again, trying to ask not very well is —
MR. LIDDLE: True.
BY MR. SMOLER:
Q: — I’m
assuming that you are being hired as an expert because of your expertise in
these areas and not because of your expertise in the psychopharmacology for
depression?
A: That’s correct.
Q: Do you have other areas where you’ve been retained
as an expert outside of the memory suggestion, dissociative disorder areas?
A: A lot of my work has been with therapist-patient
sexual exploitation or in understanding the dynamics of murder cases and,
actually, I’ve probably been — that’s where the majority of my expert work has
been.
Q: Take them one at a time. The murder cases, does
that have some component related to the issues — let’s call it the laundry list
of issues that I keep saying: Suggestion, memory, hypnosis, MPD?
A: Yes. In one case I was asked to do forensic
hypnosis to explore the motivations of a person who had committed a brutal and
senseless murder. In other cases I had been asked to determine whether a person
suffered dissociative identity disorder or multiple personality disorder, or
some dissociative phenomenon and to render an opinion as to whether that bore
on criminal responsibility or was relevant to sentencing.
Q: Approximately how many cases have you participated
in that relate to therapist sex kind of issues?
A: I have to correct something I said earlier, sir.
Q: Yes.
A: I think in my mind I
confused cases reviewed with actual depositions given. It’s probably about a
dozen less than I estimated.
Q: Where you’ve given testimony?
A: Yes.
Q: So you would say instead —
A: Make that two to three dozen instead of three to
four dozen.
Q: Okay. Of testimony. And
of that we’ve taken away a couple of cases be cause they were where you were a
named party so we’re in the vicinity of 30 cases?
A: More or less.
Q: Fair enough?
A: Yes.
Q: Of those 30 cases more or less how many of them had
allegations of sexual impropriety by a therapist against a patient?
A: Probably upwards of ten.
Q: And do you show up on one side versus the other in
those cases?
A: I think —
MR. LIDDLE: Probably.
MR. SMOLER: Sure. I mean, consistently.
MR. LIDDLE: You don’t do both
sides of the fence in one case now, do you, Doctor?
MR. SMOLER: Brad, I’m so glad you clarified that.
BY MR. SMOLER:
Q: My question is: Do
you more frequently testify for the patient who allegedly has been violated by
a therapist or for a therapist who is defending against claims of sexual —
A: The majority —
Q: — impropriety?
A: — would be for the patient.
Q: Okay. Can you break that down for me at all as
between the ten cases?
A: I really can’t. It’s —
Q: Have you testified on more than one occasion on behalf of therapists
who are accused of sexual improprieties with their patients?
A: I’ve become involved in such cases, but they didn’t
go to deposition or trial.
Q: Let me ask the question; and if you’ll answer the
question I’ve asked, it will be helpful. Have you testified in any cases on
behalf of therapists against whom there are allegations of sexual impropriety?
A: Yes.
Q: How many cases?
A: At least one comes to mind.
Q: Can you give me any information about that case?
A: No. That is part of the gag order case in regards
to the other defendant.
Q: The same case against you?
A: Yes.
Q: Okay. Besides that case, have you testified on
behalf of a therapist who has been accused of sexual improprieties with their —
A: My memory —
Q: — patient?
Q: So if we could give the best statement it would be
none can come to mind today; there may be some?
A: Yes, sir.
Q: In how many cases
have you testified related to giving expert opinions on behalf of a therapist
related to whether that therapist was within the standard of care in treating a
patient diagnosed as MPD or DID or DDNOS?.
A: I’m having the same trouble confusing files
reviewed and those that went to deposition.
Q: Right.
A: I just don’t trust my memory.
Q: Can you give me a ballpark of how many cases you
reviewed where you’re reviewing for the purpose of giving opinions about the
propriety of care —
A: A few dozen.
Q: Let me finish.
A: I’m sorry.
Q: — the propriety of care rendered by a therapist regarding
the treatment of someone who carried a diagnosis of MPD, DID, or DDNOS?
A: A few dozen.
Q: And in some of those cases, presumably, you have
testified?
A: I’m having the same problem with it all blurring. I
have reviewed so many that have gone on to settlement either before or after I
was deposed, and I just have not kept a record, and I can’t reliably retrieve
the information.
MR. SMOLER: If you wouldn’t mind, Miss Reporter, just
to make sure we got it.
(The court
reporter read back the previous answer as requested.)
BY MR. SMOLER:
Q: Are there any cases that you can identify for me
today where you have testified on behalf of a therapist accused of negligence
in the diagnosis and treatment of somebody who was diagnosed as MPD, DID, or
DDNOS?
A: One immediately comes to mind, and it was a Denver
based case against Walter Young.
Q: How long ago was that?
A: Several years.
Q: In the ‘90s?
A: ‘90s or late ‘80s.
Q: Any other ones that come to mind?
A: No.
Q: Did you testify in the Burgus case at all?
A: No.
Q: What do you charge for your testimony? Let’s start
with today.
A: My testimony isn’t for sale. My time is.
Q: Fair enough. What do you charge for your time —
let’s break it down — in reviewing
cases and in giving depositions? And if they’re the same, tell me.
A: $300 an hour, the same.
Q: Has that always been the charge for your time in
reviewing cases or giving testimony?
A: I’m not sure always. There have been some very
impecunious people for whom I either made no charge or made a vastly reduced
charge. But in those cases too when people asked me what my fee was, that’s
what I said.
Q: In fairness, when did you start doing expert
testimony?
MR. LIDDLE: Testimony or review?
MR. SMOLER: Well, either one. Thank you, actually.
Either one.
THE WITNESS: Late ‘70s or early ‘80s.
BY MR. SMOLER:
Q: And I assume that there’s been an inflationary
factor. At some point you were charging less than $300, and it’s just grown
with inflation?
A: No. Actually, it’s — I cut it back.
Q: Oh, really?
A: Yes.
Q: Where did you start out at?
A: No. I started much lower, took it higher, and then
took it back to 300.
Q: So what’s the range, if you could, please?
A: I think the most I have ever charged is 350.
Q: And the least you charged?
A: Zilch.
Q: Well, other than doing it as a pro bono when you’ve
actually billed?
A: 150.
Q: Okay. And in this case it’s 300 you told me; is
that right?
A: Yes.
Q: Admittedly, we got off a little bit on a tangent
here. I would like to go back to the question I started out asking which is the
opinions that you have developed in this case.
A: Yes.
Q: Okay. And what I
would like you most to do is slowly give that to me because I’m going to write
them down because we’re going to keep coming back to them, and I would like to
get a comprehensive list if we can, okay?
I would like for you first to tell me what, if any,
opinions you have regarding Dr. Long and, more specifically, whether she acted
within the standard of care?
A: I think she did an excellent job and acted within the
standard of care.
Q: And what I would like you to do, if you could, is
to identify for me the most pertinent facts that support that opinion upon
which you are relying?
A: That’s one of those
questions I can never really answer adequately because there were literally
thousands, if not millions, of facts that were presented for consideration.
Q: Of course.
A: But in broad strokes — and I’m quite confident I
cannot be comprehensive. In broad strokes, she has — as my reading of the
record indicates, she has been a thoughtful, compassionate, and a caring
physician. She has thought out her options and alternatives and often
documented them very well.
Q: Slow down a little bit, please. I’m actually
writing these down.
MR. LIDDLE: Can we have the last answer back, please.
(The court reporter read back the previous answer as
requested.)
BY MR. SMOLER:
Q: Not only are Mr. Liddle and I technological giants,
but we also suffer from writing slowly. So if you could, please, continue but
let us both have an opportunity to write these down.
A: Okay. She was thoughtful and responsible in
responding to a changing and often kaleidoscopic symptom picture.
Q: Okay.
A: She was responsive to the concerns of the patient’s
family and took steps to bring in, inform, and involve the patient’s family.
She respected the patient’s priorities and values
changing the course of the therapy frequently to address issues of — that
related to her family and her relationships.
Q: Okay. Hold on. Okay.
A: She was clearly always re-evaluating both the
diagnosis and the treatment plan and modifying both accordingly.
Q: Just a minute. Okay.
A: She didn’t get so lost in the patient’s
psychopathology that she lost sight of her as a human being with her own goals,
objectives, and priorities.
MR. SMOLER: Can you read that sentence back to me,
please.
(The court reporter
read back the previous answer as requested.)
BY MR. SMOLER:
Q: With whose own goals and priorities are you saying?
Dr. Long’s or the patient’s?
A: The patient’s.
Q: Okay.
A: She was responsive to and thoughtful about medical
issues as they arose.
Q: Okay.
A: And, I think,
overall there’s just a quality of thoughtfulness that characterizes both her
entries and her deposition, a kind of thoughtfulness that I think was consistently
directed to the patient’s best interests.
Q: Have you given me
the best group of salient facts upon which you’re relying that you can give me
at this moment understanding that may change over the course of this
deposition?
A: Those are the broad strokes.
Q: Fair enough. That’s really what I was asking. I
appreciate that. I’m sorry. I want to divert once again.
Have you ever given opinions that therapists working
with patients diagnosed with dissociative disorders have been below the
standard of care?
A: I have been prepared to.
Q: Have you ever in formal testimony given such
opinions?
A: Yes.
Q: Can you tell me the circumstances?
A: It was a Virginia case. In Charlottesville? I
forget. A beautiful little town. And a professor in the Department of Psychiatry
at the University of Virginia had found the multiple, treated her, married her,
got divorced from her, committed a number of egregious offenses. And I think
the least important thing I said was the treatment was below standard level.
Q: In that case were you indicating the treatment was
below standard because of the kind of boundary violations that we’re talking
about here or because of the actual treatment of the diagnosis of MPD?
A: No. I said that even if none of the boundary
violations had occurred it would have been below the standard of care.
Q: What was it that the therapist did in that
circumstance that was below the standard of care that you rendered opinions
concerning outside of the boundary violations?
A: Details of the case are vague in my memory. But
what I do recall clearly was his videotaping several personalities, which was
not a problem in and of itself, but interacting with them in a way to — that I
thought encouraged them to remain separate rather than move towards
integration.
Q: Would it be your opinion that encouraging alters to
remain separate over some period of time becomes a violation of the standard of
care?
MS. WILLIAMS: Objection to form.
THE WITNESS: No.
BY MR. SMOLER:
Q: Explain that, Doctor, please.
A: There are many situations in which you cannot move
toward an integration for any of a variety of reasons. And under those
circumstances you try for what’s called a resolution which is a better working
arrangement among the alters. And under those circumstances when therapy is
supportive and can’t go toward integration or when the patient is uncooperative
with the goal of integration, it is perfectly acceptable not to press the
alters to come together but to instead try to do a family therapy or group
therapy among the alters to get a more facile and adaptive pattern of
interaction going.
Q: So what made his encouragement of alter separation
below the standard of care in that instance?
A: Well, because he was just exploiting them all in
different ways.
Q: Are we back to the boundary violations or something
else?
A: He was enjoying the multiple personality. He was
trotting her around and giving road shows.
Q: Why is that below the standard of care?
A: Because it makes the
patient a subject of display and exhibition rather than the subject of a
healing procedure because the main characteristics of being a side show are
that you keep the act intact; i.e., remain curious, fascinating, different.
Q: Any other cases that
you can think of where you have given opinions that therapists treating
individuals with MPD, DID, or DDNOS acted below the standard of care other than
boundary violation circumstances?
MR. LIDDLE: Whether he testified or not?
MR. SMOLER: No. Let’s talk about testimony. Thank you.
MR. LIDDLE: Do you
understand, Doctor, he wants now just where you’ve given testimony in cases as
opposed to those where you weren’t asked to for obvious reasons.
THE WITNESS: As I said before, my memory of which cases
went where is fairly blurry. I’m giving you — I’m doing the best I can with the
ones that stand out.
BY MR. SMOLER:
Q: Doctor, you don’t need to say that to me again. I
understand that. I appreciate that. And I think we all accept that particularly
as we age. But what I’m asking is are there any that you remember at this point
other than the Charlottesville, Virginia, case where you gave opinions that
someone acted below the standard of care in treating a dissociative disorder
other than for boundary violations?
MR. LIDDLE: In testimony?
MR. SMOLER: In testimony.
THE WITNESS: And I would respectfully make the same
answer.
BY MR. SMOLER:
Q: That none come to mind?
A: None come to mind. A lot of cases are coming to
mind, but the longitudinal sequence of where those cases went is not coming to
mind.
Q: Do you have a list of your cases anywhere?
A: No.
Q: Have you ever been asked to detail your cases as a
part of a discovery proceeding like this?
A: Yes, I have.
Q: Have you ever gone back and tried to create such a
list?
A: No. They eliminated the request.
Q: All right. We’ve talked about Dr. Long and, please,
to the extent that during the course of this deposition if you wish to modify
any answer: Dr. Long’s salient fact question, cases that you then remember that
you testified in, I’m inviting you to do that, interrupt me at any time and
tell me.
A: I will do my best.
Q: Okay. I would like to talk now, specifically, about
any opinion that you have regarding whether Dr. Bell acted within the standard
of care. Do you have an opinion in that regard?
A: Well, as I mentioned earlier, I have not reviewed
all the materials.
Q: And as I mentioned earlier, you might not have
reviewed all the materials for Dr. Long. I’m asking based on the materials that
you have reviewed.
A: I found nothing that struck me as outside the
standard of care.
Q: And what are the salient facts in that regard as it
relates to Dr. Bell? And if you would be kind to do as you did with Dr. Long so
that this time it may not be Mr. Liddle who is writing it down, but it will be
me.
A: Okay. I did not come here prepared to answer such a
question, and I don’t feel comfortable in answering it without reviewing the
records with it in mind to answer such a question.
MR. SMOLER: I need some help then from counsel that’s
here. Is any counsel going to be proposing that Dr. Kluft be giving opinions
about whether or not Dr. Bell acted within the standard of care because if so I
need to be able to have a complete deposition of him in this regard?
MR. KURTZ: Other than what he has testified about, we
are not going to ask him specific questions. If at trial he’s asked whether on
his review of the materials he has seen whether he has an opinion whether the
doctor met the standard of care, we’re not going to object to that question. We
were not going to be presenting him as our witness in this case for the
purposes of making an opinion regarding standard of care.
Clearly, there may be testimony that he gives relevant to Dr. Long that,
obviously, reflects on the prior care as well. I don’t think that’s precluded
in this case. But we are not going to present him with additional information
or ask him specifically opinions regarding Dr. Bell’s standard of care if
that’s helpful to you.
MR. SMOLER: I think that is helpful.
But let me ask then one very direct question which is: Are you going to
ask Dr. Kluft whether or not in his opinion Dr. Bell acted within the standard
of care? And if you are, then I need to pursue that. If you aren’t, I don’t.
And we can take a break. This isn’t meant as a trick. I just need to know —
MR. LIDDLE: It’s about an hour. Why don’t we do that.
MR. SMOLER: Okay.
(Brief recess taken at 10:30 a.m.)
MR. SMOLER: We’ve returned from the break, and we’ve
had an opportunity to talk as among counsel here regarding the parameters of
Dr. Kluft’s opinions. It’s my understanding that neither Dr. Bell’s counsel nor
Dr. Beck’s counsel nor any other defense counsel intend to ask Dr. Kluft the
question: Was Dr. Bell within the standard of care in his treatment related to
plaintiffs? Similarly, they will not ask the direct question: Was Dr. Beck
within the standard of care in the treatment rendered to plaintiffs?
However, all defense counsel has indicated that they understand that
the opinions that Dr. Kluft renders regarding the proper treatment of MPD or
the use of hypnosis or any other opinions that he renders in relation to Dr.
Long’s care or generally may be used by them to support their claims that Dr.
Beck or Dr. Bell were within the standard of care.
And, further, if counsel believes that there’s going to be a time that
they intend to ask Dr. Kluft the direct question was either Dr. Bell or Dr.
Beck within the standard of care they will inform me of that, and they will guarantee
that Dr. Kluft will be made available for a further deposition in order to
address the facts upon which he is basing his opinion.
Have I said that correctly, counsel?
MR. GILL: Yes.
MR. KURTZ: I think you’re correct, especially the
latter part. I think I indicated I hadn’t made a final opinion, although we
certainly up to this time have not retained him for that purpose. I don’t have
a problem about that. Otherwise, if, in fact, we do intend to ask that
question, your statement is completely consistent with my understanding.
MS. SMOLER: Ms. Williams?
MS. WILLIAMS: I have not retained this witness specifically as an
expert to give standard of care opinions about my client, Dr. Beck. As I
indicated to you earlier when we were off the record, it is my anticipation
that many of his opinions will apply directly and/or indirectly to the care
rendered by Dr. Beck in this case and I or other defense counsel may, in fact,
elicit such opinions from him. Those are different from asking him directly did
Dr. Beck comply with the standard of care. I think I’m agreeing with what
you’re saying. I just want to restate it in my own words.
MS. SCHMELZER: What do you mean Dr. Beck’s opinions? You may ask him
directly opinions of Dr. Beck?
MS. WILLIAMS: I didn’t say ask him directly. I think his opinions may
directly and/or indirectly have relevance to the issue of Dr. Beck’s alleged
negligence.
MR. SMOLER: And what you’re meaning by that is an inference can be
drawn that if Dr. Long’s care was within the standard of care or if he
describes what is generally within the standard of care, you may argue there
from that that should be applied to your client?
MS. WILLIAMS: Right. If the Doctor talks about what he believes appropriate
care and treatment is or the particular diagnosis or if the diagnosis was
correct, that certainly could impact on a jury’s view of what Dr. Beck did and
whether that was within the standard of care regardless of whether I ask this
witness a question during the whole trial.
MR. SMOLER: Just so long as we understand nobody at this point is
intending to ask him did he review this case for the purpose of rendering
opinions about Dr. Beck or Dr. Bell; does he have those opinions; and are they
within the standard of care. I am prepared to proceed with the deposition on
the assumption I do not need to further examine him on that.
MS. WILLIAMS: That’s my understanding. I agree with that from my
perspective.
MR. KURTZ: I agree as well.
MS. SCHMELZER: Let me just interject for the record that when I posed
interrogatory questions to all defendants as to which experts were talking
about which defendants, Dr. Long answered as to Dr. Kluft, but each of you
adopted the fact that he’s going to talk about the standard of care for a
psychiatrist and a psychologist in those answers. And I want to know if those
answers are now different than what they were before.
MR. SMOLER: Can I just say that differently? If I understand based on
what we said today, what you’re telling us is, once again, his general opinions
may relate to the care rendered by your clients, Dr. Beck and Bell. But the
answers to the Interrogatories were not intended to say he’s going to address
specifically whether they were within the standard of care?
MS. WILLIAMS: Agreed.
MR. KURTZ: That’s a fair statement.
(Counsel confers with the witness.)
BY MR. SMOLER:
Q: Doctor, I want to go to damages. You’ve indicated
that you have developed some opinions related to the damages of Marilyn Daly in
this case. I would like to know what those opinions are and what are the
salient facts upon which you rely? Let’s start first with what are your
opinions related to damages?
MR. LIDDLE: Objection as to form. Go ahead to the extent you’re able.
THE WITNESS: I think Ms. Daly is in a sad and
regrettable condition, but I do not think she is in that condition because of
her treatment.
BY MR. SMOLER:
Q: How would you describe Ms. Daly’s sad and regrettable condition?
A: I can only go from the deposition and video.
Q: Of?
A: The deposition of Ms. Daly.
Q: Okay.
A: And her appearance on the videotape. She is quite
clearly distressed. That’s always — that’s always regrettable for any human
being.
Q: Okay. Do you have opinions about the nature and
extent of her disability?
A: I haven’t had the privilege of examining her. I
don’t feel competent to offer an opinion.
Q: And so the facts upon which you are basing your
opinion that she is in a sad and regrettable condition is review of her
deposition and the videotapes?
A: Yes, sir.
Q: Okay.
A: I would add her husband’s deposition as well.
Q: Okay. But what I understand you to say is you also
have developed opinions about what caused that sad and regrettable condition?
A: No, sir.
Q: Is it the opposite of that?
A: Can we start over with this question, please?
Q: Please. Do you have opinions about what caused
Marilyn Daly’s condition?
A: I —
MR. GILL: I want to
object to the form on that. I’m unclear as to which condition.
THE WITNESS: I think I
would also like clarification.
BY MR. SMOLER:
Q: Well, when you say her sad and regrettable
condition, what are you talking about?
A: She says she is miserable. She says it repeatedly.
Her husband says she is distressed. He says it repeatedly. I have no reason to
doubt that she is genuinely distressed.
Q: That she is not genuinely —
A: I have no reason to doubt that she is genuinely
distressed.
Q: And what do you believe is the cause of her misery
and her distress?
A: I believe she has a major psychiatric disorder, and
I am not in a position to say what that is because I have not examined her.
Q: What would the differential include in your opinion?
A: The entire DSM, sir, because I have not examined her.
Q: Do you think that there’s a chance she suffers from
a gender disorder?
A: I think that there is a chance that unless I have done a
comprehensive psychiatric evaluation I would be foolish to rule out anything.
Some things are certainly not likely, but I can’t rule anything in or out
without the data.
Q: And so in that regard you can’t rule in or out that
she suffers from a dissociative disorder?
A: That’s correct.
Q: And you can’t rule in or out whether she suffers
from PTSD?
A: That’s correct.
Q: And what you would need in order to come to that
conclusion would be to do a competent and thorough psychiatric evaluation of
her?
A: At the very least.
Q: What would that evaluation include, please?
A: That evaluation would include a history, a mental
status, and in view of the nature of the circumstances probably a structured clinical
instrument for both making generic — general Axis I and Axis II diagnoses and
also a structured interview to check out the possibility of a dissociative
disorder. I would also like to know her degree of hypnotizability as measured
by a standard instrument, and it might well be that my mental status would lead
me to consider other tests, both psychological and neuropsychological and
medical.
Q: Anything else?
A: Well, of course, review of all records and
depositions at this point to see how all the data —
Q: I’m sorry. Can you repeat that?
A: All the records and depositions at this point to
see how everything correlated or failed to correlate.
Q: You would want to do that in order to come up with your
differential of what her psychiatric disorder is?
A: Yes, I would because the most that my immediate
evaluation can deal with is her present state. And when it comes to history, I
have only — I would have only the account from her given by a person that’s
changed her mind several times as to what her history is so I would really need
additional sources of data.
Q: Can you explain to me why you would need that to
reach a conclusion when I assume the majority of patients who present to you
present without having boxes of depositions and testimony related to them and —
let me break this down.
Am I correct that most of the patients who you
evaluate do not appear with boxes of depositions related to them?
A: Well, the ones I evaluate in a forensic context do.
Q: I’m talking about in a non-forensic context.
A: No. They just walk in with their pocketbook —
Q: Right.
A: — overcoat, whatever.
Q: Okay. And in those regards, I assume that you do take a history and
from that history without such things as depositions you do come to a
differential, don’t you?
A: I come to a tentative differential. Yes.
Q: And so why in
this case would you have to have all of the documents that have been generated
in this case in order to come up with a differential diagnosis —
A: Because —
Q: — for Marilyn?
A: — the patient has changed her given autobiographic
memory several times over the last several years; and, therefore, I cannot be
confident that what she would tell me at any one moment of time would be an
accurate reportage of all the facts I would need to consider.
Q: Well, then let’s take it out of the forensic context. Would it be
your opinion that when a patient changes his or her autobiographical memory that
it is necessary to obtain additional information in order to try to come up
with a proper history?
MR. LIDDLE: Hold it. You mean in terms of an evaluation he would make?
MR. SMOLER: Yes, yes, in a non-forensic circumstance.
MR. LIDDLE: Well, this is a forensic circumstance.
MR. SMOLER: I know, but I’m asking in a non-forensic.
MR. LIDDLE: Hold it. I want a clarification. She walks into him. This
case hasn’t happened.
MR. SMOLER: Correct. I’m trying to compare her —
MR. LIDDLE: She walks
into his office off the street —
MR. SMOLER: Right.
MR. LIDDLE: — and he finds autobiographical memory changes over the
years?
MR. SMOLER: Right.
BY MR. SMOLER:
Q: In that instance, without a forensic circumstance,
would you want to have additional historical information?
A: Not necessarily.
Q: Then explain the difference. What’s the difference
between telling me what your differential is here today in this forensic
setting from a circumstance where you have to come up with a differential when
you don’t have all of the benefits of depositions and such?
A: I’ll be glad to.
Q: In the face of a patient who has changed their
autobiographical memory.
A: In a therapeutic context, the differential diagnosis is relevant in
the selection of the therapeutic armamentarium —
(Discussion off the record.)
(The court reporter read back the pending answer as requested.)
THE WITNESS: — and the direction of the therapy. When you are dealing
with someone psychotherapeutically, you are going to have the opportunity for
longitudinal evaluation and you are going to witness this behavior directed
towards yourself over a long period of time. Consequently, you are in constant
position to re-evaluate. And if the patient and you together decide it would be
therapeutic to get additional information, you can certainly do so.
In a forensic situation, you have one shot to offer an opinion about
matters that are very weighty to the people who come before the trier of fact.
And, consequently, the accuracy that you strive for is going to be given in a
moment in time and possibly stand forever. And you will have no chance, in all
likelihood, to continue ongoing evaluation because these things get sort of set
in stone in a forensic context.
Consequently, you want your first and only shot to be by the LEAD
standard rather than the gold standard. The LEAD standard is an acronym for
Longitudinal Evaluation All Data.
BY MR. SMOLER:
Q: All data?
A: All data. You can’t do the longitudinal evaluation
yourself so you have to get as much as you can to construct a likely
understanding.
Q: Doctor, I have listed what you would want to do in
an evaluation if you were to be evaluating Marilyn, and the first thing you
said was you would take a history. Can you tell me what is involved in that
circumstance where you would want to take a history?
A: I’ll be glad to. The first thing I would do is,
basically, ask her to tell me the story of her life.
Q: Okay.
A: And in the most open ended possible way, I would
like to get a baseline account of her growth, development, circumstances of
different ages, how she came to be the person she is, what experiences she’s
had that are relevant to the forensic situation, her understanding of them and
the consequences. And having gotten that by free recall, I would then go back
and ask about significant areas of omission.
For example, some people may simply leave out their occupational
history. They may leave out their dating history. They may leave out their
educational history. So I would, again, ask in as open minded way as possible
for them to fill in the gaps. And then thereafter areas of greater concern I
would ask about in more detail and historical items and experiences of symptoms
that were relevant to the diagnosis.
Only then I would go in great detail with more pointed questions trying
to elicit a comprehensive picture. Then I might move on to specialized — more
specialized inquiries, but it would be very important to get as good a baseline
as I could.
Q: If possible, would you as a part of your evaluation want to review
prior medical and therapeutic records?
A: Usually, a patient comes to you in distress and
needs intervention long before you can get those records. I’m sure you’re
familiar with the vicissitudes of obtaining medical records. So, yes, it’s a
very nice thing to do if the patient is willing to allow it.
And — but there’s hardly any circumstance in which you can have that
material from the get-go.
Q: Well, let’s try and get on the same frame of
reference here. Okay. I asked you about what you’d want to do as an evaluation,
and you told me you’d want to take a history, do a mental status exam. You
might administer some kind of structured clinical interviews. Okay. And you
would want to measure hypnotizability.
I understand those things might be able to be done even as a part of
the first interview. But then you also told me you might order neuro testing.
You might order psych testing. You might want medical testing. None of those
things could be done in the very first interview, could they?
A: Of course not.
Q: So we agree that the evaluation, at least as you’ve
described it in terms of what you would want to do, would have some
longitudinal dimension to it?
A: Some longitudinal dimension, but it might not
necessarily involve me. It’s been my experience in these situations that funds
are limited and very few situations allow the forensic expert the luxury of a
high degree of contact and re-interviewing.
Q: We’re floating back and forth between forensic and
non-forensic.
A: I’m sorry.
Q: I was asking you about what your evaluation would
be if you were given an opportunity to evaluate her, what you would want to do.
MR. LIDDLE: This is therapeutically?
MR. SMOLER: Yes.
MR. LIDDLE: Okay.
BY MR. SMOLER:
Q: Did we confuse that?
A: Quite successfully.
Q: Okay. Let me start over. Okay. Let’s break it down.
This could be my fault. I accept that. If you were going to do a forensic
evaluation, would you be able to do such things as history, mental status exam,
structured clinical interviews, measure hypnotizability, do psych and neuro
testing, do medical testing?
A: In the best of all possible worlds.
Q: Yes. But has that ever happened?
A: No.
Q: Okay. I mean, so we are talking about what kind of an evaluation you
would do if a patient presented to you for treatment, correct?
A: Now you’re —
Q: These are the things you’d want to do.
A: I’m sorry. You’re conflating it again with the
forensic and the treatment. And this is the second time I’ve gotten to this
confused state.
Q: I thought we have always been talking about what you would — when I
asked you about if you were to do an evaluation, I thought we were talking
about a patient who presented. And we got there because I asked you whether you
would have a differential diagnosis in this case, and you said you couldn’t do
it without an evaluation.
A: No, sir.
Q: And then I said what would an evaluation look like if it was a
non-forensic, and I thought that’s what you gave me here.
MR. LIDDLE: Well, hold the phone here.
MR. SMOLER: So we’ll start over.
MR. LIDDLE: Bill, it isn’t clear.
MR. SMOLER: Okay. So let’s start over and make sure.
BY MR. SMOLER:
Q: Let me ask you the question. Take forensics out of it. Are we
together?
A: We are together.
Q: What would you want to do in order to get to a differential
diagnosis for a patient who presents?
A: It would depend very much on the patient because in
the psychotherapeutic encounter, the most important outcome of the first
session or so is not necessarily a differential diagnosis, but the conveying to
the patient the notion that they are accepted, understood, and can be
comfortable with you. You certainly are going to take a history.
Q: Okay. Wait. Let me interrupt you so that we aren’t
going off on tangents again. I’m talking about a circumstance where you feel it
is necessary at some point to get to a diagnosis. What is the kind of
evaluation you would need to do in order to arrive at a differential diagnosis?
A: It would vary tremendously depending on the
presentation of the patient, sir.
Q: Okay. Let’s assume that the patient presents in the way that Marilyn
Daly presented when she first began therapy at The Monroe Clinic.
MR. KURTZ: Objection. Give us the time.
BY MR. SMOLER:
Q: Well, do you know when she started to get therapy at The Monroe
Clinic based on your review?
A: I am not clear whether — the relationship of the
weight loss program to The Monroe Clinic so, consequently, I am not clear as to
whether Dr. Beck’s first contact with her occurred in the aegis of Monroe
Clinic.
Q: All right. Well, let’s talk about in February of
1991 when she presented to Dr. Beck at the time that the first complement of
ten therapy sessions began. Okay. I’m asking you for a patient who presents as
Marilyn Daly did at that point in time what would you want to do in order to do
an evaluation to reach a differential diagnosis for her?
A: When a person comes in asking for a specific relief
for a specific set of symptoms, you may or may not decide you need to do a
comprehensive evaluation. Were I to decide she needed a comprehensive
evaluation I would take her history.
Q: Okay.
A: And as she spoke to me, I would learn whether the
material I would elicit in a structured mental status was freely emerging just
in her conversation or whether I needed to go on to a structured mental status.
I would also hear as — from what she is saying whether I needed to go on and
ask any more specific questions or if things were fairly self-evident.
Having heard her chief complaint, having heard her history of herself,
having gotten some background, I would begin to formulate some ideas as to
where I needed to go next or if I did need to go somewhere next And whatever those hypotheses were, that
would dictate what I think would be the next thing to be done.
Q: Well, you understand I am trying to understand the general
parameters of what you believe is necessary in order to come to a differential
diagnosis for a patient who presents with some kind of significant treatment
need.
A: Okay.
Q: I mean, we’re talking around this, but we aren’t getting there. And
maybe it’s my fault. Maybe it’s your fault. Okay. But that’s what I’m trying to
accomplish here.
A: Okay.
Q: We can break it down this way if you would like. I will start with
this question: Under what circumstances do you not need to do a comprehensive
evaluation?
MS. WILLIAMS: Object to the form.
MR. LIDDLE: I’m going to object because all of this was prefaced with
the assumption that she would present as she presented to Dr. Beck in February
of 1991. Now you’ve broadened it.
MR. SMOLER: Right, because I don’t think I’ve gotten an answer to the
question. You’re right. So we’ll broaden it and then we’ll narrow it. I agree.
We will start over again. Okay.
MR. LIDDLE: I think he told you what he would have done in February of
1991 .You may not have listened.
MR. SMOLER: Okay. Then let’s go over my question anyway.
BY MR. SMOLER:
Q: Under what circumstances do you not want to do a comprehensive
evaluation?
A: I think—
MS. WILLIAMS: Object to the form.
MR. KURTZ: I join in the objection.
THE WITNESS: I think that since a comprehensive evaluation may take a
number of sessions and people in this era are usually coming, not necessarily
for long term psychotherapy, you try your best to evaluate the sector of
difficulty that they present. You ask them questions to screen for other major
areas of difficulty. And if things seem clear and straightforward, you go on
ahead. One patient will give you a history that virtually removes the need to
do any further kind of inquiry. Other patients are so terse or vague that
you’re going to have to do a formal mental status, a formal psychiatric
history, you’re going to have to follow every symptom into the symptoms that
are allied with it in certain diagnostic categories and, basically, drag it out
of the patient. Patients vary tremendously.
If Marilyn Daly were forthcoming and told me everything that allowed me
to think her problems were circumscribed and required a brief or symptomatic
therapy, I might go no further. I might initiate that therapy and use it as a
litmus test as to whether there was more to be done because very often it’s
only after you do a short term intervention that you see whether or not a more
extensive intervention will become necessary.
BY MR. SMOLER:
Q: Doctor, if you are doing a longitudinal evaluation where the
diagnosis is unclear, would you want to have the prior medical records if they
were available to you?
MR. LIDDLE: Hypothetical or Marilyn?
MR. SMOLER: Hypothetical.
MS. WILLIAMS: Object to form.
THE WITNESS: If it were not offensive or frightening to the patient, I
most certainly would.
BY MR. SMOLER:
Q: Same question as to getting information from collateral sources such
as family members.
MR. KURTZ: Objection.
MR. LIDDLE: Hypothetical or Marilyn?
MR. SMOLER: Hypothetical.
MS. WILLIAMS: Same objection.
THE WITNESS: I would not think that that’s the way to go. There are
issues of confidentiality that belong to the patient and I don’t have the right
to — in my pursuit of an ideal data base to transgress the patient’s
preferences and privacy.
BY MR. SMOLER:
Q: Well, but don’t you have the right to ask the patient whether or not
the patient opposes you talking to collateral family members?
A: I think that’s an interesting point about which people of good will
could easily disagree.
Q: Please explain the disagreement to me.
A: Certainly. Many patients are very sensitive about matters of
privacy, betrayal. They’ve had histories with their families that are
conflicted. They don’t want their families to know they’re in therapy; or their
main problems may relate, according to the patient’s account, to those
particular family members.
Many patients feel that when you start to ask for other sources of
information, you’re
implicitly doubting them. And they feel betrayed. So I would tend to
form a strong relationship with the patient and see as time went on whether
such sources of data were really necessary. And in my experience, more often
than not, they’re not necessary. But when they are, I certainly — I certainly
propose to the patient, if not once, several times, even if they are going to
refuse over and over again — I want them to know I think that that source of
information is important.
Q: And so you would make that offer to them?
A: If I thought it were relevant and would not be destructive to the
therapy.
Q: Is there anything in the record that would suggest that Marilyn Daly
was averse to any of her providers talking with her husband?
A: Yes. There are numerous entries. Most tellingly, she did not tell
her husband she was going to a psychologist for the first appointment making up
a false story because of reasons of privacy, shame, and embarrassment. Later on
there are a number of entries that indicate she does not want certain things
discussed with her husband. She places restrictions on what can and can’t be
said, what should or should not be talked about, and these are adhered to.
Q: For how long did Marilyn Daly after her initial contact with Dr.
Beck hold to not wanting Tom to be aware of her treatment with Dr. Beck?
MS. WILLIAMS: Excuse me. I didn’t hear the whole thing. Can I have the
question again?
MR. SMOLER: Sure.
(The court reporter read back the pending question as requested.)
BY MR. SMOLER:
Q: Based on your review of this record.
A: It’s a relatively brief period of time.
Q: First visit only, isn’t it?
A: I believe that’s true.
Q: In fact, Tom went to visits with Dr. Beck almost
immediately thereafter, right?
A: That’s correct.
Q: And so, now, based on this record, do you have my indication that
Marilyn Daly opposed Dr. Beck speaking with Tom Daly after the first visit?
MS. WILLIAMS: Generally or about specific topics?
MR. SMOLER: Generally.
THE WITNESS: I don’t have a firm recollection one way or another.
BY MR. SMOLER:
Q: To your knowledge, did Dr. Beck ever talk to Tom
Daly for the purpose of helping him to evaluate Marilyn and to reach a
differential diagnosis?
A: I think you’re going to have to ask that question
another way, if you would.
Q: Please, I invite you to ask it in the way you would
like to answer it.
A: I don’t know what you are trying to ask, sir.
Q: Well, let’s read back the question.
(The court reporter read back the record as requested.)
MS. WILLIAMS: Object to the form.
BY MR. SMOLER:
Q: Is it the question, or do you need me to rephrase that question?
A: No. I think the confusion was all mine.
Q: Okay. Can you answer the question?
A: I think it is quite clear from the record that Dr.
Beck used information he gained in his contacts with Mr. Daly to understand
Mrs. Daly. I don’t see any entry that would — I don’t recall any entry that
would indicate that he systematically sat down with Tom to elicit an initial
baseline history from his perspective. There are several occasions when it’s
quite clear that one of the Dalys is giving Dr. Beck information about the
other.
Q: Now, lets go back to in the circumstance where you
are expecting to be treating a patient over a period of time, not simply a
one-time visit. I asked you what you would want to know in a history. And I
think you started out by telling me you would want the patient’s version of the
events. Is there anything else you would want in the history?
A: Well, that was the — that would be the first step.
Q: Sure.
A: And then I would ask about any areas the patient
had not spoken about.
Q: Right. I think you told me that.
A: And then I would ask whatever additional inquiries
I needed to make to rule in or out certain diagnostic possibilities.
Q: Okay.
A: For example, there are many symptoms that people
are not particularly fond of mentioning, especially at a first session. And
then I would go where the — I would, basically, go where the information thus
far obtained took me.
But the first — very big priority if you’re dealing with someone
longitudinally is to develop an empathic understanding of their view of the
world. So I would not be particularly eager to get other data sources until I
had understood the world through the patient’s eyes, until I was in a position
to empathize with that patient. And usually that occurs fairly rapidly.
Q: Doctor, as part of your practice, do you attempt to
get the records from other providers of patients who you treat for dissociative
disorders?
A: When the patient is willing.
Q: Your answer would be: Yes, when the patient is
willing?
A: Yes.
Q: And have you written on the subject of the fact that treaters of
individuals with dissociative disorders should attempt to get information,
including prior medical records?
A: Yes, I have.
Q: And have you written on the subject that treaters
of individuals with dissociative disorders should try to interview collateral
members when possible, collateral sources?
A: Under some circumstances, yes.
Q: Let’s break this down. When was it that you were
writing on the subject of the propriety of getting medical and therapy records
from prior providers when treating someone with a dissociative disorder?
A: Certainly, in my 1987 article, “The Simulation and
Dissimulation of Multiple Personality Disorder,” and I can’t recall in what
other context I may have said one thing or another about that.
Q: And when was it that you have written on the
subject of the propriety of speaking to collateral family members when
appropriate given the patient’s consent and presentation when treating
dissociative disorder patients?
A: I have written about that in ‘84 and 5 and, again,
in the ‘90s with regard to children and —
Q: Wait, Doctor. I’m sorry. In ‘84 and 5 related
to children?
A: And, again, in the ‘90s.
Q: Both related to children?
A: Related to children. I have no firm recollection of
writing about it in other contexts. I may have.
Q: Was that your
opinion back in the ‘80s?
MS. WILLIAMS: As to
children?
MR. SMOLER: No. Thank you. No.
BY MR. SMOLER:
Q: Was it your opinion in the ‘80s that it was proper to interview
collateral sources when treating individuals who you were considering as
suffering from dissociative disorders when the client consented to such?
A: Not necessarily because my experience with bringing together
families of people with this diagnosis had been rather negative. The — that was
written about in a 1984 article in the International Journal of Family
Psychiatry. The kind of clashes, premature confrontations, and repudiations
that occur in that context are so counter-therapeutic as to outweigh in many
cases any value of data obtained and you — you run the risk of doing a
tremendous amount of hurt to the patient and to the family.
Q: Well, let’s sort. Okay. Let’s sort two different
categories here. One category is talking with collateral sources whom your
patient accuses of having done something improper with them, and that’s what
you were just addressing, wasn’t it?
A: Not necessarily.
Q: Okay. Well, but that’s where there can be confrontations
and a whole lot of difficulties that can arise. You’ve written in that regard,
correct?
A: I’ve written more generally.
Q: But you’ve also written on that specifically,
right?
A: Yes.
Q: And then there’s the category of talking to
collateral family members who are not alleged to have been a part of any kind
of abuse; for example, Tom Daly in this circumstance. Have you written on the
subject of the propriety of speaking to non-accused collateral family members
as a part of gaining information for the treatment of dissociative disorder
patients, adult?
MR. LIDDLE: Object to the form. It’s more than two minutes long.
THE WITNESS: I can’t answer the question.
BY MR. SMOLER:
Q: Do you have opinions about that?
A: I most certainly do.
Q: What are those opinions?
A: I think — I think everything we know about families
and how they work together is that interviewing anyone in a family about these
kind of matters that one would ask about throws a stone into the water that
creates ripples that can never be taken back. And the first injunction of
medicine is primum non nocere, first we do no harm, and it’s been my experience
that this kind of data collection is almost invariably hurtful to someone and
should be — should be undertaken with great caution.
You can never be sure when you interview a collateral source who
they’re going to talk to, what they’re going to make of the questions that you
ask, what changes in relationships will occur as a result of the perturbation
that you’ve created. So primum non nocere is the principle that guides, and
that was based upon the experience I had of thinking naively that getting
collateral information and bringing the family would be good. And what I found
was — very painfully, that it was extremely detrimental and hurtful to all
concerned, that the psychotherapy should remain and the issues in the
psychotherapy as much as possible should remain in the psychotherapy.
Q: Well, you have written on exactly this subject;
that is, realizing that it was a mistake to bring in family members and that
there’s harm related to that, correct?
A: Yes.
Q: But when you were writing on that subject were you writing about
accused or non-accused family members?
A: Both, sir. I saw a lot of people hurt by doing that
kind of stuff.
Q: When was it that you began to write about the
inadvisability of talking with or in some cases confronting family members
based upon information that is developed in therapy —
A: I wrote about it—
Q: — for a
dissociative disorder patient?
A: I wrote about it mostly in the early ‘80s, but
I’ve taught about it extensively over
the years, again, under the basic Hippocratic injunction.
Q: Sorry. I keep going back. We actually are trying to
get through your evaluation, what a comprehensive evaluation is longitudinally,
and we’re going to keep going back there. You told me you would speak to
Marilyn or, you know, the patient — that’s better — the general patient —
MR. LIDDLE: This is therapeutic?
MR. SMOLER: Yes, therapeutic.
BY MR. SMOLER:
Q: — and you would question that patient as to areas that the patient
didn’t provide you information on?
A: Right.
Q: Given an opportunity for a comprehensive evaluation, is there
anything else you would do as part of the history?
A: Well, I would, again, depending on the patient’s
complaints, just to give you an example, if they were coming to me and saying I
wonder if I have attention deficit —
Q: Let’s not waste our time with that. We’ll spend the
whole day. Let’s talk about a patient who at least within the full range of
possibilities, whether it’s made it into the differential or not —
A: Okay.
Q: — we are talking about a dissociative disorder.
A: Okay.
Q: Okay. I’m not talking about organic disorders. I’m
not talking about attention deficit disorders or things of that nature. Okay.
What else would you want as part of their history?
A: Well, I — what I tell patients is I want everything
sooner or later, but I pursue that with a — with a keen awareness that I don’t
want to push them into the areas they’re not prepared to talk about or push
them by conveying an expectation that they might know something that they might
not have a present memory of.
So my tack is to gradually expand my knowledge of a patient over a
series of sessions, and I told you, I think, I ask about things that are not
mentioned and then go back and follow up about things that have been mentioned.
For example, if they said they cry a lot, I would then go and ask the full
spectrum of the diagnostic criteria for the various affective disorders.
When I’m done with that, I will ask a few screening questions about
matters that have not come up and have not been suggested just to make sure to
do the best job I can to make sure that nothing is escaping notice because
people do tend to hold back a lot.
Q: What kind of things are we talking about in this
area?
A: Well, suppose a person — one example comes to mind,
one I have permission from the patient to use in a teaching context. I treated
one very reserved school teacher for eight years before finding out she was
gay. I had asked her about her dating history, her sexual experience, and she
had only told me the heterosexual component. Shame and concern about what I
would think of her held her back until she had known me for quite a while. And,
tragically, that was the data that was necessary to treat her so we lost a lot
of time.
Q: Would you ask about sexual abuse histories if it
wasn’t volunteered?
A: Most certainly. I would ask, but I would ask it in
a more generic way. I ask a patient have you ever had any unpleasant or
unwelcome experiences in the course of your growing up. Then I ask the same in
terms of their social life because date rape is, unfortunately, both quite
common and something people are not necessarily glad to talk about.
If they are confused by my general question, I will
ask them if anything befell them that caused them pain, hurt, guilt, shame,
things like that. And I’ll be through three or four iterations before I get
down to more focused questions unless —
Q: A more focused question might be like what?
MR. LIDDLE: Were you done?
THE WITNESS: No. I was not done.
MR. LIDDLE: Okay.
THE WITNESS: — unless I had to come to a formulation very quickly in
which case I would ask — I would say there are a number of things that are unfortunate
that sometimes happen to people. I’m going to list these things, and I’m going
to ask you to tell me if any of these things are relevant to you. I do
something like that.
BY MR. SMOLER:
Q: And are these then the more focused questions you’re referring to?
A: That would be it. I would simply list things.
I would start with severe punishment. I would then go on to separation
experiences; and ultimately, I would get to things like bulimic abuse, sexual
over stimulation, sexual abuse.
Q: Incest?
A: Well, I would consider that under the rubric of sexual misfortunes.
I would ask about whether they engaged in any exploratory sex play as children
because generally definition of incest has certain age restrictions on it in
terms of the various participants so sometimes I would ask that. Sometimes I
would not consider that a relevant consideration.
Q: Continuing on with your evaluation, as a part of
your continuing history taking, I think you’ve told me — correct me if I’m
wrong — you would attempt to get prior therapy records at some point; is that
correct?
A: If that was congenial to the patient and if I could
broach the subject without it being problematic.
Q: Then you would?
A: I would try. Yes.
Q: Okay. Sometimes you’re giving me the conditions but
not answering the question and so I have —
A: I’m sorry.
Q: — to push you to answer the question. I will always give you the
chance; and if I don’t, Mr. Liddle will give you that chance to give me the
conditions, but I do need you to actually answer the question as well.
MR. LIDDLE: My vote is you’ve been answering the question.
BY MR. SMOLER:
Q: Would you attempt, if it was agreeable to the patient, to get prior
medical records?
A: If it were relevant.
Q: How do you decide if it’s relevant?
A: If a person tells me that they have a medical
history that is not related to the reason they’ve come to me, that it’s not
active, and is unlikely to have been problematic, I see no reason to pursue it.
For example, if a person tells me in their medical history that they had an
appendectomy at age 8, I’m not particularly interested in sorting through the
microfiche to find out how many sutures were used. If on the other hand a
patient had brain surgery as a child, that may bear on a number of things, and
I would be most eager to get those records and study them in great detail.
Q: Let me ask you this: Let’s hypothesize. A patient who has questions
about whether he or she has memory deficits would you want to review the
medical records for the purpose of determining if there was an organic cause
for such deficits?
A: That’s hard to answer yes or no. If — if they say
“I was in an auto accident. I hit my head. I was unconscious for three days,”
that’s pretty much self-explanatory. And unless there were a particularly
neurological syndrome, I would probably not be in a big hurry to get those
records. I would want them ultimately.
If on the other hand, I was dealing with a woman in her late forties or
early fifties and she had memory difficulties of any sort, I would think it would
be profoundly important that I be in contact with her gynecologist because
perimenopausal and menopausal phenomena can impact memory. And often they’re
coming to me while they should be going to a gynecologist with endocrinological
sophistication.
Q: You would agree, wouldn’t you, that medical conditions can cause
symptoms that may be or could be interpreted as psychiatric symptoms?
A: Yes, sir.
Q: And you just gave me a good example of that; that
is, a gynecological circumstance, correct?
A: Yes, sir.
Q: Do you have any expertise in sleep disorders?
A: A little bit.
Q: And have you reviewed the material in this case related to what I
might call the sleep experts?
A: No.
Q: Did you review the deposition of Dr. Adornato?
A: No.
Q: Has anybody discussed with you the information from Dr. Adornato or
Dr. Jones; that is, their opinions about whether or not Marilyn suffered from a
sleep disorder and the consequences thereof?
A: I have not seen that material.
Q: Are you aware that sleep disorders can at times create
symptoms that can be interpreted as psychiatric?
A: Yes.
Q: And are you aware that there are entries in
Marilyn’s records indicating that she suffers from a sleep disorder?
A: There are numerous entries that she suffers from
disruptive sleep. There are some indications that a sleep disorder was
suspected. And it’s my understanding from the depositions that a sleep disorder
was found to be present.
Q: If a hypothetical patient presented to you for whom you were
considering within your differential a dissociative disorder diagnosis and you
were informed that that patient suffered from a sleep disorder, would you want
to have the information surrounding that sleep disorder as a part of your
evaluation?
A: Yes.
Q: And in order to be within the standard of care,
would it be necessary to get that information?
A: It would be necessary to know the nature of what
you were dealing with. I don’t know that it would be the standard of care to
have your hands on the exact reports.
Q: But in order to be within the standard of care, you would have to
have some knowledge of what the sleep disorder is and what, if any,
consequences that might have in terms of symptoms displayed by your patient?
A: Yes. If a patient comes in with a diagnosed sleep
disorder, it would be very important to know that.
Q: And, similarly, would it be important to know if there was a high
probability of a sleep disorder, whether or not it was fully diagnosed?
MS. WILLIAMS: Object to form.
BY MR. SMOLER:
Q: Fair statement?
A: My hesitancy is that you’re talking about sleep
disorder, and most disruptions of sleep are not due to sleep disorders.
Certainly, one should think of any and all conditions that are disruptive of
sleep, including insomnia as a symptom of psychiatric or medical conditions,
insomnia as a variant of the aging process, and sleep disorders themselves.
MR. SMOLER: Can you read back my question, please. I just want to make
sure you’ve answered my question as opposed to expanding on it.
(The court reporter read back the record as requested.)
BY MR. SMOLER:
Q: Let me just make sure that I’ve asked the question
I wanted to ask and you’ve answered it. Okay.
In order to be within the standard of care, would you want to know
about a sleep disorder that is suspected where there’s a probability of such a
disorder?
A: Yes.
MR. SMOLER: Let’s go off the record for just a minute.
(Discussion off the record.)
BY MR. SMOLER:
Q: When you told me about a comprehensive evaluation
in a non-forensic setting longitudinally, you said that you might do a mental
status examination. Would that be at the first visit?
A: It would depend on the patient.
Q: Okay. But it would be fair to say that it would be
at one of the early visits?
A: Not necessarily, no.
Q: Okay.
A: Some people are really scared. If they tell you
that they’re afraid they’re losing this faculty, that faculty, the other
faculty, and then you rapidly do a test that demonstrates that to them, they’re
blown away. You want to create an environment in which everything you can do is
done with care and compassion and to have the minimal negative impact on the
patient.
Q: Can you give me any idea at what point you might do
a mental status examination for a patient for whom you were considering such diagnosis
within your differential as dissociative disorder?
A: I would do elements of it at the first contact and
elements of it thereafter until I completed it in a nonthreatening way.
Q: Let’s go to the structured clinical interview. Am I
correct there are different clinical interviews based on different potential
diagnoses?
A: Yes, sir.
Q: Okay. Are there certain ones that seem to flow
together; that is, you know, when you’re looking at certain symptoms, you’re
likely to do a certain set of clinical interviews?
A. Yes, sir.
Q: Okay. Can we use multiple personality disorder and dissociative
identity disorder synonymously for the purpose of this deposition, or do you
make distinctions?
A: I don’t make any distinctions whatsoever, sir.
Q: So you understand when I’m saying MPD I’m including
DII) in that?
A: Absolutely.
Q: Okay. If MPD is contained within the possible
differential diagnoses, are there certain structured clinical interviews that
you believe you would normally give?
A: If there were no contraindication, I would use a
SCID-D-R.
Q: Okay. R is the revised version?
A: Yes, sir.
Q: So back in the ‘80s and ‘90s, you would use the
SCID-D?
A: No. I would because I was part of the research team
on it. It was not generally available until around 1 993,and then it was
immediately revised because DSM IV was coming out the next year.
Q: Who was it who actually developed the SCID-D or who
gets credit for the publication?
A: Marlene Steinberg, and on some of the publications
Bruce Rounseville and Dominic Ciccehetti are also credited.
Q: Why don’t you spell the last names, please.
A: Rounseville is R-o-u-n-s some vowel v-i-l-l-e. I
would probably put an I or an E in there. Ciccehetti, C-i-c-c-e-h-e-t-t-i.
MR. LIDDLE: And the publication is?
THE WITNESS: There are a number of publications.
MR. LIDDLE: The one we’re talking about now?
THE WITNESS: Well, the manual is under Steinberg’s name alone.
MR. LIDDLE: But what’s the name of the manual?
THE WITNESS: The Structured Clinical Interview for the Diagnosis of
DSM-IV Dissociative — no. Diagnosis of Dissociative Disorders DSM-IV Revised,
something like that. I can give you the exact citation.
MR. LIDDLE: And you called it SCID something.
THE WITNESS: Yes. That’s the acronym. Structured
Clinical Interview for the Diagnosis of DSM-IV Dissociative Disorders.
BY MR. SMOLER:
Q: SCID, S-C-I-D dash D, right?
A: Yes. And I used the SCID-D-R.
Q: Okay. And when the SCID-D was not available, did
you use the DES?
A: The DES is a screening instrument, sir. It’s not a
diagnostic instrument. They’re not comparable.
Q: Okay.
A: Before the SCID-D, I used another instrument which
was incorporated largely into the SCID-D.
Q: What was that instrument?
A: The SCDS — SCDS — I’ve even forgotten it’s title.
Q: Okay. On the SCID-D are there different questions related to
different diagnoses?
A: Not really, sir. The SCID-D is a symptom driven — a
symptom driven instrument. The diagnoses are inferred by the clinician from the
data that’s elicited.
MR. GILL: What was that last phrase?
MR. SMOLER: From the data that’s elicited.
BY MR. SMOLER:
Q: And what are the potential diagnoses that can arise
if confirmed by the information obtained from the SCID-D?
A: No dissociative disorder, dissociative amnesia,
dissociative fugue, dissociative identity disorder, depersonalization disorder,
and dissociative disorder not otherwise specified.
Q: What about PTSD?
A: There is some research that I have not read that
goes to the — that goes to the diagnosis of PTSD with that instrument. But what
the instrument actually includes is an acute stress disorder component and
thank you for reminding me. That diagnostic criteria for acute distress
disorder are elicited preliminarily through the main body of the
SCID-D.
Q: Now, again, would you use a SCID-D or some revision of that as a
part of the comprehensive evaluation longitudinally for somebody that presents
with a potential dissociative disorder, and you said yes to that?
A: Yes, very often. You know, if the symptoms are
right there and slap you in the face, there’s no need to charge the patient for
a couple hours of doing a structured clinical interview. I like to do one
because I think it offers very rich insight into the phenomena that you’re
going to be treating.
Q: What would be symptoms that would slap you in the face that would
cause you to not even bother to use a SCID-D?
A: Well, one would be the patient switching overtly in
the first interview, Another would be if they brought with them sufficient
materials to suggest or document the diagnosis is present. I don’t wish to
charge them for being redundant.
Q: Meaning earlier tests?
A: Earlier tests, videotapes, records. I generally in
the case of records do a SCID-D.
So but for records and earlier tests and switching overtly, you would
likely use a SCID-D for somebody that presented with a potential dissociative
disorder?
A: I personally would tend to do that. Yes.
Q: Am I right that when Marilyn presented to Dr. Beck in 1991 there
were no symptoms that would slap him in the face indicating that she had a
dissociative disorder?
A: 1991, sir?
Q: Yes.
A: Not that I saw from the record.
Q: Would you as a part of a non-forensic comprehensive evaluation
longitudinally for an adult usually use an instrument to measure
hypnotizability?
A: No. I would use half of an instrument.
Q: What does that mean?
A: The — there are problems when you simply administer
a hypnotic measurement device, and the problem is that you induce hypnosis and
there maybe some reasons you do not want to induce hypnosis.
Q: Like what?
A: Do you want me to answer that or the question you
first asked, sir?
Q: This one and then we’re going to go back to the
question I first asked.
A: Well, I think if there are any forensic
considerations, if the person has personal or religious problems with the idea
of undergoing hypnosis, if you think it would be perhaps a frightening or
unsettling or destabilizing experience for the patient or if you simply have
not developed adequate rapport with the patient to do such an assessment early
on. I’m sure that as the day goes on I will think of dozens of other reasons as
well.
Q: Now, let’s go back. I think the question that you
were answering — correct me if I’m wrong — is to explain what kind of
hypnotizability instrument you would use and why?
A: I would use the eye-roll portion of the hypnotic
induction profile by Spiegel and Spiegel, because although research has shown
that the eye roll is not a true measure of hypnotizability it is highly
correlated with being highly hypnotizable. And consequently, a person with a
high eye-roll score is more likely than not to be highly hypnotizable. A person
with a low eye-roll score is more likely than not to be nonhypnotizable. So
without inducing hypnosis, you can et a guesstimation as to this person’s
capacity for mobilizing their hypnotic talent.
Q: Doctor, I am not familiar with the eye-roll maneuver; and so if you
would, please, demonstrate that on Mr. Liddle, I would appreciate it. Actually,
can you either explain it or demonstrate it?
A: Actually, you know, I am not going to do that, and
I’ll tell you why. It’s a bad lawyer joke. The fact of the matter is if I do
anything to him that allows it to be said that he’s been hypnotized I don’t
know what the consequences are so primum non nocere.
Q: I’m joking about doing it to him. Can you explain
to me. And if there’s a way for you to demonstrate what that means I would like
you to do that.
A: I would be delighted if you will give me a piece of
paper.
Q: Sure.
A: And you will quickly understand why I never was
encouraged to take art.
MR. SMOLER: Off the record.
(Discussion off the record.)
THE WITNESS: So let’s go back to the Battle of Bunker Hill. Don’t fire
until you see the whites of their eyes. What you’re measuring is the whites of
their eyes. A person who is asked to look upward towards their eyebrows or
forehead and then to let their eyelids flutter down and close, as the eyelid
comes down you are going to see a configuration.
If the irises remain dead in the middle, you score it as zero. This is
associated with low hypnotizability. If the iris is partially obscured but less
than 50 percent obscured, you call it a one. That is consistent with
passing a minor number of items on hypnotizability test. If it is halfway
obscured, that is two, which is consistent with a mild to moderate degree of
hypnotizability. If it’s less than half but still showing, that’s consistent
with a three which is — that is a three which is consistent with a moderate to
high degree of hypnotizability. If it’s just the whites of their eyes, that is
a four and that is consistent with extreme hypnotic ability. There are —
there’s also a squint score which I will only describe. And that is if this —
for example, one score were obtained but the eyes moved in or out as well as up
or down, you would add points for that as well. And the aggregate of the squint
and the upper eye roll on the upward gives you the eye-roll score.
MR. SMOLER: Wait. Let’s read that back. I think you corrected it
incorrectly. Let her read it back to you and let’s get it correct.
(Discussion off the record.)
(The court reporter read back the record as requested.)
BY MR. SMOLER:
Q: Is that what you wanted to say?
A: No. You’re right. I screwed it up.
Q: All right. Let’s try it again —
A: Yes.
Q: — with your answer on the record.
A: The combination of the score from the eyes having
been rolled up and the squint score gives you the aggregate or total eye-roll
score, and you can usually do that without unsettling the patient.
Q: And how long of a test is that — does that normally
take to administer?
A: Ten seconds.
Q: Do you know if at any point in time Marilyn Daly’s hypnotizability
was measured that way or any other way by any of the providers in this case?
A: I see no evidence of that.
Q: You indicated that as a part of a comprehensive
evaluation in a non-forensic circumstance you — and your words were — maybe
would get a psych and neuro test done?
A: Yes.
Q: Can you explain the parameters of that for me,
please?
A: Well, if my conversation with the patient and my
mental status indicated some cognitive problem, I would really want to get
neuropsychological testing before commencing psychotherapy because sometimes
people are unable to learn in the channel in which the psychotherapy is
presented.
For example, if a person learns very poorly from auditory stimuli, like
your voice, if they’re in the lower percentiles of retaining what’s said to
them, then a talk-oriented verbal therapy may prove very frustrating and
unproductive. And if they have some cognitive damage that impairs their abstract
reasoning or their capacity to follow complex orders, you would alter the way
you speak to make your communications terse.
What about medical tests? You indicated you might want some medical
tests done. Can you give me any range — rather than a specific example, what
are the range of kinds of things that would cause you to want to have medical
tests done as a part of your comprehensive evaluation?
A: You’re asking me that question reminds me that
would have taken a medical history in both of those circumstances, and I’m not
sure that I mentioned that.
Q: Right. You did not. Thank you. In all circumstances
you’re saying for a medical history, right?
A: Oh, yes. Yes.
Q: Okay.
A: Now, will you go back to the question, please.
Q: Yes. What are the parameters of when you would want medical tests?
And if you can answer that not by example but by some generalized statement,
that would be helpful.
A: If I smell anything that sounds medical.
Q: Fair enough. And would that agree if upon review of
medical records if you found something that you thought needed follow-up, you
would likely ask for those kinds of medical tests?
A: I would likely ask the patient’s primary care
physician to attend to that.
Q: Right. And what I was meaning — and I’m assuming what you’re
answering was — if you saw some medical information that might help you to
explain psychiatric symptomatology; you would want follow-up and ask the
medical provider to give that?
A: Yes, sir.
Q: Okay. Do you have an opinion about what the proper diagnosis was for
Marilyn Daly at any time during her care rendered by Dr. Beck, Bell, or Long?
MS. WILLIAMS: Object to the form.
MR. LIDDLE: I’m going to object to the form. It’s a little broad.
THE WITNESS: I have no way of answering that question, sir.
BY MR. SMOLER:
Q: Because the question is bad or because you have no opinion?
A: Well with all due —
MR. LIDDLE: Or both?
THE WITNESS: — respect because the question is bad.
BY MR. SMOLER:
Q: Did the diagnosis change over time from what you were able to
identify?
A: The obesity diagnosis did not change.
Q: I’m talking about psychiatric diagnoses. If that’s
one, okay, go ahead.
A: The first diagnosis I saw in the chart was
dysthymia. Then there was a series of other diagnoses that I would have to
refresh my memory by referring to the chart.
Q: Well, why don’t you give me your best recollections
of that at this point in time. What were the diagnoses that were applied to her
from her psychiatric providers or psychological providers?
A: Well, there were various diagnoses. Certainly,
depression. There were numerous forms of anxiety disorder either explicitly or
implicitly alluded to. And there were mentions of dissociative disorder.
Q: Specific ones?
A: Dissociative disorder not otherwise specified and
dissociative identity disorder.
Q: Was it actually entered as DID or was it MPD?
A: I don’t remember.
Q: Okay.
A: Like you, I blur them both together.
Q: Okay.
A: And from the deposition, I gathered that a
diagnosis of post-traumatic stress disorder was rendered. Some of the — one of
the experts had a whole laundry list of diagnoses that I don’t recall. I could
easily turn to it in his report.
Q: One of the experts you’re saying?
A: Yes.
Q: No. I’m asking about the providers: Drs. Beck,
Bell, and Long.
A: Okay. Sorry. I think I’ve covered — I think I’ve
covered most of them that come to mind. But as I said, I would have to refresh
my memory by checking with the record.
Q: In this case I’m going to need you to do that, and I apologize
because it’s going to prolong this deposition. But, frankly, I came with the
assumption that you probably could tell me what the diagnoses were that were
applied to her. So let’s take a minute and check whatever you need. And let me
tell you what my follow-up questions are going to be as well. Okay?
A: Okay.
Q: I’m going to want to know what diagnoses were
applied, when they were first applied, and by whom, okay? So —
A: Sure.
Q: Let’s take whatever time you need in order to answer that question.
(Discussion off the record.)
MR. LIDDLE: Let’s go on the record for the clarifications.
THE WITNESS: You want diagnoses stated or diagnoses that may be
inferred from actions taken?
MR. SMOLER: Diagnoses stated.
THE WITNESS: Thank you.
(Luncheon recess taken at 12:15 p.m.)
(Deposition resumed at 1:40 p.m.)
(Documents marked for identification as Exhibits Nos. 240 and 241.)
BY MR. SMOLER:
Q: Doctor, we’ve marked Exhibit 240, and am I correct this is your depiction
of the eye-roll hypnotizability measurement that you described to us earlier?
A: Yes.
Q: And now we have marked as Exhibit 241 and can you
tell me what Exhibit 241 was intended to be as you created it?
A: You requested that I put down every diagnosis in
the chart and the date on which I found it, not every diagnosis every time, but
every diagnosis the first time. And I have reviewed the chart to the best of my
ability under limited time and hospital records, and that’s what I come up
with.
Q: I think I follow. There are a couple things I just
want to make sure I understand. So, for example, on 6/16/94 it says “Long
inhibited sexual desire.”
A: Yes.
Q: And then the next entry is July 3rd of ‘94. Am I
right that what you’ve indicated is all the entries after that are Long
diagnoses?
A: To the bottom of the page, yes.
Q: And then now let me look on the back side of the page. It begins
8/25/95. Can you tell me who’s making the entry for these diagnoses?
A: Long.
Q: So everything starting on 6/16/94, any diagnoses
from there on would be diagnoses by Dr. Long?
A: Yes.
Q: Okay.
A: With the exception of the hospital diagnoses, and
often I can’t attribute that to any particular person. The final ones are put
on by medical records.
Q: And that’s what I was going to ask you. On the
second half of the back of Exhibit 241 are these all the hospital diagnoses?
A: As best I could get them, yes.
Q: And you have them numbered 1 through 5. Would these
be for the five different hospitalizations?
A: Yes, they would be.
Q: And from which documents did you take these? From
the history and physical, from the discharge summary, or something else?
A: Some of the records did not include all aspects of
the chart so I took on each occasion I had the discharge diagnosis as put on by
the medical records staff and on some occasions I had additional diagnoses with
sources from admission workups.
Q: Okay.
MR. KURTZ: If I can just seek clarification, based on what I understood
what you were requesting of the witness before our break, are these psychiatric
diagnoses only, or do they include medical diagnoses?
THE WITNESS: I understood my charge was only to do psychiatric
diagnoses.
BY MR. SMOLER:
Q: And I do agree that was what I was asking you to
do, Doctor, although there are some that are on here that are not clear to me
if they are psychiatric or medical diagnoses. But I understand that’s what you
were attempting to do.
A: Right.
Q: I will admit, however, that I cannot read the very last entry under
No.5?
A: Okay.
Q: Can you just read into the record what that says.
A: “Major depression recurrent severe, Klonopin
overdose, MPD, PTSD delayed, bulimia, and obesity.”
Q: Doctor, what I would like to do is try to sum this up
in one question if I can so let me give it to you. Then take a second if you
think that, you know, going through the document would be fine. I want to
exclude from this question any reactive diagnoses, and what I mean by that are
Klonopin overdose, something that is specific to a specific event. Okay. I want
to exclude from this list modifiers of diagnoses; that is, whether it’s
recurrent or chronic, okay? And I want to exclude from this question
personality disorders.
Am I correct that what I’m giving you now would be a comprehensive list
of the diagnoses that you have found in the chart —
A: You’ve restricted yourself to Axis I psychiatric
disorders nonorganic.
Q: Thank you. Okay — dysthymia, PTSD, DID, major
depression, eating disorder, bulimia, and DDNOS? Would those be the psychiatric
diagnoses that are listed here?
A: In general. In general, yes. They were many
different variations.
Q: Yes. But by that I mean whether it’s recurrent, or
acute or something of that nature. But I’ve given you the general categories of
each of the diagnoses, correct?
A: Yes.
Q: Okay. Doctor, we can do this in one question or
multiple if I need to break it down. But do you believe that each and every one
of these seven diagnoses that I have now listed were appropriate diagnoses for
Marilyn Daly during the period of time that she was treating?
A: Yes.
MS. WILLIAMS: Object to form.
THE WITNESS: Yes.
BY MR. SMOLER:
Q: Do you take issue with any of the diagnoses —and I’m changing the
question now. I understand I asked about the propriety of the diagnoses. Now,
I’m asking you do you take issue with whether or not any of these diagnoses
are, in fact, an accurate diagnosis for Marilyn Daly?
A: Would you repeat the list one more time, please.
Q: Sure. Dysthymia, PTSD, DID, major depression,
eating disorder, bulimia, and DDNOS.
A: See, you’ve eliminated the sexual dysfunction
disorders as well.
Q: Okay. I didn’t realize I was, but, yes, let’s eliminate the sexual
dysfunction disorders.
A: They seem consistent with the data contained in the
chart.
Q: Are there any other diagnoses that you believe
should have been applied, psychiatric diagnoses Axis I, that should have been
applied to Marilyn Daly based upon your review of these records?
A: I think it depends whether you’re a lumper or a
splitter. Every condition has epiphenomena, things that go along with it, that
are also found in other conditions. I think that someone might read the same
chart and make a number of different diagnoses as well. And I’ll be specific
about what they are. I think you also eliminated obsessive compulsive disorder
which is an Axis I.
Q: If I did, I didn’t mean to if it’s an Axis I?
A: Yes, it is.
Q: OCD is an Axis I?
A: Disorder, yes. Obsessive compulsive personality disorder
is Axis H. I believe the phenomena were there to make all those diagnoses;
however, there is much to be made of the problem that PTSD includes within it a
wide rubric of anxiety symptoms and avoidance responses almost of a phobic
nature. Consequently, I could easily see someone reading the material presented
to me and making a diagnosis of panic disorder with or without agoraphobia or
agoraphobia with or without —agoraphobia with a panic disorder.
I could see someone making a diagnosis of generalized anxiety disorder.
I could see someone making a diagnosis of social phobia at certain points in
the history. And off Axis I, I think there are other things to be said.
Q: What was the last comment you made? Off of it?
A: Off Axis I, there are —
Q: So you’re saying using Axis H diagnoses?
A: Yeah. I think the — you asked me to preclude — to
exclude the personality disorders. And as far as I’m concerned, the personality
disorder component is considerable and is one of the things that was a subject
of treatment throughout.
Q: Well, what personality disorders were you able to identify as
diagnoses?
A: Well, you asked me — you asked me which I would
give in addition.
Q: Okay. But they actually weren’t on the list of
diagnoses, correct?
A: Oh, yes. Yes, there was.
Q: Which ones?
A: Let‘s see if I can find it. 12/23/96 there’s an
entry mixed or atypical personality disorder. And I think that is a very — a
very reasonable addition. It could be equivocated because there’s certain
aspects of personality disorder phenomena that are not unequivocally in the
record. But in terms of an adaptational style, a way of being in this world, I
would say a personality disorder diagnosis was warranted.
Q: Any other personality disorders besides atypical personality?
A: I will go with mixed .There were a smorgasbord of
phenomena.
Q: Do you want to tell me what some of the mixed
personality disorders are in your opinion that should be included within this?
A: I can’t answer that question as asked.
Q: Well, okay. Let’s make sure we’re talking about the
same thing. Am I correct that when you’re talking about atypical or mixed we’re
talking about a personality disorder that has components of a variety of
different personality disorders?
A: Yes, sir.
Q: And I’m asking you from what other personality disorders would you
derive components for the purpose of labeling her atypical or mixed personality
disorder?
A: Well, the first I would add to is personality
disorder not otherwise specified components and, specifically, there’s a whole
European literature on post-traumatic personality changes, and she has many of
the post-traumatic personality changes. The American literature has not adopted
that and leaves it under personality disorder not otherwise specified.
So she has certainly a lot of features of avoidance, a lot of features
of dependence. And somewhere also she was called suspect dependent personality
disorder. So there are avoidant, dependent, and post-traumatic kind of
components, not to exclude obsessive compulsive dimensions either. But, again,
she has a mix and match. No one of them rises to the level that I’d say, Ah-ha,
that one thing.
Q: That’s my understanding of this as well, and I
think we’re communicating here. In other words, she doesn’t meet all the
criteria for a specific personality disorder, but she has components of certain
ones?
A: Yes.
Q: And the ones you believe that would apply would be
if you use the European vernacular PTSD personality?
A: Post-traumatic personality.
Q: Okay. And if you used DSM vernacular, we would be talking about
avoidant dependent personalities, and I think you’ve added also potentially an
OCD personality?
A: Yes. I think there’s some histrionic traits as
well.
Q: Okay. And now is that as comprehensive as we can make it at this
point in time in terms of identifying the personality disorder components to
her atypical personality disorder?
A: That’s as comprehensive as I could be at this
moment in time.
Q: Fair enough. We began this line of questioning by me
asking you about what other diagnoses you think could have been applied. Have
you now given me the full list of those? I can give them back to you if you’d
like.
A: I think I — I think I retained them. Again, it’s a
lumper, splitter kind of thing. I think that’s a reasonable statement of how I
would see it.
Q: I want to ask you about some of the very specific
diagnoses. Is there a useful distinction as it applies to Marilyn whether she
is dysthymic or suffers from major depression?
A: Yes, there is, sir.
Q: Can you explain that distinction?
A: Dysthymia is a chronic underlying predisposition
towards depression, the old depressive personality, and it involves some
psychobiological and affective symptoms longitudinally over time. And the major
depressive disorder recurrent speaks to the recurrent presence of the symptoms
of the full affective disorder. The presence of dysthymia and the major
depression is often referred to in the literature as double depression.
Q: Some might see it as her being in a valley all the
time and somehow being in a deeper valley some of the time?
A: Yes, sir.
MS. WILLIAMS: Object to the form.
BY MR. SMOLER:
Q: Would that be a fair characterization?
A: Yes, sir.
Q: And you would agree with those diagnoses as to her
based on your review of this record?
A: I would say that the record is consistent with it.
Q: Okay.
A: With them, rather.
Q: What about the diagnosis of PTSD; is the record
consistent with that diagnosis?
A: Yes, it is.
Q: Do you agree with me that the diagnosis of PTSD is
unique as among psychiatric diagnoses because it requires the recognition of a
historical fact?
A: No, sir.
Q: Why not?
A: Because acute stress disorder requires the same
antecedent phenomena.
Q: Okay. Then would you agree with me that those two
diagnoses are unique in that regard?
A: No, sir. Some of the metabolically based disorders
have specific stuff too. But among the ones we’re talking about today, they are
pretty unique.
Q: And as among Axis I psychiatric diagnoses, it is
unique, unusual to have, in fact, a historical fact or a historical event being
a requirement in order to diagnose a condition, correct?
A: Yes, it is.
Q: And what we’re talking about here is Criterion A
under PTSD, correct?
A: Yes, sir.
Q: What is it about Marilyn that meets Criterion A that allows for the
diagnosis of PTSD?
A: Well, that depends which aspects of the data base
you draw upon. Certainly, she had enough traumatic experiences that are
uncontested in this case to qualify her for PTSD with delayed onset. And by
that I mean witnessing the near death of her brother and being the witness to a
fatal automobile accident. These are both associated with either personal or
witnessed threats to one’s life or physical integrity and are associated with
great discomfort and terror.
Q: Anything else that you believe establishes that she
meets Criterion A for PTSD?
A: Well, certainly, if any of the memories that she
has reported of childhood trauma are accurate or convey the gist of her having
had overwhelming experiences, they would qualify.
Q: Let’s be a bit more specific. What are we talking about in this
regard?
A: Well, in the record are many allegations of what
Marilyn at various times has believed about her autobiographic memory, and they
include issues of sexual mistreatment, of witnessing horrific acts —
Q: What horrific acts besides what we already talked
about?
A: Well, destruction of a baby.
Q: Okay.
A: The murder of a few people, witnessing
sodomization. These are — these are the nature and character of the sorts of
things that come forward. There are all sorts of phenomena listed in the
various records that are sufficiently intense to qualify as an Axis I criteria.
Q: As part of your endorsement of the diagnosis of
PTSD, are you assuming that the recovered memories of such things as childhood
sexual abuse, baby killings, murders, and witnessing sodomy are events that, in
fact, historically occurred?
A: No.
Q: And so when you support the diagnosis of PTSD as being
an accurate diagnosis, are you relying then on the fact that she saw her
brother’s near death and she was a witness to a fatal accident?
A: I am including them as events that could qualify
for Criterion A of PTSD. And while I cannot be sure of the accuracy or
inaccuracy of any of the memories that came up in therapy, I can say they
convey a gist of being overwhelmed and mistreated. And I certainly get the
notion from the history that that is consistent with a Criterion A for PTSD.
Q: I want to make sure we’re not talking around something here. I don’t
mean to be argumentative with you, but I’m sure we’re going to stay on this
topic until we sort this out a little bit. I think we already agreed that
Criterion A requires a historical event, correct?
A: Yes.
Q: And I’m wanting to know which historical events you are, in fact,
relying upon when you say PTSD was an accurate diagnosis?
A: Well, I said it was consistent with the chart, sir.
Q: No. But I’m asking you which events you believe, in
fact, historically occurred that were sufficient to mark a diagnosis of PTSD?
MR. LIDDLE: That’s been asked and answered.
MR. SMOLER: No, it hasn’t. We’ve talked around it.
BY MR. SMOLER:
Q: You told me you recognize there are memories, but
you aren’t including the memories of childhood sexual abuse as being the
support for the accuracy of the diagnosis?
A: No. I’m saying that they convey a gist of a type of
experience that I can’t rule in or out but I find consistent with what she has
said repeatedly.
Q: But to properly diagnosis PTSD, if that is, in
fact, an accurate diagnosis, it’s not a question of can you rule it in or can
you rule it out. It is a question of having endured a traumatic event.
A: It —
MR. LIDDLE: Hold it. I’m objecting to the form of the
question because he has talked in terms of consistency with the diagnosis.
MR. SMOLER: I understand, but I’m not asking about that. I’m asking
about is it accurate; and if so, what is the historical event that allows for
that to be an accurate diagnosis.
THE WITNESS: I have no way of knowing what is accurate or not without
external corroboration by a disinterested party or recording medium.
BY MR. SMOLER:
Q: So if, in fact, Marilyn had not endured the
childhood sexual abuse and witnessing a baby killing and sodomy and murder, if,
in fact, those things never occurred, would you still believe that PTSD was an
accurate diagnosis?
MR. GILL: Hold on, Doctor. I just want to make sure. This is a
hypothetical?
THE WITNESS: Yes, it is.
MR. LIDDLE: Okay. Then you’re just including — you’re carving out the
other things —
MR. SMOLER: Yes, I am.
MR. LIDDLE: — that he said like —
MR. SMOLER: Intentionally, yes.
MR. LIDDLE: —like the accident —
MR. SMOLER: Yes.
MR. LIDDLE: —and the near death of her brother.
MR. SMOLER: Yes. Now, wait. Now we have to read the question back
because I think it’s getting confused. But yes to your question. I’m
intentionally only asking about the memories. I’m not asking about the death of
the brother or the fatal accident. Could you read back my question, please.
(The court reporter read back the pending question as requested.)
BY MR. SMOLER:
Q: Let me reiterate it with all the caveats that we’ve just gone
through. Okay. I’m asking hypothetically if Marilyn did not endure childhood
sexual abuse, baby killing, witnessing rapes, witnessing sodomy, et cetera, if
those things, in fact, never occurred do you still believe PTSD is an accurate
diagnosis for Marilyn?
MR. LIDDLE: I object to the question as to form and also because you’re
mischaracterizing his testimony.
THE WITNESS: I think that the phenomena to diagnose the condition are
present. And if one is not sure of the accuracy of the index of trauma, one can
certainly back pedal and call it anxiety disorder not otherwise specified. But
the fact is this woman has experienced Criterion A trauma and, consequently,
the fact that — I’m sorry. But you said I should not consider those other
trauma.
BY MR. SMOLER:
Q: Right.
A: Then you’re in a bit of a bind because you have someone
who’s having flashbacks of particular phenomena that you can’t be sure
accurately occurred. And I would have to tell you that in the general practice
of psychiatry that’s how you work. It is not that common that you can document
beyond the shadow of a doubt the cited index trauma unless you’re talking about
people who get PTSD after auto accidents.
Q: I need to move to strike your answer at this point
because I really would like to just confine you to answering the question, and
we can talk some more about other additions you wish to make to it. But I need
to know the answer to this question which is: Do you believe that it would be
an accurate diagnosis for Marilyn to diagnose her as PTSD if none of these
memories are memories of real events: The childhood sexual abuse, murder, baby
killing, and sodomy?
A: I think intelligent well read people of good will and without malice
could reasonably disagree. I think some would say that the phenomena are there
and the gist of what has occurred is consistent even if the details can’t be
specified. They would assume something has occurred but was distorted by memory
over time.
Other people of equal scholarship and good will without trying to twist
the facts would say, Sorry without being absolutely rock hard about Criterion A
you should move that to a different diagnostic category
Q: Fair enough. Now let’s talking about the
relationship between Criterion A and Criteria B and C. Is there some
relationship there?
A: More often than not, yes.
Q: In other words, the flashbacks and the
avoidance and the memory intrusions and things of that nature normally have
some, if not direct at least indirect relationship to whatever it was that was
the trauma in Criterion A, correct?
A: That is often the case. That is most customarily
the case.
Q: And in Marilyn’s case so far as she was
demonstrating symptoms consistent with Criteria B and C were any of those
symptoms directly related to the near death of her brother or the witnessing of
a fatal accident?
A: I don’t know.
Q: Is there anything in the record to suggest that it
is?
A: Many of the peripheral details to which anxiety
might have been displaced have a consistency: Blood of the accident, the blood
of the alleged murders. One can draw all sort of analogies and symbolic and semiotic
connections, but that’s about as far as one could go.
Q: In fact, when she was reporting intrusive
recollections, those intrusive recollections were recollections of baby
killings and sexual abuse of her with which she was involved, correct?
A: So she alleged.
Q: Well, so she alleged. But also when you see
anything in the record describing what it was that she was reporting it was
reporting sexual abuse and killings and phenomena like that, correct?
A: Correct.
Q: Okay. Hold on a second.
Doctor, in your opinion is it possible to have a post-traumatic stress
disorder based upon a patient’s belief in the accuracy of events which never
occurred, historical accuracy?
MR. GILL: Objection. That’s asked and answered.
MR. SMOLER: No. Actually, it hasn’t.
THE WITNESS: Could you repeat it, please.
BY MR. SMOLER:
Q: Can a patient manifest PTSD symptomatology based
upon an imagined event as the trauma to fulfill Criterion A, that the patient
believes to have occurred but that never really did?
MR. LIDDLE: Objected to as to form. You can answer, Doctor.
THE WITNESS: I think it is possible. The question that would have to be
asked is what do the reports that are assumed to be inaccurate represent and
are they a screen for something that the mind is unable to accept.
BY MR. SMOLER:
Q: Well, I understand that that might be your question, but I’m asking
it free of that question. Can a patient simply have post-traumatic stress
symptomatology based upon an imagined event?
MS. WILLIAMS: Asked and answered.
MR. LIDDLE: He’s answered that.
MR. SMOLER: No. I don’t think he has.
MR. LIDDLE: He has. He said it’s possible.
BY MR. SMOLER:
Q: Do you agree that that’s your answer, Doctor?
MR. LIDDLE: Do you want the answer read back?
THE WITNESS: No. I think it’s possible. But the qualification I made is
an essential aspect of my answer.
BY MR. SMOLER:
Q: Well, that’s what I’m asking you now.
MR. SMOLER: And, that’s, Mr. Liddle, for your benefit why I’m pursuing
this.
BY MR. SMOLER:
Q: I want to know whether free of that qualification
it can happen. In other words, separate from it being a screen memory can
somebody have post-traumatic stress symptomatology based simply on an imagined
event that they believe to be true?
A: I think that they can have acute stress phenomena, but I’m not sure
whether they can have PTSD phenomena.
Q: With how many of the lawsuits against therapists who subscribe to
recovered memory therapy and frequently the adjunct multiple personality
disorder diagnosis are you familiar?
A: I’m not — there’s no such entity as recovered memory therapy except
in the context of lawsuits. There’s no school of therapy that fits that
description.
Q: Maybe you need to say that, and we can deal with semantics. I trust
that you understood what I was asking.
I’m asking how many lawsuits are you actually familiar with the facts
where a patient alleges that a doctor implanted false memory in them by virtue
of using memory recovery techniques?
A: Please define “unfamiliar with.”
Q: Have you read transcripts of, talked with the
participants in, read newspaper accounts of, seen news, you know, TV news shows
regarding?
A: Probably a few dozen.
Q: Okay. And of those how many are you aware that the patient has
recovered, meaning recovered money or gotten a finding of negligence?
A: I have no idea.
Q: Would you agree that there are some?
A: I certainly would.
Q: Okay. Now, are there any that come to mind?
A: Well, I think Ramona.
Q: Okay. Any others?
A: Not that I’m familiar with by more than their
title.
Q: Well, how about Burgus?
A: Burgus is not yet completely decided.
Q: Well, the money has been paid in Burgus, has it
not?
A: The money has been paid, but there are many aspects that are still
up in the air. So certainly by simply paying of the money, Burgus.
Q: Any others?
A: Well, there was a settlement in my case, of course.
Q: Okay.
A: There’s been a settlement in Tyo v. Ross I’m told.
Q: Do you know the terms?
A: No.
Q: Okay.
A: There’s been —
I think a verdict went against Humanansky.
Q: Two verdicts?
A: I don’t know.
Q: Trust me. Two verdicts.
A: I have complete faith that your count is accurate.
Q: Okay.
A: No. 1—
Q: Judith Peterson’s cases?
A: I believe Peterson’s cases were thrown out.
Q: Not the criminal cases, the civil cases. Are you familiar with
those?
A: No.
Q: Are you familiar with the Cool case?
A: No, other than what I’ve read in the depositions
here.
Q: I assume you’re not familiar with the Hess case then?
A: The what case?
Q: Hess.
A: I have some — I’ve heard a few things about it.
Q: Should I ask? That’s my decision. Yes. I should
ask. What have you heard about it?
A: I’ve heard that it was settled for — that plaintiff
recovered something. Whether it was a settlement or a verdict, I don’t know.
Q: Of those cases how many are you aware of where a diagnosis of PTSD
was used during the therapy of the patient by the defendant?
MR. LIDDLE: Do you have that in mind and do you know the answer?
THE WITNESS: I have no idea.
BY MR. SMOLER:
Q: Do you know if in any of those cases PTSD was the diagnosis?
A: No.
Q: Doctor, so far as you’re able to tell from your
review of the records, what was the cause of Marilyn’s dysthymia?
A: Most psychiatric disorders, basically, have unknown
causes, and dysthymia is one of them. It is thought to have a genetic and
biological component.
Q: In order to treat a diagnosis such as dysthymia, is
it important to consider the underlying cause of the diagnosis?
A: Sometimes, yes; sometimes, no.
Q: Would that be the case in dysthymia? And to the extent we can
include major depression in that, let’s do that as well.
A: I think the person who can answer the true cause
will get a Nobel prize, but that prize hasn’t been awarded yet. I think it’s
important to know their biological dimensions as well as psychosocial
dimensions and to address both of them proportionately.
Q: Would you say the same —
that applies both to dysthymia and major depression?
A: Yes, sir.
Q: Okay. What about DID; do you know what the cause of
Marilyn’s MPD or DII) was?
A: Well, it’s always poly-factorial.
Q: What are the factors in her instance?
A: Well, the factors are — usually, there is a — the
person has the capacity to dissociate. All of us do to a certain extent but
most of us don’t to a major extent. There has to be some overwhelming
experience or experiences, and they are —
there usually, if not always, are some factors in a person’s history
that determine the structure of the personality system. Usually based —
MR. SMOLER: I’m sorry. Can you just read that last section back. I
missed what he said.
(The court reporter read back the record as requested.)
THE WITNESS: And then it’s usually the case, if not always the case,
that there are interpersonal problems in the person’s environment such that
what hurts them isn’t addressed empathically in a way that allows them to heal
without maintaining a dissociative defense.
BY MR. SMOLER:
Q: What was the overwhelming experience as it relates to Marilyn,
please?
A: Unknown.
Q: Okay.
A: Many candidates.
Q: And those would be the same candidates as what we talked about for
Criterion A under PTSD?
A: There are infinite possibilities as to what might
have happened to her.
Q: Well, but let me ask you on a — I understand there’s infinite
possibilities of everything. Based on your review of this record, what in
addition to the things that we posited as potential Criterion A events for PTSD
do you believe may have occurred in her life that would constitute the
overwhelming experience that causes MPD?
A: I can’t rule out definitively any of the things
that have been stated, and I can’t rule them in definitively. And I can’t
assert that there aren’t other factors unknown to the record that might be more
relevant than what’s in the record.
Q: And while I agree with that — I understand that — I’m asking you
which things are in the record that you believe may constitute overwhelming
experiences that you can’t rule out or rule in, what things in addition to the
ones we identified as Criterion A for
PTSD?
A: Well, I think that under Criterion A I’ve talked
about the uncontested overwhelming experiences of childhood. I neglected in my
earlier response to indicate her exposure to domestic violence in the home.
Q: Home being the home of her upbringing?
A: Yes.
Q: Okay.
A: Certainly there is a recurrent gist in the material
she brought up in therapy of sexual transgression and of physical violence. So
I think in view of the symptom picture she had and the things she was afraid of
and the avoidance behavior she has demonstrated, it is quite possible that she
has experienced something in the nature of sexual transgression and something
in the nature of exposure to violence.
I’m not prepared to say that any particular event occurred or didn’t
occur except those that are universally agreed to as having occurred such as
the brother’s illness and the auto accident, the domestic violence.
Q: So in terms of those things that might have given
rise to overwhelming experiences — I’m a list taker. You can give me a
diagnosis later.
A: Okay.
Q: — I have
the following: Near death of her brother, witnessing a fatal accident, sexual
transgressions against her; physical violence in her family, whether against
her or others; childhood sexual abuse; potentially being involved with or
witnessing baby killing; witnessing murder and witnessing sodomy. Have I now
covered those things that you’re considering when you indicate that the record
may have things to demonstrate overwhelming experiences in her life?
A: Yes. And the — of course, the issue of the boy next
door who is alleged to have come over and been inappropriate.
Q: So isn’t that simply another sexual transgression, whether
in this case it’s by a neighbor as opposed to by a family member?
A: Yes. I’ve heard so many different versions of the sex play between
her and her brothers that I don’t know quite how to categorize it. Certainly,
if some of the more extreme statements are true, it’s conceivable that would
have been a reasonable thing to hypothesize about. If some of the less extreme
statements are true, then it’s probably relatively trivial.
Q: Doctor, do you concede the possibility that false
memories can be induced in therapy?
A: Yes.
Q: You’ve written about that, haven’t you?
A: Yes.
Q: And I think you’ve actually used the word
iatrogenic manifestations related to memory. I’m familiar with the word
“iatrogenic” when we talk about iatrogenic MPD. But you’ve actually talked
about or given a label to an iatrogenic effect. Do you know what I’m talking
about?
MR. LIDDLE: Object to the form.
BY MR. SMOLER:
Q: I’m just trying to get on the same page here.
A: Okay. I don’t have a clear enough memory of the
terms I used, and I would not want to put false memory into the record.
Q: Okay. Let’s leave that out right now. You do
concede that false memories can be created as a result of therapy?
A: I know that false memories can be discovered in
therapy. I suspect strongly they can also be created in therapy.
Q: Okay. And I want you now to assume that the memories of childhood
sexual abuse, baby killing, murder, sodomy, sexual transgressions, and physical
violence are false memories. In the face of that, do you believe under that
hypothetical, given everything else you know about Marilyn, but changing that
set of facts, do you believe that MPD or DID was a proper diagnosis for her?
MS. WILLIAMS: Object to the form.
MR. LIDDLE: I object to form.
THE WITNESS: I certainly can’t answer the question as asked.
BY MR. SMOLER:
Q: Well, you understand what I’m trying to understand
is when you say MPD was the proper diagnosis if as a premise to that you are
assuming that the events that I just listed, in fact, one or more of them
occurred?
A: I have not made that assumption, sir. It’s a
phenomenological diagnosis. The rules of DSM-IV specify phenomenology, only the
exceptions that you have mentioned and the metabolic exceptions that I’ve
alluded to are otherwise.
Q: Do you have any sense of the cause of Marilyn’s eating disorder? Is
Marilyn’s eating disorder bulimia, or does she have both bulimia and another
eating disorder based on your review?
MS. WILLIAMS: Object to form.
THE WITNESS: At different points in time she fulfills all the criteria
for bulimia; however, I cannot get from the chart if at any one moment in time
all those criteria were present. And that’s part of the diagnosis, that they
all be present over certain periods of time with certain frequency. I can’t
extract that from the record. I tried.
Consequently, I am comfortable with it as a clinical diagnosis because
there’s both the eating, the binging, consuming more than the average person
repeatedly, and efforts to restrict by laxative and diarrhetic abuse and
considerable over exercise.
That having been said, I would be perfectly comfortable with eating
disorder not otherwise specified or atypical eating disorder —
BY MR. SMOLER:
Q: To encompass both of those concepts?
A: Yes.
Q: Okay. Again, I’m just looking for labels here to try to get through
this a little bit easier. Can you give me your opinion about what, if anything,
caused Marilyn’s eating disorder, not otherwise specified?
MR. LIDDLE: Maybe to clear up in advance, you’re
talking about any or all of the eating disorders?
MR. SMOLER: Yes. And we’re now using the label eating disorder NOS to
encompass. Yes.
THE WITNESS: I think it’s such a poly-factorial condition that I would be
pretty much at a loss to point to any one thing. I can identify some things
that are probably components.
BY MR. SMOLER:
Q: Please.
A: One is the crazed behavior surrounding food in her family origin.
Q: Okay. And by that you’re referring to the father sequestering food?
A: The father sequestering food, the clear implication that food was a
loaded subject, the brothers teasing her about her physical appearance. As mild
and as inevitable as that is so the twig is — you know, is early influences
have their — have their influence.
The other things are more inferential like having to be a very good
girl, a great emphasis on being good. This is often associated with girls who
preoccupied with control, and one of the things they get into struggling to
control is their weight and physical appearance. But I don’t know.
It’s certainly plausible that if she indeed had some sexual or
aggressive trauma that was — that involved the mouth that her eating may be
related to that. Sexual difficulties: The amount of people who turn to their
body through eating disorders to control conflicts and concerns about sex is
legion. These are all possibilities, but I have no idea. I can’t even rule out
a metabolic causality.
Q: Is there a dispute in the literature regarding whether or not
childhood sexual abuse is an antecedent to an eating disorder?
A: There is an abuse as to whether it is —
Q: There’s a what?
A: I’m sorry. There is a dispute as to whether it is an inevitable
antecedent. I think the historical record indicates that sometimes it is an
antecedent and sometimes it is not, and the causal connection is unclear.
Q: So there may be an association, but there is no clearly demonstrated
causal connection. Fair statement?
A: For groups?
Q: Yes.
A: Certainly, you can’t infer from an eating disorder that there has
been any particular antecedent trauma.
Q: There was a period of time when people advanced that thesis, was
there not?
A: Many people did.
Q: And has that been dispelled by a definitive piece of literature?
A: Not definitive.
Q: Well, is there a piece of literature that comes to mind that seems
to dispel that?
A: Yes. Harrison Pope was one of the authors. And while, like every
study it has its pluses and minuses, I think it’s — I think it’s one of the
landmark papers that say there’s no one-to-one correlation.
Q: And do you agree with the findings of Dr. Pope and Hudson in that
regard?
A: I —
Q: A better statement is would you yield to their research as being the
definitive research at this point in time?
A: No. I would certainly say it is research that I myself use in
thinking about the problem.
Q: Meaning you regard it as authoritative but not necessarily
definitive?
A: I am troubled by the — by some of the underlying assumptions these
authors make in many of their papers, and I — whenever a study comes out that
proves the point that these people have been making all along you have to look
twice because there is — there are certain kinds of prejudice that creep into
research. I think it’s good enough work so that when I teach I cite it, and I
ask my students to read it.
Q: In fact, you rely upon Pope and Hudson in a number of your pieces of
your writings, do you not, or refer to them if nothing else?
MR. KURTZ: Objection to the form of the question.
THE WITNESS: I cited them at least once or twice.
BY MR. SMOLER:
Q: Well, they’ve also written on the subject of what is necessary in
order to have a definitive study that would establish that repression exists,
right?
A: Oh, gosh, I forget the precise nature of their hypothesis. I don’t
think it was repression, but my memory is vague on that. They had four
criteria, and they had to do with either repression or that a recovered memory
could be accurate or both. I don’t remember.
Q: What I’m referring to is they have put out into the literature what
they believe would be necessary in order for a study to demonstrate the concept
of repression, and they do that by discussing what is necessary in a
retrospective study and what is necessary in a prospective study. And they then
comment on the deficiencies of certain studies. Do you know the piece of
literature I’m speaking of?
A: Yes.
MR. LIDDLE: Objected to as to form.
THE WITNESS: I believe that is their piece in the Psychiatric Annals.
BY MR. SMOLER:
Q: Right. And, in fact, you have endorsed in your writings the criteria
that they indicated are necessary in order for there to be a definitive study
establishing repression, correct?
A: I think that would mischaracterize my writing.
Q: How would you characterize it?
A: I would say that since that’s the gauntlet that has been thrown
down, that’s the challenge that has been put in the literature, I have
responded to it in terms of some of the data I presented. I don’t think that
either they or anyone else has solved the problem of how to operationalize, how
to prove or disapprove repression.
Q: Well, what I’m thinking of is would you agree that you have put into
the literature statements which would indicate that some of the deficiencies
that they identify in the literature purporting to confirm repression are
legitimate complaints or concerns about the literature?
A: I don’t think I spoke to that. I simply spoke to whether there was
data in the study under question that was responsive to their concerns. Let’s
take a 30-second break.
Q: We can take longer than that.
(Brief recess taken at 2:30 p.m.)
BY MR. SMOLER:
Q: Doctor, I want to talk a little bit about sources of income for you.
I prefer to do this in every way on a percentage basis if we can do that. I’m
really not interested in knowing how much money you make or anything like that.
MR. LIDDLE: He really is, but he is polite and diplomatic and won’t
ask.
BY MR. SMOLER:
Q: How many medical legal cases do you handle on an average per year?
A: Well, they go on so long. It would be easier for me to say how many
I would tend to be involved with in any way during the course of a year.
Q: Okay. That’s fine.
A: Probably about four.
Q: Four per year, and I assume some of them —
A: Like, in any given year there will be usually four going on. It may
be the same four going on for a few years.
Q: Sure. Percentage is going to be the easiest way if we can do this,
okay? But I assume the cases vary over the amount of effort you put in based on
whether they settle, whether there’s depositions and trials and such. Can you
give me any idea of the percentage of your income that you might derive from
working on, reviewing, consulting, testifying in medical legal matters?
A: On the average?
Q: Yes. I’m always asking on the average here.
A: Four or five percent.
Q: Okay. And what I would like to do in almost all these instances is
to go back over the last 25 years and tell me how that’s varied. Have
you been involved in the same amount of medical legal stuff for the last 25 years,
or has it increased dramatically?
A: No. I have never really been a person who spent most of his time on
or even a substantial portion of my time on medical legal issues until I wrote
an article in 1989 about treating the victim of therapist-patient sexual
exploitation at which point I began to receive calls about doing work on sexual
boundary violation cases. And from then on, I have generally had about four or
five active things at any moment in time.
Q: So would it be fair to assume that this four to five percent of your
income from medical legal stuff began around 1990 and has been fairly
consistent from then to now?
A: No. Some years it’s been nothing. One year it was as much as 10
percent. It’s very spotty and inconsistent.
Q: I thought you told me earlier on average it might be four to five
percent.
A: Right.
Q: I’m looking for average.
A: Four or five percent is a good average.
Q: Okay. For the last ten years —
A: No.
Q: — and none before then?
A: Very little before that.
Q: Okay.
A: I’d say for the last ten years.
Q: What percentage of your income is generated by your private practice
of medicine? I’m sorry. I want to take something out. I’m not interested and
I’m not directed towards investment income in any way, shape, or form. I’m
talking about earnings from your personal labors and efforts. Okay.
A: Almost 100 percent of that exclusive of legal. My book royalties
rarely are even one percent.
Q: Well, we’ll come back then with patients after we
talk about some other categories. One percent of your income now might be from
book royalties?
A: Less.
Q: Okay. When did you begin to have royalties from books?
A: 1985..
Q: Okay. So no royalties prior to ‘85, and has it always been a little
less than 1 percent or was it a higher percentage at some point in time?
A: It’s always been — it’s always been low, and I
can’t give you an estimation.
Q: An average from ‘85 to the present?
A: Well, always under two percent.
Q: Okay.
A: I would say virtually always under one percent.
Q: Okay. I’m going to go through your CV in a few minutes. But at some
point you were the medical director of a unit at a hospital, correct?
A: I was the director of the unit. Yes.
Q: Were you paid a salary for that separate from moneys from the
patient?
A: Yes, I was.
Q: And during the time that you served in that capacity, what
percentage of your income would have come from your directorship?
A: Oh, 10 to 20 percent.
Q: And what period of time was that?
A: 1989 through 1996.
Q: You said roughly 10 percent?
A: 10 to 20 percent.
Q: Okay. For a period of time you were the editor for
the journal Dissociation?
A: Yes.
Q: Am I saying that right?
A: Yes.
Q: Were you paid anything as editor?
A: Yes, I was.
Q: What were you paid as editor for the journal Dissociation?
A: $4,000 a year.
Q: Over what period of time was that?
A: Ten years, 1988 through 1997.
Q: Let’s do this because I really am not interested in trying to
determine your salary, okay? I should have asked you percentage there. I’m not
going to ask you percentage there. I’m going to lump this together with
something else, okay?
Am I correct that you also were, in fact, the owner of the journal
Dissociation?
A: Part owner.
Q: Okay. So, now, let’s just lump the money that you were paid as an
editor and whatever money you made as being an owner of the journal
Dissociation. Can you give me some idea what, if any, percentage of your income
that constituted?
A: That would be a negative percentage.
Q: Okay.
A: That was a labor of love.
Q: Okay. Doctor, are you paid for presentations that you give? Your CV,
obviously, has an incredible number of presentations on it. Do you receive
anything other than the expenses associated with going to and from and being at
the presentations?
A: Sometimes.
Q: Can you give me any idea of the percentage of your income over and
above the expenses associated with the presentations that you derive from
giving presentations?
A: Mr. Smoler, it is so irregular and so inconsistent that all I can
say is it’s a small percentage. When you give presentations, you usually lose
money by being away from your practice.
Q: Well, I understand that, but let’s not think of it in those terms for
now. I’m asking you to think of it in terms of raw numbers, what comes to you
after the expenses as being a percentage of your overall income. And I
understand you said it’s a low number. Does that mean it’s less than five
percent or less than one percent?
A: Well, it would depend which year.
Q: But you know what average means. We’ve talked about that already.
I’m asking for an average.
A: But I’m also somewhat conversant with statistics, and I know that
the discrepancy is so wide that the average is meaningless. The standard
deviation is too wide. I can say it never was more than five to ten percent at
its peak, and that would be for only a period of one or two years.
Q: And what years would that have been?
A: I would have to take my CV and tell you.
Q: Okay.
A: I could do that.
Q: Okay. And, now, I want you to do that and let me
tell you I have only one copy of your CV. I’m assuming you’ve shown up with a
copy of the CV?
A: No. But I can get another one.
Q: Would you do that, please, so we can mark it —
A: Sure.
Q: — if you need to refer to it because I’m not going
to let you look at mine because mine is all marked up. Let’s take a minute —
MS. WILLIAMS: You can use mine so we don’t have to go
and get one.
MR. SMOLER: Do you mind if we mark it?
MS. WILLIAMS: No. I’ll get another one from the Doctor.
MR. SMOLER: Let’s mark that as exhibit 242. Just one second, Doctor.
(Discussion off the record.)
(Document marked for identification as Exhibit 242.)
THE WITNESS: 1992 and 1993.
BY MR. SMOLER:
Q: to one percent?
A: Certainly, very low.
Q: Okay. I just want to make sure. Adjectives like that may not mean
the same thing to different people.
A: I completely understand. Ask the question any way you like to until
you get a clear answer.
Q: Would in the range of one percent likely be —
A: Under five percent.
Q: Okay. Thank you. Why was it that in — did you say ‘91, ‘92?
A: ‘92, ‘93.
Q: That’s when you might have been as high as five ten percent?
A: Yes.
Q: And, otherwise, it would be something less than
Q: Why was it that in ‘92, ‘93 that you were more presentations than
other times?
A: I was contacted by a group called Branching Out Productions that did
continuing education programs on the West Coast where I was relatively not a
presence. And over a two-year period, the person in charge of that group
brought me out to teach on numerous occasions up and down the West Coast at a
very nice reimbursement.
Q: Again, I don’t want the overall number, but per speech what might
you receive beyond your expenses?
A: Well, it wasn’t per speech. It was one to two day workshops.
Q: Okay.
A: A couple thousand a day.
Q: Okay. And am I correct those kinds of workshops would have all been
related to MPD DID kinds of issues?
A: Yes.
Q: And I’m assuming that the book royalties we’re talking about are —
strike that. How many books is that based on?
A: Three.
Q: And which three books are those?
A: Those are Childhood Antecedents of Multiple Personality; Incest Related
Syndromes of Adult Psychopathology; and with Catherine Fine, Clinical
Perspectives on Multiple Personality Disorder. In the interest of completeness,
I will tell you I once was paid for doing a book on crosswords for
psychiatrists.
Q: When was that?
A: Oh, long, long ago.
Q: Would that have been in the 1970s?
A: It’s there somewhere.
Q: Really? Honestly, I would like to know, please.
A: 1985. It is under section 19.
Q: And what’s the number?
A: There’s no number.
Q: What is it that you’re looking at?
A: Section 19, bottom of the page, medical —
Q: What page of the CV is that?
A: It’s not numbered.
Q: Just a minute.
MR. KURTZ: It’s Page 4.
BY MR. SMOLER:
Q: I got it. Medical editor, Crosswords. I got it.
Thank you. I assume you didn’t get a whole lot of income from that book?
A: You’re correct, sir.
Q: So insofar as you’re talking about book royalties,
we’re probably talking about the three books that you identified, two of which relate
to MPD and one of which relates to psychopathology from — did you say some kind
of sexual abuse?
A: Incest, yes.
Q: What I said was right?
A: Yes, sir.
Q: Have we now listed all of the sources of your income from 1975 to
the present, income deriving from your personal work efforts as opposed to
investment income?
A: From time to time I have done consultations to clinicians which is
other than direct patient care and been paid for that.
Q: Okay. Anything else?
A: Nothing comes to mind.
Q: Insofar as you have done — did you say consultations with
physicians?
A: I think I said clinicians but I may have misspoken myself.
Q: Okay. And over how long a period of time have you done
consultations?
A: Probably from the ‘70s to the present.
Q: And are your consultations frequently in a particular area such as
dissociative disorders, or are they all over the map?
A: They’re mostly dissociative disorders or
therapeutic impasse. I’ve written an article on therapeutic impasse in
psychotherapy that’s thought well of, and that’s brought a number of people my
way.
Q: When did you write that article? Again, if you can
give me the number, that would be great.
A: As soon as I find it, you got it.
Q: Okay.
A: It is No.116 dated 1992.
So would it be right prior to that article in 1992 the vast majority of
your consultations would have related to DID MPD kinds of issues?
A: No. Actually, I’ve always been known for my interest in impasses in
psychotherapy, and there are a lot of people who know me only for my interest
in that area and know nothing about my work in dissociative orders. I’d say I
got more consultation on impasses before the article. Unfortunately, the
article gave away all my good stuff.
Q: Did you say 192?
A: I believe I said 116 dated 1992.
Q: Oh, it s entitled Paradigm Exhaustion —
A: Yes.
Q: — and Paradigm Shift. Okay. Thank you. Do you ever play the role of
being the psychopharmacologic treater in collaboration with a nonpsychiatrist
therapist?
A: Yes, sir, I do.
Q: With what frequency do you do that?
A: Oh, a few times a month.
Q: Well, I mean, is there a specific therapist with whom you do that?
A: No. There are a number. Most of the people I do — I
— well, most of the patients I see for psychopharmacology alone are seen by
some of the people in my own office and some come from all over.
Q: What percentage of your practice would you say, as among the
patients that you are dealing with either in consultation or as your patients,
are you dealing strictly with psychopharmacologic issues?
A: I don’t know that any of them are strictly
psychopharmacologic reasons. People have chosen me as a psychopharmacologist
because of my knowledge of dissociative disorders or post-traumatic stress.
Q: So that’s where you serve that role usually?
A: Right. Right. I don’t represent myself as a
crackerjack psychopharmacologist for all things and purposes.
Q: Okay. Fair enough. Do you know what Cavalcade Productions is?
A: Yes.
Q: What is Cavalcade Productions?
A: It’s a West Coast-based video production group that
I know to have produced a number of videotapes in the dissociation and child
abuse areas, but I don’t know if that’s their main thrust or if that’s just the
area I’m familiar with.
Q: Does that have some relationship to whoever it was that invited you
to participate in the West Coast presentations for which you were paid well?
A: No.
Q: Those are independent entities?
A: They’re independent entities.
Q: Okay. Do you know who owns Cavalcade Productions?
A: I don’t have that on the tip of my tongue.
Q: Well, let me ask you this: Is it owned by people
who are involved with such groups as ISSMPD?
A: I don’t know that for a fact one way or the other.
Q: Do you know any of the people who are involved?
A: I have met them. I have been filmed or taped for a
couple of their productions.
Q: How did that work when you were filmed or taped for
the productions? Was that a script that they gave you? Did you write the
script? What happened?
A: No. There’s no script at all. They — I’m sure they
had a list of questions. On one occasion, as I recall, they were just taping
various people as they spoke in a conversation about one subject or another.
And in another case they had — they brought all people they wanted to interview
together, talked about the project, and then set up times to interview us and
had various question lists.
Q: Were you paid for that work?
A: I don’t recall. I don’t believe so, but I really
don’t recall.
Q: Do you know how they got your name?
A: They came to an ISSD meeting and had their shopping
list so I assume that someone had told them about me or they had done their own
research and thought I might be a useful person to interview.
Q: And during the creation of these videotapes, were you given an
opportunity to express your opinions?
A: Yes.
Q: And I think you said, one, they came to your
office; they did them individually —
A: No, no. I’m sorry. This was all done at
conventions.
Q: Oh, okay. But in one case they did it individually and one case they
did it en masse?
A: I’m not sure if I’m confusing the organizational
meeting with a taping. I only know that on one occasion they brought many of us
together. And whether they taped then or later, I don’t recall. On the other
occasion they simply asked me if they could ask me some questions about a
certain subject, and I acceded. I’ve actually declined them more times than
I’ve said yes.
Q: On the occasion when they brought you all together, do you remember
who the you all is, who else was there?
A: No. I remember the room, and I think I remember one
person.
Q: Who’s that?
A: But I would have to deduce the rest.
A: Jean
Goodwin.
Q: J-e-a-n?
A: J-e-a-n.
Q: And when you were all brought together in that room, were you able
to agree or disagree if you chose to? What I’m trying to understand is I don’t
know if there was some agreed upon we’re all going to say this or we just talk
and —
A: Oh, no.
Q: — if somebody stood up and said the way to treat
DID patients is, you know, to slap them every time they come in, if that were
said, if you could stand up and say, Wait. I don’t agree with that.
A: I think that I had perfect freedom to say whatever
I said. I don’t recall that I — I’m not — my memory is vague. I’m not quite
sure whether that waving the hand thing was possible in the interactive
situations. I don’t remember if it was just orientation and they actually
filmed. There was no — there were no constraints.
Q: So if you disagreed with what somebody said, you were given the
opportunity to say I don’t agree with that?
A: I didn’t usually know what other people said.
Q: No. I’m talking about where you’re all sitting
there together.
A: Yes. But I don’t know whether they taped there. My
memory is vague as to whether they taped there.
Q: But there was a time when you were taped together en masse you told
me?
A: No. I’ve tried to — I should have been more clear.
I remember a meeting of many of us and the people who were going to do it. I
remember some discussion and interaction. I am vague as to whether they taped
then and there or later. I am not sure if I’m confusing the two tapings with
one another. I do remember at least one of the tapings was completely solo.
Q: Doctor, I would like to go to your patient
complement if we can. I will gladly show what I’ve written down here. I’ve been
trying to kind of keep track of what you’re income is based on —
MR. LIDDLE: Me too.
BY MR. SMOLER:
Q: — based on the different categories, okay, percentages. And I’ve not
included consultations because I’m going to ask to lump that together with
patients whether they be your patients or patients for whom you consulted. But
we’re talking about patient care. I’ve got medical legal ranging from four to
five percent to none over some period of time. I’ve got book royalties of one
to two percent for some period of time and before that none. I’ve got the
directorship for a ten-year period — it doesn’t mean exactly this time —
A: No.
Q: — as 10 to 20 percent. I’ve got the editorship and
the ownership of Dissociation as essentially being a zero, okay?
A: Worse.
Q: Okay. And I’ve got presentations as being something
less than five percent understanding that there are peaks and valleys. If I put
those all together in some framework, I get that probably about 95 percent
of your income came from patients and consultations in ‘75 and ‘80. And
then from there on, it may have decreased only a little bit except during the
time when you were the director at the hospital and then that might have
decreased another 10 to 15 percent?
A: You’ve lost me, sir.
Q: Okay. Well, would it be accurate to say that your income during the
period between ‘75 and ‘80 was at least 95 percent based on
consultation and patient work?
A: Yes, sir.
Q: Okay. Would it be fair to say that your income around 1980 would
have been the same; that is, 95 percent from patient work?
A: Yes, sir.
Q: Okay Would it be fair to say that your income around 1985 was
probably somewhere between 90 and 95 percent from patient work?
A: Yes, sir.
Q: Would it be fair to say that your income around 1990 would have been
somewhere between 75 and 85 percent from patient and consultation work?
A: These are guesstimates, but that sounds good to me.
Q: Okay. And would it be fair to say that that continued until you
stopped being a director, and then at the present time your income is probably
about 95 percent from direct patient care or consultation work?
A: Right back to 1975, yes, sir.
Q: Did I say ‘75? Oh, you’re right back — I’m sorry.
No. Actually, now you have the component of royalties and medical legal which
you didn’t have there so it’s closer to 90 percent now where it’s patient
consultation and care, right?
A: Yes.
Q: Okay. And is that our best guesstimate we can give?
A: They’re as good as I can do.
Q: Okay. Now, I want to talk about the patient complement, whether it
be your patients or consultations.
Can you give me some idea of what percentage of that patient complement
have as among their diagnostic considerations dissociative disorders meaning
MPD, DID, DDNOS?
A: Probably over 90 percent, whether they prove to
have it or not that came in under that rubric.
Q: I mean, that’s pretty clearly the area you’ve been working in since
1975?
A: No. Actually, more since 1990 when I closed my
other office. I had a pretty nice general practice of psychiatry until 1990.
But when I became the director of the dissociative disorders program at The
Institute of Pennsylvania Hospital, it typecast me apparently forever.
Q: When did you become director there?
A: 1989, but I still kept a partial presence in my
other practice site for one year as I tapered off that practice.
Q: Okay. So a fair statement would be since 1990
approximately 90 percent of your care has been related to dissociative
disorders?
A: Dissociative disorders or post-traumatic stress,
yes.
Q: Okay. Fair enough. Now, what about prior to that
time; what percentage of your patient work, meaning direct care or
consultation, would have been directed to dissociative disorders or PTSD?
A: It fluctuated wildly from between 10 percent to
about 60 or 65 percent.
Q: Would it be fair to say that while it may have fluctuated wildly it
would have been on an upward incline overall?
A: Not really. Not really I practiced a good bit of
psychoanalysis. That’s a small number of patients but a large amount of time
since you’re talking four or five hours per week per patient. So when I was
practicing psychoanalysis, you could have thrown a dozen multiples my way, and
I would not have had the room to undertake their treatment.
Q: When were you practicing psychoanalysis?
A: Pretty much through the mid to late ‘80s.
Q: Starting as early as ‘75?
A: Even before then.
Q: Okay. So, again, the question I asked — and I want
to make sure you answer the question I asked — is while there may have been
dramatic fluctuations if we were to look at the percentage of your patient
population that had as among diagnostic considerations MPD, DID, DDNOS, or
PTSD, we would see an upward incline from ‘75 to ‘90, again, with
dramatic fluctuations?
A: With an emphasis on dramatic fluctuations, yes.
Q: Okay. Doctor, I’d like to go through your CV and I know that you
have it now in front of you, and I would like to ask you about some very
specific things. But I will admit to you that I was a little bit confused as I
read this and this is probably my fault, okay, so, hopefully, you can help
straighten it out.
You finished your undergraduate education in 1964; is that right?
A: Yes.
Q: Then you went to Harvard Medical School through
1968?
A: Yes.
Q: When was your internship? ‘68 to ‘69?
A: Yes, sir.
Q: And then is this entry that says University of Pennsylvania ‘69 to
‘73 one and the same as residency in psychiatry?
A: Yes, sir.
Q: So that’s were you did your residency?
A: Yes.
Q: When did you pass your boards in psychiatry?
A: 1976.
Q: Okay. Did you ever take them and not pass them?
A: No, I did not.
Q: Okay. Boards are administered in two segments, right?
A: Yes.
Q: Did you ever not pass either one of the segments?
A: No. I passed them both the first time.
Q: Why a three year delay from finishing your
residency until you took your boards?
A: At that point it was a different era, and I was
frankly resentful of the idea of jumping through another set of hoops. And I
had no intention of taking my boards just because I had had enough tests. And
it dawned on me that that was probably not the appropriate attitude for the
rest of my career. So I jumped through the hoops swearing to myself I would
never take another test thereafter.
Q: Then it says Columbia Pacific University, Ph.D.?
A: Yes.
Q: What’s your Ph.D. in?
A: Psychology.
Q: Okay. Are you licensed as a psychologist?
A: No.
Q: Did you ever attempt to get licensed as a psychologist?
A: No.
Q: Any particular reason why you did that, just an interest in —
A: Why I—
Q: Yes. Why did you do it, interest in learning or—
A: Well, that was back when very few journals were
interested in publishing anything in the fields I was interested in so I accumulated
a lot of papers that were collecting dust.
Q: What were you interested in publishing?
A: Trauma and dissociation.
Q: What period of time are we talking about now?
A: We’re talking about the ‘70s and early ‘80s.
Q: Okay.
A: And at the time I was trying to figure out what on
earth should I do with these papers I had written, and the thought occurred to
me to find one of the schools that accepts life experience as course credit and
see if I could turn these papers into a Ph.D. thesis. And I found such a school
which is licensed in California. And I am a psychologist eligible for licensure
in California but nowhere else. I just did it for my own amusement.
Q: Was there any didactic course work associated with this?
A: I had to present evidence of courses of study, both
independent and otherwise.
Q: But there was no didactic sit down in a classroom —
A: No.
Q: — listen to somebody lecture or attend a seminar kind of experience?
A: No. There was none that was specific of that
university.
Q: Was there any required reading that you had to complete in order to
get your Ph.D.?
A: Yes. I mean, they did have requirements for the
independent study and I forget what they were. But whatever they were, I did
it.
Q: Have you ever advertised yourself as a
psychologist?
A: Heavens no.
Q: As a part of your training with Columbia Pacific University, did you
have to learn anything about test administration?
A: No.
Q: So this hasn’t trained you to better interpret MMPI’s and other
psychometric instruments than any other psychiatrist?
A: No, sir.
Q: You know we’re doing double negatives here. I think the answer there
actually was yes, sir. It’s my fault because I’m asking in the negative.
Did your training as a part of your work at Columbia Pacific University
teach you anything more about psychometric testing than what other
psychiatrists in your loop learn as a part of their training?
A: No, sir.
Q: You said you wanted to publish in trauma and dissociation. This
would be in the late ‘70s, early ‘80s?
A: Yes.
Q: What drove that desire?
A: Well, I was making observations that later became
the basis of numerous articles, but I was experiencing the same difficulty
Cornelia Wilbur had experienced a decade or two before, and that was people
were not interested in papers on dissociative disorders so like her I
accumulated a number of papers that I had written and some of them were pretty
good. Some really weren’t. But I could get them — I could present them, but I
could not get them into the scientific literature and—
Q: So what does that mean you couldn’t get them into
the scientific literature?
A: Well, they would be rejected.
Q: You sent them to journals?
A: Yes.
Q: And they got rejected?
A: Yes.
Q: Do you know why they got rejected?
A: Basically, they said they had no interest in the
subject or were skeptical of the subject.
Q: What journals did you submit to that would have
responded that way?
A: I’m tempted to say what journals didn’t I submit
to.
Q: That’s okay. What you’re saying is you tried many, many journals and
got a similar response?
A: I don’t know many, many. I tried what seemed to me,
as a young man, a good number, and I was not successful.
Q: Did you try American Journal of Psychiatry?
A: Yes, I did.
Q: AMA Journal, JAMA?
A: No, no.
Q: Did you try Psychiatric Annals?
A: Psychiatric Annals accepted my proposal.
Q: How about Psychiatric Clinics?
A: Psychiatric Clinics accepted another proposal on the subject to
which I was asked to contribute.
Q: That was at a later time we’re talking about?
A: ‘84.
Q: Yes. When Psychiatric Annals accepted yours, when was that?
A: I think I got the acceptance in ‘82 or 3, and it
was published in ‘84.
Q: Because as I understand, you’re talking about being rejected in the
late ‘70s and early ‘80s?
A: Yes.
Q: So I’m trying to know who it was that was rejecting
you. Did Psychiatric Annals reject you in the late ‘70s or early ‘80s?
A: I don’t believe they did.
Q: Okay. What about Psychiatric Clinics?
A: I never submitted — Psychiatric Clinics you have to
submit an entire issue under the name of an editor, and for a guy who
nonetheless had a paper published that seemed like a bit of a stretch.
Q: I missed what you said. For a guy what?
A: Who hadn’t had a paper published with one exception
that was a bit of a stretch.
Q: Can you think of any others that you submitted
manuscripts to that rejected you in the late ‘70s, early ‘80s?
A: I really can’t.
Q: Okay.
A: By the way, you just spoke of Cornelia Wilbur. Do
you have an opinion about whether or not she has been discredited in the
psychiatric community recently?
MS. WILLIAMS: Object to form.
THE WITNESS: I don’t think she’s been discredited. I think she’s been
slandered.
BY MR. SMOLER:
Q: By whom do you believe she has been slandered?
A: By a gentleman whose name escapes me who has made
many allegations of what can be drawn from tapes and has not presented his data
for public scrutiny.
Q: Are you aware that the allegations made by that gentleman — whether
or not they are consistent with statements made at an earlier time by Herbert
Spiegel?
A: I know where you’re going, but I can’t answer the
final question that came out. Could you rephrase it, please?
Q: Well, has Herbert Spiegel made similar allegations to the
allegations of the gentleman who you believe has now slandered Cornelia Wilbur?
MS. WILLIAMS: Object to the form.
THE WITNESS: I think he’s made some of the same points.
BY MR. SMOLER:
Q: And what are those?
A: He has the notion that —
Q: Wait. Who is the he in this one?
A: Spiegel.
D: Okay.
A: Dr. Herbert Spiegel has the notion that Sybil was not a true
multiple; that she was what he called a brilliant hysteric; and that her
dissociative phenomenology was in response to suggestive clues by Cornelia
Wilbur.
Q: And is that similar to what the gentleman who has now reviewed the
tapes of the therapy sessions concludes?
A: It is in the same ballpark.
Q: Have you reviewed the therapy sessions?
A: No.
Q: And so when you say that Cornelia Wilbur has been slandered what
you’re saying is you assume what these gentlemen have said are untrue or the
statements these gentlemen made are untrue?
A: Yes. I have — I have reason to have data from other
sources that would disagree with that.
Q: And what’s that data, please?
A: Well, there were two people who covered Sybil other
than Herbert Spiegel over the years, and I have had conversations with them
both.
Q: Who are they?
A: I think that’s privileged.
Q: On what basis?
A: We’re talking about someone’s psychotherapy.
Q: You’re not talking about what someone says in their
psychotherapy. You’re talking about statements that have already been passed on
by the psychotherapist about their conclusions to a nonprivileged individual.
And if it’s been waived as to you, then I believe it’s been waived as to me. So
I will ask the question again.
A: I’m not going there with you, sir.
Q: I just need to put it on the record. I can’t make you answer. We
both know that. Okay.
A: That’s right.
Q: But I need to make the statement, and I ask you again who are the
people who have told you that they have come to a different conclusion than
Herbert Spiegel and the individual who reviewed the tapes? And am I correct
you’re going to refuse to answer that?
A: That’s correct.
Q: Let me ask you this. Has this been recent that you had these
conversations or some time ago?
A: Both.
Q: Okay. Are some of the manuscripts that you wanted to have published
in the late ‘70s and early ‘80s manuscripts that ultimately were published?
A: Yes, sir. Sometimes in drastically modified form.
Q: Why would they be modified? By your inclination or by the direction
of whoever it is that’s publishing it or both?
A: Well, both. Frankly, when I was young and starting
out, I thought I was a better writer than I was. And I had a lot to learn and
went about learning it.
Q: When I say a peer review journal, I trust we both know what that
means?
A: Yes, sir.
Q: But let’s at least get on the record so we’re clear. What is it that
that means to you, a peer review journal?
A: A peer review journal means that manuscripts that are submitted are sent to professional colleag