EXHIBIT D

Case 4:15-cv-11019-LVP-DRG ECF No. 148-5 filed 07/02/18 PageID.4095 Page 1 of 46
In The Matter Of:

Dafinka Stojcevski v. County of Macomb

Gerald Shiener, M.D.

May 22, 2018

Case 4:15-cv-11019-LVP-DRG ECF No. 148-5 filed 07/02/18 PageID.4096 Page 2 of 46
Gerald Shiener, M.D.

May 22, 2018

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 UNITED STATES DISTRICT COURT

 EASTERN DISTRICT OF MICHIGAN

 SOUTHERN DIVISION

DAFINKA STOJCEVSKI, a/k/a

STEPHANIE STOJCEVSKI, Individually,

and as Personal Representative of

the Estate of DAVID STOJCEVSKI,

Deceased,

 Plaintiffs,

 vs. Case No. 15-cv-11019

 Hon. Linda V. Parker

 Mag. David R. Grand

COUNTY OF MACOMB, SHERIFF ANTHONY M.

WICKERSHAM, MICHELLE M. SANBORN,

CORRECT CARE SOLUTIONS (CCS),

LAWRENCE M. SHERMAN, M.D., DAVID

ARFT, NATALIE PACITTO, MONICA CUENY,

RN, TIFFANY DELUCA, LPN, VICKI

BERTRAM, LPN, SARA BREEN, LPN, MICAL

BEY-SHELLEY, LPN, DIXIE DEBENE, LPN,

THRESSA WILLIAMS, LPN, LINDA PARTON,

LPN, AMBER BARBER, LPN, DEANN PAVEY,

LPN, CHANTALLE BROCK, LPN, KELLY MANN,

DANYELLE NELSON, MHP, OXLEY, COONEY,

Page 2

1 HARRISON, TALOS, PINGILLEY, AVERY,

2 VANEENOO and HELHOWSKI,

3 Defendants.

4 ____________________________________

5

6

7 The Deposition of GERALD ALAN SHIENER, M.D.

8 Taken at 251 East Merrill Street, Suite 230

9 Birmingham, Michigan

10 Commencing at 5:08 p.m.

11 Tuesday, May 22, 2018

12 Before Mary Jo Power, CSR-1404, RPR, RMR, CRR

13

14 APPEARANCES:

15

16 ROBERT D. IHRIE

17 HAROLD A. PERAKIS

18 Ihrie O'Brien

19 24055 Jefferson Avenue

20 Suite 2000

21 Saint Clair Shores, Michigan 48080

22 586.778.7778

23 office@ihrieobrienlaw.com

24 hperakis@ihrieobrienlaw.com

25 Appearing on behalf of the Plaintiffs

Page 3

1 ROBERT S. GAZALL (Appearing via telephone)

2 Macomb County Corporation Counsel

3 One South Main Street

4 8th Floor

5 Mount Clemens, Michigan 48043

6 586.469.6346

7 robert.gazall@macombgov.org

8 Appearing on behalf of the Defendants County of

9 Macomb County Defendants

10

11 JOHN T. EADS, III (Entered proceedings at 5:11 p.m.)

12 Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

13 17197 North Laurel Park Drive

14 Suite 201

15 Livonia, Michigan 48152

16 313.327.3100

17 john.eads@wilsonelser.com

18 Appearing on behalf of the Defendants County of

19 Macomb, Sheriff Wickersham, and Michelle Sanborn

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1 RONALD W. CHAPMAN

2 Chapman Law Group

3 1441 West Long Lake Road

4 Suite 310

5 Troy, Michigan 48098

6 248.644.6326

7 rchapman@chapmanlawgroup.com

8 Appearing on behalf of the Defendant Correct Care

9 Solutions and appearing as co-counsel for Defendants County

10 of Macomb

11

12

13

14

15

16

17

18

19

20

21

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25

Case 4:15-cv-11019-LVP-DRG ECF No. 148-5 filed 07/02/18 PageID.4097 Page 3 of 46
Gerald Shiener, M.D.

May 22, 2018

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1 TABLE OF CONTENTS

2

3 WITNESS PAGE

4 GERALD ALAN SHIENER, M.D.

5

6 EXAMINATION BY MR. IHRIE:..................... 6

7 EXAMINATION BY MR. EADS:......................172

8

9

10 EXHIBITS PAGE

11 (Exhibits attached to transcript.)

12

13 DEPOSITION EXHIBIT 1......................... 6

14 (Dr. Shiener report, CV, fee schedule - 18 pgs)

15 DEPOSITION EXHIBIT 2......................... 71

16 (Progress note of Dr. Sherman - 1 pg)

17 DEPOSITION EXHIBIT 3......................... 97

18 (Correct Care Solutions pamphlet - 17 pgs)

19

20

21

22

23

24

25

Page 6

1 Birmingham, Michigan

2 Tuesday, May 22, 2018

3 5:08 p.m.

4

5 MARKED BY THE REPORTER:

6 DEPOSITION EXHIBIT 1

7 5:08 p.m.

8 GERALD ALAN SHIENER, M.D.,

9 was thereupon called as a witness herein, and after

10 having first been duly sworn to testify to the truth,

11 the whole truth and nothing but the truth, was

17:09 12 examined and testified as follows:

17:09 13 MR. IHRIE: Let the record reflect that

17:08 14 this is the deposition of Dr. Gerald A. Shiener, taken

17:08 15 pursuant to appropriate notice, and that it may be

17:08 16 used for any purposes permitted under the applicable

17:08 17 court rules.

17:08 18 EXAMINATION

17:08 19 BY MR. IHRIE:

17:08 20 Q. Dr. Shiener, I know that you've given numerous

17:08 21 depositions in the past, so I don't think I have to go

17:08 22 over the ground rules too much with you, do I?

17:08 23 A. I wouldn't think so.

17:08 24 Q. I'm going to ask you at the end of the dep -- if I

17:08 25 remember; if I don't, you may remind me -- if there

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17:08 1 are any answers that you have given that you wish

17:08 2 to -- that you wish to modify in some respect. Okay?

17:08 3 A. Ask me -- ask me whatever you like. I'll do my best

17:08 4 to answer.

17:08 5 Q. All right. I'm looking at your CV, and I note that

17:09 6 you have five board certifications; is that correct?

17:09 7 A. I do.

17:09 8 Q. Will you please tell me what the significance is of a

17:09 9 board certification? In other words, what does it

17:09 10 mean to be board certified?

17:09 11 A. Well, that's a pretty broad question. Board

17:09 12 certification was a procedure that was instituted to

17:09 13 determine that doctors had learned what they're

17:09 14 supposed to learn in their residency.

17:09 15 Now, board certification when I first

17:09 16 started practicing medicine, was more of an academic

17:09 17 issue. And if -- it was only necessary if someone

17:09 18 wanted to pursue an academic career, or someone needed

17:09 19 to demonstrate that they had some special training to

17:09 20 take a particular job or work in a particular area.

17:09 21 It's become more required for hospitals and

17:09 22 as a means of quality control, and again it

17:09 23 demonstrates that you've learned what you were

17:10 24 supposed to learn during your residency. And we have

17:10 25 a process now called maintenance of certification,

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17:10 1 where the board will monitor your study and the kind

17:10 2 of materials you're studying to determine that you

17:10 3 continue to be up-to-date in your knowledge base.

17:10 4 The board had an examination in general

17:10 5 psychiatry and child and adolescent psychiatry, and

17:10 6 then as psychiatry became more specialized, the board

17:10 7 began to offer certifications with added

17:10 8 qualifications in other areas, many of which that I've

17:10 9 tested and passed.

17:10 10 Q. Has maintenance of certification replaced board

17:10 11 certification?

17:10 12 A. Well, that's a fluid area. Board certifi -- you have

17:10 13 to be board certified in order to maintain your

17:10 14 certification, and one method of doing so is to have a

17:10 15 doctor recertify every ten years.

17:10 16 The boards are now studying whether

17:10 17 demonstrating to the board that you do continuing

17:11 18 education, participate in certain activities across a

17:11 19 broad range, not just reading articles or taking

17:11 20 courses, and that may serve in lieu of

17:11 21 recertification. There are pilot programs. Some

17:11 22 members of --

17:11 23 (Off the record at 5:11 p.m.)

17:11 24 (Whereupon Mr. Eads entered the

17:11 25 proceedings.)

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Gerald Shiener, M.D.

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17:12 1 (Back on the record at 5:12 p.m.)

17:12 2 MR. EADS: Please continue.

17:12 3 MR. IHRIE: All right. Thank you.

17:12 4 BY MR. IHRIE:

17:12 5 Q. So I don't mean to misquote you, but did you say that

17:12 6 board certification is, in essence, a way for the

17:12 7 board to confirm that you actually learned what you

17:12 8 learned in law school -- I mean, in medical school?

17:12 9 A. No, not medical school. Residency training.

17:12 10 Q. In your residency training.

17:12 11 A. And the board -- the board has an assurance that you

17:12 12 learned what you were supposed to learn, or that

17:12 13 you've met the requirements for training.

17:12 14 Q. Okay. So if you went through residency and -- are you

17:12 15 able to decide not to become board certified?

17:13 16 A. Sure. There's nothing -- there's nothing that says

17:13 17 that a doctor has to pursue board certification.

17:13 18 Q. Do you have to take an additional test?

17:13 19 A. For what?

17:13 20 Q. Board certification?

17:13 21 A. Yeah, board certification is an examination. Yeah.

17:13 22 Q. And you are board certified in -- let's see if I can

17:13 23 locate the -- tell me the five areas that you're board

17:13 24 certified in.

17:13 25 A. Well, general psychiatry; addiction psychiatry;

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17:13 1 geriatric psychiatry; forensic psychiatry; what used

17:13 2 to be called psychosomatic medicine, and as of January

17:13 3 1 of this year it's called consultation liaison

17:13 4 psychiatry; and then I'm also certified in addiction

17:13 5 medicine.

17:13 6 Q. Do you consider yourself to be an expert in all of

17:13 7 those areas?

17:13 8 A. Well, I've demonstrated expertise, and I consider that

17:14 9 I have that expertise in those areas of psychiatric

17:14 10 practice.

17:14 11 Q. Tell me what the amount is that you have paid -- that

17:14 12 you have been paid, rather, by Mr. Chapman's firm or

17:14 13 any other person or firm in this case so far, not

17:14 14 including the thousand dollars that I just paid you.

17:14 15 A. $2,500.

17:14 16 Q. And are you owed any money other than --

17:14 17 A. No. No.

17:14 18 Q. And how does the fact that you have been paid $2,500

17:14 19 square with your correspondence dated January 4, 2016,

17:14 20 which indicates that your retainer fee is $3,500?

17:14 21 A. Well, excuse me then. My mistake. It was $3,500.

17:15 22 I'm sorry.

17:15 23 Q. So you've been paid the initial retainer fee --

17:15 24 A. Yes. Nothing --

17:15 25 Q. -- and have you used that up yet?

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17:15 1 A. Between preparing this document, my September 14,

17:15 2 2017, report, and preparing for the deposition, that

17:15 3 just -- that's just about covered by the 3,500.

17:15 4 Q. And what is your hourly rate for this deposition?

17:15 5 A. $900 for the first 90 minutes, and $500 an hour

17:15 6 thereafter.

17:15 7 Q. You wrote a report dated September 14, 2017; did you

17:15 8 not?

17:15 9 A. I did.

17:15 10 Q. And did you identify in that report all of the

17:15 11 materials that you've reviewed prior to writing that

17:15 12 report?

17:15 13 A. I did.

17:15 14 Q. Were there any other materials or items other than

17:16 15 what you listed that you used to prepare your report?

17:16 16 A. I don't believe so.

17:16 17 Q. Are we --

17:16 18 A. I had the videos. I may have received the videos

17:16 19 after -- afterwards.

17:16 20 Q. I don't see where you have identified that you based

17:16 21 your report on any video.

17:16 22 A. No. I must have received the videos afterwards.

17:16 23 Q. So your report does not contemplate your review of any

17:16 24 video; is that correct?

17:16 25 A. Oh, I don't know about contemplation. I prepared my

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17:16 1 report before I received the videos.

17:16 2 Q. So no portion of your report was based upon your

17:16 3 review of the video; is that correct?

17:16 4 A. I believe that's correct.

17:17 5 Q. When did you receive a copy of what we have so far

17:17 6 called "the video"?

17:17 7 A. May 26, 2017.

17:17 8 Q. Is there a reason why you did not look at the video

17:17 9 prior to looking -- is there a reason why you didn't

17:18 10 look at the video prior to writing your report?

17:18 11 A. You know, I don't recall. I don't recall.

17:18 12 Q. You don't recall what?

17:18 13 A. Why I didn't look at the videos, or why I didn't

17:18 14 include my review of the videos in the -- in the

17:18 15 September 14, 2017, report.

17:18 16 Q. How much of the video have you reviewed as of today?

17:18 17 A. I believe I watched -- I watched everything on this

17:18 18 disk. I may have fast-forwarded through some periods.

17:18 19 Q. And how many hours did that take you?

17:18 20 A. I don't recall.

17:18 21 Q. There was 240 hours of video there. Do you have any

17:18 22 recollection of how many hours --

17:18 23 A. I don't -- I don't believe I watched --

17:18 24 Q. Let me finish my sentence first.

17:18 25 A. I'm sorry.

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17:18 1 Q. Do you have any recollection of how many of those

17:18 2 hours you observed?

17:18 3 A. No.

17:18 4 Q. You -- did you keep any notes of how many of those

17:18 5 hours that you observed?

17:18 6 A. No, I didn't.

17:18 7 Q. Are you able to estimate how many hours of that video

17:19 8 you observed?

17:19 9 A. No.

17:19 10 Q. And just for clarification, no observation of the

17:19 11 video was used in writing your report, correct?

17:19 12 A. I think I've already mentioned that a couple of times.

17:19 13 Q. Did you not review the video because you felt it was

17:19 14 unimportant to review it?

17:19 15 A. I don't recall why I didn't. I know that I met with

17:19 16 Mr. Chapman, we discussed some things, I reviewed it

17:19 17 after. I'm not sure why I didn't include in my review

17:19 18 of the video.

17:19 19 Q. In a case like this, knowing that there is a video

17:19 20 that you could look at, would it have been -- is it

17:19 21 important for you to have seen the video prior to

17:19 22 writing your report?

17:19 23 A. Oh, when you say "important," I'm not -- I'm not

17:19 24 really sure what you mean.

17:19 25 I didn't think it was -- I didn't think it

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17:19 1 was particularly pertinent to reach these opinions,

17:19 2 and I know that some of the other documentation

17:19 3 referred to videos.

17:20 4 Q. So your testimony is that you don't feel it was

17:20 5 pertinent to give the opinion that you gave in your

17:20 6 report; is that correct?

17:20 7 A. Well, I like the way I said it better. And if I'm

17:20 8 going to be stuck with a version of what I said, I'd

17:20 9 rather it be my version.

17:20 10 Q. Do you feel that your report may have been different

17:20 11 if you had viewed the video?

17:20 12 A. I don't believe so.

17:20 13 Q. And how would you know, if you haven't viewed the

17:20 14 video?

17:20 15 A. I didn't say that I haven't viewed the video, I just

17:20 16 said that I didn't include the review of the video in

17:20 17 the report.

17:20 18 Q. So the number of hours that you looked at the video,

17:20 19 which you don't know, your testimony is, that what you

17:20 20 did look at didn't change -- doesn't change what you

17:20 21 had previously written prior to reviewing the video;

17:20 22 is that right?

17:20 23 A. Once again, I like the way I said it better. I don't

17:20 24 need you to paraphrase that for me.

17:20 25 Q. Well, I'm asking.

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17:20 1 A. Well, I would agree with my version rather than your

17:20 2 paraphrase.

17:20 3 Q. Did you look at any of the video prior to writing the

17:21 4 report?

17:21 5 A. I don't recall when I viewed it.

17:21 6 Q. So you may have looked at the video prior, or you may

17:21 7 have looked at the video after your report; is that

17:21 8 correct?

17:21 9 A. What I said is: I don't recall when I viewed it.

17:21 10 Q. May we rely upon the accuracy and the truth of

17:21 11 everything that's in your written report?

17:21 12 A. Well, I did everything I could to be accurate and

17:21 13 truthful in preparing my report.

17:21 14 Q. Is that a yes?

17:21 15 A. No, that's -- that's my answer.

17:21 16 Q. Well, I under --

17:21 17 A. I did my best to be accurate and truthful.

17:21 18 Q. May we rely upon?

17:21 19 A. Well, that's up to you.

17:21 20 Q. Is your report a reliable report?

17:21 21 A. Well, I did everything I could to reach my opinions

17:21 22 and conclusions with confidence or what you would call

17:21 23 a reasonable degree of medical certainty. Whether you

17:21 24 rely upon it or not is up to you.

17:21 25 Q. Do you believe that it's accurate?

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17:21 1 A. I told you that I did everything that I could to

17:22 2 report my findings in an accurate and reliable manner.

17:22 3 Q. Do you believe it's a truthful report?

17:22 4 A. Well, because it -- it contains opinions, I'm not sure

17:22 5 how that squares with the issue of truth. It's my

17:22 6 understanding that there's a finder of fact in this

17:22 7 matter. I try to bring an understanding to what

17:22 8 happened, and this is my understanding.

17:22 9 I don't believe that -- I don't believe

17:22 10 that I made any misrepresentations in this report.

17:22 11 MR. IHRIE: Excuse me one minute.

17:23 12 (Off the record at 5:23 p.m.)

17:23 13 (Back on the record at 5:23 p.m.)

17:23 14 BY MR. IHRIE:

17:23 15 Q. Is there anything in your notes or your records, or

17:23 16 anything in your file in this case, that will remind

17:23 17 you -- or that you can look at that will remind you

17:24 18 whether or not you viewed any portion of the video

17:24 19 before you wrote the report or after the report?

17:24 20 A. I can't think of what that would be.

17:24 21 Q. Please look at page 2 of your report.

17:24 22 MR. CHAPMAN: Do you want to make the

17:24 23 report an exhibit?

17:24 24 MR. IHRIE: It's already been marked, so...

17:24 25 MR. CHAPMAN: I don't think so. Has it?

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17:24 1 THE WITNESS: It was marked and offered to

17:24 2 me, but they didn't say anything on the record.

17:24 3 BY MR. IHRIE:

17:24 4 Q. All right. So now I'm going to ask you to look at

17:24 5 what I've given you as Shiener Exhibit Number 1 and

17:24 6 ask if you can identify it.

17:24 7 A. It looks like it's a faxed copy of my report; it looks

17:24 8 like it's a copy of a curriculum vitae, and that goes

17:25 9 up to 2015; it looks likes it's a January 4, 2016, fee

17:25 10 schedule.

17:25 11 MR. IHRIE: All right. I'm going to ask

17:25 12 you -- move for purposes of this deposition only to

17:25 13 introduce that as Exhibit Number 1 and indicate that

17:25 14 it is being introduced for deposition purposes only at

17:25 15 this time.

17:25 16 BY MR. IHRIE:

17:25 17 Q. For the purposes of this case, Dr. Shiener, what areas

17:25 18 of expertise that you do have are you using?

17:25 19 A. I don't understand what you're really asking.

17:25 20 Q. Well, you indicated that you're an expert in

17:25 21 geriatrics, correct? You're board certified in

17:25 22 geriatric psychiatry?

17:25 23 A. You asked me about my board certifications. I'm

17:25 24 certified by the American Board of Psychiatry and

17:25 25 Neurology in geriatric psychiatry.

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17:26 1 Q. Right. And are you using your expertise in that

17:26 2 particular area of psychiatry in this case?

17:26 3 A. Oh, that doesn't seem particularly pertinent to the

17:26 4 issues in this case.

17:26 5 Q. Which areas of expertise in this case seem

17:26 6 particularly pertinent to you?

17:26 7 A. Psychiatry, consultation liaison psychiatry, addiction

17:26 8 psychiatry, addiction medicine --

17:26 9 Q. On page --

17:26 10 A. -- forensic psychiatry.

17:26 11 Q. Oh. So all of the other four, basically; is that

17:26 12 correct? Other than the geriatric psychiatry?

17:26 13 A. Well, I don't see how geriatric issues are pertinent

17:26 14 to this matter.

17:26 15 Q. Thank you.

17:26 16 Looking at page 2 of your report, you

17:26 17 indicate on number 4, it says, "CCS Medical & Mental

17:26 18 Health, Parts 1 and 2."

17:26 19 A. Yes.

17:26 20 Q. Can you tell me what that means, "parts 1 and 2,"

17:26 21 divide it in some sense? I'm just trying to get a

17:27 22 clarification of what that means.

17:27 23 A. I think there were two PDFs. The document was divided

17:27 24 into two PDFs.

17:27 25 Q. All right. So you may be calling it one and two. May

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17:27 1 we conclude that you have reviewed all of CCS Medical

17:27 2 & Mental Health documents that exist in this case?

17:27 3 A. I don't know that. Hold on.

17:28 4 Q. To try to help you along here -- unless you want more

17:28 5 time --

17:28 6 A. Wait. Just -- you've asked me a question. I'm going

17:28 7 to answer it.

17:28 8 Q. Okay.

17:29 9 A. Well, let's see. Part 1 of that document is 54 pages,

17:29 10 and part 2 is 62 pages. That would be 116 pages

17:29 11 total.

17:29 12 MR. PERAKIS: And part 2 was how many

17:29 13 pages?

17:29 14 THE WITNESS: Sixty-two. So that would be

17:29 15 116 pages.

17:29 16 Now, I don't know if that's exhaustive.

17:29 17 BY MR. IHRIE:

17:29 18 Q. Yeah, you wouldn't know that, I suppose, because you

17:29 19 only have reviewed the materials that were given to

17:29 20 you, I presume by Mr. Chapman's office. Correct?

17:29 21 A. Well, I was given some documents that were labeled

17:30 22 "CCS records." I don't know if that's exhaustive --

17:30 23 Q. I understand.

17:30 24 A. -- for whatever reason.

17:30 25 Q. And where did you get those records?

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17:30 1 A. From Mr. Chapman.

17:30 2 Q. Okay. And looking at the first sentence of your

17:30 3 report, Dr. Shiener, you indicate that, and I quote --

17:30 4 A. The first sentence of my report.

17:30 5 Q. Right. Well, the first sentence on -- the first

17:30 6 sentence after the materials that you looked at, right

17:30 7 after number 6. The sentence that says, "I have been

17:30 8 asked to review these documents and other -- and

17:30 9 render opinions about the circumstances of

17:30 10 Mr. Stojcevski's death."

17:30 11 Do you see that?

17:30 12 A. I do.

17:30 13 Q. So you were asked to review the documents that you've

17:30 14 listed both on page 2, and the two sets of documents

17:30 15 on page 1, specifically deposition transcripts and

17:30 16 other expert reports, correct?

17:30 17 A. Well, there's a list that -- yeah, report's in

17:30 18 evidence. It speaks for itself.

17:30 19 Q. You were asked by Mr. Chapman to review the three sets

17:31 20 of materials that are identified: number 1, the

17:31 21 deposition transcripts that you list, one through

17:31 22 nine, correct?

17:31 23 A. That's pretty much what my report says.

17:31 24 Q. And expert reports one through eight, correct?

17:31 25 A. That's pretty much what my report says as well.

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17:31 1 Q. And other sets of records one through six, correct?

17:31 2 A. And that's also what my report says.

17:31 3 Q. Were you asked to review anything else that, in fact,

17:31 4 you did not review?

17:31 5 A. No. Or at least not to my recollection.

17:31 6 Q. So you were not asked to review the videotape then of

17:31 7 Mr. Stojcevski while he was in jail, correct?

17:31 8 A. Wait a minute.

17:31 9 THE WITNESS: Could you read that question

17:31 10 again, the one before that?

17:31 11 (The following portion of the record was

17:31 12 read by the reporter at 5:31 p.m.:

17:31 13 Question: "So you were not asked to review

17:31 14 the videotape then of Mr. Stojcevski while

17:31 15 he was in jail, correct?".)

17:31 16 THE WITNESS: That's not true. That's not

17:32 17 correct.

17:32 18 BY MR. IHRIE:

17:32 19 Q. All right. Well, then is it correct that you were

17:32 20 asked to review the videotape prior to writing your

17:32 21 report?

17:32 22 A. I was given the videotape, and I was asked not to

17:32 23 review it until speaking with Mr. Chapman. I spoke

17:32 24 with Mr. Chapman, and then I prepared the report.

17:32 25 Q. Did Mr. Chapman ever ask you to review the videotape?

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17:32 1 A. I don't know if he ever stated -- he told me not to

17:32 2 review it until after I spoke with him.

17:32 3 Q. And when did you speak with him?

17:32 4 A. Wait, wait, wait, wait, wait.

17:32 5 Do you want to let me finish answering, or

17:32 6 do you want to interrupt me?

17:32 7 Q. Go ahead.

17:32 8 A. Thank you.

17:32 9 I was provided with the -- with the videos.

17:32 10 I was told not to -- not to view them until after I

17:32 11 spoke with him. So it was my understanding that after

17:32 12 I spoke with him, I was to review them.

17:32 13 And I met with him sometime over the summer

17:32 14 of 2017. I don't recall when.

17:32 15 Q. If it was your understanding that you were to review

17:32 16 the videotape after you spoke with him, and you spoke

17:33 17 with him in the summer of 2017, then why didn't you

17:33 18 thereafter review the videotape prior to writing your

17:33 19 report?

17:33 20 A. I think the last time you asked me that I told you I

17:33 21 didn't recall.

17:33 22 Q. Is there any portion of your report that addresses

17:33 23 anything that you saw in the videotapes?

17:33 24 A. You know, I -- again, I -- I don't recall. I know

17:33 25 that the video was referenced in a lot of other

Page 23

17:33 1 documents that I reviewed, and I can't tell you if I

17:33 2 drew my conclusions from viewing that firsthand or

17:33 3 from reading the accounts in the other aspects of the

17:33 4 documents that I've been provided.

17:33 5 Q. Have you testified in jail or prison cases before?

17:33 6 A. I have.

17:33 7 Q. Generally speaking -- not just jail or prison cases,

17:33 8 but generally speaking -- what percentage of your

17:34 9 cases -- in your cases, do you testify for the

17:34 10 plaintiff versus defendant?

17:34 11 A. I have never calculated that. Probably a

17:34 12 preponderance for -- testifying on behalf of

17:34 13 plaintiffs.

17:34 14 Q. Do you have any opinion or -- I hate to use the word

17:34 15 guess, but do you know how many jail cases or prison

17:34 16 cases you've been involved with?

17:34 17 A. No.

17:34 18 Q. More than ten?

17:34 19 A. Probably.

17:34 20 Q. Your first sentence under "Overview" on page 2 you

17:34 21 indicate, "David Stojcevski was detained."

17:34 22 Are you using that word "detained" as a

17:34 23 term of art in -- with respect to jails and prisons,

17:34 24 or do you just mean that that's where he was housed?

17:34 25 A. I don't understand what you're asking.

Page 24

17:34 1 Q. I think that probably answers my question, but --

17:35 2 A. Then I really don't understand what you're asking.

17:35 3 Q. Fair enough.

17:35 4 You indicate that he was detained in the

17:35 5 Macomb County Jail on June 11, 2014, at the direction

17:35 6 of the Roseville Police Department.

17:35 7 Upon what did you base that statement?

17:35 8 A. A police report or something that I read in those

17:35 9 documents.

17:35 10 Q. Is it your opinion that police departments are the

17:35 11 ones that direct for a defendant to be jailed?

17:35 12 A. Oh, I think a judge directs -- well, I mean, to the

17:35 13 extent that that calls for a legal opinion, I don't

17:35 14 know that I can answer it.

17:35 15 Q. Do you know the answer?

17:35 16 A. I know that police departments have the power to

17:35 17 arrest people, put them in a lockup or put them in a

17:35 18 jail, and then a judge can send people to jail for a

17:35 19 certain -- for a certain period of time.

17:35 20 Q. In this case did the judge sentence him to jail, or

17:35 21 did the police department simply take him to jail?

17:36 22 MR. CHAPMAN: I'm going to objection: form

17:36 23 and foundation, and not at all relevant to anything

17:36 24 we're here for.

17:36 25 MR. IHRIE: It's relevant to the accuracy

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17:36 1 and credibility of this report.

17:36 2 BY MR. IHRIE:

17:36 3 Q. But you can go ahead and answer.

17:36 4 In this case did the police department make

17:36 5 the decision to put him in jail or did the judge?

17:36 6 A. Well, since he was arrested on a warrant, I would

17:36 7 assume, not being -- not being a lawyer, not being

17:36 8 able to give you a legal opinion, I would have to

17:36 9 conclude that, if there was a warrant, I understand a

17:36 10 warrant is issued by a judge.

17:36 11 Q. So what's your answer then?

17:36 12 A. Well, why don't you repeat your question.

17:36 13 Q. Was it the judge who placed him in jail or the

17:36 14 Roseville Police Department?

17:36 15 A. Oh, that's my -- well, you mean who placed him in

17:36 16 the --

17:36 17 Q. Yes. Who ordered him to go to jail?

17:36 18 A. Well, that's different between who placed him and who

17:36 19 ordered him.

17:36 20 Q. Who ordered him?

17:36 21 A. Well, why don't you make up your mind. Ask me a

17:36 22 question that I can answer, and ask it consistently.

17:37 23 Because if you ask it one way and then ask it another

17:37 24 way, I don't know what you're talking about.

17:37 25 Q. Well, let's use your word.

Page 26

17:37 1 Who directed him to go to jail?

17:37 2 A. Well, directed him; my understanding is the police

17:37 3 department took him to the jail.

17:37 4 Is that what you mean by "directed"?

17:37 5 Q. No, I'm using your word. What did you mean by

17:37 6 "directed" in your report? You said at the --

17:37 7 MR. CHAPMAN: I'm going to object. He

17:37 8 doesn't say "directed," he says, "At the direction of

17:37 9 Roseville Police."

17:37 10 BY MR. IHRIE:

17:37 11 Q. That's what I'm about to read.

17:37 12 "At the direction of the Roseville Police

17:37 13 Department, he was detained in the Macomb County

17:37 14 Jail."

17:37 15 A. No, they took him to jail.

17:37 16 Q. So you mean they took him to jail. They transported

17:37 17 him to jail; is that what you're saying?

17:37 18 A. Well, which is it, took him or transported him?

17:37 19 Q. Either.

17:37 20 A. Well, that's my understanding.

17:37 21 Q. Who ordered --

17:37 22 A. This is all you got? This is it? This is what you

17:37 23 want to know?

17:37 24 Q. Do you know who ordered him to go to jail?

17:37 25 A. Well, ordered --

Page 27

17:37 1 MR. CHAPMAN: Object to form and

17:37 2 foundation.

17:37 3 THE WITNESS: Whoever issued the warrant.

17:37 4 But again, to the extent that that calls for a legal

17:37 5 conclusion, I don't know that I can answer that.

17:37 6 BY MR. IHRIE:

17:38 7 Q. In terms of challenging me as to whether -- Is that

17:38 8 all you have, I would respectfully request that you

17:38 9 just answer my questions rather than challenge me.

17:38 10 A. I'll do my best, but I want to understand them, and

17:38 11 many of these questions are cryptic to me, sometimes

17:38 12 because of the way that they're posed, and sometimes

17:38 13 because of the obscurity of what the issue really is

17:38 14 and what you're really asking me.

17:38 15 So I'm doing my best to try to understand.

17:38 16 Q. Please do.

17:38 17 A. I mean, when -- usually at the outset of a deposition

17:38 18 I'm instructed to let you know if I don't understand

17:38 19 what you're asking. So when I ask that kind of

17:38 20 question, it arises out of my limited ability to

17:38 21 understand what you're really getting at or what you

17:38 22 mean when you pose these questions to me.

17:38 23 But I'll do my best to try and understand

17:38 24 and try and cooperate with you.

17:38 25 Q. Looking at the second paragraph, you indicate --

Page 28

17:38 1 toward the end it says -- you reference Nurse Deluca,

17:39 2 noted on the intake form that he showed, quote,

17:39 3 obvious physical signs of drug use -- or drug abuse,

17:39 4 rather.

17:39 5 Why did you put that in your report, and

17:39 6 does it have any importance to this case?

17:39 7 A. I put it in my report because I read it, and it showed

17:39 8 that -- it established the fact that a nurse did make

17:39 9 an assessment.

17:39 10 Q. Well, she made a lot of assessments in her initial

17:39 11 document; did she not? Why did you pick that one to

17:39 12 put in your report?

17:39 13 A. That seemed to be the most pertinent.

17:39 14 Q. Is it relevant to this case, in your opinion?

17:39 15 A. Well, I'm not sure what you mean by "relevant."

17:39 16 The -- wait. The medical record does have

17:39 17 some relevance. I draw attention to certain parts of

17:39 18 the medical record, because they're exemplary of what

17:39 19 happened. They form examples of what happened.

17:39 20 Q. Well, you carved out and put in quotation marks that

17:40 21 the form showed -- the intake form showed that he --

17:40 22 that she wrote, "Obvious physical signs of drug

17:40 23 abuse."

17:40 24 My question is very simple. Is that fact

17:40 25 relevant to this case?

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17:40 1 A. Well, it seemed to be, or it could be.

17:40 2 Q. And in what way could it be?

17:40 3 A. Well, because there are some issues about his drug use

17:40 4 and about how his drug use manifested in his clinical

17:40 5 condition, who noticed it, and what they did about it.

17:40 6 So that was one reference to his drug use.

17:40 7 Q. You then note that "She recommended he be placed in

17:40 8 the medical detox unit." And then your next sentence

17:40 9 says, "He was placed in the general population on June

17:40 10 12, 2014."

17:40 11 A. Yes.

17:40 12 Q. Is the juxtaposition and the content of those two

17:40 13 sentences supposed to indicate that she recommended he

17:40 14 go to medical detox, but he was rather placed in the

17:40 15 general population? Is that your point that you're

17:40 16 making there?

17:41 17 A. No, I think it just -- it establishes the different

17:41 18 places in which he was housed.

17:41 19 Q. Was -- after she recommended that he be placed in the

17:41 20 medical detox unit, do you know if he was?

17:41 21 A. I don't think he was placed immediately.

17:41 22 Q. Do you think he was rather placed in the general

17:41 23 population?

17:41 24 A. On June 12, yes.

17:41 25 Q. Your next paragraph indicates that on June 17 --

Page 30

17:41 1 strike that. Let me ask it a little bit differently.

17:41 2 From June 11, which is when the intake form

17:41 3 from Deluca was taken, your next entry, your next

17:42 4 paragraph, talks about June 17.

17:42 5 Is it your opinion that nothing significant

17:42 6 with respect to this case happened between the 11th

17:42 7 and the 17th?

17:42 8 A. Nothing that I felt necessary to include in my report

17:42 9 at this point.

17:42 10 Q. You indicate that "Deputy Licavoli found Stojcevski

17:42 11 lying on the floor in his cell on his back, unable to

17:42 12 speak and blinking his eyes."

17:42 13 Of what relevance was the fact that

17:42 14 Licavoli found him unable to speak and blinking his

17:42 15 eyes on the floor of his cell?

17:42 16 A. That's a description of his condition.

17:42 17 Q. Is it relevant to this case?

17:43 18 A. Well, I'm not sure what you're really asking when you

17:43 19 say, "Is it relevant to this case."

17:43 20 I mean, his medical condition, or his

17:43 21 condition at any given time, seems to be at issue

17:43 22 here. So descriptions of his -- of his condition from

17:43 23 time to time would seem to be pertinent.

17:43 24 Q. Is it relevant to you that on the 17th he was unable

17:43 25 to speak and blinking his eyes?

Page 31

17:43 1 What does "unable to speak" indicate to

17:43 2 you?

17:43 3 A. Well, it can indicate any number of things.

17:43 4 Q. What are the most significant things that it might

17:43 5 indicate?

17:43 6 A. Most significant?

17:43 7 The inability to speak can be caused by a

17:43 8 number of issues, anything from severe pharyngitis or

17:43 9 oral pathology, to neurologic pathology, to

17:43 10 intoxication, to withdrawal, to somnolence, to other

17:43 11 psychiatric conditions: schizophrenia, depression.

17:44 12 Q. You indicate then that he was taken to his -- to the

17:44 13 medical section and then returned to his cell.

17:44 14 Do you know what happened when he was taken

17:44 15 to what you call "the medical section"?

17:44 16 A. I -- I don't have the -- I don't have the specific

17:44 17 document, or I haven't flagged it or referenced it,

17:44 18 but I understand that there was some assessment, and

17:44 19 then he was returned to his cell and referred to

17:44 20 mental health.

17:44 21 Q. You then indicate that he was referred to mental

17:44 22 health because he was hallucinating.

17:44 23 A. Yes.

17:44 24 Q. So on the 17th -- did that all occur on the 17th, that

17:44 25 he was unable to speak -- or at least reported to be

Page 32

17:44 1 unable to speak -- reported to be blinking his eyes

17:44 2 and reported to be hallucinating? Did that all occur

17:44 3 on the 17th?

17:44 4 A. If not the 17th, then shortly thereafter.

17:45 5 Q. At this point in your report is the combination of

17:45 6 those three things significant: being unable to speak,

17:45 7 blinking his eyes, and hallucinating?

17:45 8 A. Well, once again, those do describe his condition, and

17:45 9 his condition is at issue in this matter.

17:45 10 Q. What's the difference between -- what is

17:45 11 hallucinating?

17:45 12 A. Hallucinating is reporting a sensory experience where

17:45 13 there is no objective stimuli.

17:45 14 Q. And that's different than a delusion; is it not?

17:45 15 A. A delusion is a conclusion based on faulty thinking.

17:45 16 Q. And at this point he was hallucinating.

17:45 17 Do you recall what his hallucination was?

17:45 18 A. No.

17:45 19 Q. Would it refresh your memory if I indicated, generally

17:45 20 speaking, that he felt that he had -- half of his

17:45 21 heart had been eaten, and that -- well, let's just

17:45 22 start there.

17:45 23 A. I think it was half of his body was eaten, or

17:45 24 something like that.

17:45 25 Q. And that that all happened while he was at the jail?

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17:45 1 A. Yes.

17:45 2 Q. Does that particular kind of hallucination fit into

17:45 3 any particular psychiatric category?

17:46 4 A. It can fit into a number of different psychiatric

17:46 5 conditions.

17:46 6 Q. The next sentence, which is at the top of page 3

17:46 7 indicates that "He was placed in a mental health cell,

17:46 8 on suicide watch, under 24-hour video coverage."

17:46 9 Did you read anything in his medical

17:46 10 report, or any of the medical notes, documents, or the

17:46 11 mental health notes or documents of any kind, that

17:46 12 indicated that he was suicidal?

17:46 13 A. Well, he was -- I think he was described as suicidal.

17:46 14 I think your question may mean was there any objective

17:46 15 basis for that, and I don't recall reading anything

17:46 16 that described anything that he said that would lead

17:46 17 to that inference, other than a general concern that

17:46 18 his -- that his behavior might put him at risk for

17:46 19 some self-harm. But I don't recall any verbalizations

17:47 20 of suicidal intent.

17:47 21 Q. Do you know -- do you have an opinion, or do you know

17:47 22 based upon your experience, as to what a suicide watch

17:47 23 is?

17:47 24 A. Well, I have some understanding of what suicide watch

17:47 25 is based on my experience, and that would be close

Page 34

17:47 1 observation; that would be environmental safety, so

17:47 2 removing the means for self-harm, no sharps, paper

17:47 3 clothing, finger foods, no utensils. Measures of

17:47 4 that -- of that sort to reduce the risk of self-harm.

17:47 5 Q. Would it also include lack or reduced ability to go

17:47 6 out and socialize with other members of the jail

17:47 7 community?

17:47 8 A. Well, that's not necessarily part of suicide watch in

17:47 9 itself, but in some instances it may be. And what

17:48 10 you're talking about is increased degree of

17:48 11 confinement. And that's not necessarily part of

17:48 12 suicide watch. It may be in some instances or in some

17:48 13 environments.

17:48 14 Q. Might there be any negative psychiatric consequences

17:48 15 to placing somebody in a suicidal watch cell who is

17:48 16 not suicidal?

17:48 17 A. Well, anything is possible, but if you're going to

17:48 18 make an error, you want to err on the part of being

17:48 19 conservative and overreact to the risk of self-harm

17:48 20 rather than under react.

17:48 21 You know, isolation in a corrections pop --

17:48 22 correction setting might be instituted to reduce the

17:48 23 risk of obtaining the means for self-harm from another

17:48 24 inmate or obtaining the means for self-harm in an area

17:48 25 of the -- of the lockup or of a prison or of a jail

Page 35

17:48 1 that's not as environmentally safe.

17:48 2 Q. You indicated -- you just used the phrase "the

17:48 3 indications of self-harm." What were the indications

17:48 4 of self-harm?

17:48 5 A. Well, I think when you asked me that previously, you

17:49 6 asked me if I had heard anything or read anything that

17:49 7 would lead to the mental health professional's

17:49 8 inference that he was at risk for self-harm. And my

17:49 9 answer was: Other than his disorganized behavior, I

17:49 10 didn't see anything where there was anything he

17:49 11 directly expressed that would lead to that inference.

17:49 12 But certainly disorganized behavior increases the risk

17:49 13 of self-harm for inadvertent reasons or for

17:49 14 intentional reasons.

17:49 15 Q. What do you mean, "disorganized behavior"?

17:49 16 A. Well, if someone is confused, if someone is

17:49 17 hallucinating, if someone is operating under a

17:49 18 delusion, their behavior may be disorganized. They

17:49 19 may have an impairment in their ability to take in

17:49 20 information, process it, and act on it in a

17:49 21 consensually validated way.

17:49 22 If someone is operating under a delusion of

17:49 23 persecution, they may take some measure to protect

17:49 24 themselves that puts them at greater risk. They may

17:50 25 jump out of a window, because someone's trying to

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17:50 1 chase them; or they may run out into traffic, because

17:50 2 they think they're being chased or persecuted; or they

17:50 3 may do something unwise or something self-destructive

17:50 4 in that instance.

17:50 5 Q. And is that justification, in your opinion, that

17:50 6 something -- that somebody may do something like that,

17:50 7 even though they have expressed zero intent to do

17:50 8 something, they have not shared an idea to do

17:50 9 something like that, they have not identified a plan

17:50 10 to commit suicide, is it your testimony that somebody

17:50 11 who hasn't done any of those things is appropriate for

17:50 12 placement in a high-observation suicide that -- a

17:50 13 suicide cell?

17:50 14 A. Well, surely you don't mean that everyone who intends

17:50 15 to harm themselves is going to express that intent or

17:50 16 is going to disclose that intent. Although many

17:50 17 people do, many people who do complete suicide do not

17:50 18 disclose their intent. So mental health professionals

17:50 19 have to make inferences based on other aspects and

17:51 20 other observations.

17:51 21 But suicide watch may be instituted when --

17:51 22 when an individual's behavior is disorganized, and

17:51 23 that increases the risk of self-harm whether it's by

17:51 24 intent or whether it's inadvertent.

17:51 25 Q. Your statement that not everybody who's going to

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17:51 1 commit suicide expresses an intent to do so, I

17:51 2 certainly would agree with you.

17:51 3 A. Well, thank you.

17:51 4 Q. The other side of that coin is that: Just because

17:51 5 somebody acts in a -- what you phrase disorganized

17:51 6 fashion ought to be placed in a suicide cell; is that

17:51 7 true as well?

17:51 8 A. Well, no. I think -- what do they call that? A

17:51 9 hyperbole. I say something, then you raise it to a

17:51 10 level of absurdity and ask if that's what I said, and

17:51 11 that's not what I said, or that's not what I meant.

17:51 12 But disorganized behavior may be one of the

17:51 13 reasons that you would place someone on a suicide

17:51 14 watch. Because a suicide -- look, penicillin is used

17:51 15 to treat syphilis. We don't call it an

17:51 16 antisyphilitic.

17:51 17 Suicide watch implies close observation and

17:51 18 environmental safety. And there may be a number of

17:52 19 reasons that you want to put someone in that

17:52 20 environment; not only because they have suicidal

17:52 21 intent, but again, because there's something about

17:52 22 their behavior, or something about their expressions,

17:52 23 that the clinician feels raises the possibility of

17:52 24 self-harm, whether by intent or whether it's

17:52 25 inadvertent.

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17:52 1 Q. So other than what you've called disorganized

17:52 2 behavior, did you see any other indication of suicidal

17:52 3 intent or behavior?

17:52 4 A. Well, if someone says that their body has been

17:52 5 destroyed, they're talking about self-destructive

17:52 6 ideas; and in certain instances, that might be an

17:52 7 indication of intent to self-harm.

17:52 8 If someone talks about being persecuted --

17:52 9 and he didn't talk about being persecuted directly --

17:52 10 but that may be the projection of suicidal ideation

17:52 11 out on an environment. So there are a number of

17:52 12 different reasons.

17:52 13 In this instance I -- by my recollection,

17:52 14 the disorganized behavior I believe led to the

17:52 15 inference that he needed to be in a -- in a suicide

17:53 16 watch environment.

17:53 17 Q. Didn't you already include the fact that -- of his

17:53 18 hallucinatory behavior in the disorganized behavior?

17:53 19 Isn't that part of a disorganized behavior?

17:53 20 A. Well, not everyone who's disorganized hallucinates,

17:53 21 and not --

17:53 22 Q. I didn't say that.

17:53 23 A. -- everyone who hallucinates is disorganized, so I

17:53 24 think that they're separate. So I think I already

17:53 25 included that in what I said, and when I reiterate it,

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17:53 1 I wanted to make sure I was being thorough.

17:53 2 Q. Was his hallucinatory behavior part of his

17:53 3 disorganized behavior?

17:53 4 A. No, I'd say those are two different things.

17:53 5 Q. Two different things.

17:53 6 What was his disorganized behavior then?

17:53 7 What did that consist of?

17:53 8 A. I think I already answered that when you asked me to

17:53 9 define disorganized behavior, and I gave the example

17:53 10 that -- or I gave the definition --

17:53 11 Q. What was his?

17:53 12 A. Wait. Can I finish?

17:53 13 Q. Yes.

17:53 14 A. Thank you.

17:53 15 -- that disorganized behavior can be an

17:53 16 impairment in the ability to take in information,

17:53 17 process it, and act on it in an appropriate manner or

17:53 18 consensually validated manner. And hiding under the

17:54 19 bed, blinking his eyes, not speaking, and then stating

17:54 20 that his body had been damaged in the jail, those are

17:54 21 all manifestations of disorganized behavior.

17:54 22 Q. So then based upon what you just told me, thinking

17:54 23 that his body was half eaten, I just asked you if that

17:54 24 was part of his disorganized behavior, you said, "No,

17:54 25 that was separate." Now you've listed it as part of

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17:54 1 his disorganized behavior. Which one is it?

17:54 2 A. I said it was -- well, now, you can just argue with

17:54 3 me, if you like. I'm trying not to be difficult, but

17:54 4 when -- you talked about hallucinations as being part

17:54 5 of disorganized behavior, and then I said, Not

17:54 6 everyone who hallucinates is disorganized, and not

17:54 7 everyone who is disorganized hallucinates, that those

17:54 8 are two different phenomena.

17:54 9 But certainly offering a recollection of

17:54 10 something and stating something had happened to him

17:54 11 that was, A, unlikely and not consistent with reality,

17:54 12 and B, something that was not likely to have happened

17:54 13 in the past or misremembering the past, that implies a

17:54 14 level of disorganization as well.

17:55 15 Now, I can talk about this a lot, and

17:55 16 psychiatrists do address these kinds of issues. If

17:55 17 this is what we need to discuss, I'm happy to spend

17:55 18 the time doing it.

17:55 19 Q. Dr. Shiener, I'm going to ask you what we need to

17:55 20 discuss. You don't need to worry about that.

17:55 21 So is --

17:55 22 A. I'm not worried in the least, Mr. Ihrie.

17:55 23 Q. All right. So what was his disorganized behavior

17:55 24 absent the hallucinations?

17:55 25 A. Everything else I said about it a few moments ago, the

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17:55 1 first time you asked me.

17:55 2 Q. You told me --

17:55 3 A. We're not going to argue about what I told you. You

17:55 4 can read from the record, if you want.

17:55 5 Q. I understand that you told me what disorganized

17:55 6 behavior is, but I'm asking if it related to him, to

17:55 7 David.

17:55 8 A. I believe I did --

17:55 9 Q. You did not.

17:55 10 What was his disorganized behavior?

17:55 11 A. I don't want to argue with you, but I did. And I --

17:55 12 Q. Forgive me then for not --

17:55 13 A. I -- well --

17:55 14 Q. -- for not hearing that.

17:55 15 A. There's nothing to forgive you for. I don't hold it

17:55 16 against you.

17:55 17 Q. What was it?

17:55 18 A. Hiding under the bed, not speaking, blinking his eyes.

17:55 19 And by that description there is some inference that

17:56 20 he was disturbed, because there was no reason for him

17:56 21 to hide under the bed.

17:56 22 Q. I didn't see where he was hiding under the bed. Where

17:56 23 did you see that?

17:56 24 A. Oh, excuse me. On the floor of his cell. Excuse me.

17:56 25 On his back, unable to speak, and blinking his eyes.

Page 42

17:56 1 Q. So lying on the floor, being unable to speak, and

17:56 2 blinking his eyes, those are the -- what you would

17:56 3 categorize as the disorganized behavior for David?

17:56 4 A. Those are representations of disorganized behavior.

17:56 5 Q. Were there any others with respect to David?

17:56 6 A. Not in the descriptions that I have in my report.

17:56 7 There may have been more rich descriptions in the

17:56 8 record.

17:56 9 Q. You next say, "He was seen by a physician."

17:56 10 I'm trying to understand the chronology of

17:56 11 your report. Is your testimony that he was placed in

17:56 12 a suicide watch cell, and then he was seen by a

17:56 13 physician?

17:57 14 Strike that question.

17:57 15 Is there a chronology to your report?

17:57 16 A. I tried to put things in chronological order as best

17:57 17 as I could reproduce them from the record.

17:57 18 Q. And so if we see that you say, This happened, and then

17:57 19 this happened in the next sentence, may we presume

17:57 20 that it is your opinion that those happened in

17:57 21 chronological order?

17:57 22 A. I tried my best to do so.

17:57 23 Q. Thank you.

17:57 24 So after he was put in the 24-hour suicide

17:57 25 watch cell, you indicate that he was seen by a

Page 43

17:57 1 physician.

17:57 2 A. Yes.

17:57 3 Q. What physician was that, if you know?

17:57 4 A. I believe it was Dr. Sherman.

17:57 5 Q. And what did Dr. Sherman -- do you know when that was,

17:57 6 when he saw him?

17:57 7 A. Not without looking at the record. I referenced it; I

17:57 8 didn't put a date on it. So I don't know how long

17:57 9 after his being placed on suicide watch the evaluation

17:57 10 took place or the assessment took place.

17:57 11 Q. Do you know if he saw him on -- what day was he placed

17:58 12 in suicide watch; do you know?

17:58 13 Licavoli, you identified in your report,

17:58 14 indicated that on June 17, 2014, that's when Licavoli

17:58 15 found him.

17:58 16 A. I think you already asked me that, and I think I said

17:58 17 it was either on the 17th or shortly thereafter. I

17:58 18 don't know which day -- which day.

17:58 19 Q. Well, I didn't ask you about the physician, because we

17:58 20 just got to that. So do you know --

17:58 21 A. You didn't -- the question you just asked me had

17:58 22 nothing to do with a physician, so...

17:58 23 Q. I understand. I went back to Licavoli.

17:58 24 When did Dr. Sherman see him? Was it the

17:58 25 17th or the 18th? Is that what you're saying?

Page 44

17:58 1 A. No, that's not what I'm saying.

17:58 2 Q. Well, my question is: When did he see him?

17:58 3 THE WITNESS: Would you go back to the

17:58 4 first time he asked me that and read my answer,

17:58 5 please?

17:58 6 COURT REPORTER: The first time Dr. Sherman

17:58 7 saw him?

17:58 8 THE WITNESS: No, the first time I was

17:58 9 asked about Dr. Sherman. Go back to the very first

17:58 10 time.

17:58 11 (The following portion of the record was

12 read by the reporter at 5:59 p.m.:

13 Question: "Thank you.

14 "So after he was put in the 24-hour suicide

15 watch cell, you indicate that he was seen

16 by a physician.

17 Answer: "Yes.

18 Question: "What physician was that, if

19 you know?

20 Answer: "I believe it was Dr. Sherman.")

21 COURT REPORTER: Is that what you wanted?

22 THE WITNESS: No, keep going.

23 (The following portion of the record was

24 read by the reporter at 5:59 p.m.:

25 Question: "And what did Dr. Sherman -- do

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1 you know when that was when he saw him?

2 Answer: "Not without looking at the

3 record. I referenced it; I didn't put a

4 date on it. So I don't know how long after

5 his being placed on suicide watch the

6 evaluation took place or the assessment

17:59 7 took place.")

17:59 8 BY MR. IHRIE:

17:59 9 Q. So now my question is: Will you look at your record

17:59 10 and tell me -- your materials and tell me when

17:59 11 Dr. Sherman saw him?

17:59 12 A. Might take me a moment to find it.

17:59 13 Q. I understand.

18:01 14 MR. CHAPMAN: If it's helpful, Doctor, you

18:01 15 can look at Sherman's deposition through the index.

18:01 16 THE WITNESS: I'm looking at the mental

18:01 17 health records on this. Let's see.

18:02 18 What's the name of the app, the deposition

18:02 19 app?

18:02 20 MR. CHAPMAN: What?

18:03 21 THE WITNESS: What's the name of the

18:03 22 deposition app? E-trans? No. What's the name of the

18:03 23 app to read the deposition files? It's a PTX.

18:03 24 MR. CHAPMAN: An E-trans? I'm not sure.

18:03 25 THE WITNESS: Okay. Deposition Reader. I

Page 46

18:03 1 don't have this on the new computer.

18:04 2 MR. IHRIE: Bob Gazall, can you hear us?

18:04 3 MR. EADS: Yes, I can.

18:04 4 MR. IHRIE: All right. Just so you know,

18:04 5 Dr. Shiener is just reviewing some materials right

18:04 6 now, so -- in case you're wondering if we all hung up

18:04 7 on you.

18:04 8 MR. GAZALL: Yeah, no. That's fine.

18:04 9 THE WITNESS: You can only hope.

18:05 10 MR. IHRIE: Said he's what?

18:05 11 MR. CHAPMAN: Said he can only hope.

18:06 12 (Recess taken at 6:06 p.m.)

18:06 13 (Back on the record at 6:12 p.m.)

18:12 14 THE WITNESS: Now, your question was?

18:12 15 BY MR. IHRIE:

18:12 16 Q. You wanted her to read it back, I think.

18:12 17 A. You can just tell me.

18:12 18 Q. Okay. When did Dr. Sherman see him?

18:12 19 A. Looks like Dr. Sherman said that he saw him in medical

18:12 20 on the 17th, from his deposition, which would be page

18:12 21 119.

18:12 22 Q. All right. Is the chronology of what happened in this

18:12 23 case important?

18:12 24 A. In some respects it is, yes.

18:12 25 Q. In what respects --

Page 47

18:12 1 A. Well --

18:12 2 Q. -- is it?

18:12 3 A. -- it's when there are changes in the patient's

18:12 4 clinical condition, and then when the assessments were

18:12 5 made based on the changes, and whether there were any

18:13 6 changes in the treatment program based on the changes

18:13 7 in his condition.

18:13 8 Q. So your testimony is that Dr. Sherman saw David after

18:13 9 David was unable to speak, blinking his eyes, and

18:13 10 hallucinating, and after he had been put into the

18:13 11 suicide cell; is that correct?

18:13 12 A. Well, let's see. What does he say? Excuse me.

18:14 13 Page 121, "All right. Do you see under the

18:14 14 body of the note where it says, Late entry for

18:14 15 6-17-14, at 7:15 a.m., staff responded to a call in

18:14 16 mental health, patient was noted lying and twitching

18:14 17 his eyes."

18:14 18 Q. What is it that you're reading, Doctor?

18:14 19 A. This is Dr. Sherman's deposition.

18:14 20 Q. Do you know what document Dr. Sherman is referring to

18:14 21 in that?

18:14 22 A. (No verbal response.)

18:14 23 Q. Well, let me just back up.

18:14 24 A. He said -- this says: "Well, he was brought over to

18:14 25 you in the morning; was he not?

Page 48

18:14 1 "No, this was afternoon.

18:14 2 And then you said -- you read from

18:14 3 Deposition Exhibit Number 3 marked for identification,

18:15 4 and it's called the Sherman 3 note.

18:15 5 "And do you see under the body of the note

18:15 6 where it says, Late entry for 6-17 at 7:15 a.m.?".

18:15 7 Q. I think my question, Dr. Sherman, might be a little

18:15 8 simpler than that.

18:15 9 A. I'm Dr. Shiener.

18:15 10 Q. I'm sorry. I apologize.

18:15 11 A. That's even simpler, because I'm here, and he's not.

18:15 12 Q. You indicated that he was seen by a physician in your

18:15 13 report.

18:15 14 A. Yes.

18:15 15 Q. On the 17th.

18:15 16 A. Yes.

18:15 17 Q. And you indicated previously that you do your best to

18:15 18 write things in chronological order.

18:15 19 A. Yes.

18:15 20 Q. So did he see -- did Dr. Sherman see him after the

18:15 21 patient was unable to speak, blinking his eyes, and

18:15 22 hallucinating, and after having been put into the

18:15 23 suicide cell?

18:15 24 A. No, apparently not after being put into the suicide

18:16 25 cell.

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18:16 1 Q. So --

18:16 2 A. He saw him in the medical unit or in his cell near the

18:16 3 medical unit.

18:16 4 Q. And you now know that.

18:16 5 A. Well, that's what Dr. Sherman said.

18:16 6 Q. So your chronology, at least to the extent that you've

18:16 7 gone to the second line on page 3, has -- is not

18:16 8 accurate, correct? Is that what your testimony is?

18:16 9 A. Well, it's accurate that he was seen by a physician.

18:16 10 It's just not accurate that he was placed under --

18:16 11 that's it's after where he was placed on a suicide

18:16 12 watch. It should be: He was seen by a physician, and

18:16 13 then he -- after he saw Dr. Sherman, he was put in a

18:16 14 mental health cell on a suicide watch.

18:16 15 Q. All right. So the chronology as you have it is not

18:16 16 correct, though, correct?

18:16 17 A. Well, what I said was I did my best to put things in

18:16 18 chronological order. And I would have been better --

18:16 19 I think we would have all been better served if I had

18:16 20 placed that second sentence before the first sentence.

18:16 21 Q. Your next sentence says, "He was described as talking

18:16 22 to himself and eating very little."

18:16 23 And that's a period after the word little;

18:16 24 is that correct?

18:16 25 A. Yes. That's right.

Page 50

18:16 1 Q. And he was described by whom?

18:17 2 A. I don't recall.

18:17 3 Q. And when was he so described?

18:17 4 A. I believe that was while he was in the -- at some time

18:17 5 while he was in the mental health cell.

18:17 6 Q. Some time -- well, he was in the mental health cell

18:17 7 for ten days.

18:17 8 A. Yes.

18:17 9 Q. So your testimony is that "Some time while he was in

18:17 10 the mental health cell."

18:17 11 A. That's right.

18:17 12 Q. Sometime during those ten days he was described as

18:17 13 talking to himself and eating very little.

18:17 14 A. Well, I think not only is that in my report, but I

18:17 15 already answered "yes" when you asked me that before.

18:17 16 Q. And is this chronologically accurate as well?

18:17 17 A. I believe it's in the mental health -- while he was in

18:17 18 the mental health ward; I just don't know what day

18:17 19 that that note is from.

18:18 20 MR. CHAPMAN: Without being pejorative, are

18:18 21 you going to sometime get to his opinions? None of

18:18 22 this matters. Get to his opinions.

18:18 23 BY MR. IHRIE:

18:18 24 Q. Why did you put that in your report, that he was

18:18 25 described as talking to himself and eating very

Page 51

18:18 1 little?

18:18 2 A. Oh, I felt it would help to understand what happened

18:18 3 to him, how he was acting.

18:18 4 Q. Is that fact important or those facts important?

18:18 5 A. Well, when you say "important," I'm not sure -- I'm

18:18 6 not sure what you mean. If I wanted to put in

18:18 7 everything that I thought was important, I'd be

18:18 8 paraphrasing and dictating this whole set of papers

18:18 9 and the whole set of electronic records into a report,

18:18 10 and that would be redundant. I didn't think that was

18:18 11 necessary.

18:18 12 I thought it was representative, and I'd

18:18 13 use the term "representative" rather than "important."

18:18 14 Q. But you didn't dictate everything, and you chose

18:18 15 certain facts that you observed or read about, and you

18:19 16 put certain facts into your report and not others,

18:19 17 correct?

18:19 18 A. Oh, I think I just said that, didn't I?

18:19 19 Q. So my question is: As background information to your

18:19 20 ultimate conclusions, is the fact that while he was in

18:19 21 the suicide cell he was described as talking to

18:19 22 himself and eating very little important to your

18:19 23 ultimate conclusion?

18:19 24 A. I think I already answered that.

18:19 25 Q. Well, if it is, I would like to know why it is. If

Page 52

18:19 1 it's not, I'd like to know why you put it in there.

18:19 2 I'm not trying to lead you somewhere. If it's

18:19 3 important, please tell me.

18:19 4 A. I don't think I can answer it the way you've asked it.

18:19 5 I think that -- I think that what I tried to do was

18:19 6 put some things in this document that would be

18:19 7 representative.

18:19 8 Q. Of what?

18:19 9 A. Of the course of his stay in the jail, in different

18:19 10 parts of the jail, and descriptions of his condition,

18:19 11 and that if I wanted to put everything important, I

18:20 12 would have generated an unwield -- everything that I

18:20 13 thought was important, the document would be unwieldy.

18:20 14 So I just -- I put that sentence in,

18:20 15 because I thought it was representative.

18:20 16 Q. And what was it representative of?

18:20 17 A. Of some of the things that they said about him, when

18:20 18 he was in the mental health ward.

18:20 19 Q. Then you go -- you jump from the 17th or the 18th to

18:20 20 June 25, where you indicate, "From June 25 until his

18:20 21 death on June 27, he laid on the floor in his cell,

18:20 22 shaking and blinking his eyes."

18:20 23 Now, in the course of this paragraph you've

18:20 24 addressed that he was reported as talking to himself,

18:20 25 eating very little, blinking his eyes, and shaking.

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18:20 1 Why was it important to put those representative -- to

18:20 2 use your word -- observations into your report?

18:20 3 A. I didn't say it was important, I just thought that

18:20 4 those were representative of what had happened by way

18:21 5 of a summary.

18:21 6 Q. Did that have anything to do with what David was going

18:21 7 through, or any diagnosis, any conclusion? Did it

18:21 8 have anything to do with your conclusion?

18:21 9 A. Well, they're representative of some of the behaviors

18:21 10 that led to my conclusions. I didn't end my document

18:21 11 there; I include other information as well.

18:21 12 Q. I understand.

18:21 13 A. Well, if you do, then I don't understand your line of

18:21 14 questioning. I'm not sure what you're really getting

18:21 15 at or what you're trying to ask of me.

18:21 16 Q. Why did you want the reader of your report to know

18:21 17 these four things: that he was observed talking to

18:21 18 himself, eating very little, shaking, and blinking his

18:21 19 eyes?

18:21 20 A. I don't think I have anything more to say about my

18:21 21 intent in preparing this document.

18:21 22 Q. Looking at the next paragraph, the second sentence,

18:21 23 you indicate -- well, let's look at the first sentence

18:21 24 first.

18:21 25 You understand that you were hired by the

Page 54

18:22 1 attorney for Correct Care Solutions, correct?

18:22 2 A. I do.

18:22 3 Q. And Correct Care Solutions, as you indicate, was to

18:22 4 provide psychiatric and medical care at the Macomb

18:22 5 County Jail as a contract provider. Then you indicate

18:22 6 that there -- your next sentence reads: "There were

18:22 7 policies, procedures, and nursing policies describing

18:22 8 inmates' -- describing inmates' receipt of timely

18:22 9 health care for serious medical, dental, and mental

18:22 10 health needs."

18:22 11 I don't know what that sentence means. Can

18:22 12 you please tell me what that means?

18:22 13 A. I don't know that I can help you understand it. I

18:22 14 think that describes the role of Correct Care

18:22 15 Solutions and their agents.

18:22 16 Q. When you say that there were pol -- "the policies,

18:22 17 procedures, nursing policies describing inmates'

18:22 18 receipt of timely health care," that's -- it's the

18:22 19 word "describing" that I'm having a problem with. I

18:22 20 don't understand what you mean when you say the

18:22 21 policies and procedures described inmates' receipt of

18:23 22 timely health care.

18:23 23 A. I don't get how you couldn't understand that. It

18:23 24 seems fairly straightforward.

18:23 25 Q. Well, which inmate or inmates did the policies,

Page 55

18:23 1 procedures, and nursing policies describe their

18:23 2 receipt of timely health care?

18:23 3 A. People in need of services.

18:23 4 Q. So you want to stick with the word "describing"?

18:23 5 A. When you say, Stick with it, I don't know what you

18:23 6 mean. It's already there.

18:23 7 Q. Okay. What did you look at or review to determine

18:23 8 what corrections officers were trained in or not

18:23 9 trained in? Which one of the list of documents that

18:23 10 you reviewed on pages -- your first and second page

18:24 11 did you look at to make that determination?

18:24 12 MR. CHAPMAN: Object to form and

18:24 13 foundation.

18:24 14 THE WITNESS: Oh, I don't know if it was in

18:24 15 the sheriff's re -- I don't know where it was. I must

18:24 16 have read it somewhere in these documents.

18:24 17 BY MR. IHRIE:

18:24 18 Q. So you're really opining that somebody else said that

18:24 19 the corrections officers were trained?

18:24 20 A. Well, there were investigations. I read a sheriff's

18:24 21 investigation. Some of the corrections officers spoke

18:24 22 about their training or spoke about what they were

18:24 23 supposed to know how to do in their depositions. I

18:24 24 don't recall where I gleaned that specifically.

18:25 25 Q. Well, you didn't look at any training materials, did

Page 56

18:25 1 you?

18:25 2 A. I don't think so.

18:25 3 Q. None are listed on your list of materials that you

18:25 4 reviewed for your report, are they?

18:26 5 MR. CHAPMAN: What's the question?

18:26 6 MR. IHRIE: He knows the question. That's

18:26 7 why he's --

18:26 8 THE WITNESS: Okay. It doesn't look like I

18:26 9 had any manuals at the time that I prepared the

18:26 10 report.

18:26 11 BY MR. IHRIE:

18:26 12 Q. How is it then that you can state objectively and with

18:26 13 relative emphasis that "corrections officers were

18:26 14 trained in assessing inmates' needs for nutrition and

18:26 15 hydration"?

18:26 16 MR. EADS: Form. Object to form.

18:26 17 THE WITNESS: Well, I don't -- I don't

18:26 18 recall where I read it. I did read a number of

18:26 19 corrections officers' depositions.

18:26 20 BY MR. IHRIE:

18:26 21 Q. And --

18:26 22 A. They made reference to it in their depositions.

18:26 23 Q. So when you say "corrections officers were trained,"

18:26 24 are you really saying that somebody else said they

18:27 25 were trained, or a corrections officer said they

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18:27 1 individually were trained? Is that what you --

18:27 2 A. Well, that may have been the base -- that may have

18:27 3 been the basis for that statement.

18:27 4 Q. You understand that saying that somebody said they

18:27 5 were trained, or told you that they were trained, is

18:27 6 different than your conclusion that they indeed were

18:27 7 trained. Those are two separate things; are they not?

18:27 8 A. Well, if they say so under oath, they say that they

18:27 9 were trained under oath, I'm not sure what the

18:27 10 difference would be.

18:27 11 Q. Is it your testimony that every time somebody

18:27 12 testifies under oath, they're telling the accurate

18:27 13 truth?

18:27 14 A. There you go, there's that hyperbole again. When I

18:27 15 say something, you restate it in a way --

18:27 16 Q. Just what's the answer to my question?

18:27 17 A. Well, that's the answer to my question. The answer to

18:27 18 my question is what I said, not the hyperbolic

18:27 19 rephrasing or paraphrase of what I said. So -- and

18:27 20 I've already told you that I like the way I say things

18:27 21 better, and if you're going to paraphrase and ask me

18:28 22 if that's what I said, my answer is going to have to

18:28 23 be: No.

18:28 24 Q. I didn't ask you that. My question is very simple.

18:28 25 Is it your testimony that everybody who testifies

Page 58

18:28 1 under oath is telling the accurate truth?

18:28 2 A. I didn't recall saying that.

18:28 3 Q. I ask -- I didn't say that you did say it, sir. I'm

18:28 4 asking you if that is your opinion.

18:28 5 A. No, that's not what you asked me. You asked me if it

18:28 6 was my testimony.

18:28 7 Q. No, I didn't.

18:28 8 MR. CHAPMAN: You did.

18:28 9 THE WITNESS: Read from the record. Now --

18:28 10 BY MR. IHRIE:

18:28 11 Q. All right, that's --

18:28 12 A. You can -- I'm going to cooperate with you.

18:28 13 Q. That's fine.

18:28 14 A. But -- but I'm not going to engage in this. And

18:28 15 you're not going to ask me the question three times

18:28 16 and then change it.

18:28 17 Q. I'm asking you: Is it your opinion --

18:28 18 A. Well, which question do you want me to answer?

18:28 19 Q. Is it your opinion that everybody who testifies under

18:28 20 oath is telling the accurate truth?

18:28 21 A. Well, that seems pretty absolute. It would be hard to

18:28 22 hold onto that kind of opinion.

18:28 23 Q. So when you say that you read, and they were under

18:28 24 oath when they testified that they had been trained,

18:28 25 is that good enough for you to --

Page 59

18:28 1 MR. CHAPMAN: Objection, that's --

18:28 2 BY MR. IHRIE:

18:28 3 Q. -- make the statement --

18:28 4 MR. CHAPMAN: That's not what he testified

18:29 5 to.

18:29 6 BY MR. IHRIE:

18:29 7 Q. Let's just identify the fact that -- and agree with

18:29 8 me, if you will, that anything you know about whether

18:29 9 officers were trained came from either a deposition

18:29 10 where somebody else was saying they were trained, or

18:29 11 somebody else was making a statement about training --

18:29 12 A. Or maybe something I read in some other case.

18:29 13 Q. Let me finish my sentence.

18:29 14 You didn't investigate the training

18:29 15 yourself, did you?

18:29 16 A. I didn't conduct my own police investigation of what

18:29 17 was said in any of these records. I didn't go out and

18:29 18 ask these guys if they were telling the truth during

18:29 19 their deposition. I didn't go out to the jail and

18:29 20 say, "Well, this is what's supposed to happen; is this

18:29 21 what really happens." I don't think that's what my

18:29 22 job was here.

18:29 23 Q. You put down in your report that you read Deputy

18:29 24 Harrison's deposition, correct?

18:29 25 A. I did.

Page 60

18:29 1 Q. Do you recall reading in his deposition where he

18:29 2 specifically indicated that he was not trained to

18:29 3 monitor food and water intake at the jail?

18:29 4 A. I haven't committed his deposition to memory.

18:30 5 Q. Well, if he did say that in his deposition, and for

18:30 6 the sake of this question I want you to presume that

18:30 7 he did, why would you say in your report that deputy

18:30 8 corrections officers were trained?

18:30 9 A. Well, just because he --

18:30 10 MR. EADS: Let me just object to form.

18:30 11 That's two completely different issues. His report is

18:30 12 different from the question you just asked, so I'll

18:30 13 just object to the form and hypothetical.

18:30 14 MR. CHAPMAN: I'll join.

18:30 15 BY MR. IHRIE:

18:30 16 Q. Do you know what deputy -- what corrections officers

18:30 17 were trained to do with respect to assessing an

18:30 18 inmate's need for nutrition and hydration?

18:30 19 A. I don't understand what you're asking.

18:30 20 Q. Well, you said they were trained --

18:30 21 A. They were trained to do.

18:30 22 Q. To do what?

18:30 23 A. To assess inmates' needs for nutrition and hydration.

18:30 24 MR. CHAPMAN: The doctor is not here to

18:30 25 testify as to what corrections officers --

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Page 61

18:30 1 MR. IHRIE: I know what he's here for.

18:31 2 MR. CHAPMAN: -- did or didn't do.

18:31 3 MR. IHRIE: I know what he's here for. If

18:31 4 there's an objection, make it.

18:31 5 MR. CHAPMAN: Well, there is. Why are we

18:31 6 going through this exercise of questioning him on

18:31 7 things that's not what he's retained for? He's not

18:31 8 giving any opinions on corrections officers, what they

18:31 9 did or didn't do.

18:31 10 BY MR. IHRIE:

18:31 11 Q. You indicated next that "A hunger strike policy was in

18:31 12 place."

18:31 13 Did you read the hunger strike policy?

18:31 14 A. I don't recall if I did or not.

18:31 15 Q. That being the case, you're not able to testify about

18:31 16 it today then, correct?

18:31 17 A. About what's in it?

18:31 18 Q. Yes.

18:31 19 A. No.

18:31 20 Q. When you see a patient that you haven't seen for a few

18:31 21 years, do you go back and look at his previous

18:32 22 records?

18:32 23 A. If they're available.

18:32 24 Q. If they're available? Why do you do that?

18:32 25 A. To help me in my assessment.

Page 62

18:32 1 Q. In the next paragraph you indicate, in the second

18:32 2 sentence, "Medical records -- "medical record." I

18:32 3 don't know if you mean that plural, but medical --

18:32 4 I'll read it the way it is. "Medical record generated

18:32 5 in 2006 would have reflected that he was taking both

18:32 6 Xanax and Klonopin, benzodiazepine tranquilizers."

18:32 7 Why did you put that in your report?

18:32 8 A. Same reason.

18:32 9 Q. Well, the reason you gave me before was that it was

18:32 10 representative of something. That doesn't seem to be

18:32 11 logical to put that in there because it's

18:32 12 representative of something, so my question is: Why

18:32 13 did you put it in there?

18:32 14 A. Well, your opinion's noted, but that's why I put it

18:32 15 in.

18:32 16 Q. Well, tell me what the answer is as to why you put it

18:32 17 in?

18:33 18 A. It's representative.

18:33 19 Q. It's representative. Of what?

18:33 20 A. His medical history.

18:33 21 Q. Are you saying that the 2006, 2008, and 2009 records

18:33 22 were representative of his medical history?

18:33 23 A. Yeah. Prior medical records would have been

18:33 24 representative of his medical history.

18:33 25 Q. Well, they would have been more than representative;

Page 63

18:33 1 they would have been his medical history at the jail,

18:33 2 correct?

18:33 3 A. Well, I mean, if they were accurate, and depending on

18:33 4 the quality of the record and their completeness.

18:33 5 Q. So is there a reason why you put that in the report?

18:33 6 A. Yeah, because it was representative of his history.

18:33 7 Q. And it is your statement that those records, at least

18:33 8 in 2006, would have reflected, had they been looked

18:34 9 at, that he was taking both Xanax and Klonopin back

18:34 10 well before he was housed in 2014, correct?

18:34 11 A. Say that again?

18:34 12 THE WITNESS: Or read it. Why don't you

18:34 13 read it.

18:34 14 (The following portion of the record was

18:34 15 read by the reporter at 6:34 p.m.:

16 Question: "And it is your statement that

17 those records, at least in 2006, would have

18 reflected, had they been looked at, that he

19 was taking both Xanax and Klonopin back

20 well before he was housed in 2014,

18:34 21 correct?".)

18:34 22 MR. CHAPMAN: Object to form and

18:34 23 foundation.

18:34 24 THE WITNESS: Well, I think that's what

18:34 25 that says. I think that's what that sentence says,

Page 64

18:34 1 yeah.

18:34 2 BY MR. IHRIE:

18:34 3 Q. So I'm right when I said that, correct?

18:34 4 A. I'm not here to say whether you're right or wrong.

18:34 5 That's just what it says there.

18:34 6 You don't want to get into my opinions on

18:34 7 that, do you?

18:34 8 Q. Your last sentence of that paragraph indicates,

18:35 9 "Michigan Automated Prescription System revealed that

18:35 10 Mr. Stojcevski had regularly filled prescriptions for

18:35 11 methadone, oxycodone, clonazepam, and alprazolam

18:35 12 between February and June 2014."

18:35 13 Do you have any familiarity with the

18:35 14 Michigan Automated Prescription System?

18:35 15 A. I do.

18:35 16 Q. And tell me what that is.

18:35 17 A. It's a system that keeps track of controlled substance

18:35 18 prescriptions that are filled in the state of Michigan

18:35 19 and in some other states, and if you're a mental -- if

18:35 20 you're a health practitioner caring for a patient, you

18:35 21 want to know his history of opiates and sedative use,

18:35 22 analgesic use, and some other drugs that are under

18:35 23 those schedule, you can go to a website, enter the

18:35 24 patient's name and birth date, and attest to the

18:35 25 reasons for which you're reviewing the record, and

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Page 65

18:35 1 you'll get a record of prescriptions filled.

18:35 2 Q. Are you a subscriber to that service?

18:36 3 A. I don't think you have to be a subscriber. I think

18:36 4 any practitioner can access it.

18:36 5 Q. Is there a fee, if you know?

18:36 6 A. There's no fee.

18:36 7 Q. Do you ever access it?

18:36 8 A. I do.

18:36 9 Q. Why?

18:36 10 A. Well, now it's required. Before --

18:36 11 Q. "Now" starting when?

18:36 12 A. Starting on June 1, actually. But it --

18:36 13 Q. This year.

18:36 14 A. This year.

18:36 15 But in the hospital we often see patients

18:36 16 who are incapable of providing a history to us, they

18:36 17 appear to be intoxicated or withdrawing, and so we'll

18:36 18 look at their history, to see if there's any record of

18:36 19 their use.

18:36 20 Q. Do you recall when in your practice you began to use

18:36 21 that service?

18:36 22 A. Long time ago. When it was first offered.

18:36 23 Q. What do you have to do? Plug in your -- do you have a

18:36 24 -- like lawyers have P numbers, you have a physician

18:36 25 number, correct?

Page 66

18:36 1 A. You know, it's been so long since I registered, I

18:36 2 don't know what you had to prove. I think it's

18:36 3 just -- you just have to have a license number. I

18:36 4 don't think you need a DEA or anything. But if you

18:36 5 have a license number, and you're a registered

18:36 6 practitioner, and you're in good standing with the

18:36 7 state, then you can access the database.

18:37 8 Q. Have you ever had patients that you thought were drug

18:37 9 seeking from you?

18:37 10 A. Well, I mean, any --

18:37 11 Q. Inappropriately drug seeking?

18:37 12 A. Sure.

18:37 13 Q. How long does it take to -- for you to log into the

18:37 14 MAPS system and learn what you wish to learn?

18:37 15 A. Now it's quite quick. Before maybe the last -- I

18:37 16 think within the last 12 to 18 months, the system's

18:37 17 been changed. Before it was changed it was a little

18:37 18 more lengthy, you know, to -- it could be about a 20-,

18:37 19 25-minute endeavor.

18:37 20 Q. And if you do log in, you can learn what prescriptions

18:37 21 have been prescribed to a certain patient, correct?

18:37 22 A. No.

18:37 23 Q. What can you learn?

18:37 24 A. What prescriptions have been filled.

18:37 25 Q. Have been filled.

Page 67

18:37 1 A. And reported.

18:37 2 Q. All right.

18:37 3 A. And --

18:37 4 Q. And how often --

18:37 5 A. Yeah.

18:37 6 Q. -- they've been filled, correct?

18:37 7 A. I think under the old system you could choose how -- I

18:37 8 don't know if you could chose how far back you went or

18:38 9 if there was a limit of -- but now the limit is about

18:38 10 18 months, and you get a list of prescriptions that

18:38 11 have been filled. You know, the accuracy is sometimes

18:38 12 questionable, but it's better than not having any

18:38 13 information.

18:38 14 Q. If the accuracy is sometimes questionable, why have

18:38 15 you used it? You said you've used it for years.

18:38 16 A. Well, I've -- because some information is better than

18:38 17 none. And it doesn't tell you about diversion, it

18:38 18 doesn't tell you -- first of all, if a patient has a

18:38 19 lot of prescriptions, it doesn't tell you if they're

18:38 20 using the drug or selling it. And if a patient is

18:38 21 buying it from someone who's diverting it, it's not on

18:38 22 the MAPS. But it's informative.

18:38 23 Q. And you indicated that -- on your third paragraph on

18:38 24 page 3, that "Michigan Automated Prescription System

18:38 25 revealed."

Page 68

18:38 1 How was it that you saw the Michigan

18:38 2 Automated Prescription System with respect to

18:38 3 Mr. Stojcevski?

18:38 4 A. If I didn't see the report -- I think number 5 on page

18:39 5 2, Michigan Automated Prescription System. So I did

18:39 6 have a report.

18:39 7 Q. I understand that; but where did you -- did you --

18:39 8 where did you get that? Did you look it up yourself?

18:39 9 A. No. No, it was provided to me.

18:39 10 Q. That was provided to you.

18:39 11 MR. CHAPMAN: I got it from you.

18:39 12 MR. IHRIE: And we got it from the medical

18:39 13 examiner.

18:39 14 MR. PERAKIS: He got it from them.

18:39 15 THE WITNESS: I wouldn't have been able to

18:39 16 get it, because it only goes back a certain time

18:39 17 period. This would have been prior to the time period

18:39 18 that was recorded.

18:39 19 BY MR. IHRIE:

18:39 20 Q. Yeah, okay.

18:40 21 When Dr. Sherman saw David Stojcevski, did

18:40 22 you see anything in the medical records that indicated

18:40 23 that he did any kind of a physical exam on him?

18:40 24 A. I don't. I don't recall, but I don't believe so.

18:40 25 Q. Did you see anything in the records that would

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18:40 1 indicate that he did a neurological exam on him?

18:40 2 A. I don't recall.

18:40 3 Q. If he did, it's not in your report, correct?

18:40 4 A. I didn't quote his -- his notes. I believe there were

18:40 5 only those two notes.

18:40 6 Q. And as you sit here today, you have no recollection of

18:40 7 seeing anything in the records that he did, correct?

18:40 8 A. Nothing about a neurologic exam.

18:40 9 Q. Do you remember what his diagnosis -- strike that.

18:41 10 Do you remember what he concluded?

18:41 11 A. When he said he was feigning a seizure and returned

18:41 12 him to his unit? Is that what you're referring to?

18:41 13 Q. Yes.

18:41 14 A. Yeah.

18:41 15 Q. Did you ever see anything in the records that

18:41 16 indicated that Dr. Sherman after that ever did

18:41 17 anything to rule in or rule out his opinion of

18:41 18 feigning seizures?

18:41 19 A. I'm not sure what that would be, but I don't recall

18:41 20 seeing anything to that effect, other than waiting and

18:41 21 seeing if the condition progressed.

18:41 22 Q. Do you recall seeing in Dr. Sherman's deposition where

18:41 23 he indicated that he was going to follow up with David

18:41 24 Stojcevski?

18:41 25 A. I haven't memorized that document. If you want to

Page 70

18:41 1 refer me to a page, I'll take a look at it.

18:41 2 Q. Blood pressure of 150 over 98, how would you

18:42 3 characterize that?

18:42 4 A. Elevated.

18:42 5 Q. You indicate in your next paragraph that "by June 20,

18:42 6 '14, his behavior was described as bizarre."

18:42 7 Do you recall who described his behavior as

18:42 8 bizarre?

18:42 9 A. No.

18:42 10 Q. When you say "By June 20, 2014," do you mean on June

18:42 11 20, 2014?

18:42 12 A. Yes.

18:42 13 Q. You next indicate that "Dr. Sherman described that he

18:42 14 was feigning a seizure, and he was returned to his

18:42 15 unit."

18:42 16 A. Yes.

18:42 17 Q. Is that also out of chronological order?

18:43 18 A. I don't -- I think the only day that could have been

18:43 19 would have been the -- I believe Dr. Sherman said that

18:43 20 his only notes were on the 17th. And on the -- 6-17

18:43 21 there was a late entry, and then the next note was

18:44 22 6-24.

18:44 23 Q. The next note of whom?

18:44 24 A. Dr. Sherman.

18:44 25 Q. And what does that June 24 note say?

Page 71

18:45 1 MR. CHAPMAN: When you get to a point, can

18:45 2 we take a break for a second?

18:45 3 MR. IHRIE: Sure. Any time you want.

18:45 4 MR. CHAPMAN: Well, I don't want to

18:45 5 interrupt your flow. If you want to go now, that's

18:45 6 fine.

18:45 7 MR. IHRIE: Well, just -- the doctor is

18:45 8 obviously looking for something, and the question on

18:45 9 the floor is --

18:45 10 COURT REPORTER: Do you want me to read?

18:45 11 MR. CHAPMAN: Yes.

18:45 12 MR. IHRIE: -- is: What did he say on the

18:45 13 24th.

18:45 14 (The following portion of the record was

18:45 15 read by the reporter at 6:45 p.m.:

18:45 16 Question: "And what does that June 24 note

18:45 17 say?".)

18:45 18 MR. IHRIE: Yeah, what did the June 24 note

18:45 19 say.

18:45 20 We'll wait until we finish the June 24

18:45 21 note.

18:47 22 MR. IHRIE: Will you mark this as Shiener

18:48 23 Deposition Exhibit 2?

24 MARKED BY THE REPORTER:

25 DEPOSITION EXHIBIT 2

Page 72

1 6:48 p.m.

2 MR. EADS: What's that, Bob?

3 MR. IHRIE: Shiener Deposition Exhibit 2.

18:48 4 MR. EADS: What is it, though? Sorry.

18:48 5 MR. IHRIE: Oh, it's Sherman's progress

6 note.

7 MR. EADS: Is that the 6-24 note?

8 MR. CHAPMAN: No, this is the delayed entry

9 note.

10 MR. EADS: Seventeen?

11 MR. CHAPMAN: It's dated 6-24-14.

12 MR. IHRIE: We'll let him decide what it

13 is. All right?

18:48 14 MR. CHAPMAN: Well, that's what it is. He

18:48 15 asked me what it is.

18:48 16 MR. IHRIE: Well, I'm not asking you what

18:48 17 it is; I'm asking him what it is.

18:48 18 MR. CHAPMAN: I was just responding --

18:48 19 BY MR. IHRIE:

18:48 20 Q. Is this the note you're talking about?

18:48 21 MR. CHAPMAN: -- to John's question.

18:48 22 MR. EADS: He's looking at Exhibit 2?

18:48 23 MR. IHRIE: Yes, he is.

18:48 24 MR. EADS: Okay.

18:48 25 THE WITNESS: This note is late entry

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Page 73

18:48 1 6-23-2014. But the deposition references a 6-24 note.

18:49 2 BY MR. IHRIE:

18:49 3 Q. Is it your opinion -- what is your opinion as to when

18:49 4 Dr. Sherman saw David?

18:49 5 MR. CHAPMAN: Asked and answered. He told

18:49 6 you the 17th a long time ago.

18:49 7 BY MR. IHRIE:

18:49 8 Q. That's one of them.

18:49 9 A. Seventeenth, and then there's this late entry entered

18:49 10 on 6-24 at 7:29 p.m. that's a late entry for 6-23.

18:49 11 Q. Do you have an opinion as to how many times

18:49 12 Dr. Sherman saw David?

18:49 13 A. No, I haven't committed the whole record to memory.

18:49 14 Q. Well, you read his -- you read all of the notes, and

18:49 15 you read his deposition, correct?

18:49 16 A. Like I said, I didn't commit it to memory.

18:49 17 Q. I didn't ask you if you committed it to memory.

18:49 18 A. I read them.

18:49 19 Q. Let me ask this: Is it important how many times

18:49 20 Dr. Sherman saw David?

18:50 21 A. It's more important what he said.

18:50 22 Q. What who said?

18:50 23 A. Dr. Sherman.

18:50 24 Q. What he said when?

18:50 25 A. In the later stages of Mr. Stojcevski's confinement.

Page 74

18:50 1 Q. Tell me what he said then.

18:50 2 A. Well, here he said that it was his assessment that

18:50 3 this was a feigned seizure behavior, and returned him

18:50 4 to the general population without seizure precautions.

18:50 5 Q. And is that -- did he return him to the general

18:50 6 population after concluding that he was feigning

18:50 7 seizures on the 24th?

18:50 8 MR. CHAPMAN: Objection. It's not a memory

18:50 9 test.

18:50 10 MR. IHRIE: Hold. No, it's not a memory

18:50 11 test. He's an expert witness. He's reviewed all the

18:50 12 documents. I'm asking his opinion and what it's based

18:50 13 upon, so --

18:50 14 THE WITNESS: Well, what's the question?

18:50 15 MR. IHRIE: The question is -- I just asked

18:50 16 it to you.

18:50 17 Go ahead, read it back.

18:50 18 THE WITNESS: I know you just asked it.

18:50 19 That's why I wanted you to repeat it.

18:50 20 MR. IHRIE: Go ahead, read it back.

18:50 21 THE WITNESS: But you can read it back.

18:51 22 (The following portion of the record was

18:51 23 read by the reporter at 6:51 p.m.:

18:51 24 Question: "And is that -- did he return

18:51 25 him to the general population after

Page 75

18:51 1 concluding that he was feigning seizures on

18:51 2 the 24th?".)

18:51 3 THE WITNESS: Well, this conclusion appears

18:51 4 to be on the 23rd.

18:51 5 BY MR. IHRIE:

18:51 6 Q. Then did he return him to the general population after

18:51 7 concluding on the 23rd that he was feigning seizures?

18:51 8 A. That was his recommendation.

18:51 9 Q. Now please answer my question. Was his -- I'll ask

18:51 10 it --

18:51 11 A. To be accurate, I'll have to find the record.

18:51 12 Q. What record is it that you're looking for?

18:51 13 A. (No verbal response.)

18:51 14 Q. Dr. Shiener?

18:51 15 A. I'm looking for the chronology of what happened on the

18:51 16 24th.

18:51 17 Q. We can't look -- all right. Okay. Go ahead.

18:52 18 A. Okay. There is a memo to jail command, then the

18:52 19 location MHOI, "Patient is appropriate for placement

18:52 20 on high-observation status."

18:52 21 So looks like he was maintained on the 24th

18:52 22 in the high-observation status, as he was on the 25th.

18:52 23 So he wasn't returned to the general population.

18:52 24 Q. Is it your opinion that Dr. Sherman on the 24th wrote

18:52 25 a note that he had seen David on the 23rd, and made a

Page 76

18:52 1 recommendation that he be returned to the general

18:52 2 population?

18:52 3 A. That's not an opinion; that's a description of what's

18:52 4 listed on the Shiener Exhibit 2.

18:53 5 Q. So that's not an opinion, that's just the fact; is

18:53 6 that your testimony?

18:53 7 A. Well, it's what the document says.

18:53 8 Q. And did you review that document --

18:53 9 A. I did.

18:53 10 Q. -- prior to writing your report?

18:53 11 A. I did.

18:53 12 Q. Did you factor it in?

18:53 13 A. Well, I considered it after I read it.

18:53 14 Q. So how many times, in your opinion, did Dr. Sherman

18:53 15 see David, as far as you know?

18:53 16 A. I know as we're discussing this, I know of two

18:53 17 encounters, the 23rd and the 17th.

18:53 18 Q. Do you feel it was appropriate for Dr. Sherman to see

18:53 19 David on the 23rd?

18:53 20 MR. CHAPMAN: Object to form and

18:53 21 foundation.

18:53 22 THE WITNESS: Appropriate?

18:53 23 BY MR. IHRIE:

18:53 24 Q. That it was --

18:53 25 A. Well, it's appropriate for a doctor to examine the

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18:53 1 patient. And he made -- and he apparently made an

18:53 2 assessment.

18:54 3 MR. CHAPMAN: Can we take that break?

18:54 4 MR. IHRIE: Sure.

18:54 5 (Off the record at 6:54 p.m.)

18:54 6 (Whereupon Mr. Perakis left the room.)

18:54 7 (Back on the record at 7:00 p.m.)

18:54 8 BY MR. IHRIE:

19:00 9 Q. Are you ready, Doctor?

19:00 10 A. I'm ready.

19:00 11 Q. And do you remember the last question?

19:00 12 A. No.

19:00 13 MR. IHRIE: Go ahead and read it again.

14 THE WITNESS: Do you?

15 (The following portion of the record was

16 read by the reporter at 7:00 p.m.:

17 Question: "That it was --

18 Answer: "Well, it's appropriate for a

19 doctor to examine the patient. And he

20 made -- and he apparently made an

21 assessment.")

22 COURT REPORTER: Do you want more than

23 that?

24 MR. IHRIE: No, that's fine.

19:01 25 BY MR. IHRIE:

Page 78

19:01 1 Q. Do you have an opinion as to why Dr. Sherman

19:01 2 recommended returning him back to the general

19:01 3 population, and he was put back into medical -- I

19:01 4 mean, to the mental health cell?

19:01 5 A. I believe Dr. Sherman's assessment was confined to the

19:01 6 likelihood that he was having a seizure or paroxysmal

19:01 7 event and the need for close observation. It looks

19:01 8 like it was appropriate for placement on

19:01 9 high-observation for suicidal behavior or

19:02 10 verbalizations, and I think that would refer back to

19:02 11 some of the other reasons, for risk of self-harm that

19:02 12 we discussed about an hour and a half ago.

19:02 13 So it may not have been -- it may have been

19:02 14 more for psychiatric reasons than medical reasons.

19:02 15 Q. Did you read Dr. Sherman's deposition?

19:02 16 A. I did.

19:02 17 Q. Do you recall all those pages that talked about

19:02 18 Dr. Sherman -- when he professed embarrassment that he

19:02 19 hadn't written a note on the 17th, instead wrote it on

19:02 20 the 24th, and then mistakenly put that he had seen the

19:02 21 patient on the 23rd, when in fact he had not seen the

19:02 22 patient on the 23rd --

19:02 23 A. On review --

19:02 24 Q. -- and in fact, had only seen him on the 17th?

19:02 25 A. On review during the break, I did notice that in his

Page 79

19:02 1 deposition.

19:02 2 Q. But you didn't notice that before you wrote your

19:02 3 report, correct?

19:02 4 A. I didn't recall it.

19:03 5 Q. Is this another part of your report where the

19:03 6 chronology is inaccurate?

19:03 7 A. Well, the notations were placed based on the dates of

19:03 8 the -- of the papers. The depositions revealed

19:03 9 something a little bit different. And I note that

19:03 10 there was some -- apparently there's some confusion in

19:03 11 how the computer posts the note, or when the notes are

19:03 12 posted and when they're written and the actual

19:03 13 encounter to which they refer.

19:03 14 Q. Why, if you read that in the -- Dr. Sherman's report,

19:03 15 did you nevertheless put in your report -- strike

19:03 16 that.

19:03 17 Why, if you read that in Dr. Sherman's

19:03 18 deposition, did you nevertheless still put it in your

19:03 19 report that he saw him on the 23rd?

19:03 20 A. Well, I was -- as I was preparing my report, I was

19:03 21 reviewing those documents, so I must have -- I must

19:03 22 have seen that in Dr. Sherman's deposition sometime

19:03 23 after the report was prepared. I must have recalled

19:03 24 that after the report was prepared.

19:04 25 And I only reviewed it during the -- during

Page 80

19:04 1 the break and when I was looking at that portion of

19:04 2 the discussion starting on page 121 or 122.

19:04 3 Q. So is that portion of your report factually

19:04 4 inaccurate?

19:04 5 A. It's accurate in the way it refers to the

19:04 6 documentation. The documentation is mis -- is

19:04 7 misleading and --

19:04 8 Q. The documentation is misleading?

19:04 9 A. Well, yeah. There's a note on the 24th that says,

19:04 10 "Backdated to the late entry on the 23rd."

19:04 11 Q. But doesn't his deposition explain that?

19:04 12 A. But his deposition does.

19:04 13 Q. And if his deposition explained that, why did you

19:04 14 nevertheless put it in your report that he saw him on

19:04 15 the 23rd?

19:04 16 A. I must have reviewed the deposition afterwards or

19:04 17 later.

19:04 18 Q. So your testimony now is that: Some of the matters

19:04 19 that you said in your report that you reviewed prior

19:04 20 to writing your report, actually you didn't review

19:04 21 them prior to writing your report; at least this one

19:04 22 you are testifying that you reviewed after you wrote

19:04 23 the report, correct?

19:05 24 MR. CHAPMAN: Objection: argumentative.

19:05 25 THE WITNESS: No, that's not what I said.

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Page 81

19:05 1 What I said was that I report -- I recorded the

19:05 2 documentation in my report, and the documentation was

19:05 3 misleading. The documentation was inaccurate, and it

19:05 4 was only after I later reviewed Dr. Sherman's

19:05 5 deposition about his embarrassment and the reasons for

19:05 6 late entry that I realized that that was a -- the date

19:05 7 on that, the June 24/June 23 entry, was inaccurate.

19:05 8 BY MR. IHRIE:

19:05 9 Q. Why didn't you amend your report then?

19:05 10 A. I neglected to do so. I don't recall as to why.

19:05 11 I did understand that I'd have an

19:05 12 opportunity to discuss it in person.

19:05 13 Q. Pardon me?

19:05 14 A. I did understand that I'd have an opportunity to

19:05 15 discuss it in person.

19:05 16 Q. What is decompensation?

19:06 17 A. Well, decompensation is a term that's commonly used in

19:06 18 psychiatry to refer to the emergence of symptoms of a

19:06 19 psychiatric illness that has an intermittent or

19:06 20 episodic presentation, or of the failure of an

19:06 21 individual's coping abilities to deal with a stressor

19:06 22 which -- with which they're presented.

19:06 23 Q. So how would you interpret -- I'm looking at the last

19:06 24 the last full paragraph, Doctor, on page 3.

19:06 25 So how would you interpret Nurse Brock's

Page 82

19:06 1 note that you reference, where it says, "He was

19:06 2 described as being" -- I'm sorry.

19:06 3 "A self-harm watch initial assessment was

19:06 4 undertaken by Mental Health Provider Brock on June 18,

19:07 5 24 (sic). He was described as being in need of

19:07 6 assessment for decompensation?"

19:07 7 How would you interpret that statement?

19:07 8 A. The -- well, that is an example of a mental health

19:07 9 professional using the term -- a jargon term, in maybe

19:07 10 not the most precise manner. But what I infer from

19:07 11 that entry, decompensation meant the emergence of

19:07 12 disorganized behavior or behavior that was not

19:07 13 understandable to her that needed to be assessed.

19:07 14 Q. Your next line says, "Nurse Cueny noted on June 24,

19:07 15 2014, that Mr. Stojcevski did take Klonopin, two to

19:07 16 three tabs at home, and the last time it was taken was

19:07 17 two weeks ago."

19:07 18 Do you see that sentence?

19:07 19 A. Yes.

19:07 20 Q. So when did Ms. Cueny see -- Nurse Cueny see David?

19:07 21 A. Once again that was an inaccurate note, because after

19:07 22 that I say, "Dr. Sherman described that he knew on

19:08 23 June 18, or the next day, that Mr. Stojcevski had used

19:08 24 benzodiazepines."

19:08 25 So Nurse Cueny, the date on the note

Page 83

19:08 1 appears to be the 24th, but I believe it referred to

19:08 2 an earlier assessment that she made.

19:08 3 Q. Do you remember the date of the earlier assessment?

19:08 4 A. I can only infer that it was a week prior, that there

19:08 5 was some calendar issue of punching the wrong date.

19:08 6 Q. So a week prior would have been the 17th or the 18th?

19:08 7 A. I believe so.

19:08 8 Q. Right around the day, or within hours, of David having

19:08 9 hallucinations?

19:08 10 A. Well, if saying that half of his body was eaten up is

19:08 11 a hallucination or a delusion. There's some

19:08 12 discussion as to what that was.

19:08 13 But when that behavior was described, the

19:08 14 knowledge of his use of benzodiazepines was either

19:08 15 disclosed to Nurse Cueny, or Nurse Cueny disclosed it

19:09 16 to Dr. Sherman.

19:09 17 Q. What did she disclose?

19:09 18 A. That he had been taking Klonopin before that.

19:09 19 (Whereupon Mr. Perakis returned to the

19:09 20 room.)

19:09 21 BY MR. IHRIE:

19:09 22 Q. Do you know if the nurse he had told that he was

19:09 23 taking Xanax ever disclosed that to Dr. Sherman?

19:09 24 A. I don't know. I don't recall. Dr. Sherman just said

19:09 25 he used benzodiazepines, so I don't know if he knew

Page 84

19:09 1 which specific benzodiazepine.

19:09 2 Q. Did you read in Dr. Sherman's -- well, strike that.

19:09 3 Some benzodiazepines are short-acting, and

19:09 4 some are long-acting, correct?

19:09 5 A. Yeah. I've had that discussion.

19:09 6 Q. Is that something, in your opinion that a doctor who

19:09 7 is dealing with -- in a jail setting, by definition

19:09 8 dealing with people who are abusing drugs, should

19:09 9 know?

19:10 10 MR. CHAPMAN: Object to form and

19:10 11 foundation.

19:10 12 THE WITNESS: What is it that they should

19:10 13 know? To what are you referring?

19:10 14 BY MR. IHRIE:

19:10 15 Q. Which benzodiazepines are -- the difference between

19:10 16 long-acting and short-acting benzos?

19:10 17 A. Well, I want to be careful in answering that. That is

19:10 18 a complicated issue, and there are -- for example, the

19:10 19 medication Xanax is considered to be shorter acting,

19:10 20 but it has active metabolites, so it may have a

19:10 21 slightly longer duration of action than its half life

19:10 22 would indicate. Klonopin has a slightly longer

19:10 23 duration of action and a slightly longer half life.

19:10 24 I mean, those are things that a physician

19:10 25 who's dealing with patients who take these medicines

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Page 85

19:10 1 should know, but 77 million prescriptions for

19:10 2 benzodiazepine tranquilizers are written in the United

19:10 3 States every year, and --

19:10 4 Q. So they're quite common.

19:10 5 A. Pardon?

19:10 6 Q. So they're quite common?

19:10 7 A. They are quite common.

19:11 8 Q. I don't know if you're aware of it, but tell me if you

19:11 9 are. Are you aware when Sheriff -- Macomb County

19:11 10 Executive Hackel indicated that the county jail, the

19:11 11 Macomb County Jail -- and I may be paraphrasing here

19:11 12 -- essentially had become repositories for those who

19:11 13 are abusing drugs and for the mentally ill?

19:11 14 MR. CHAPMAN: Object to form and

19:11 15 foundation.

19:11 16 THE WITNESS: Well, I know that the Wayne

19:11 17 County Jail is the largest psychiatric facility in the

19:11 18 state of Michigan, and I know that a significant

19:11 19 portion of inmates in jails and prisons are mentally

19:11 20 ill, were intoxicated at the time of their

19:11 21 confinement, or were -- or had abused drugs, or had

19:11 22 used prescription drugs or nonprescription drugs in

19:11 23 the -- in the days prior to their incarceration or

19:11 24 confinement.

19:11 25 BY MR. IHRIE:

Page 86

19:11 1 Q. Did you read in your --

19:11 2 A. I don't know exactly what Sheriff Hackel said, but I

19:12 3 know that Judge Kenny in Wayne County talked about the

19:12 4 needs of the jail and the function that the jail has

19:12 5 come to serve in this era versus the era where asylums

19:12 6 were more available.

19:12 7 Q. I believe it was Nurse Bertram that was advised by

19:12 8 David --

19:12 9 MR. IHRIE: Tell me if I'm wrong on this,

19:12 10 Harold.

19:12 11 BY MR. IHRIE:

19:12 12 Q. But I believe it was Nurse Bertram that was advised by

19:12 13 David on the 17th that he had been taking Xanax?

19:12 14 As a mental health worker, do you think she

19:12 15 should have told the -- either the director of nursing

19:12 16 or the director of -- medical director, Dr. Sherman?

19:12 17 MR. CHAPMAN: Object to form and

19:12 18 foundation. He's not here and an expert as to what a

19:12 19 nurse should or shouldn't do.

19:12 20 MR. IHRIE: Well, you may not have him here

19:12 21 as an expert for that, but he's already told me he's

19:12 22 an expert on things that I feel fall under the

19:13 23 umbrella.

19:13 24 I think it was Bertram.

19:13 25 MR. CHAPMAN: I have no idea what you just

Page 87

19:13 1 said, but he's not here as a nursing expert, so he's

19:13 2 not giving testimony as a nursing expert.

19:13 3 THE WITNESS: Well, that's really not

19:13 4 particularly pertinent to my opinion, but history --

19:13 5 it's traditional for history to be recorded somewhere

19:13 6 in the medical record.

19:13 7 BY MR. IHRIE:

19:13 8 Q. And if I told you -- well, tell me why it's

19:13 9 recorded -- why history is recorded in a medical

19:13 10 record.

19:13 11 A. Because a medical record communicates the patient's

19:13 12 condition among the multiple professionals caring for

19:13 13 a patient.

19:13 14 Q. So if I have contact with a patient, should I put

19:13 15 what -- you know, the essential elements of my contact

19:13 16 with that patient in a medical note?

19:13 17 A. With all due respect, no. I don't think a lawyer's

19:13 18 contact with a patient has any place in a medical

19:14 19 record.

19:14 20 But if your question is if you were a nurse

19:14 21 or a doctor --?

19:14 22 Q. Yes.

19:14 23 A. I think it would -- tradition suggests that you should

19:14 24 communicate your findings in some way.

19:14 25 Q. And is that tradition -- does that tradition exist to

Page 88

19:14 1 communicate findings for a medical -- a valid medical

19:14 2 reason that will be of help to a patient?

19:14 3 MR. CHAPMAN: Object to form and

19:14 4 foundation.

19:14 5 THE WITNESS: Well, again, in any setting.

19:14 6 Communication between you and Mr. Perakis would be

19:14 7 important, because you're both working on this matter,

19:14 8 and you should keep each other aware of what you're

19:14 9 doing, so your efforts can be coordinated, so your

19:14 10 efforts are not duplicated, or so you're not working

19:14 11 at cross-purposes. And in general people taking care

19:14 12 of a patient should communicate their -- their

19:14 13 concerns or their impressions or their observations,

19:14 14 in general.

19:14 15 MR. IHRIE: Okay. It was Bertram, right?

19:15 16 Yeah, Bertram.

19:15 17 BY MR. IHRIE:

19:15 18 Q. You put in your last note -- in your last line on that

19:15 19 last full paragraph on page 3, starting about halfway

19:15 20 down, "Nurse Cueny noted June 24, 2014, that

19:15 21 Mr. Stojcevski, quote, did take Klonopin, two to three

19:15 22 tabs at home, and the last time it was taken was two

19:15 23 weeks ago. Dr. Sherman described that he knew on June

19:15 24 18, 2014, or the next date -- the next day, that

19:16 25 Mr. Stojcevski had used benzodiazepines. He described

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19:16 1 that he discussed the matter with Nurse Cueny and

19:16 2 considered the prospect of benzodiazepine withdrawal."

19:16 3 Did you read Nurse Cueny's dep?

19:16 4 A. I did.

19:16 5 Q. Do you recall when she said she couldn't remember

19:16 6 whether she told Dr. Sherman about the hallucinations?

19:16 7 Do you remember that?

19:16 8 A. I don't -- I haven't memorized her dep. If you

19:16 9 want -- I mean, I have it here. If you want to direct

19:16 10 me to a page --

19:16 11 Q. Well, I'm not --

19:16 12 A. -- I'll see what she says.

19:16 13 Q. My question is just: Do you remember.

19:16 14 If you don't --

19:16 15 A. I haven't memorized the document. I remember some

19:16 16 discussion, but I don't recall the details.

19:16 17 Q. Looking at your last paragraph on page 3, it

19:17 18 indicates, "Progress notes from Nelson, Mann, and

19:17 19 Brock repeatedly describe Mr. Stojcevski as "refusing"

19:17 20 to respond."

19:17 21 Why did you put the word "refusing" in

19:17 22 quotation marks?

19:17 23 A. You know, I think that was the language that they

19:17 24 used, or that was the language that I read, whatever

19:17 25 document I'm referring to.

Page 90

19:17 1 Q. "And the assessment was that he was feigning for

19:17 2 secondary gain."

19:17 3 A. That's right.

19:17 4 Q. I will show them to you, if you wish, but all --

19:17 5 virtually all of the mental health reports from the

19:17 6 mental health personnel indicated -- in the vast

19:17 7 majority of categories that they were asked to assess

19:17 8 him for indicate "unable to assess, unable to assess,

19:17 9 unable to assess, unable to assess, unable to assess."

19:18 10 Do you recall seeing that?

19:18 11 A. I do.

19:18 12 Q. In your conclusion, though, that the assessment of

19:18 13 Nelson, Mann, Brock -- and Brock, their assessment was

19:18 14 that he was feigning for secondary gain?

19:18 15 A. I believe that's -- I believe that's what I read.

19:18 16 Unless it was Dr. Sherman's characterization of what

19:18 17 they said or...

19:18 18 Q. Do you know if there was a -- if the Macomb County

19:18 19 Jail had a psychiatrist?

19:18 20 A. They had a psychiatrist.

19:18 21 Q. If I said his name was Dr. Haq --

19:18 22 A. Dr. Haq.

19:18 23 Q. -- Haq, do you know him?

19:18 24 A. There are a lot of Dr. Haqs. It's a common Pakistani

19:18 25 name.

Page 91

19:18 1 When you say, "had a psychiatrist," I know

19:18 2 that someone consulted. I don't know what the nature

19:18 3 of the relationship was or how freq -- what the

19:18 4 availability of that doctor was.

19:18 5 Q. Is there an appropriate protocol -- do you have an

19:18 6 opinion as to whether or not there's an appropriate

19:18 7 protocol when a mental health professional is unable

19:18 8 to assess a patient on a high suicide -- in a high

19:18 9 suicide cell?

19:18 10 A. Well, that they should articulate the reason for their

19:19 11 inability to assess.

19:19 12 Q. Is there any --

19:19 13 A. And, for example, if a patient's nonverbal, they

19:19 14 should say they can't assess because a patient's not

19:19 15 speaking, and then --

19:19 16 Q. I'm sorry; I didn't catch that.

19:19 17 A. If a patient is nonverbal, then they say "unable to

19:19 18 assess," and then the reason for the inability to

19:19 19 assess.

19:19 20 Q. And I didn't see the reason for the inability to

19:19 21 assess in any of those reports, did you?

19:19 22 A. I haven't --

19:19 23 MR. CHAPMAN: I'm going to object to form

19:19 24 and foundation. Mischaracterizes the testimony and

19:19 25 the record.

Page 92

19:19 1 BY MR. IHRIE:

19:19 2 Q. Would it be appropriate to call a psychiatrist as a

19:19 3 mental health professional, "Every day I go and see

19:20 4 this person, and he's nonresponsive or unable to --

19:20 5 either refusing to talk"?

19:20 6 A. Well, now look, if he's nonresponsive, that might

19:20 7 indicate a need for an assessment by someone with

19:20 8 greater expertise, someone's nonresponsive. But if

19:20 9 someone is just not verbalizing, that may not

19:20 10 necessarily be a reason to call a psychiatrist.

19:20 11 Q. And how does one know the difference?

19:20 12 A. Well, if you're talking about a mental health

19:20 13 professional, they have to make a clinical judgment.

19:20 14 Q. So at the top of page four you indicate that "His

19:20 15 nutritional intake was poor"?

19:20 16 A. Yes.

19:20 17 Q. And what do you base that on?

19:20 18 A. I think that's what the records describe. There was

19:20 19 an episode -- well, they describe that he was eating

19:20 20 and drinking intermittently.

19:20 21 Q. And who described that?

19:20 22 A. I don't recall the specific observers.

19:21 23 Q. Do you recall if it was medical personnel or mental

19:21 24 health personnel or jail personnel?

19:21 25 A. I believe it was mental health personnel. It may have

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19:21 1 been jail personnel.

19:21 2 Q. Then you indicate that "He was incontinent of stool"?

19:21 3 A. Yes.

19:21 4 Q. Then we have a corrections officer, you indicate

19:21 5 Officer Perry, on the 22nd indicating he was

19:21 6 incoherent?

19:21 7 A. Yes.

19:21 8 Q. And then you indicate that Dr. Sherman evaluated

19:21 9 Mr. Stojcevski on the 23rd, concluding that he was

19:21 10 feigning seizure behavior, and returned him to the

19:21 11 general population.

19:21 12 That's the sentence I believe that you

19:21 13 previously indicated was not accurate, correct?

19:21 14 A. It was -- it references a note that's not accurate.

19:21 15 Q. But when you wrote your report, Dr. Shiener, you

19:22 16 believed that Dr. Sherman evaluated him on the 23rd,

19:22 17 correct?

19:22 18 A. I think we discussed this matter already, and my

19:22 19 answer is no different than it was the last time we

19:22 20 discussed it.

19:22 21 Q. Well, you're giving a little different answer, so I

19:22 22 want to clarify.

19:22 23 When you wrote your report, you believed

19:22 24 that Dr. Sherman had evaluated him on the 23rd,

19:22 25 correct?

Page 94

19:22 1 A. When I dictated this, I considered the document to be

19:22 2 accurate.

19:22 3 When I reconsidered a reiteration of

19:22 4 Dr. Sherman's deposition, I came to understand that

19:22 5 the June 23 note was actually reference to the 17th of

19:22 6 June and not the 23rd of June.

19:22 7 Q. You then indicate in the next paragraph, that "On June

19:23 8 27 his weight was reported at 150 pounds, which would

19:23 9 indicate a 45-pound weight loss over the course of 12

19:23 10 days." Correct?

19:23 11 A. That's what it says, yes.

19:23 12 Q. And why do you say "12 days"?

19:23 13 A. I think from the intake at the jail. Maybe it would

19:23 14 have been 11 days on the 16th.

19:23 15 Q. What day did he get into the jail; do you know?

19:23 16 A. June 11. I'm sorry.

19:23 17 Q. And what day did he die?

19:23 18 A. He died on June 27.

19:23 19 Q. So how many days was he in the jail?

19:23 20 A. How many days was he in the jail? Sixteen days.

19:23 21 Q. Is this another inaccuracy, factual inaccuracy in your

19:23 22 report?

19:23 23 A. No, I don't know the -- I don't know when his weight

19:23 24 was reported or --

19:24 25 Q. Well, you had all the records.

Page 95

19:24 1 A. I did.

19:24 2 Q. So it's not a factual inaccuracy, it is your opinion

19:24 3 that the weight loss, however it was reported,

19:24 4 occurred over a 12-day period?

19:24 5 A. It was reported to have occurred over a 12-day period.

19:24 6 And there was a weight that was -- that was reported

19:24 7 on June 27. I'm not sure where the -- where the

19:24 8 admitting weight was obtained or where the earlier

19:24 9 reference was obtained or what day it was obtained.

19:24 10 Q. Did you look at the intake documents?

19:24 11 A. I did.

19:24 12 Q. Did you find his weight there?

19:24 13 A. I believe the intake document reported 195 pounds.

19:24 14 Q. Did you see -- other than the 27th and the intake

19:24 15 document, did you see any other time, in any of the

19:24 16 medical records or any records of any kind, where he

19:24 17 was weighed or his weight was written down at all?

19:24 18 A. No. He wasn't weighed until the 27th, by my

19:24 19 understanding.

19:24 20 Q. Did you see any other time, in any of the records,

19:25 21 whether -- where his weight was written down, other

19:25 22 than the day he came into the jail and the day he left

19:25 23 the jail dead?

19:25 24 A. His weight was reported the day he came in the jail,

19:25 25 and his day -- his weight was recorded when he was

Page 96

19:25 1 weighed on the 27th.

19:25 2 Q. Then why do you write "12 days"?

19:25 3 A. I don't know. I don't recall why I reached that

19:25 4 conclusion.

19:25 5 Q. Does it appear that that's another factual inaccuracy

19:25 6 in your report?

19:25 7 A. It may -- it could be, depending on the reliability of

19:25 8 the initial report of 195 pounds.

19:25 9 Q. I'm not talking about the weight; I'm talking about

19:25 10 the number of days.

19:25 11 A. You just asked --

19:25 12 Q. I'm talking about --

19:25 13 A. You didn't ask it that way. Whatever you're talking

19:25 14 about or whatever you meant to ask, that's not what

19:25 15 you asked.

19:25 16 Q. Does it appear that your notation that his weight loss

19:25 17 occurred over a 12-day period appeared to be another

19:25 18 factual inaccuracy in your report?

19:25 19 A. No, it's just not consistent with the fact that his

19:26 20 weight was reported on intake on the day that he

19:26 21 entered. I'm not sure -- I'm not sure if there were

19:26 22 any other references to his weight.

19:26 23 Q. I'm looking at your conclusions in the second

19:26 24 paragraph, where you indicate "Cessation" after

19:26 25 talking about benzodiazepines, "Cessation of these

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19:27 1 medications causes a, quote, "rebound," unquote, of

19:27 2 arousal symptoms of increased anxiety, restlessness,

19:27 3 motor tension, hyperactivity, and in extreme cases,

19:27 4 seizures."

19:27 5 Did I accurately read that?

19:27 6 A. You did.

19:27 7 Q. It also, in extreme cases, may cause death as well,

19:27 8 correct?

19:27 9 A. I think that's exceedingly rare, and I think that

19:27 10 would be exceedingly extreme. The literature does not

19:27 11 really reflect -- the literature is more reflective of

19:27 12 how rare death is in benzodiazepine withdrawal as an

19:27 13 isolated cause of death or an isolated incident.

19:28 14 MR. IHRIE: Mark this as Shiener Deposition

19:28 15 Exhibit Number 3.

19:28 16 MARKED BY THE REPORTER:

19:28 17 DEPOSITION EXHIBIT 3

19:28 18 7:28 p.m.

19:28 19 MR. IHRIE: Do you want one?

19:28 20 MR. CHAPMAN: I think I have it. Well,

19:28 21 yeah, let me have it.

19:28 22 BY MR. IHRIE:

19:28 23 Q. I'm going to show you what has been previously

19:28 24 identified as Correct Care Solutions' materials with

19:28 25 respect to benzodiazepine withdrawal, and I'm going to

Page 98

19:29 1 ask you to go --

19:29 2 A. Give me a Bates number.

19:29 3 Q. I don't think they're --

19:29 4 A. Yeah, they're numbered, lower left-hand corner.

19:29 5 Q. Oh, yeah, there are Bates numbers on them.

19:29 6 I'm going to ask you to look at -- first of

19:29 7 all, look at 9690.

19:29 8 THE WITNESS: 9690?

19:29 9 MR. CHAPMAN: You mean -- it starts out at

19:29 10 692, 693.

19:29 11 MR. IHRIE: 692 -- 696. I'm sorry.

19:29 12 MR. CHAPMAN: Look at 696?

19:29 13 MR. IHRIE: Yeah, 696. I'm looking at them

19:29 14 upside down.

19:29 15 MR. PERAKIS: Fourth or fifth page, Doctor.

19:29 16 BY MR. IHRIE:

19:29 17 Q. It says "696." Do you see the picture of what I'm

19:29 18 going to, for lack of a better phrase, call grim

19:29 19 death?

19:29 20 A. You mean the Grim Reaper.

19:29 21 Q. The Grim Reaper?

19:29 22 A. That's a scythe he's --

19:29 23 Q. And that's a scythe, yes. So we're on the same page

19:30 24 then?

19:30 25 Will you please read that --

Page 99

19:30 1 A. Well, wait. I want to be careful in answering. We're

19:30 2 on page --

19:30 3 Q. This one, Doctor.

19:30 4 A. 0696.

19:30 5 Q. Yeah, this one.

19:30 6 A. I don't think we're on the same page, because I don't

19:30 7 think we're --

19:30 8 Q. Okay.

19:30 9 A. -- thinking along the same lines. But we are looking

19:30 10 at the --

19:30 11 Q. We may not be.

19:30 12 A. -- same page of the exhibit.

19:30 13 Q. So please read the words that are on that page.

19:30 14 A. Which words? All the words or the ones that are

19:30 15 bulleted?

19:30 16 Q. The ones that are bulleted.

19:30 17 A. Okay. I've read them.

19:30 18 Q. Out loud.

19:30 19 A. Oh, out loud. I'm sorry.

19:30 20 "Why do we care about benzodiazepine

19:30 21 withdrawal? It is potentially life-threatening."

19:30 22 Q. Then there's a picture of the Grim Reaper.

19:30 23 A. There is.

19:30 24 Q. So apparently CCS, in their materials, felt that

19:30 25 benzodiazepine withdrawal is potentially

Page 100

19:30 1 life-threatening, correct?

19:30 2 A. Well, I --

19:30 3 Q. Would you agree? Yes?

19:30 4 A. Wait.

19:30 5 I can't tell you what their feelings are.

19:30 6 They put this in, and they said this. This isn't peer

19:30 7 reviewed, and this isn't scientific, and my opinion is

19:30 8 it's not -- to say that it's potentially

19:30 9 life-threatening -- I would say that the potential is

19:31 10 quite low --

19:31 11 Q. Okay.

19:31 12 A. -- and that there may be many reasons for them to --

19:31 13 for them to represent this.

19:31 14 Doesn't even say who prepared this or what

19:31 15 the source of that information or the source of that

19:31 16 conclusion is.

19:31 17 Q. Well, the only source we know is that it says, "CCS

19:31 18 Correct Care Solutions" on the top left.

19:31 19 A. But we don't know who prepared it or...

19:31 20 Q. No, we don't know who prepared it.

19:31 21 Looking at your -- under conclusions, the

19:32 22 third paragraph down, you indicate that "Short-acting

19:32 23 drugs are excreted rapidly, leading to sudden

19:32 24 decreases in serum level and intense withdrawal

19:32 25 symptoms early in the course of abstinence."

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Page 101

19:32 1 A. Yes.

19:32 2 Q. What intense withdrawal symptoms, if you know?

19:32 3 A. Well, all the symptoms are present more intensively,

19:32 4 because they occur suddenly, over a shorter time

19:32 5 period.

19:32 6 Q. What symptoms?

19:32 7 A. All the symptoms that I measure; arousal symptoms:

19:32 8 increased anxiety, restlessness, motor tension,

19:32 9 hyperactivity. And -- and with sudden, rapid falling

19:32 10 serum levels, the risk of all of these symptoms,

19:33 11 including seizures, is heightened.

19:33 12 Q. What does "early in the course of abstinence" mean?

19:33 13 A. Well, the period of abstinence -- the length of

19:33 14 abstinence determines the likelihood of the symptoms

19:33 15 of an abstinence syndrome. And the symptoms generally

19:33 16 peak with alcohol, say, within 72 hours. With

19:33 17 benzodiazepines, with the shorter-acting drugs it may

19:33 18 occur -- the abstinence syndrome may begin to emerge

19:33 19 in as short as 12 or 24 hours; whereas with

19:33 20 longer-acting drugs, the onset of symptomatology might

19:33 21 occur later, 24 or 48 hours.

19:33 22 Q. Are there different stages of benzodiazepine

19:34 23 withdrawal?

19:34 24 A. Well, sure. The -- the withdrawal and the development

19:34 25 of abstinence syndrome is a function of how long

Page 102

19:34 1 someone has taken a drug and how much they've taken.

19:34 2 So in general, someone who takes a lot for a shorter

19:34 3 period can experience withdrawal symptoms, someone who

19:34 4 takes a little bit for a longer period can experience

19:34 5 withdrawal symptoms, if they stop taking the drug

19:34 6 suddenly.

19:34 7 And then the other factor of how soon the

19:34 8 symptoms emerge has to do with the excretion curve of

19:34 9 the drug. So a drug -- and the examples I give,

19:34 10 oxazepam, temazepam, and lorazepam, those are drugs

19:34 11 that have no active metabolites, they have a

19:34 12 relatively short duration of action, so the symptoms

19:34 13 may occur within 12 or 24 hours of cessation; whereas

19:34 14 with drugs like alprazolam, clonazepam, or

19:35 15 chlordiazepoxide or chlorazepate, which have a longer

19:35 16 duration of action, the symptoms may not emerge for 24

19:35 17 to 48 hours or even 72 hours.

19:35 18 Q. So without knowing how much somebody was taking, the

19:35 19 frequency of their dose, the size of the dose, how

19:35 20 long they had been taking a drug, and when the last

19:35 21 time they used it, all of those may be variables with

19:35 22 respect to the onset of symptoms. And this -- let's

19:35 23 just do those -- with the onset of symptoms, correct?

19:35 24 A. Well, I think the onset of symptoms has more to do

19:35 25 with the duration of action of the drug.

Page 103

19:35 1 Q. All right. So onset has more to do with duration,

19:35 2 correct?

19:35 3 A. Duration of action has more to do with onset.

19:35 4 Q. All right. Duration of action means how long

19:35 5 somebody's been taking the drug?

19:35 6 A. No. Duration of action is how long the drug's action

19:36 7 is present. So if you take a dose of Ativan,

19:36 8 lorazepam, that's relatively short acting. So -- and

19:36 9 if you take that on a regular basis and stop taking

19:36 10 it, abstinence syndromes will emerge sooner after

19:36 11 abstinence is induced. Okay.

19:36 12 So whereas if you take a longer -- a drug

19:36 13 with a longer duration of action, and you stop taking

19:36 14 it suddenly, abstinence syndromes may appear later in

19:36 15 the abstinence.

19:36 16 Q. What if you're taking both?

19:36 17 A. If you're taking two drugs, the way they interact,

19:36 18 what you've taken most recently, how much you have on

19:36 19 board determines how soon the abstinence syndrome

19:36 20 emerges.

19:36 21 Q. And when they peak also; would derm -- would be

19:36 22 important to determine also when they peak?

19:36 23 A. Yeah, I mean the difference would be 12 hours versus

19:36 24 48 to 72 hours.

19:36 25 Q. And would it also be a factor in determining how long

Page 104

19:36 1 the peak symptoms last?

19:36 2 A. No, no, that's -- once the syndrome is established,

19:37 3 the -- you know, the syndrome lasts for as long as it

19:37 4 took to develop. So if it peaks at 12 or 24 hours,

19:37 5 then the second 12 or 24 hours are the duration of the

19:37 6 abstinence syndrome. If it peaks at 72 hours, it may

19:37 7 be another 72 hours.

19:37 8 Q. Have you ever written any articles on benzodiazepine

19:37 9 withdrawal?

19:37 10 A. I wrote an article in a journal called Patient Care,

19:37 11 and I talked about hospital delirium, and that

19:37 12 addressed benzodiazepine withdrawal. I wrote a --

19:37 13 Q. Can we get a copy of that article?

19:37 14 A. Oh, I don't -- it's old, and I don't have a copy, so I

19:37 15 don't know where you'd get it.

19:37 16 And then I wrote a chapter in a textbook

19:37 17 called The Clinical Practice of Emergency Medicine

19:37 18 that talked about acute psychosis and altered mental

19:37 19 status that may have mentioned abstinence syn --

19:37 20 nothing of the depth to which we're discussing at this

19:38 21 point.

19:38 22 Q. Your next paragraph says, "Based upon the length of

19:38 23 time that Mr. Stojcevski was in the hospital."

19:38 24 What hospital was he in?

19:38 25 A. Not in the hospital; in the jail. That must be a

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19:38 1 typo.

19:38 2 Q. Well, it's not really a typo; it's a different word.

19:38 3 Is that another factual inaccuracy in your report?

19:38 4 A. I'd say it was more like a typographical error or

19:38 5 dictation error. He wasn't in the hospital; he was

19:38 6 confined.

19:38 7 Q. Then you say, "Based upon the time that he was in the

19:38 8 hospital and the" -- and this is what I'm going to ask

19:38 9 you about -- "the development of his symptoms."

19:38 10 Describe the development of his systems --

19:38 11 symptoms for me, please.

19:38 12 A. I'm not sure what you're asking.

19:39 13 Q. Well, you used the phrase, "the development of his

19:39 14 symptoms."

19:39 15 A. Well --

19:39 16 Q. I presume that means that his symptoms developed,

19:39 17 correct?

19:39 18 A. His behavior became disorganized early on in the

19:39 19 hospitalization.

19:39 20 Q. I want you to describe the development of his

19:39 21 symptoms.

19:39 22 A. Yes. Well, what I would say is that his behavior

19:39 23 became disorganized early in the stages of his

19:39 24 confinement and were intermittent but persistent

19:39 25 throughout the 16 days.

Page 106

19:39 1 Q. What symptoms developed?

19:39 2 A. Disorganized behavior.

19:39 3 Q. Well, that's a term of art. I want you to talk to a

19:39 4 layperson.

19:39 5 A. We've talked -- we talked about disorganized behavior

19:39 6 for about 30 minutes earlier in this proceeding.

19:39 7 Q. Well --

19:39 8 A. And I gave examples, and I talked about the things

19:39 9 that were represented in the record, or the

19:39 10 descriptions: staring, not responding, engaging in

19:40 11 behavior that Dr. Sherman said was not consistent with

19:40 12 a -- with a seizure.

19:40 13 Q. The hallucinations, too?

19:40 14 A. Well, the report that half of his -- half of his body

19:40 15 had been devoured or half of his heart had been

19:40 16 devoured.

19:40 17 Q. When you say, almost sarcastically, Well, the report

19:40 18 that he did that, I mean, are you somehow suggesting

19:40 19 that what he said somehow is not a hallucination?

19:40 20 MR. CHAPMAN: Wait. I'm going to object to

19:40 21 the use of the term "sarcastic." There's nothing

19:40 22 about Dr. Shiener's testimony that --

19:40 23 MR. IHRIE: It appeared to me to be.

19:40 24 MR. CHAPMAN: -- was sarcastic. Well, then

19:40 25 you appeared wrong.

Page 107

19:40 1 THE WITNESS: If I'm being sarcastic,

19:40 2 you'll know it, and it won't just appear that way.

19:40 3 I don't mean to be sarcastic. I'm trying

19:40 4 to be precise when people use jargon or terms of art

19:40 5 that might not be appropriately used. And someone

19:40 6 said -- someone said in the record "hallucination,"

19:41 7 and then the behavior to which they seemed to be

19:41 8 referring was that the patient said that half of his

19:41 9 body had been devoured or half of his heart had been

19:41 10 devoured. That would be more -- and you raised the

19:41 11 question of a delusion. That would be more consistent

19:41 12 with the description of a delusion than a

19:41 13 hallucination.

19:41 14 But it's a representation of disorganized

19:41 15 behavior.

19:41 16 BY MR. IHRIE:

19:41 17 Q. So there are no other symptoms, other than the ones

19:41 18 you have mentioned in this deposition, that fall under

19:41 19 the umbrella of your phrase "development of his

19:41 20 symptoms;" is that true?

19:41 21 A. Well, now we're debating this to quite an extensive

19:41 22 degree, but what I would say is: The things that I

19:41 23 have described.

19:41 24 Now, there is some mention of an elevation

19:41 25 of blood pressure with a diastolic of 95. And

Page 108

19:41 1 depending on what his baseline blood pressure was,

19:42 2 elements of hypertension can be determined by a number

19:42 3 of things, but blood pressure, especially diastolic

19:42 4 blood pressure, but often pulse pressure as well or

19:42 5 the width between diastolic and systolic, can be

19:42 6 elevated in the abstinence states from sedatives or

19:42 7 hypnotics or alcohol. So the development of that

19:42 8 symptom.

19:42 9 His intermittent intake of food, his being

19:42 10 incontinent of stool, the time at which those things

19:42 11 occurred, and the duration for which they presented on

19:42 12 an intermittent basis are what I'm referring to as the

19:42 13 development of symptoms.

19:42 14 Q. Would your development of symptoms also include

19:42 15 observations by personnel of rapid-eye movement?

19:42 16 A. Well, first of all, it's not my development or not my

19:42 17 description, it's just -- it's a term that I use,

19:42 18 something that --

19:42 19 Q. Yes.

19:42 20 A. -- something that --

19:42 21 Q. Would the term that you used, "development of his

19:43 22 symptoms," also include observations by others of --

19:43 23 that he had rapid-eye movement?

19:43 24 A. Well, rapid-eye movement refers specifically to a

19:43 25 phenomenon that occurs in a certain stage of sleep.

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19:43 1 And then rapid-eye movement can be -- can mean

19:43 2 nystagmus, it can mean glances that are darting around

19:43 3 the room. That might be the indication of

19:43 4 hallucinations. So if I'm talking to you, and I keep

19:43 5 looking over here, and you were a psychiatrist, you

19:43 6 might infer that I was seeing something or looking at

19:43 7 something or sensing movement, and then the prudent

19:43 8 thing for a psychiatrist to do would be to ask a

19:43 9 patient, "Is there something that you see, or is there

19:43 10 something distracting you."

19:43 11 But -- so rapid-eye movement is very

19:43 12 nonspecific. And typically rapid-eye movement is more

19:43 13 of a symptom of intoxication with certain drugs of

19:43 14 abuse rather than something that's seen in withdrawal

19:43 15 state. But when patients have visual hallucinations,

19:44 16 their eyes may be described as darting. I don't know

19:44 17 that I would necessarily consider that to be rapid-eye

19:44 18 movements.

19:44 19 Q. What about eye fluttering?

19:44 20 A. Eye fluttering is something that's seen when someone

19:44 21 is falling asleep, or when someone is just inducing

19:44 22 sleep, and it's another phenomenon that some

19:44 23 individuals who are described as histrionic often do

19:44 24 when they're thinking or when they're under stress,

19:44 25 where their eyelids flutter.

Page 110

19:44 1 Q. How about incoherency?

19:44 2 A. Incoherency is very nonspecific.

19:44 3 Q. Is that part of the development of his symptoms that

19:44 4 you --

19:44 5 A. Well, he was described as incoherent. It's not really

19:44 6 -- and what they mean was he was making verbalizations

19:44 7 that didn't seem to make sense. That might be some --

19:44 8 that might be one of the symptoms, and that could

19:44 9 emerge in a number of conditions, benzodiazepine

19:44 10 withdrawal being only one of them.

19:44 11 Q. I appreciate that comment, but my question is: Is

19:44 12 incoherency one of the symptoms that you're talking

19:45 13 about when you talk about "and the development of his

19:45 14 symptoms"?

19:45 15 A. Well, the description of him as being incoherent may

19:45 16 refer to one of those symptoms. Again, I don't mean

19:45 17 to be sarcastic, but these are mental health

19:45 18 professionals who are using conclusory terms or jargon

19:45 19 rather than descriptive terms. So when you say

19:45 20 someone's incoherent -- you've taken a lot of

19:45 21 depositions, and you've gotten answers you don't

19:45 22 understand. You might use the term incoherent.

19:45 23 When I describe someone as incoherent, what

19:45 24 I would do is in a report I would describe what they

19:45 25 said, and then I would refer to them in the summary as

Page 111

19:45 1 being incoherent, meaning that they make

19:45 2 verbalizations that don't make sense or that are

19:45 3 difficult to understand, or it's difficult to

19:45 4 understand the relevance or the context of what

19:45 5 they're saying. That's what I would mean.

19:45 6 I don't know what these people mean.

19:45 7 Q. Well, when I asked you about these symptoms, you

19:45 8 seemed to preface your answers with, Well, you know,

19:46 9 somebody's saying that they observed.

19:46 10 All of the symptoms are what somebody say

19:46 11 they observe; are they not?

19:46 12 A. They're -- they're not describing their observations;

19:46 13 they're making conclusory statements.

19:46 14 Q. You mean I can't walk out here and listen to somebody

19:46 15 walk up to me on the street and have them talk

19:46 16 gibberish, and I'm not qualified to say that they're

19:46 17 incoherent?

19:46 18 A. Yeah, because they might be talking to you in another

19:46 19 language. And you might describe it as gibberish, and

19:46 20 it might be an eloquent dissertation in some language

19:46 21 that you don't understand.

19:46 22 Q. So the answer to my question is: Yes, that I'm not

19:46 23 qualified to know if somebody is speaking in an

19:46 24 incoherent fashion. Is that your testimony?

19:46 25 A. No, my testimony is that: If you described someone

Page 112

19:46 1 speaking what you refer to as gibberish as being

19:46 2 incoherent, that may not be accurate, and that would

19:46 3 be a conclusory statement.

19:46 4 If you said that someone came and spoke to

19:46 5 you in words that you didn't understand, and it could

19:47 6 be gibberish or it could be another language, that

19:47 7 would be more accurate. That would be an observation.

19:47 8 Gibberish is a conclusion. Incoherence is

19:47 9 a conclusion.

19:47 10 Q. Trust me, I know if somebody is speaking incoherently.

19:47 11 A. It's not a question of my trust or distrust.

19:47 12 Q. So what about tremors; I haven't heard you use the

19:47 13 word tremors. Are tremors one of his symptoms in your

19:47 14 "development of symptoms" phrase?

19:47 15 A. Tremors could -- tremors could be one of the symptoms

19:47 16 that could be caused by benzo --

19:47 17 Q. I'm not asking --

19:47 18 A. If he developed tremors, that would be one of the

19:47 19 things to which I was referring.

19:47 20 Q. What -- I didn't hear the end of that.

19:47 21 A. I said, "If he developed tremors, that would be one of

19:47 22 the things to which I'm referring."

19:47 23 I just don't want to end a sentence with a

19:47 24 preposition.

19:47 25 Q. Thank you.

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19:47 1 A. I don't want to say referring to.

19:47 2 Q. I'm sorry to say that you're old school. Me too.

19:47 3 A. Well, I'm also old, so...

19:47 4 Q. You know, that's hard to hear "Where are you at," but

19:47 5 we hear it.

19:48 6 A. Try working with medical students every day who can't

19:48 7 speak proper English --

19:48 8 Q. Try hiring a lawyer --

19:48 9 A. -- let alone use jargon, so...

19:48 10 Takes two of them to do this.

19:48 11 Q. We talked about decompensation before. You understand

19:48 12 because you reviewed the document, that the word

19:48 13 decompensation is one of the categories that is on the

19:48 14 self-harm watch mental health observation initial

19:48 15 assessment as -- it's one of the categories under the

19:48 16 heading "Reason to Watch." So -- did you know that?

19:48 17 A. Yeah. I got the form right here.

19:48 18 Q. All right.

19:48 19 A. I have the form on my screen.

19:48 20 Q. Well, you implied when I asked about decompensation,

19:48 21 Well, it's -- you know, people say things, and

19:48 22 decompensation really isn't --

19:48 23 A. Look, that's an issue that I have with using jargon

19:49 24 terms and not being descriptive. And I think that

19:49 25 that makes the -- that makes what -- the terms are

Page 114

19:49 1 nonspecific, they're used in an imprecise manner; and

19:49 2 it's better to describe what you're seeing.

19:49 3 Now, I know what decompensation means, but

19:49 4 it's commonly used even by many mental health

19:49 5 professionals, in a cavalier way or an imprecise way.

19:49 6 Q. Was it being used in a cavalier way when the mental

19:49 7 health professionals checked decompensation in this

19:49 8 case?

19:49 9 A. Well, I would describe the disorganized behavior as

19:49 10 evidence of a decompensation, meaning the definition

19:49 11 that I gave you about an hour ago. But I just --

19:49 12 whenever these jargon terms or terms of art are used,

19:49 13 I feel I have to give a caveat. And I don't mean to

19:49 14 be difficult.

19:49 15 Q. You then indicate under -- "and the development of his

19:50 16 symptoms, a time course is not suggestive of

19:50 17 withdrawal from benzodiazepines, and the more severe

19:50 18 aspects of Mr. Stojcevski's condition in the latter

19:50 19 stages of his" -- there's that typo,

19:50 20 hospitalization -- "hospitalization, a period of 16

19:50 21 days, is not consistent with -- is not consistent

19:50 22 withdrawal from benzodiazepines."

19:50 23 I'm going to suggest that probably is a

19:50 24 typo. You missed a word, correct?

19:50 25 A. With should be in there. With withdrawal. It's not

Page 115

19:50 1 -- that's not an uncommon thing for a typist to miss.

19:50 2 Q. I agree.

19:50 3 So tell me what the, quote-unquote, "more

19:50 4 severe aspects of Mr. Stojcevski's condition in the

19:50 5 latter stages of his confinement" were.

19:50 6 A. Well, his behavior seemed to be -- seemed to be

19:50 7 described as being more disorganized, he was eating

19:51 8 intermittently, his verbalizations were not making

19:51 9 sense, he's -- there was incontinence of stool.

19:51 10 So there's -- the behavior seemed to be

19:51 11 becoming more disorganized towards the end of his

19:51 12 confinement.

19:51 13 Q. Meaning that his condition was deteriorating?

19:51 14 A. Well, manifestations of some process were becoming

19:51 15 more obvious and presenting more --

19:51 16 Q. "The manifestations of some process" --

19:51 17 A. That's right.

19:51 18 Q. -- "were becoming more obvious."

19:51 19 A. That's right.

19:51 20 Q. What manifestations?

19:51 21 A. The things we've been talking about.

19:51 22 Q. All of them?

19:51 23 A. The progression of symptoms.

19:51 24 All of them in varying sequences, in

19:51 25 varying degrees at different times.

Page 116

19:51 1 Q. So all of the things that we were talking about were

19:51 2 becoming more obvious --

19:51 3 A. More manifest and more obvious, which is --

19:51 4 Q. -- the longer he was in the jail.

19:51 5 A. That's right. That was the trend.

19:52 6 Q. I'm not going to spend much time on it for my friend

19:52 7 Ron, but why did you go into much detail about opiate

19:52 8 withdrawal? Why is that important in your conclusion

19:52 9 here?

19:52 10 A. Well, because he was taking -- he was reported to be

19:52 11 taking methadone as well.

19:52 12 Q. Well, you indicate that "Once again" -- and I'm

19:52 13 looking at the first full paragraph on five. "Once

19:52 14 again the course of Stojcevski's symptoms would

19:52 15 suggest that the more severe symptoms that he

19:52 16 experienced were unlikely to be caused by opiate

19:52 17 withdrawal, as opiate withdrawal symptoms usually peak

19:52 18 within 72 to 96 hours and remit shortly after that."

19:53 19 A. That's right.

19:53 20 Q. Okay. Then you indicate "Based" -- in the next

19:53 21 paragraph, "Based on my review of the medical records

19:53 22 and the course of Mr. Stojcevski's illness, an

19:53 23 alternative consideration is strongly suggested."

19:53 24 I want to talk about your phrase "strongly

19:53 25 suggested" for a minute. "Strongly suggested" is a --

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19:53 1 is a categorization that would be compared to what?

19:53 2 A. A categorization compared to what.

19:53 3 Q. Yeah. Let me tell you --

19:53 4 A. I don't understand what that means.

19:53 5 Q. Fair question.

19:53 6 What came to mind when I was thinking about

19:53 7 this, when I saw your phrase "strongly suggested,"

19:53 8 was: not suggested, moderately suggested or somewhat

19:54 9 suggested, suggested, strongly suggested, true.

19:54 10 Do those make sense in terms of the

19:54 11 categories? Because you're using a phrase that I

19:54 12 don't have anything to weigh it against, "strongly

19:54 13 suggested."

19:54 14 A. Well, it sounds like you do. Because it sounds like

19:54 15 your response was that whole hierarchy.

19:54 16 Q. Does that make sense to you, those categories?

19:54 17 A. Well, I want to be careful in answering this.

19:54 18 It seems consistent with what I know about

19:54 19 how lawyers think.

19:54 20 Q. How about how you think?

19:54 21 A. No. No.

19:54 22 Q. How --

19:54 23 A. Strongly -- look --

19:54 24 Q. I'm not trying to trick you.

19:54 25 A. No, I --

Page 118

19:54 1 Q. I'm just trying to get some bearing on what you mean.

19:54 2 A. I didn't say you were trying to trick me. I was about

19:54 3 to explain.

19:54 4 A doctor's job is to look at a bunch of

19:54 5 phenomena and to find a pathophysiologic process that

19:54 6 explains all the phenomena. And the suggestion -- at

19:55 7 least the suggestion or the inference throughout my

19:55 8 analysis of the -- of the course, the correspondence

19:55 9 between the lawyers, and the considerations or the

19:55 10 suggestions or the inferences to be made from the

19:55 11 course of Mr. Stojcevski's confinement in the jail was

19:55 12 that his use of opiates and his use of benzodiazepines

19:55 13 had something to do with his demise, and that this had

19:55 14 something to do with an abstinence syndrome. And when

19:55 15 I discussed that on page 4, I thought I discussed

19:55 16 those issues in some detail, to suggest that: What

19:55 17 happened to Mr. Stojcevski was not consistent with

19:55 18 what we know about opiate withdrawal because of the

19:55 19 time frame, and because of the -- the bottom line with

19:55 20 opiate withdrawal, that it's more physically

19:55 21 uncomfortable than life-threatening.

19:56 22 And the morbidity of -- the morbidity from

19:56 23 opiate withdrawal is -- is very limited. People are

19:56 24 uncomfortable for --

19:56 25 Q. Well --

Page 119

19:56 1 A. Wait, wait. Let me finish.

19:56 2 -- for a brief period.

19:56 3 Looking at benzodiazepine withdrawal, that

19:56 4 occurs early on in the course of abstinence, hours or

19:56 5 days, and it's unlikely that an abstinence syndrome

19:56 6 could persist for more than several days. Certainly

19:56 7 not for 16 days.

19:56 8 Q. So this first -- second full paragraph on page 5,

19:56 9 getting back to that, you say that, "Mr. Stojcevski's

19:56 10 illness" -- I'm sorry, let me start, "Based on my

19:56 11 review of the medical records and the course of

19:56 12 Mr. Stojcevski's illness, an alternative

19:56 13 consideration"...

19:56 14 Now, your word "an," does that mean that

19:56 15 there are other alternative considerations, or you're

19:56 16 just sort of picking out one, "an alternative

19:56 17 consideration"?

19:56 18 A. No, I'm describing what my thinking is.

19:56 19 Q. Is it the alternative consideration, or is it one of

19:57 20 many?

19:57 21 A. Well, in medicine, a doctor considers a differential

19:57 22 diagnosis. So there are many things that a doctor

19:57 23 considers.

19:57 24 What I mean to express here -- and you can

19:57 25 diagram my sentences, if you like, but what I mean to

Page 120

19:57 1 express is that a -- a more compelling conclusion than

19:57 2 the influence of opiate withdrawal or benzodiazepine

19:57 3 withdrawal or some combination of the abstinence

19:57 4 syndromes from those two substances --

19:57 5 Q. Um-hum.

19:57 6 A. -- was responsible for what happened to

19:57 7 Mr. Stojcevski.

19:57 8 Q. Um-hum. So what is a neuroleptic?

19:57 9 A. A neuroleptic is a drug that -- a neuroleptic is a

19:57 10 drug that causes what -- the Swiss chemist who

19:57 11 described it used the term la affect neuroleptic

19:58 12 (phonetic). Emotional quieting, less interest in the

19:58 13 environment, subdued reactions separate from sedation.

19:58 14 Q. And --

19:58 15 A. And neuroleptic drugs are typically drugs that have

19:58 16 some effect on the dopamine system in the mind and

19:58 17 cause that syndrome of emotional quieting.

19:58 18 Q. Does Xanax have any effect on the dopamine system of

19:58 19 the brain?

19:58 20 A. Not any direct effect.

19:58 21 Q. How about --

19:58 22 A. All these systems interact with each other. But Xanax

19:58 23 affects GABA, the chloride channel, and glutamate.

19:58 24 Q. And can you tell me the difference, if there is a

19:58 25 difference, between a neuroleptic and a psychotropic

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19:58 1 medication?

19:58 2 A. Well, psychotropic is a class of medicine that have an

19:58 3 effect on the psyche or the mind, and a neuroleptic is

19:58 4 one of those drugs.

19:58 5 Q. So a neuroleptic would fall under the umbrella of

19:58 6 psychotropic?

19:58 7 A. Neuroleptic drugs are psychotropic drugs.

19:59 8 Q. But a psychotropic --

19:59 9 A. Wait, wait, wait.

19:59 10 Q. I'm sorry.

19:59 11 A. You have to be very careful, because neuroleptic drugs

19:59 12 are used for a number of different things.

19:59 13 Neuroleptic drugs all have an antiemetic quality.

19:59 14 Q. Anti what?

19:59 15 A. Antiemetic. They block vomiting or nausea.

19:59 16 Neuroleptic drugs, many of them are

19:59 17 antihistaminic, so they're used for itching, used to

19:59 18 stop itching. So -- but neuroleptic drugs are

19:59 19 psychotropic drugs. They do have an effect on the

19:59 20 psyche, and their indication is some aspect of mental

19:59 21 illness, either mood stabilization or treatment of

19:59 22 psychosis.

19:59 23 (Recess taken at 7:59 p.m.)

20:05 24 (Back on the record at 8:05 p.m.)

20:05 25 BY MR. IHRIE:

Page 122

20:06 1 Q. So looking at the same paragraph, you indicate --

20:06 2 well, is Xanax a psychotropic medication?

20:06 3 A. Any drug that affects the mind. And Xanax is a

20:06 4 psychotropic medicine, because it's used as an

20:06 5 anxiolytic.

20:06 6 Q. And Klonopin?

20:06 7 A. Well, Klonopin is, but Klonopin's FDA indication is

20:06 8 for -- as an adjunct anticonvulsant. It really

20:06 9 doesn't have FDA approval as an anxiolytic.

20:06 10 Q. Alcohol?

20:06 11 A. Alcohol is a psychoactive drug; it's not a

20:06 12 psychotropic drug. The term psychotropic is typically

20:06 13 reserved for drugs that have a therapeutic effect.

20:06 14 And they serve alcohol in nursing homes,

20:06 15 and, you know, there are some nursing home residents

20:06 16 that take a shot of whiskey or a shot of -- a glass of

20:06 17 wine at bedtime, but it's considered a psychoactive

20:06 18 drug; not a psychotropic.

20:06 19 Q. So you indicate in this paragraph, "Individuals who

20:07 20 use psychotropic medications often experience more

20:07 21 life-threatening conditions, neuroleptic malignant

20:07 22 syndrome."

20:07 23 A. Yes.

20:07 24 Q. Is that -- when you say, "neuroleptic malignant

20:07 25 syndrome," are you talking about -- when you say "more

Page 123

20:07 1 life-threatening conditions," such as neuroleptic --

20:07 2 A. That's right.

20:07 3 Q. That's what you basically are saying?

20:07 4 A. Yes. Um-hum.

20:07 5 Q. Okay. Now, describe for me what neuroleptic malignant

20:07 6 syndrome is.

20:07 7 A. Well, neuroleptic malignant syndrome is a syndrome

20:07 8 that occurs when patients receive neuroleptic drugs,

20:07 9 and they develop delirium, lead-pipe rigidity, or

20:07 10 what's called a whole-body dystonic reaction:

20:07 11 elevated fever, elevated white blood cell count. And

20:07 12 that has a certain degree of mortality as well as

20:07 13 morbidity.

20:07 14 Q. Then you say, "Although there's no indication that

20:07 15 Mr. Stojcevski received neuroleptic medication."

20:07 16 A. That's right. Well, that's one of the things to

20:08 17 consider in the differential diagnosis, is the only

20:08 18 reason I'm putting it here.

20:08 19 Q. So if he never -- I want to call it NMS. If NMS is

20:08 20 for people who have been taking a neuroleptic --

20:08 21 A. That's right.

20:08 22 Q. -- and you have no evidence that he was taking any

20:08 23 neuroleptics, and he was never described as having

20:08 24 what you call "lead-pipe rigidity," why do you

20:08 25 identify it as a -- why do you even talk about it?

Page 124

20:08 1 A. It's part of the differential diagnosis of a condition

20:08 2 that presented with the course of Mr. Stojcevski's

20:08 3 confinement.

20:08 4 Q. I'm not sure that I understand that. And maybe it's

20:08 5 because I'm not medically smart. But when you say "it

20:08 6 presented itself," how did it present itself?

20:08 7 A. No, I didn't say -- no, that's not what I said.

20:08 8 Q. All right.

20:08 9 A. What I said was: That's part of the differential for

20:08 10 someone who presents as Mr. Stojcevski did.

20:09 11 But it's ruled out for the reasons that you

20:09 12 just discussed or the reasons that I state. There's

20:09 13 no -- there's no indication that he ever received

20:09 14 neuroleptic medication, and he was never described as

20:09 15 having any of the symptoms -- any of the symptoms that

20:09 16 are specific to that syndrome, other than delirium.

20:09 17 Q. Well, is that -- are you finished?

20:09 18 A. Yes.

20:09 19 Q. Okay. Is that -- is NMS one of the alternative

20:09 20 considerations that you're strongly suggesting?

20:09 21 A. It's part of the differential diagnosis, but it's not

20:09 22 suggested by the symptoms.

20:09 23 Q. What was suggested by the symptoms?

20:09 24 A. Malignant catatonia or catatonia.

20:09 25 Q. And that's in your next paragraph.

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20:09 1 A. That's right.

20:09 2 Q. And you indicate in the next paragraph, "Another

20:09 3 syndrome would be."

20:09 4 When you say "would be," you mean is an

20:09 5 alternative that is strongly suggested?

20:09 6 A. That's right.

20:09 7 Q. What's the difference between malignant catatonia and

20:10 8 catatonia?

20:10 9 A. Well, catatonia can be self-limiting, and some

20:10 10 patients develop some of the symptoms, or a milder

20:10 11 form of the illness, and then either remit or respond

20:10 12 to treatment. But other patients have a steadily

20:10 13 deteriorating condition that leads to some morbidity

20:11 14 or death.

20:11 15 Q. And which one are you saying it strongly suggested?

20:11 16 A. Malignant catatonia.

20:11 17 Q. And what are the -- when it says -- your last

20:11 18 paragraph says, "Catatonia is the delirium and altered

20:11 19 level of consciousness."

20:11 20 How are the last two paragraphs on this

20:11 21 page related to one another?

20:11 22 A. (No verbal response.)

20:11 23 Q. You talk about malignant catatonia in the

20:11 24 second-from-last paragraph, and catatonia in the last

20:11 25 one. Or are they -- should I read them connected

Page 126

20:11 1 together in some way?

20:11 2 A. I don't really know what you're asking. I talk about

20:11 3 the condition of catatonia in two paragraphs.

20:11 4 Q. Well --

20:11 5 A. How are they -- how are they different?

20:11 6 Q. All right. Well, let me ask you --

20:11 7 A. Wait, wait, wait, wait, wait.

20:12 8 I think the first paragraph is more

20:12 9 descriptive of catatonia, the second paragraph talks

20:12 10 about some of the consequences or the possible

20:12 11 outcomes of catatonia.

20:12 12 Q. I guess the reason that I ask you that is because

20:12 13 under the last paragraph, where you say "Catatonia

20:12 14 is," you have a whole bunch of symptoms. The one when

20:12 15 you talk about "malignant catatonia," you don't

20:12 16 identify any symptoms in that. So that's what I'm

20:12 17 trying to figure out.

20:12 18 Let me just ask you differently.

20:12 19 What are the symptoms of malignant

20:12 20 catatonia?

20:12 21 A. They're the same symptoms of catatonia.

20:12 22 Q. Okay.

20:12 23 A. It just becomes more persistent, the symptoms may be

20:12 24 more severe, and it progresses to a poorer outcome.

20:12 25 Q. I see.

Page 127

20:12 1 So the symptoms of catatonia on DSM-5 --

20:12 2 I'm going to list them. There are 12. Stupor -- did

20:13 3 you see stupor?

20:13 4 A. Well, delirium, the altered level of consciousness.

20:13 5 Q. So you would say that delirium falls under a category

20:13 6 of stupor?

20:13 7 A. Well, he was described as incoherent, or he had

20:13 8 problems -- you know, we've talked about this all

20:13 9 evening. He had problems taking in information,

20:13 10 processing it, and acting on it. Being stuporous or

20:13 11 being less active or staying in one place and --

20:13 12 and/or having movements that are -- movements or

20:13 13 actions that are purposeless, would be one way to --

20:13 14 could be described as stuporous.

20:13 15 Q. Catalepsy? Did he have catalepsy?

20:13 16 A. I think on the videos there were some times where he

20:13 17 was active, and then he would suddenly become

20:13 18 inactive.

20:13 19 Catalepsy refers to a very specific

20:13 20 phenomenon that is common to a number of neurologic

20:14 21 syndromes, where someone -- where someone becomes

20:14 22 suddenly inactive, or someone suddenly -- somebody is

20:14 23 doing something, and they suddenly stop, or they

20:14 24 suddenly drop.

20:14 25 Q. Well, the DSM-5 describes catalepsy as passive

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20:14 1 induction of a posture held against gravity. Do you

20:14 2 agree with that?

20:14 3 A. That's waxy flexibility.

20:14 4 Q. Well, that's not what the DSM-5 says. Do you disagree

20:14 5 with that DSM-5 description?

20:14 6 A. No, that's -- staying in one posture, that's a rare

20:14 7 symptom of catatonia.

20:14 8 Q. But it wasn't what you described, was it?

20:14 9 A. No. It's sudden cessation of a movement. So in the

20:14 10 middle of doing something, someone just stands still,

20:14 11 and they stop. That's what I said.

20:14 12 Q. Did that ever happen with David?

20:14 13 A. Well, there were -- his activities were described as

20:14 14 purposeless. I don't know that anyone described that

20:14 15 specifically.

20:14 16 I fast-forwarded through much of the

20:15 17 videos. There might have been some instances where he

20:15 18 was doing something, and then he -- and then he

20:15 19 suddenly ceased. I -- I don't know that I would

20:15 20 necessarily interpret it and use that -- that term or

20:15 21 that --

20:15 22 Q. Did he have waxy flexibility?

20:15 23 A. Nobody ever put him in a position and determined --

20:15 24 you have to test for that. So if you see someone, you

20:15 25 raise their hand. If they're catatonic schizophrenic,

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20:15 1 they're often negative, and they resist you. If

20:15 2 they're just stuporous or delirious, they won't resist

20:15 3 you; but if you let go of their arm, it will fall. If

20:15 4 they're catatonic, they'll keep it in the same

20:15 5 position. No one ever tested him in that way.

20:15 6 Q. Did he have mutism?

20:15 7 A. There were times where he wouldn't speak. They said

20:15 8 that he refused to speak or was incapable of speech.

20:15 9 Q. Who said that?

20:15 10 A. I don't recall, but there are notations in the medical

20:15 11 record.

20:15 12 And we talked about refusing to speak

20:15 13 versus being incapable of speech.

20:15 14 Q. Did he have negativism?

20:16 15 A. Negativism is different than cataplexy. Negativism is

20:16 16 when you go to move -- someone is in a resting

20:16 17 position, they seem to be inattentive, you go to move

20:16 18 their arm, and they resist you. And then their eyes

20:16 19 are closed, you try to open their eyes, and they

20:16 20 scrunch down, keep their eyes closed.

20:16 21 Nobody ever tested him for that, either.

20:16 22 Q. Was there any posturing?

20:16 23 A. There were times where he -- where he was described as

20:16 24 not moving.

20:16 25 Q. Posturing -- what is posturing?

Page 130

20:16 1 A. Well, posturing is more what they describe in

20:16 2 cataplexy. Someone stays in an awkward posture, or is

20:16 3 doing something, they suddenly stop, but they stay in

20:16 4 the position that they were in when they stopped.

20:16 5 Q. DSM-5 says, "Posturing is spontaneous and active

20:17 6 maintenance of a posture against gravity."

20:17 7 Did you see any of that?

20:17 8 A. I didn't see any of that on the video.

20:17 9 When they say "against gravity," that might

20:17 10 mean holding one's arms out or holding one's arms in

20:17 11 the position that they were in the last time they did

20:17 12 something, or standing as opposed to laying flat on

20:17 13 the bed or laying flat on the ground.

20:17 14 Q. I hope I pronounce this right. Stereotypy?

20:17 15 A. Stereotypy means doing the same thing over and over

20:17 16 again. I think I saw some things on the video where

20:17 17 he would -- where he would do that. That's more

20:17 18 purposeless. And stereotypy might be moving your

20:17 19 hands around in a circle or touching the same thing or

20:17 20 rubbing the same thing. I thought I saw some things

20:18 21 that were consistent with that on the video. No one

20:18 22 ever described that or used that term.

20:18 23 Q. Agitation?

20:18 24 A. Agitation is pretty nonspecific.

20:18 25 Q. Grimacing?

Page 131

20:18 1 A. Nobody described him as grimacing.

20:18 2 Q. Echolalia?

20:18 3 A. Nobody used that term to describe him, either.

20:18 4 Q. I know they wouldn't use that term, but did they

20:18 5 describe that condition?

20:18 6 A. Echolalia is quite rare. No, nobody said that he just

20:18 7 repeated what was said to him.

20:18 8 Q. And the same goes with echopraxia, correct?

20:18 9 A. That means doing the same thing that someone does.

20:18 10 And no. That's the opposite of mutism.

20:18 11 Q. So --

20:18 12 A. So there's a whole range of behaviors, some being the

20:18 13 opposite of other behaviors that you see.

20:18 14 Q. So for catatonia DSM-5 says, "The clinical picture is

20:18 15 dominated by three or more of the following symptoms."

20:18 16 Did he have three or more?

20:18 17 A. Well, first of all, that's only a guideline. I don't

20:19 18 want to endorse that. That's authoritative, and I

20:19 19 don't want to endorse that the DSM is like a book of

20:19 20 statutes, where you have to have something to make the

20:19 21 diagnosis. If you read the book properly, and you

20:19 22 read the disclaimers about the use of the book and

20:19 23 about clinical judgment and clinical experience -- I

20:19 24 believe if you read through them, I believe he had --

20:19 25 he had stupor, he had some evidences, by my

Page 132

20:19 1 recollection, of stereotypy, he had some -- he had

20:19 2 elective mutism, so that's three right there.

20:19 3 Q. Do you have access to the video right there?

20:19 4 A. No, I don't. This is a new computer that does not

20:19 5 play videos. It won't play DVDs.

20:19 6 Q. Okay. Where do convulsions fit into --

20:19 7 A. Convul -- you mean seizures?

20:20 8 Q. No, convulsions. Where somebody is lying on the

20:20 9 ground, and then they -- I know that this won't be

20:20 10 picked up by the -- they just begin to just --

20:20 11 A. That's a --

20:20 12 Q. -- go -- just act like this.

20:20 13 My arms and legs are flying all over, for

20:20 14 the record.

20:20 15 A. I wouldn't call -- that would be flailing arms and

20:20 16 legs.

20:20 17 Q. All right.

20:20 18 A. That's not necessarily typical in catatonia.

20:20 19 Q. Where does apparent --

20:20 20 MR. PERAKIS: Did you hear what he said?

20:20 21 "That's not necessarily typical in catatonia."

20:20 22 BY MR. IHRIE:

20:20 23 Q. And where -- presuming that such physical behavior was

20:20 24 not intentional, what would that seem to indicate to

20:20 25 you?

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20:20 1 A. It was not intentional?

20:20 2 Q. Yes.

20:20 3 A. It could be an indication of physical discomfort; it

20:20 4 could be an indication of alteration in sleep/wake

20:20 5 cycle, someone might be thrashing about while they're

20:20 6 dreaming; it could be manifestations of a seizure;

20:20 7 could be feigning a seizure, as Dr. -- as Dr. Sherman

20:21 8 concluded, based on the fact that he made

20:21 9 verbalizations after the behavior was observed.

20:21 10 Q. What kind of verbalizations?

20:21 11 A. (No verbal response.)

20:21 12 Q. When you say "he made," you mean David made, David

20:21 13 Stojcevski?

20:21 14 A. Well, let me...

20:21 15 Okay. This late entry that's referenced to

20:22 16 6-23 --

20:22 17 Q. Um-hum.

20:22 18 A. -- that in fact is 6-17, "I went to see the patient

20:22 19 who was being observed in the medical unit for

20:22 20 questionable seizures. I observed him fluttering his

20:22 21 eyes in what was certainly not a seizure but what was

20:22 22 most likely his poor attempt to feign one. I shook

20:22 23 his shoulder and told him to sit up, at which point he

20:22 24 suddenly stopped the eye fluttering behavior and

20:22 25 exclaimed, 'What's happening,' as if he was unaware."

Page 134

20:22 1 So that verbalization would be inconsistent

20:22 2 with a seizure or paroxysmal event.

20:22 3 Now, if someone were flailing their arms --

20:22 4 what you demonstrated is not consistent with a

20:22 5 neurological symptom of a seizure.

20:22 6 Q. I never said it was. I just asked you what it would

20:22 7 be an indication of.

20:22 8 I think you've answered the question to the

20:22 9 best of your ability.

20:22 10 A. I think a lawyer trying to demonstrate something and

20:22 11 not really knowing what he was trying to demonstrate.

20:22 12 Q. Oh, I knew exactly what I was trying to demonstrate.

20:22 13 A. What was that?

20:22 14 Q. It was exactly what he does on the tape. If you pull

20:22 15 it up, I'll show it to you.

20:23 16 A. Well again, that flailing -- flailing is not

20:23 17 consistent with a paroxysmal event or a seizure.

20:23 18 Q. I didn't say it was. I just asked you what was it an

20:23 19 indication of, and I think you answered the question.

20:23 20 A. But you referred to it as a convulsion.

20:23 21 Q. Yes, I did.

20:23 22 A. And convulsion is generally synonymous with seizure.

20:23 23 Q. Okay. You read Dr. Sherman's deposition, correct?

20:23 24 A. I read Dr. Sherman's deposition.

20:23 25 Q. And you must have read, when you read his deposition,

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20:23 1 that Dr. Sherman testified under oath that David never

20:23 2 said he was having a seizure.

20:23 3 Do you recall reading that?

20:23 4 A. I haven't committed it to memory. If you want to

20:23 5 direct me to a page, I'll --

20:23 6 Q. That he -- do you remember reading that he testified

20:23 7 that he never even used -- that David never even used

20:23 8 the word seizure? Do you recall reading that?

20:23 9 MR. CHAPMAN: I'm going to object to the

20:23 10 form and foundation. It's not a memory test. If you

20:23 11 want to direct him to a page, you can do that.

20:23 12 THE WITNESS: I haven't committed it to

20:23 13 memory. In the interest of accuracy, if you want to

20:23 14 direct me to a page, I'll review that.

20:23 15 BY MR. IHRIE:

20:23 16 Q. Um-hum.

20:23 17 A. What page?

20:24 18 Q. Well, let's ask it as a hypothetical question.

20:24 19 I want you to assume hypothetically that a

20:24 20 patient comes down to a medical doctor in a jail

20:24 21 setting, and the medical doctor concludes that it was

20:24 22 -- that the patient was feigning a seizure, and that

20:24 23 the patient never used the word seizure. I want you

20:24 24 to assume that the patient never said he was having a

20:24 25 seizure, I want you to assume that the doctor says

Page 136

20:24 1 that none of the physical movements that he was

20:24 2 exhibiting even indicated a seizure. I would like you

20:24 3 to tell me, given those circumstances, do you have an

20:24 4 opinion as to why a doctor would conclude that he was

20:24 5 feigning a seizure?

20:24 6 MR. CHAPMAN: Object to form and

20:24 7 foundation. Calls for a conclusion, calls for

20:24 8 speculation, and you're not informing him of the

20:25 9 entire record, only the selective parts you want to

20:25 10 inform him of.

20:25 11 MR. PERAKIS: That's the nature of a

20:25 12 hypothetical.

20:25 13 MR. CHAPMAN: No, a hypothetical must

20:25 14 include all the relevant facts. You can't --

20:25 15 MR. IHRIE: Those are all the relevant

20:25 16 facts.

20:25 17 MR. PERAKIS: Those are the relevant facts.

20:25 18 MR. CHAPMAN: No, it's not.

20:25 19 MR. IHRIE: Well, that's your opinion.

20:25 20 Make your objection.

20:25 21 THE WITNESS: If I'm to reach an opinion

20:25 22 based on what you've told me, what I would say is that

20:25 23 a medical doctor working in a correction setting would

20:25 24 have to have a high index of suspicion for

20:25 25 malingering, especially someone who's in a mental

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20:25 1 health unit and someone who's newly admitted. And if

20:25 2 someone is seen flailing their arms in the manner in

20:25 3 which you demonstrated --

20:25 4 BY MR. IHRIE:

20:25 5 Q. Yeah? Well, no, I'm not -- Doctor, don't --

20:25 6 MR. CHAPMAN: Wait. Let him finish his

20:25 7 answer.

20:25 8 MR. IHRIE: I don't want him to

20:25 9 misunderstand something.

20:25 10 BY MR. IHRIE:

20:25 11 Q. My flailing was in no way intended to indicate that

20:25 12 that was in any way related to the time when he saw

20:25 13 Dr. Sherman.

20:25 14 A. Well, but you said that was exactly what happened on

20:26 15 the tape.

20:26 16 Q. It was, but -- it is, but not when he saw Dr. Sherman

20:26 17 or before he saw Dr. Sherman. That occurred well

20:26 18 after he saw Dr. Sherman. So I don't want you to

20:26 19 misunderstand.

20:26 20 MR. CHAPMAN: Did you have a question for

20:26 21 the doctor?

20:26 22 MR. IHRIE: Yeah. He was in the process of

20:26 23 answering my question.

20:26 24 MR. CHAPMAN: Well, you interrupted him.

20:26 25 THE WITNESS: What I said was: In a

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20:26 1 correction setting, a doctor has to have a high index

20:26 2 of suspicion for malingering or the intentional

20:26 3 production of the symptoms of a physical or

20:26 4 psychiatric illness for the sole purpose of secondary

20:26 5 gain or external consequences, which might be

20:26 6 medication, transfer to a better unit, attention, or

20:26 7 avoidance of an unpleasant aspect of his confinement.

20:26 8 And so that index of suspicion must be there.

20:26 9 And if the behavior that the doctor was

20:26 10 asked to observe involved involuntary movements in a

20:27 11 patient that he knew or suspected had been using drugs

20:27 12 or taking -- taking sedatives, it's not an

20:27 13 unreasonable inference to conclude that this would be

20:27 14 a naive attempt to feign a seizure. And I believe

20:27 15 that -- I believe that in some of the things that I

20:27 16 read, there's some -- there may have been some

20:27 17 inference that the doctor was called to see the

20:27 18 patient because of the possibility that the patient

20:27 19 may have been having a seizure.

20:27 20 And I don't want anyone to infer that just

20:27 21 because a doctor concludes that a patient is feigning

20:27 22 a seizure, that the patient would have to mention

20:27 23 seizure or use the word seizure or overspecify his

20:27 24 symptom in some way.

20:27 25 And "overspecify" means drawing attention

Page 139

20:27 1 to a symptom, which is a common finding in

20:27 2 malingerers.

20:27 3 BY MR. IHRIE:

20:27 4 Q. You would agree though, wouldn't you, that if a doctor

20:27 5 is to conclude that a patient is feigning a seizure,

20:28 6 that there has to be something that was presented by

20:28 7 the patient that somehow relates to seizure activity

20:28 8 or seizure-like activity; would you not?

20:28 9 A. Well, when you say "something," that's imprecise.

20:28 10 What do you mean? What do you mean when you say

20:28 11 "something"?

20:28 12 Q. Well --

20:28 13 A. Well, wait.

20:28 14 If the patient was acting in a way that

20:28 15 made another health care professional concerned, and

20:28 16 called the doctor and say, "Doctor, this patient's

20:28 17 behaving in a certain way, is he having a seizure,"

20:28 18 then that would be the first thing on the doctor's

20:28 19 differential.

20:28 20 Q. Is malingering a diagnosis?

20:28 21 A. No, but it's called a V-code. It's -- malingering

20:28 22 is --

20:28 23 Q. It's not a diagnosis, is it?

20:28 24 A. No, it's not a diagnosis.

20:28 25 Q. Would you agree with this statement? "Even advanced

Page 140

20:28 1 providers need to be very cautious about deciding that

20:28 2 a patient is malingering. One correctional

20:28 3 physician," and it gives the name, "asserted that

20:28 4 malingering must always be considered a diagnosis of

20:28 5 exclusion. Literally every other possible cause of

20:28 6 the patient's symptoms must be ruled out before

20:29 7 deciding that the patient is malingering."

20:29 8 Would you agree with that statement?

20:29 9 A. Well, if --

20:29 10 Q. I'll let you explain yourself, but give me a yes or a

20:29 11 no, if you agree with it.

20:29 12 A. Well, that's a lengthy and very conclusive statement,

20:29 13 and there are parts of it which I -- with which I

20:29 14 don't agree.

20:29 15 Q. With which what?

20:29 16 A. With which I do not agree.

20:29 17 Q. Okay. Well, just so you're aware, you didn't agree

20:29 18 with language from the people who are paying you in

20:29 19 their patient malingering nursing perspective from

20:29 20 Correct Care Solutions' cover article.

20:29 21 MR. CHAPMAN: Is there a question in that?

20:29 22 BY MR. IHRIE:

20:29 23 Q. Did you know that?

20:29 24 A. Did I know from what you were reading? No, I didn't

20:29 25 know what you were reading.

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Page 141

20:30 1 MR. CHAPMAN: It's not an authoritative

20:30 2 document. Come on.

20:30 3 MR. IHRIE: Well, hold on.

20:30 4 All right. Do you want to take a break?

20:30 5 MR. PERAKIS: Yeah.

20:30 6 MR. IHRIE: Okay. Last break, I think.

20:30 7 THE WITNESS: How much longer do you think

20:30 8 you have? Another hour?

20:30 9 MR. CHAPMAN: How much time do you think

20:30 10 you have?

20:30 11 MR. IHRIE: Ten minutes.

20:30 12 (Recess taken at 8:30 p.m.)

20:34 13 (Back on the record at 8:35 p.m.)

20:35 14 MR. IHRIE: Back on the record.

20:35 15 BY MR. IHRIE:

20:35 16 Q. I will read that paragraph again to you, but I'd like

20:35 17 you to tell me which portions of it you don't agree

20:35 18 with.

20:35 19 A. Oh, you don't have to read it. I'll tell you.

20:35 20 Q. Okay. Go ahead.

20:35 21 A. The idea that malingering is a diagnosis of exclusion,

20:35 22 you need positive findings to make the diagnosis as

20:35 23 well as having ruled out -- ruled out other conditions

20:35 24 or other possible physical explanations. But the

20:35 25 sentence -- but the paragraph that you read to me made

Page 142

20:35 1 it sound so absolute. And in medicine -- this may get

20:35 2 a little conceptual, and this may be a little

20:35 3 long-winded, but first of all, it's impossible to

20:35 4 prove a negative, and you cannot prove that somebody's

20:35 5 not sick. And with all of our investigations, imaging

20:36 6 studies, blood tests, physical examination, you still

20:36 7 cannot prove a negative, that someone is not sick.

20:36 8 Medical problem-solving means that a doctor

20:36 9 listens to a symptom, thinks of the most severe

20:36 10 illness that could be causing the symptom, undertakes

20:36 11 a history and an examination to make the patient prove

20:36 12 by his signs, symptoms, and history that he has that

20:36 13 condition. And then if a patient can't prove that,

20:36 14 then you go to another condition.

20:36 15 So if you come to me with chest pain, my

20:36 16 first thought is myocardial infarction or acute

20:36 17 coronary syndrome. So I'll ask you a question that

20:36 18 will rule that out. And that question would -- that

20:36 19 question would be, in a rational approach: "Where is

20:36 20 the pain?"

20:36 21 You must point to your left side. If you

20:36 22 point to your right side, then I have to come up with

20:36 23 another diagnosis. But I can't prove that you're not

20:36 24 having a heart attack; I can only prove your symptoms

20:36 25 aren't consistent with that. And if I keep on going

Page 143

20:36 1 down a differential diagnosis, I might find some

20:37 2 condition that's most consistent.

20:37 3 So if your pain is right-sided, then it may

20:37 4 be pleuritic, a problem between the lungs and the

20:37 5 lining of the chest cavity; it may be referred from

20:37 6 your gallbladder; it may be a subdiaphragmatic

20:37 7 abscess; it may be cervical pain radiating down; it

20:37 8 may be an abscess in your axilla. So I'll ask you a

20:37 9 series of questions to rule out those things.

20:37 10 Q. You mean you'd follow up on things.

20:37 11 A. Oh, yeah. I'd investigate that.

20:37 12 Q. Why would you investigate and follow up?

20:37 13 A. I would investigate.

20:37 14 Q. Why?

20:37 15 A. To reach -- to reach a compelling conclusion.

20:37 16 Q. Why would that be important?

20:37 17 A. Because a diagnosis explains the symptoms and

20:37 18 prescribes a course of treatment. If the diagnosis is

20:37 19 malingering, not only do your symptoms have to not

20:37 20 conform to known patterns of illness, but you have to

20:37 21 have other signs and symptoms of malingered illness.

20:37 22 And that would be multiplicity of symptoms that don't

20:37 23 conform to known patterns of illness, spontaneous

20:37 24 concerns about the authenticity of your

20:38 25 symptomatology, a relationship with one clinician who

Page 144

20:38 1 understands you and disparaging other clinicians who

20:38 2 can't find out what's wrong with you, a use of

20:38 3 superlatives and hyperbole in describing your

20:38 4 symptomatology.

20:38 5 So there are things that you look for that

20:38 6 malingerers have in common. A guardedness and an

20:38 7 unwillingness to provide collateral history; "Who is

20:38 8 the last doctor that saw you?"

20:38 9 "I don't remember, but my doctor told me

20:38 10 this." Patients who use jargon in describing their

20:38 11 symptoms rather than describing their discomfort and

20:38 12 using laymans terms.

20:38 13 So those are more important than diagnosing

20:38 14 malingering.

20:38 15 And to say that absolutely it's a diagnosis

20:38 16 of exclusion, and you must do everything within your

20:38 17 power to prove that the patient is not ill, that's not

20:38 18 consistent with standard in medical diagnosis of

20:38 19 history, physical information, and differential

20:38 20 diagnosis.

20:38 21 Q. Most certainly your opinion disagreed with that

20:38 22 person, doesn't it?

20:38 23 A. Well, I don't know who that person is or --

20:38 24 Q. I didn't ask who it was. I said --

20:38 25 A. Well, wait, wait, wait.

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20:38 1 Q. -- "certainly your" --

20:38 2 A. Wait, wait.

20:39 3 MR. CHAPMAN: Whoa, whoa.

20:39 4 MR. EADS: Don't argue with him.

20:39 5 MR. IHRIE: I'm not arguing with him.

20:39 6 MR. EADS: You are.

20:39 7 BY MR. IHRIE:

20:39 8 Q. I didn't ask who the person was.

20:39 9 I said: Certainly your opinion differs

20:39 10 from that person's opinion, correct?

20:39 11 A. Whoever they may be, and whatever their credentials

20:39 12 are, and whatever the quality of that publication --

20:39 13 which is not a peer-reviewed journal, it's not a

20:39 14 medical textbook, it's not a tome; it's a magazine.

20:39 15 Q. And this is a conversation where you're giving us your

20:39 16 opinion, right?

20:39 17 A. Well, no.

20:39 18 MR. CHAPMAN: Calm down.

20:39 19 THE WITNESS: Wait, wait. It's more than

20:39 20 my opinion. It's what's taught in medical schools,

20:39 21 it's what I teach in medical schools as an associate

20:39 22 professor at Wayne State and as an assistant professor

20:39 23 at Michigan State. That's how doctors learn how to

20:39 24 diagnose.

20:39 25 Now, that's a journal for nurses. Their

Page 146

20:39 1 expertise may be different, their mandate may be more

20:39 2 absolute. But I -- I disagree with that for the

20:39 3 reasons that I gave you.

20:39 4 BY MR. IHRIE:

20:39 5 Q. So now tell me -- I appreciate that -- your right --

20:39 6 rather lengthy colloquy, but now tell me: What types

20:39 7 of things do you ask a patient, and what type of tests

20:39 8 do you give a patient when you suspect malingering?

20:40 9 A. Well, the questions I ask the patient would be the

20:40 10 same questions I ask in taking the history. It

20:40 11 depends on what the patient's presenting symptoms are

20:40 12 and how they interact with me. And I wouldn't

20:40 13 necessarily use laboratory tests, unless there were

20:40 14 evidence to -- unless there were an indication to do

20:40 15 so. So...

20:40 16 Q. Are seizures identifiable with laboratory tests?

20:40 17 A. Well, if a patient, for example --

20:40 18 Q. It's a real simple question, Doctor. Are they?

20:40 19 A. No. No.

20:40 20 MR. CHAPMAN: Don't argue with the doctor.

20:40 21 MR. IHRIE: I'm not arguing.

20:40 22 MR. CHAPMAN: Ask a question, let him

20:40 23 answer.

20:40 24 MR. IHRIE: We don't have to move on if he

20:40 25 says no.

Page 147

20:40 1 THE WITNESS: You are arguing with me,

20:40 2 because a seizure is a diagnosis.

20:40 3 If someone has behavior that leads a doctor

20:40 4 to suspect a seizure, the doctor can do a number of

20:40 5 things. The first thing a doctor would do if he

20:40 6 observes the phenomenon is to do a postictal

20:40 7 neurologic exam or neurologic exam when the movements

20:40 8 or the behavior stops. And there should be areflexia

20:40 9 and an absence of certain reflexes.

20:41 10 If the reflexes are present, then it's

20:41 11 likely that that was not a paroxysmal event or a true

20:41 12 neurological event.

20:41 13 Q. Did he do that?

20:41 14 A. Wait, wait, wait. I'm not done.

20:41 15 Q. All right.

20:41 16 A. If the doctor is not certain, or the results are

20:41 17 equivocal, in the immediate period after the behavior

20:41 18 a blood test can be undertaken for prolactin. With

20:41 19 paroxysmal events the brain chemical prolactin is

20:41 20 released and peaks within minutes and is sustained for

20:41 21 a period of 10 to 15 minutes.

20:41 22 So those are the kinds of things that a

20:41 23 doctor can do. Obtaining electroencephalogram might

20:41 24 be of some benefit, might be of some benefit if

20:41 25 seizures are suspected.

Page 148

20:41 1 Q. Is there any indication in all the records that you

20:41 2 read that Dr. Sherman did any of those things?

20:41 3 A. He did some examination in the period immediately --

20:41 4 Q. Any of the three things that you listed?

20:41 5 MR. EADS: I don't think he's finished.

20:41 6 MR. CHAPMAN: I don't think he's finished.

20:41 7 THE WITNESS: I think you got to let me

20:41 8 finish. If you just want to argue with me, I'm going

20:41 9 to keep asking you to let me finish until you do.

20:42 10 BY MR. IHRIE:

20:42 11 Q. I'm trying to get --

20:42 12 A. You say you will. You say you will. Whatever the

20:42 13 goal of your endeavors is is of little interest to me.

20:42 14 You asked me a question, I'm going to answer it, if

20:42 15 you let me.

20:42 16 Q. I will let you.

20:42 17 A. That's what you keep telling me, but then you keep

20:42 18 interrupting me.

20:42 19 Q. I'm waiting.

20:42 20 A. Well, let's see if you mean it.

20:42 21 And -- he did an examination. He did a

20:42 22 postictal examination.

20:42 23 Q. I'm sorry?

20:42 24 A. He did a postictal examination, because he said he

20:42 25 told the patient to do something, the patient

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20:42 1 responded. That's inconsistent with a seizure and

20:42 2 that ruled it out.

20:42 3 Q. Anything else?

20:42 4 A. That's all he wrote. I don't know what else --

20:42 5 Q. What did the postictal examination consist of

20:42 6 according to the records?

20:42 7 A. He gave the patient a command, the patient followed

20:42 8 it.

20:42 9 Q. So he asked him -- what was the command?

20:42 10 MR. EADS: Just for the record, Doctor,

20:42 11 which note are you reviewing?

20:42 12 MR. IHRIE: I'm sorry?

20:42 13 THE WITNESS: I'll tell you in a minute.

20:42 14 The same note to which I referred before, the note

20:42 15 that's listed as a late entry to June 23, 2014, which

20:42 16 is actually a June 17.

20:43 17 "I went to see this patient, who was being

20:43 18 observed in the medical unit for questionable

20:43 19 seizures. I observed him fluttering his eyes in what

20:43 20 was certainly not a seizure, but was most likely a

20:43 21 poor attempt to feign one."

20:43 22 So he considered that the eyelid fluttering

20:43 23 was not consistent with a paroxysmal event.

20:43 24 "I shook his shoulder and told him to sit

20:43 25 up, at which point he suddenly stopped the eye

Page 150

20:43 1 fluttering behavior and exclaimed, 'What's happened'."

20:43 2 So giving the patient a command, and

20:43 3 distracting him by touch, and having the patient

20:43 4 respond, is inconsistent with a seizure.

20:43 5 Q. And it's your testimony that is a sufficient -- that

20:43 6 is a sufficient test, whether it be neurological test

20:43 7 or whatever test you want to call it, that is

20:43 8 sufficient to rule in or rule out a seizure?

20:43 9 A. In that instance it wasn't the test, the sufficiency

20:43 10 of the test, it was the sufficiency of the response.

20:43 11 Now, I could do that test. If the patient

20:43 12 didn't respond, and I did nothing else, that might not

20:44 13 be sufficient. But if the patient did respond --

20:44 14 I don't think you should put it up there

20:44 15 anymore. I think -- you keep dropping it.

20:44 16 MR. EADS: I know.

20:44 17 BY MR. IHRIE:

20:44 18 Q. I thought it was your testimony that eye fluttering

20:44 19 can be from all sorts of causes, correct?

20:44 20 A. It can. I just said that that was Dr. Sherman's

20:44 21 inference. I didn't say that that was consistent with

20:44 22 my understanding, but that's what he wrote.

20:44 23 And wait, wait. You got to let me finish.

20:44 24 You said you would. Okay.

20:44 25 But certainly touching the patient, and

Page 151

20:44 1 giving him the command, and having the patient stop

20:44 2 the behavior and follow the command, would be

20:44 3 inconsistent with a seizure. And if the patient acted

20:44 4 in that way, that would be sufficient to demonstrate

20:44 5 that what was being observed was not the product of a

20:44 6 seizure.

20:44 7 Q. I guess my question is: David never said or acted

20:44 8 like he was having a seizure, so why would the doctor

20:44 9 presume that he's trying to feign a seizure?

20:44 10 A. I think you asked me that a number of times. I think

20:44 11 I answered it a number of times. And I don't want to

20:44 12 respond to your guesses when you say you guess that

20:45 13 that's what's on your mind. But I'll try to satisfy

20:45 14 your mind by telling you that this note says, "I went

20:45 15 to see the patient, who was being observed in the

20:45 16 medical unit for questionable seizures."

20:45 17 So when the doctor was called, someone -- I

20:45 18 don't know who -- was questioning whether the behavior

20:45 19 that they were observing could have been due to a

20:45 20 seizure, and that patients who malinger, or patients

20:45 21 who have seizures, don't necessarily use the word

20:45 22 seizure, or don't say, "I'm having a seizure," whether

20:45 23 they are or not.

20:45 24 So I'm not sure -- I'm not sure why you

20:45 25 have a hard time reconciling the fact that David

Page 152

20:45 1 Stojcevski did not refer to a seizure, but the doctor

20:45 2 was concerned that he might have been having one given

20:45 3 the behavior, and conducted a test that effectively

20:45 4 ruled it out. What's the big deal? Why are you

20:45 5 spending so -- I mean, you can spend as much time as

20:45 6 you want on anything, but why you're spending so much

20:45 7 time on it -- I'm sorry, Harold. I didn't mean to

20:46 8 interrupt you.

20:46 9 MR. PERAKIS: No.

20:46 10 THE WITNESS: No, go ahead.

20:46 11 MR. PERAKIS: No, quite frankly, you

20:46 12 interrupted me, but nevertheless...

20:46 13 THE WITNESS: I never said I wouldn't. I

20:46 14 never said I wouldn't interrupt you.

20:46 15 MR. PERAKIS: Fair point, I guess.

20:46 16 THE WITNESS: Don't guess.

20:46 17 BY MR. IHRIE:

20:46 18 Q. Do you see anywhere in the records where Dr. Sherman

20:46 19 ever asked who identified, quote-unquote, seizure-like

20:46 20 activity, or inquired as to the basis of why he was

20:46 21 brought down?

20:46 22 A. I don't recall.

20:46 23 Q. Did you see anywhere in the medical records where,

20:46 24 even though the director of nursing knew that he had

20:46 25 been taking benzodiazepines and that he had been

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20:46 1 engaging in either hallucinatory or delirium behavior,

20:46 2 depending upon how you define those two --

20:46 3 A. You mean delusional behavior.

20:47 4 Q. -- delusional behavior, and with the other symptoms

20:47 5 that you shared, did you see anywhere in the records

20:47 6 where Dr. Sherman ever saw David again?

20:47 7 A. I don't think so, no.

20:47 8 Q. Did you see anywhere in the records where David was

20:47 9 ever diagnosed with anything?

20:47 10 A. No, I don't recall seeing a diagnosis.

20:47 11 Q. Did you see anywhere -- anywhere in the medical

20:47 12 records where the psychiatrist on call ever saw David?

20:47 13 A. No.

20:47 14 Q. Did you see anywhere in the medical records where

20:47 15 David was ever -- we know he wasn't diagnosed, at

20:47 16 least that's your opinion -- where he was ever treated

20:47 17 for any diagnosed problem?

20:47 18 A. No, I don't recall. I don't recall any treatment

20:47 19 being administered.

20:48 20 Q. What --

20:48 21 A. Other than observing him.

20:48 22 Q. What -- you would agree, would you not, that the

20:48 23 symptoms of malignant catatonia may overlap with

20:48 24 symptoms of other illnesses, other physical or mental

20:48 25 problems?

Page 154

20:48 1 A. They may.

20:48 2 Q. And you would agree that your opinion -- well, strike

20:48 3 that.

20:48 4 Why is it that David died, in your opinion?

20:48 5 Strike that.

20:48 6 What did David die from, in your opinion?

20:48 7 A. "What did David die from?" I thought you weren't

20:48 8 going to end a sentence with a preposition.

20:48 9 Q. I apologize. Don't tell my wife.

20:48 10 A. Or your Latin teacher.

20:48 11 David died of --

20:48 12 Q. Sounds a little stilted to say, from what did David

20:48 13 die, but I will say that.

20:48 14 A. That's how Winston Churchill spoke.

20:48 15 Died from irregular heartbeat due to

20:48 16 electrolyte imbalance.

20:48 17 Q. He died from irregular heartbeat, you say?

20:48 18 A. Or cardiac arrhythmia, the two.

20:48 19 Q. Is that a heart attack?

20:48 20 A. No. Heart attack is a coronary artery occlusion.

20:49 21 Q. So tell me the physiology of what he died from.

20:49 22 A. Well, the balance of sodium, potassium, and calcium in

20:49 23 the blood supports an environment where nervous tissue

20:49 24 that goes throughout heart muscle can stimulate the

20:49 25 heart to beat in a manner that is regular and

Page 155

20:49 1 coordinated, so the ventricles contract and the atria

20:49 2 contract, and the ventricles contract and the atria

20:49 3 contract. And if the balance between sodium,

20:49 4 potassium, and calcium in the blood is disrupted, the

20:49 5 conductive tissue that monitors that process

20:49 6 malfunctions, and either the heart beats in a

20:49 7 dysfunctional way, or in an irregular manner, where it

20:49 8 will beat and stop and beat and stop. And it may

20:49 9 stop, or it may beat so rapidly that it loses

20:49 10 efficiency.

20:49 11 Q. And what test was it that you looked at that caused

20:50 12 you to conclude that? Any one test?

20:50 13 A. No, just -- just the way -- the way what happened to

20:50 14 him was described, and the way his behavior was

20:50 15 described.

20:50 16 Q. Well, who described what way that happened to him?

20:50 17 A. The documentation in the medical record.

20:50 18 Q. The documentation in the medical record?

20:50 19 Did the documentation in the medical record

20:50 20 indicate any type of dehydration?

20:50 21 A. Well, they talked about a weight loss.

20:50 22 Q. Who's "they"?

20:50 23 A. The medical record described a weight loss.

20:50 24 Q. So what's the answer to my question?

20:50 25 A. "Who's they?" The medical record.

Page 156

20:50 1 Q. No, is the --

20:50 2 A. Well, that was your question.

20:50 3 Q. Okay.

20:50 4 A. You interrupted me, and you asked me that question.

20:50 5 So anyway, if you want to ask me a question, I'll

20:50 6 answer. You want to interrupt me and ask another

20:50 7 question, then I don't know what question --

20:50 8 Q. Go ahead.

20:50 9 A. -- to ask (sic). So what do you want me to do?

20:50 10 Q. Go ahead.

20:50 11 MR. CHAPMAN: Come on, guys, let's --

20:50 12 THE WITNESS: Why don't you just whisper to

20:51 13 him.

20:51 14 BY MR. IHRIE:

20:51 15 Q. Is there anything in the medical record that indicates

20:51 16 that he had -- that he was dehydrated?

20:51 17 A. There was some suggestion that he had lost a huge

20:51 18 amount of weight over a relatively brief period that

20:51 19 was un -- that was unlikely, and -- but there were

20:51 20 descriptions in the record that he ate or drank

20:51 21 intermittently. So it's not clear that there's any

20:51 22 basis to conclude that he was dehydrated.

20:51 23 Q. Did you read the autopsy report?

20:51 24 A. Yeah. Yes.

20:53 25 MR. CHAPMAN: He answered, "Yes."

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20:53 1 THE WITNESS: Yeah, I did, yes.

20:53 2 BY MR. IHRIE:

20:53 3 Q. Oh, okay. So you say you did read -- was that my

20:53 4 question?

20:53 5 A. Yes. Yes.

20:53 6 Q. All right. And did you read the portion of the

20:53 7 autopsy report that talked about the test that caused

20:53 8 the medical examiner to conclude hypertremia

20:53 9 (phonetic)?

20:53 10 A. Hypertremia? What's that?

20:53 11 Q. Dehydration.

20:53 12 MR. CHAPMAN: I'm going to object to form

20:53 13 and foundation. I don't know what you mean by "test."

20:53 14 BY MR. CHAPMAN:

20:53 15 Q. Test of one of David's fluids.

20:53 16 MR. EADS: I'll just object to the -- I'll

20:53 17 make the same objection, thinking back on the

20:53 18 testimony.

20:54 19 THE WITNESS: Do you have a copy? Remember

20:54 20 we discussed that the copy that I have --

20:54 21 MR. CHAPMAN: Isn't good.

20:54 22 THE WITNESS: -- the labs are half off the

20:54 23 page. And I remember where you and I talked about

20:54 24 this.

20:54 25 MR. CHAPMAN: I should have a copy for you.

Page 158

20:54 1 THE WITNESS: You gave me another copy. I

20:54 2 don't know where it is. I don't know if you gave me

20:54 3 -- I don't know if you scanned it or if you copied it,

20:54 4 but I remember you printed it out.

20:54 5 MR. CHAPMAN: I have a copy here.

20:54 6 THE WITNESS: Yeah.

20:54 7 MR. CHAPMAN: I have a copy here. It has

20:54 8 just my writing on it. Could I give it to him?

20:54 9 There you go, that's the lab values. The

20:54 10 writing is my writing.

20:54 11 THE WITNESS: Yeah, because we had this.

20:54 12 MR. CHAPMAN: Yeah.

20:54 13 THE WITNESS: And I remember we printed out

20:54 14 another copy of this --

20:54 15 MR. CHAPMAN: Yeah.

20:54 16 THE WITNESS: -- but I don't know where it

20:54 17 is.

20:54 18 MR. CHAPMAN: The pencil/pen writing is

20:54 19 mine, so...

20:54 20 THE WITNESS: Yeah. Okay. So -- so yeah,

20:55 21 there was an elevation of sodium with a reference

20:55 22 range of 135 to 145. This was 162. So 17. -- 17 --

20:55 23 nano milliliters.

20:55 24 BY MR. IHRIE:

20:55 25 Q. And do you know the significance of that reading?

Page 159

20:55 1 MR. EADS: Just object to form and

20:55 2 foundation. Significance relating to what? Just a

20:55 3 high sodium; is that what you want to know?

20:55 4 THE WITNESS: Yeah, that's an elevated

20:55 5 value for sodium.

20:55 6 BY MR. IHRIE:

20:55 7 Q. And what is the significance of that? What does that

20:55 8 indicate?

20:55 9 MR. EADS: Same objection.

20:55 10 THE WITNESS: Well, that indicates that

20:55 11 there's more sodium than should be present in the

20:55 12 blood; likewise, there's more potassium than should be

20:55 13 present in the blood.

20:55 14 BY MR. IHRIE:

20:55 15 Q. And does that come from --

20:55 16 A. And actually, this is vitreous?

20:55 17 MR. CHAPMAN: That's vitreous fluid.

20:55 18 THE WITNESS: Yeah, this is vitreous.

20:55 19 BY MR. IHRIE:

20:55 20 Q. Yes.

20:55 21 A. And potassium is elevated.

20:55 22 These reference ranges might not be

20:56 23 accurate for vitreous. Chloride, and the glucose was

20:56 24 26, so his blood sugar was low. His BUN was elevated.

20:56 25 And his creatinine was not necessarily elevated, so

Page 160

20:56 1 there may have been some kidney abnormality.

20:56 2 Q. So -- and I'm not trying to -- I'm not sure I

20:56 3 understood the -- your testimony with respect to what

20:56 4 the cause of death was.

20:56 5 MR. CHAPMAN: Objection: asked and

20:56 6 answered. He said an arrhythmia due to an elevated

20:56 7 sodium.

20:56 8 MR. EADS: Join.

20:56 9 THE WITNESS: Elevated potassium.

20:56 10 BY MR. IHRIE:

20:56 11 Q. Okay, all right. So, all right, he wrote it down.

20:56 12 So due to electrolyte --

20:56 13 A. Good thing he's here.

20:56 14 Q. Yes. Due to electrolyte imbalance.

20:56 15 What causes electrolyte imbalance?

20:56 16 A. Kidney problems, too much water intake, not enough

20:56 17 water intake. This is, I mean...

20:56 18 Q. And so do you have an opinion as to what caused

20:56 19 David's electrolyte imbalance?

20:57 20 MR. EADS: Just object to foundation.

20:57 21 MR. CHAPMAN: I would join as well and

20:57 22 indicate that the doctor is not here as a pathology

20:57 23 expert; he's here as a psychiatric expert.

20:57 24 MR. IHRIE: He's testifying on why David

20:57 25 died.

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Page 161

20:57 1 MR. CHAPMAN: You asked him the question.

20:57 2 He's not offered as an expert in pathology.

20:57 3 MR. PERAKIS: He's still testified to it.

20:57 4 MR. CHAPMAN: I'm sorry; is there a

20:57 5 question on the table?

20:57 6 BY MR. IHRIE:

20:57 7 Q. I think the question was: Do you have an opinion as

20:57 8 to why he had an electrolyte imbalance.

20:57 9 A. Let me -- you know, it's not clear, given the unusual

20:58 10 pattern of the imbalance and the laboratory values.

20:58 11 If this was simple dehydration, his blood urea

20:58 12 nitrogen is elevated, his creatinine is not quite as

20:58 13 elevated. So that suggests that it's other than

20:58 14 dehydration that caused this -- this imbalance.

20:58 15 Q. Well, what did you mean then when you said, "Catatonia

20:58 16 can become malignant and life-threatening due to poor

20:59 17 nutritional intake, dehydration, hyperactivity, and

20:59 18 symptoms may progress to severe dehydration and death.

20:59 19 This would be more consistent with the course of

20:59 20 Mr. Stojcevski's illness"?

20:59 21 A. Those are some of the possible outcomes in malignant

20:59 22 catatonia, and those are the possible risks of

20:59 23 morbidity. In this case, given the odd pattern of

20:59 24 elevation of sodium, but extreme elevation of

20:59 25 potassium, and elevation of BUN without a -- without a

Page 162

20:59 1 proportional elevation in creatinine, raises some

20:59 2 questions that make it difficult for me to

20:59 3 determine --

20:59 4 Q. Well, why did you say "This" --

20:59 5 MR. EADS: Whoa, whoa, whoa. He didn't

20:59 6 finish.

20:59 7 BY MR. IHRIE:

20:59 8 Q. Were you finished?

20:59 9 A. -- make it difficult for me to determine why this

20:59 10 pattern of electrolyte abnormality appears. It

20:59 11 doesn't seem to be consistent with dehydration.

20:59 12 MR. CHAPMAN: And I will again raise my

20:59 13 objection. He's not here as a pathologist, and these

20:59 14 questions are inappropriate. We're not offering him

20:59 15 here as a pathologist.

20:59 16 MR. IHRIE: I'm just reading his report.

20:59 17 MR. CHAPMAN: No, his report says nothing

21:00 18 about creatinine, says nothing about potassium, says

21:00 19 nothing about...

21:00 20 BY MR. IHRIE:

21:00 21 Q. Your -- so what I would like to understand then, when

21:00 22 you said -- when you were just testifying a moment

21:00 23 ago, you said, "Well, in this case."

21:00 24 Well, when you use the phrase in the last

21:00 25 paragraph of your report, you say, "This would be more

Page 163

21:00 1 consistent with the cause of Mr. Stojcevski's

21:00 2 illness."

21:00 3 A. Yeah. Malignant catatonia.

21:00 4 Q. And you indicated, "It can become malignant and

21:00 5 life-threatening due to poor nutritional intake."

21:00 6 Did he have poor nutritional intake?

21:00 7 A. Wait. It can be.

21:00 8 Q. I understand it can be.

21:00 9 So my question to you is: Did he have poor

21:00 10 nutritional intake?

21:00 11 MR. CHAPMAN: It's already been testified

21:00 12 to.

21:00 13 THE WITNESS: We talked about that. We

21:00 14 talked about that two hours ago.

21:00 15 BY MR. IHRIE:

21:00 16 Q. Did all of these symptoms: "poor nutritional intake,

21:00 17 dehydration, hyperactivity, and symptoms may progress

21:00 18 to severe dehydration and death," is it your opinion

21:00 19 that that's what happened?

21:00 20 MR. EADS: Objection: foundation.

21:01 21 THE WITNESS: No, it's not. Because that

21:01 22 electrolyte pattern is not consistent with

21:01 23 dehydration.

21:01 24 BY MR. IHRIE:

21:01 25 Q. So is your opinion changing now, because of what you

Page 164

21:01 1 just read two minutes ago --

21:01 2 A. No.

21:01 3 Q. -- from what you wrote in your report?

21:01 4 A. No, no. No, what I wrote in my report are common

21:01 5 symptoms of that illness, and stating that that

21:01 6 illness is a more compelling conclusion. But not

21:01 7 every illness encompasses every symptom of that

21:01 8 illness.

21:01 9 Q. Do you have an opinion as to why he died?

21:01 10 MR. EADS: Same objection.

21:01 11 MR. CHAPMAN: Objection: asked and

21:01 12 answered. He said "an arrhythmia."

21:01 13 BY MR. IHRIE:

21:01 14 Q. Oh, I'm sorry. All right.

21:01 15 A. I'll accept it.

21:01 16 Q. Did you read the expert report of Dr. Baden, also one

21:01 17 of Mr. Chapman's experts?

21:01 18 A. Are we done with the autopsy?

21:01 19 Q. Yes.

21:01 20 A. No, I don't think I received Dr. Baden's report.

21:01 21 Q. Well, he concludes -- I'll just read you -- it's one

21:02 22 sentence. He concludes after reviewing all of the

21:02 23 medical records, ostensibly the same ones that you

21:02 24 looked at, he says, "It is my opinion based on the

21:02 25 autopsy materials that I have reviewed, that the

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21:02 1 immediate cause of Mr. Stojcevski's death was

21:02 2 dehydration contributed to by starvation."

21:02 3 So we have one expert saying "dehydration

21:02 4 contributed to by starvation," you indicated it was a

21:02 5 heart problem caused by an electrolyte imbalance, and

21:02 6 we have a medical examiner who concluded that it was

21:02 7 benzodiazepine withdrawal syndrome, and we have one or

21:02 8 two other opinions that are out there, too.

21:02 9 Do you have an opinion as to why so many

21:02 10 people that look at the same thing come up with

21:02 11 different opinions?

21:02 12 A. Well, first --

21:02 13 MR. EADS: Hang on.

21:02 14 MR. CHAPMAN: Wait, wait. I'm going to

21:02 15 object as to form and foundation. You mischaracterize

21:02 16 all of those, and I don't even know where to begin.

21:03 17 It's such an absurd question.

21:03 18 MR. IHRIE: Note your objection. State

21:03 19 your objection.

21:03 20 MR. EADS: Hang on.

21:03 21 Join the objection first on behalf of my

21:03 22 clients.

21:03 23 Now we can take an answer.

21:03 24 THE WITNESS: My answer is that the exact

21:03 25 mode of death was not part of what I was asked to

Page 166

21:03 1 consider or what I was asked to opine -- on which I

21:03 2 was asked to opine.

21:03 3 Now, you asked me a series of questions; I

21:03 4 answered as best I could based on my understanding of

21:03 5 what -- of what the autopsy said, and based on my

21:03 6 understanding of what those -- and you asked me about

21:03 7 the laboratory. That's really not why I undertook

21:03 8 this analysis. I undertook this analysis to reach a

21:03 9 diagnosis of his condition towards the end of his

21:03 10 life.

21:03 11 BY MR. IHRIE:

21:03 12 Q. Okay. Is it your opinion -- is it your testimony that

21:04 13 you don't have an expert opinion as to what caused his

21:04 14 death?

21:04 15 A. To the degree that we've been discussing about cardiac

21:04 16 arrhythmias and electrolyte or pathologic findings,

21:04 17 no. That wasn't the focus of my opinion.

21:04 18 The focus of my opinion was the diagnosis

21:04 19 of his condition and what was responsible for the

21:04 20 behavioral changes that he manifested while he was in

21:04 21 the jail.

21:04 22 Q. Do you agree that benzodiazepine withdrawal, the

21:04 23 symptoms of it and the duration of it, depends on a

21:04 24 number of factors that include the following: the

21:04 25 length of time that a person took benzodiazepines?

Page 167

21:04 1 A. We talked about this an hour ago.

21:04 2 Q. We're going over something slightly different.

21:04 3 A. Well, that's not any different.

21:04 4 Q. I'm going to go through a list.

21:04 5 A. Well, that's not any different than anything I've

21:05 6 already answered.

21:05 7 Q. All right.

21:05 8 A. So I'll refer you back to my earlier discussion. Just

21:05 9 so -- at the late hour I want to make sure that

21:05 10 everything I say is consistent.

21:05 11 So you can look up the last time you asked

21:05 12 me that, and I'll give you the same answer.

21:05 13 Q. No, I want you to answer now.

21:05 14 A. I'm not going to do that.

21:05 15 Q. Well --

21:05 16 A. Because I already --

21:05 17 Q. -- you're refusing to answer my question?

21:05 18 A. I already answered.

21:05 19 MR. CHAPMAN: He answered the question

21:05 20 several times.

21:05 21 THE WITNESS: I have --

21:05 22 BY MR. IHRIE:

21:05 23 Q. Then your attorney can make an objection, and the

21:05 24 objection will be dealt with.

21:05 25 A. He's not my attorney.

Page 168

21:05 1 Q. The attorney who hired you --

21:05 2 A. You know better.

21:05 3 But you referred to him as my attorney.

21:05 4 He's not my attorney.

21:05 5 Q. The attorney who hired you can make his objection.

21:05 6 You have an obligation to answer the question.

21:05 7 A. I answered the question.

21:05 8 Q. You have an obligation to answer it now. If it's

21:05 9 asked and answered, that's a --

21:05 10 A. Are you giving me legal advice?

21:05 11 Q. Yes, I am giving you --

21:05 12 A. You are.

21:05 13 MR. CHAPMAN: The doctor has the right to

21:05 14 stand by his prior answers. That's what he wants to

21:05 15 do. That's what he's doing.

21:05 16 BY MR. IHRIE:

21:05 17 Q. All right. Let me ask a different question then.

21:05 18 Does it depend upon the method used to take -- that a

21:05 19 person has taken benzodiazepines?

21:05 20 A. The method?

21:05 21 Q. The method: injected, oral?

21:06 22 A. I would say that that would have a lesser effect on

21:06 23 the timetable and manifestation of the symptoms of an

21:06 24 abstinence syndrome.

21:06 25 Q. Does it depend on any underlying medical or mental

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21:06 1 health issues?

21:06 2 A. I would say that there would be some very unique

21:06 3 situations where a mental health issue might affect

21:06 4 the manifestations of benzodiazepine withdrawal

21:06 5 physical condition, if someone had some underlying

21:06 6 cardiac illness or neurologic illness, then that may

21:06 7 be some part of the determinant of how the abstinence

21:06 8 syndrome manifest themselves.

21:06 9 Q. Does it depend at all on whether or not the patient

21:06 10 was abusing other drugs or alcohol concurrently with

21:06 11 benzodiazepines?

21:06 12 A. Well, "other drugs" is kind of nonspecific.

21:07 13 Alcohol, alcohol acts in a manner that is

21:07 14 similar to benzodiazepines, and the profile and nature

21:07 15 of an alcohol abstinence syndrome is somewhat

21:07 16 different. So the alcohol use would have to be

21:07 17 significant and severe.

21:07 18 But again, the symptoms of -- we've already

21:07 19 discussed this some time ago. The symptoms of an

21:07 20 alcohol abstinence syndrome occur -- occur earlier

21:07 21 rather than later.

21:07 22 Q. Explain this to me, if you can: Almost every article,

21:07 23 including those from the National Institute of Health

21:07 24 that I have read, indicate that -- including this one

21:08 25 I'm looking at -- indicate that the benzodiazepine

Page 170

21:08 1 withdrawal timeline indicates that the first symptoms

21:08 2 occur somewhere in the area of one to four days after

21:08 3 cessation of use; then the acute, or what is generally

21:08 4 speaking in the literature that I have read called

21:08 5 full-blown withdrawal, occur -- it peaks around week

21:08 6 two and then begins to subside; and then post is a

21:08 7 third category which could go on for weeks, months, or

21:08 8 years, but typically the symptoms, to some degree,

21:08 9 subside.

21:08 10 My question is: Why is it that almost

21:08 11 every single article that I read says that the

21:08 12 symptoms peak somewhere in the area of a week to two

21:08 13 weeks --

21:08 14 MR. CHAPMAN: I would object to form and

21:08 15 foundation. Mischaracterizes the evidence in the

21:08 16 literature.

21:08 17 BY MR. IHRIE:

21:08 18 Q. -- and your testimony is that it peaks within just a

21:08 19 matter of a day or two.

21:09 20 A. Well, again, I think you're mischaracterizing what I

21:09 21 said. And I -- and we've discussed this extensively.

21:09 22 I've repeated myself more than once. And what I said

21:09 23 was that: With short-acting drugs, the abstinence

21:09 24 syndrome occurs sooner; and with longer-acting drugs,

21:09 25 the abstinence syndrome may emerge somewhat later.

Page 171

21:09 1 And that period of one to four days, I

21:09 2 believe I used the term 12 to 24 hours at the short

21:09 3 end, and I believe 72 to 96 hours at the long end.

21:09 4 And if you take the time to go back in this record,

21:09 5 you'll find that that's what I've said consistently.

21:09 6 Now, the fact that the abstinence syndrome

21:09 7 can last for a week, that's not been consistent with

21:09 8 my 40 years of clinical experience in dealing with

21:09 9 benzodiazepine dependence and withdrawal as an

21:09 10 addiction specialist. And if the literature -- if

21:09 11 you're characterizing the literature as saying that, I

21:09 12 think that they may be discussing some of the

21:09 13 long-term effects of benzodiazepine withdrawal, that

21:10 14 is lower seizure threshold, increased anxiety, lower

21:10 15 tolerance for anxiety, lower tolerance for change,

21:10 16 disturbances in sleep and other functions. And those

21:10 17 things -- the first patient I ever detoxed from

21:10 18 benzodiazepine told me that it took her six months to

21:10 19 a year before she felt like herself after stopping

21:10 20 these medicines.

21:10 21 So I wouldn't necessarily disagree that

21:10 22 there's a prolonged secondary abstinence syndrome, but

21:10 23 in terms of a delirium, a risk of spontaneous

21:10 24 seizures, I believe that that risk diminishes after

21:10 25 the first -- after the first week.

Page 172

21:10 1 Q. After the first week?

21:10 2 A. That's been my clinical experience.

21:10 3 And, I mean, I'd be willing to examine the

21:10 4 great body of literature to which you're referring.

21:10 5 They -- I don't think you're accurately characterizing

21:10 6 what the literature says or implies.

21:11 7 MR. IHRIE: I don't believe I have any more

21:11 8 questions.

21:11 9 THE WITNESS: He was done an hour ago.

21:11 10 MR. CHAPMAN: John, do you have any

21:11 11 questions?

21:11 12 MR. EADS: Yeah, I've got a couple.

21:11 13 EXAMINATION

21:11 14 BY MR. EADS:

21:11 15 Q. Can malignant catatonia-afflicted patients die without

21:11 16 dehydration?

21:11 17 A. They can.

21:11 18 Q. And do people who suffer from malignant catatonia, do

21:11 19 they experience pain?

21:11 20 A. From the behaviors that they manifest, it's our

21:11 21 inference that they do not. Maintaining postures

21:11 22 against gravity for prolonged periods of time, anyone

21:11 23 would find that uncomfortable. These patients don't

21:11 24 appear to experience that discomfort.

21:11 25 Furthermore, a delirium by definition is an

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21:11 1 inability to take in information, process it, and act

21:11 2 on it. That doesn't mean external sensory

21:12 3 information, it also means internal information. And

21:12 4 older reports of catatonia that were imprecise in many

21:12 5 ways but were richly descriptive, describe catatonic

21:12 6 patients maintaining postures even though they

21:12 7 experience pressure sores or bleeding or other

21:12 8 sequelae that we would consider to be physically

21:12 9 uncomfortable. They don't seem to experience it or

21:12 10 complain of it or alter their behavior because of it.

21:12 11 MR. EADS: All right. That's all I have.

21:12 12 MR. CHAPMAN: I have no questions.

21:12 13 MR. IHRIE: Okay.

21:12 14 MR. PERAKIS: I have nothing. Thank you.

21:12 15 MR. CHAPMAN: We're done.

21:12 16 MR. PERAKIS: We're done.

21:12 17 Thank you, Doctor.

21:12 18 MR. EADS: All right, Bob, we're all

21:12 19 finished.

21:12 20 MR. GAZALL: Thank you, gentlemen. Have a

21:12 21 good evening.

21:12 22 MR. CHAPMAN: For the record, I guess we

21:12 23 should indicate it's 9:15. Do you guys owe the good

21:12 24 doctor some money?

21:12 25 MR. IHRIE: Yeah, we do.

Page 174

1 (The deposition was concluded at 9:12 p.m.

2 Signature of the witness was not requested by counsel

3 for the respective parties hereto.)

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Page 175

1 STATE OF MICHIGAN )

2 COUNTY OF OAKLAND ) ss.

3 I, Mary Jo Power, CSR 1404, in and for the State

4 of Michigan, do hereby certify:

5 That, prior to being examined, the witness named in

6 the foregoing deposition was by me duly sworn to testify the

7 truth, the whole truth and nothing but the truth;

8 That said deposition was taken down by me

9 stenographically at the time and place therein named, and

10 thereafter transcribed via computer-aided transcription

11 under my direction, and the same is a true, correct and

12 complete transcript of said proceedings;

13 Before completion of the deposition, review of the

14 transcript was not requested. If requested, any changes

15 made by the deponent (and provided to the reporter) during

16 the period allowed are appended hereto.

17 I further certify that I am not interested in the

18 event of the action.

19 Witness my hand this 1st day of June, 2018.

20

21 ____________________________

22 MARY JO POWER, CSR-1404

23 Certified Shorthand Reporter

24 State of Michigan

25 My commission expires: December 12, 2018

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