Sheila Moore
12 MS. BARLOW: OUR NEXT WITNESS IS SHEILA MOORE.
13 THE COURT: OKAY. IF YOU'D COME FORWARD AND BE
14 SWORN.
15 MS. BARLOW: YOUR HONOR, ARE WE EVEN USING THESE?
16 THE COURT: IT IS SUPPOSED TO AMPLIFY, BUT I DON'T
17 KNOW WHAT IT'S DOING SO --
18 MS. BARLOW: OKAY.
19 SHEILA MOORE,
20 BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED
21 AS FOLLOWS:
22 DIRECT EXAMINATION
23 BY MS. BARLOW:
24 Q. WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT, FOR THE
25 RECORD?
139
1 A. SHEILA MOORE, S-H-E-I-L-A M-O-O-R-E.
2 Q. AND WHAT CITY DO YOU LIVE IN, MS. MOORE?
3 A. LAYTON, UTAH.
4 Q. WHAT IS YOUR OCCUPATION?
5 A. I'M A REGISTERED NURSE.
6 Q. HOW LONG HAVE YOU BEEN A REGISTERED NURSE?
7 A. SINCE 1979.
8 Q. WHAT TRAINING DID YOU RECEIVE TO BE A REGISTERED NURSE?
9 A. I GOT MY ASSOCIATE'S DEGREE AT B.Y.U. IN NURSING.
10 Q. TO BE AN R.N. THEN, A REGISTERED NURSE --
11 A. RIGHT.
12 Q. -- YOU DON'T NECESSARILY NEED A BACHELOR DEGREE; IS THAT
13 CORRECT?
14 A. NO.
15 Q. THERE WILL BE DIFFERENT KINDS OF NURSES THAT WE'LL BE
16 TALKING ABOUT OVER THE COURSE OF THE NEXT LITTLE WHILE. ON
17 THE HIERARCHY, WHERE IS THE REGISTERED NURSE IN -- IN THE
18 HIERARCHY OF SAY CERTIFIED NURSING ASSISTANT, LICENSED
19 PRACTICAL NURSE, THAT SORT OF THING?
20 A. WELL, IT DEPENDS ON WHAT YOU'RE HIRED FOR.
21 Q. UH-HUH.
22 A. I WAS UNDER THE D.O.N. AT DAVIS HOSPITAL.
23 Q. WHAT -- WHAT'S THE D.O.N.?
24 A. THE DIRECTOR OF NURSING, AND THEN I WAS THE HEAD NURSE.
25 AND THEN THE OTHER REGISTERED NURSES WOULD COME UNDER ME AND
140
1 THEN THE C.N.A.'S WOULD COME UNDER THEM.
2 Q. SO YOU WERE THE HEAD NURSE FOR WHAT, THE UNIT?
3 A. THE UNIT.
4 Q. THE GEROPSYCH UNIT?
5 A. RIGHT.
6 Q. AS A REGISTERED NURSE, ARE YOU ALLOWED TO ADMINISTER
7 MEDICATIONS?
8 A. YES.
9 Q. ARE YOU -- DO YOU GET TO ORDER ANY MEDICATIONS?
10 A. NO.
11 Q. ARE ANY NURSES ALLOWED TO ORDER MEDICATIONS?
12 A. A.P.R.N.'S ARE ALLOWED TO, WHICH ARE ADVANCED PRAC --
13 PRACTITIONER NURSING, BUT THEY'RE UNDER THE DIRECTIONS OF
14 THE M.D., OR THE DOCTORS.
15 Q. SO IS THAT WHAT'S COMMONLY CALLED A NURSE PRACTITIONER?
16 A. RIGHT.
17 Q. SO A NURSE PRACTITIONER CAN ORDER THE MEDS, BUT ONLY
18 UNDER THE --
19 A. IF THEY -- THEY HAVE TO GET THE EDUCATION AND THEY HAVE
20 TO PASS A BOARD TO BE ABLE TO DO THAT.
21 Q. OKAY.
22 A. THEY HAVE TO BE LICENSED TO BE ABLE TO PRESCRIBE.
23 Q. AND YOU DON'T HAVE THAT --
24 A. NO, I DON'T.
25 Q. -- THAT CERTIFICATION. SO IN 1979 YOU BECAME AN R.N.
141
1 WHERE DID YOU WORK AFTER THAT?
2 A. I STARTED AT COTTONWOOD HOSPITAL UP UNTIL -- ON A
3 SURGICAL UNIT, AND THEN I WENT TO THE OPERATING ROOM IN '83.
4 AND THEN '84 I MOVED TO MISSISSIPPI FOR A YEAR AND WORKED IN
5 THE OPERATING ROOM IN MISSISSIPPI. AND THEN I WORKED HALF
6 OF THE YEAR IN THE OPERATING ROOM IN EVANSTON, WYOMING; AND
7 THEN AT F.H.P. AND THEN I STARTED AT BENCHMARK REGIONAL
8 HOSPITAL, WHICH IS A PSYCHIATRIC FACILITY, IN '87 -- 1987.
9 Q. IS THERE ANY DIFFERENCE IN TRAINING FOR A -- A SURGICAL
10 OR -- OR EMERGENCY ROOM NURSE AS THERE IS FOR A PSYCH UNIT
11 NURSE?
12 A. NO. YOU CAN -- I DIDN'T NEED ANY -- I DIDN'T HAVE ANY
13 EXPERIENCE, BUT I DID GET ON-THE-JOB TRAINING FOR EACH ONE
14 OF THEM.
15 Q. DID YOU HAVE OCCASION TO JOIN THE DAVIS NORTH
16 HOSPITAL --
17 A. YES.
18 Q. -- STAFF. WHEN WAS THAT?
19 A. THAT WAS IN 1994.
20 Q. OKAY. AND WHAT WAS YOUR PURPOSE IN MOVING TO THE DAVIS
21 NORTH HOSPITAL?
22 A. I WAS HIRED AS THE HEAD NURSE TO START UP THE GEROPSYCH
23 UNIT -- GERIATRIC.
24 Q. SO -- SO YOU WERE THE FIRST HEAD NURSE?
25 A. I WAS.
142
1 Q. DID YOU HAVE ANY HAND IN HIRING ANY OF THE OTHER NURSES?
2 A. NO. NOT IN THE BEGINNING, NO.
3 Q. WHO -- WHO HIRED THE NURSES TO BEGIN WITH?
4 A. KAREN CHATELAIN. SHE WAS THE DIRECTOR OF NURSING OF
5 DAVIS HOSPITAL.
6 Q. AT THE TIME THAT YOU WERE HIRED, WHO WAS IN CHARGE OF
7 THE GEROPSYCH UNIT?
8 A. WHAT DO YOU MEAN?
9 Q. YOU WERE HEAD OF NURSING.
10 A. RIGHT.
11 Q. WERE YOU OVER THE WHOLE UNIT?
12 A. NO. HOW -- HOW IT STARTED WAS DAVIS HOSPITAL CONTRACTED
13 WITH HORIZON WHICH SPECIALIZES IN PSYCHIATRY, AND THEY WERE
14 OVER THE CLINICAL -- THEY WERE SPECIALIZING IN THE CLINICAL
15 PSYCHOL -- OR PSYCHIATRIC PART OF IT, WHERE DAVIS HOSPITAL
16 WAS OVER THE NURSING PART OF IT.
17 Q. WHEN YOU SAY CLINICAL, I MEAN, THESE ARE MEDICAL TERMS
18 THAT WE PROBABLY NEED TO EXPLAIN.
19 A. OKAY. HORIZON HIRED THE -- THE DOCTOR WAS HIRED BY
20 HORIZON; THE PROGRAM DIRECTOR, WHO WAS OVER THE UNIT, WAS
21 HIRED BY HORIZON; THE COMMUNITY COORDINATOR WAS HIRED BY
22 HORIZON; THE SOCIAL WORKER WAS HIRED BY HORIZON.
23 Q. BUT THE NURSES WERE HIRED --
24 A. BUT THE NURSES WERE HIRED BY DAVIS HOSPITAL.
25 Q. WHAT WAS THERE ABOUT THIS UNIT THAT ATTRACTED YOU TO --
143
1 TO APPLY FOR IT?
2 A. I SAW -- I DIDN'T WORK MUCH WITH GERIATRICS BEFORE THIS
3 TIME, I WAS ADOLESCENT PSYCH.
4 Q. UH-HUH.
5 A. AND I REALLY WANTED TO LEARN SOMETHING DIFFERENT. AND I
6 HAD BEEN ACTING AS THE HEAD NURSE DOWN AT BENCHMARK HOSPITAL
7 AND I KIND OF WANTED A LEADERSHIP ROLE. AND THIS CAME UP
8 AND, I DON'T KNOW, IT JUST INTERESTED ME SO I APPLIED FOR
9 IT.
10 Q. WHAT DOES GERIATRIC MEAN?
11 A. OLDER PATIENTS. WE TOOK 65 AND ABOVE, SOMETIMES WE'D GO
12 DOWN TO 55 AND OLDER.
13 Q. AND WHAT WERE THE MAIN PROBLEMS THAT THESE PEOPLE HAD?
14 A. ON THAT PARTICULAR UNIT IT WAS PSYCHIATRIC PROBLEMS IS
15 WHAT WE WOULD ADMIT THEM FOR.
16 Q. WERE THERE ANY OTHER GEROPSYCH UNITS IN THE AREA?
17 A. NOT THAT I KNOW OF. IN FACT, I THINK THAT THAT'S WHY
18 DAVIS HOSPITAL WAS SO INTERESTED IN GETTING IT STARTED.
19 WITHIN THE WESTERN STATES I DON'T THINK THERE WAS ANY
20 GEROPSYCH UNITS.
21 Q. WHO WAS THE PROGRAM DIRECTOR WHEN YOU CAME ABOARD?
22 A. THERE WAS NONE.
23 Q. OKAY.
24 A. THERE WASN'T -- KEITH PERRY WAS THE CLINICAL -- OR THE
25 COORDINATOR THAT WENT OUT AND HE WAS -- SO HE WORE BOTH HATS
144
1 AS THE DIRECTOR AND THE COORDINATOR TO GO OUT, CLINICAL
2 COORDINATOR.
3 Q. WHEN YOU SAY THE COORDINATOR WENT OUT, WHAT DID THE
4 COORDINATOR DO?
5 A. HE WENT OUT AND HE EDUCATED THE PUBLIC, THE NURSING
6 HOMES, LET THEM KNOW THAT WE WERE AVAILABLE. HE WENT OUT
7 AND DID INTAKES IF -- LET'S SAY A NURSING HOME CALLED AND
8 SAID THAT THEY HAVE, YOU KNOW, A PATIENT THAT'S AGITATED AND
9 ACTING OUT OR THEIR BEHAVIOR'S CHANGED. KEITH WOULD GO
10 EVALUATE THEM AND SEE IF THEY WERE APPROPRIATE FOR OUR UNIT.
11 Q. OKAY. YOU WERE THERE WHEN THE UNIT WAS SET UP THEN?
12 A. RIGHT.
13 Q. CAN YOU JUST BRIEFLY DESCRIBE THE PHYSICAL LAYOUT OF THE
14 UNIT?
15 A. IT WAS A TEN-BED UNIT, TWO PATIENTS TO A ROOM. THEY HAD
16 A LARGE DAY ROOM, A SMALL DAY ROOM, THE NURSING STATION.
17 THEY HAD ACCESS TO A CLEAN AND DIRTY UTILITY ROOM WHERE THEY
18 GOT THEIR SUPPLIES AND DISCARDED THEIR DIRTY ITEMS.
19 Q. UH-HUH. OKAY. WHAT -- WE'VE HEARD TESTIMONY THAT THERE
20 WERE LOCKED DOORS AT EITHER END OF THE UNIT.
21 A. RIGHT.
22 Q. DO YOU KNOW WHAT WAS ON THE OTHER SIDE OF THOSE LOCKED
23 DOORS IN THE HOSPITAL?
24 A. YES. ON ONE SIDE THERE WAS A SKILLED NURSING FACILITY,
25 AND ON THE OTHER SIDE IT WAS PEDIATRICS/TELEMETRY UNIT.
145
1 Q. WE'VE HEARD THE PHRASE SNF THIS MORNING.
2 A. THAT'S THE SKILLED NURSING.
3 Q. OH, SO SNF IS S-N-F --
4 A. RIGHT.
5 Q. -- FOR SKILLED NURSING FACILITY?
6 A. RIGHT.
7 Q. OKAY. I THOUGHT WE'D BETTER CLARIFY --
8 A. YEAH.
9 Q. -- THAT'S A SNF.
10 OKAY. WERE YOU THERE THEN WHEN THE FIRST PATIENTS CAME
11 IN?
12 A. YES.
13 Q. BY THAT TIME, HAD A DOCTOR BEEN -- OR A PSYCHIATRIST
14 BEEN HIRED?
15 A. YES.
16 Q. WHO -- WHO WAS THE FIRST PSYCHIATRIST ON THE UNIT?
17 A. DR. JENSEN.
18 Q. WHAT WAS HIS RESPONSIBILITY IN RELATIONSHIP TO THE
19 PROGRAM DIRECTOR? DO YOU KNOW?
20 A. I BELIEVE -- AND I'M NOT SURE -- I THINK THAT THE
21 PROGRAM DIRECTOR WAS OVER HIM. I THINK THAT THE PROGRAM
22 DIRECTOR WAS OVER EVERYONE THAT HORIZON HIRED FOR THAT
23 PARTICULAR UNIT.
24 Q. WHO WAS THE PROGRAM -- FIRST PROGRAM DIRECTOR?
25 A. THEY BROUGHT IN A KID FROM COLORADO NAMED DURRAND.
146
1 Q. UH-HUH.
2 A. AND I CAN'T REMEMBER HIS LAST NAME -- FOR MAYBE TWO,
3 THREE WEEKS. AND THEN I THINK THEY HIRED PAM CLARK AND SHE
4 LASTED FOR MAYBE A MONTH OR TWO, AND THEN THEY HIRED TODD
5 CHAMBERS.
6 Q. OKAY. DURING LATE '95, EARLY '96, WHO WAS THE PROGRAM
7 DIRECTOR?
8 A. TODD CHAMBERS.
9 MR. STIRBA: YOUR HONOR -- YOUR HONOR, I'M GOING TO
10 OBJECT. LACK OF FOUNDATION.
11 MS. BARLOW: WELL --
12 MR. STIRBA: NO INDICATION SHE WAS WORKING THERE AT
13 THE TIME.
14 THE COURT: DO YOU WANT TO LAY A FOUNDATION?
15 MS. BARLOW: OKAY. I'LL -- I'LL BE HAPPY TO DO
16 THAT.
17 Q. (BY MS. BARLOW) SO YOU STARTED WITH THE UNIT IN 1994.
18 A. RIGHT.
19 Q. OKAY. LITERALLY WITH THE UNIT IN 1994.
20 A. YES.
21 Q. WHEN DID YOU LEAVE THE UNIT?
22 A. I LEFT IT LATTER PART OF NOVEMBER, FIRST PART OF
23 DECEMBER OF '95.
24 Q. WHEN YOU LEFT THE UNIT, WHO WAS IN CHARGE OF THE UNIT?
25 A. TODD CHAMBERS.
147
1 Q. THANK YOU. YOU INDICATED THAT THESE WERE
2 PREDOMINANTLY -- WELL, THEY WERE PSYCHIATRIC PATIENTS.
3 A. RIGHT.
4 Q. IS THAT CORRECT. WHAT KIND OF PSYCHIATRIC PROBLEMS WERE
5 PEOPLE COMING IN WITH?
6 A. TO BE QUALIFIED FOR THE UNIT THEY WOULD HAVE TO HAVE AN
7 ACUTE -- ACUTE PSYCHIATRIC PROBLEM, WHICH MEANT THAT IT WAS
8 SOMETHING THAT WE COULD TREAT AND THEY COULD GET BETTER WITH
9 IT.
10 Q. OKAY. WERE THERE OTHER PSYCHIATRIC PROBLEMS THAT THESE
11 PEOPLE HAD THAT WERE NOT ACUTE?
12 A. SOME OF THEM -- SOME OF THEM WOULD COME IN, LET'S SAY,
13 WITH DEMENTIA.
14 Q. UH-HUH.
15 A. AND DEMENTIA IS A DISEASE THAT YOU CAN'T CURE AND IT
16 CANNOT GET BETTER, BUT THEY WOULD COME IN WITH ACUTE
17 AGITATION-AGGRESSION, HITTING OUT, KICKING, THINGS LIKE
18 THAT, ATTACKING PEOPLE. SO YEAH, THEY WOULD COME IN WITH
19 CHRONIC PSYCHIATRIC DIAGNOSES: DEMENTIA, ALZHEIMER'S.
20 Q. BUT YOU WEREN'T INTENDING TO TRY TO FIX OR CURE THAT.
21 A. NO. NO.
22 Q. YOU WERE JUST TRYING TO DEAL WITH --
23 A. THE ACUTE PART.
24 Q. -- THE ACUTE PART. WAS THERE ANYTHING ABOUT MEDICATIONS
25 THAT MIGHT BRING SOMEBODY ON TO THE UNIT?
148
1 A. MOST OF THE TIME WHAT WE WOULD DO IS BRING THEM ON TO
2 REGULATE THEM ON SOMETHING THAT WOULD CONTROL THE ACUTE
3 PHASE THAT THEY WERE HAVING. SO YEAH.
4 Q. HAVE YOU EVER HEARD THE TERM DRUG HOLIDAY?
5 A. YES.
6 Q. AND WHO -- DID ANYONE IN THIS UNIT EVER USE THAT TERM
7 WHILE YOU WERE THERE?
8 A. NOT THAT -- I CAN'T REMEMBER. I CAN'T REMEMBER IF THEY
9 COMPLETELY TOOK THEM OFF OF THEIR MEDS AND GAVE THEM A
10 BREAK. I CANNOT REMEMBER.
11 Q. OKAY. I RECOGNIZE A LOT OF TIME HAS PASSED. WHO WOULD
12 MAKE THE DETERMINATION ABOUT WHAT MEDICATIONS THESE PEOPLE
13 WERE GOING TO GET?
14 A. THE DOCTOR.
15 Q. WHO WAS THE -- THE FIRST PSYCHIATRIST?
16 A. DR. JENSEN.
17 Q. DR. JENSEN. DID THERE COME A POINT WHERE DR. JENSEN NO
18 LONGER WAS WITH THE UNIT?
19 A. YES.
20 Q. DO YOU RECALL WHEN THAT WAS?
21 A. I'M THINKING THAT IT WAS AROUND AUGUST -- JULY,
22 AUGUST. HE WAS KIND OF PHASING OUT SO HE'D COME MAYBE ONE
23 DAY, TWO DAYS -- OF '95.
24 Q. OKAY. WHO BECAME THE PSYCHIATRIST -- YOU KNOW, PHASED
25 IN AND THEN BECAME FULL TIME AFTER DR. JENSEN LEFT?
149
1 A. DR. WEITZEL.
2 Q. AND THE DR. WEITZEL THAT YOU'RE REFERRING TO, IS HE IN
3 THE COURTROOM TODAY?
4 A. YES, HE IS.
5 Q. THE DEFENDANT IN THIS MATTER?
6 A. YES.
7 Q. DID YOU SEE A DIFFERENCE IN THE WAY DR. JENSEN TREATED
8 THESE PATIENTS AS OPPOSED TO THE WAY DR. WEITZEL TREATED
9 THESE PATIENTS?
10 MR. STIRBA: I'M GOING TO OBJECT, YOUR HONOR.
11 IRRELEVANT, LACK OF FOUNDATION, AND VAGUE AND AMBIGUOUS.
12 THE COURT: IF YOU'D LIKE TO LAY A FOUNDATION AS TO
13 THE TIME PERIOD SHE OBSERVED DR. WEITZEL.
14 Q. (BY MS. BARLOW) WELL, FIRST, WHEN DID YOU OBSERVE
15 DR. JENSEN?
16 A. WHEN WE FIRST OPENED THE UNIT.
17 Q. AND THEN DR. WEITZEL CAME WHEN?
18 A. I DON'T KNOW WHEN HE CAME. I -- I CANNOT REMEMBER WHEN
19 DR. WEITZEL STARTED.
20 Q. WAS THERE EVER ANY GAP WHEN THERE WAS NO PSYCHIATRIST
21 FOR THE UNIT?
22 A. NO.
23 Q. YOU SAID SOMETHING ABOUT THERE BEING A PHASE-IN.
24 A. THERE ALWAYS HAD TO BE A DOCTOR THAT ADMITTED PATIENTS
25 TO THE UNIT. IF THERE WAS NO DOCTOR THEN THERE WAS NO
150
1 PATIENTS BECAUSE THE DOCTOR OVERSEES THE PATIENT'S CARE.
2 Q. SO LET'S SAY THE FIRST PART OF 1995 WHEN DR. JENSEN WAS
3 THERE --
4 A. RIGHT.
5 Q. -- AND THEN DURING THE PHASE-IN PERIOD WHEN DR. WEITZEL
6 PHASED IN, AND THEN THERE -- WAS THERE A TIME BEFORE YOU
7 LEFT WHEN DR. WEITZEL WAS THE ONLY PSYCHIATRIST ON THE UNIT?
8 A. YES.
9 Q. ABOUT HOW LONG WAS THAT?
10 A. PROBABLY ABOUT FOUR MONTHS.
11 Q. DURING THAT TIME FRAME, SAY THE FOUR MONTHS BEFORE THE
12 PHASE-IN, DURING THE PHASE-IN, AND THEN THE FOUR MONTHS
13 AFTER THE PHASE-IN --
14 A. UH-HUH.
15 Q. -- DID YOU HAVE OCCASION TO SEE HOW EITHER DOCTOR
16 TREATED THE PATIENTS?
17 A. AS --
18 MR. STIRBA: YOUR HONOR, COULD WE STILL HAVE SOME
19 FOUNDATION? I'M NOT SURE WHAT TIME PERIOD WE'RE TALKING
20 ABOUT.
21 MS. BARLOW: YOUR HONOR, I JUST INDICATED 1995,
22 FOUR MONTHS DURING THE -- THEN THE PHASE-IN, THEN THE FOUR
23 MONTHS AFTER --
24 THE COURT: WHY -- WHY DON'T WE JUST MAYBE INSTEAD
25 OF SAYING THE FOUR MONTHS BEFORE PHASE-IN, JUST SAY WHEN
151
1 THAT BEGAN, LIKE WHAT PART OF 1995 THAT BEGAN, I THINK IS
2 WHAT HE'S TALKING ABOUT.
3 MS. BARLOW: I WILL DO THAT.
4 Q. (BY MS. BARLOW) YOU LEFT IN LATE NOVEMBER.
5 A. RIGHT.
6 Q. LET'S GO BACK EIGHT MONTHS PRIOR TO THAT, WHAT -- THAT'S
7 THE 11TH MONTH, SO LET'S SAY, OH, APRIL OR MAY --
8 A. OKAY.
9 Q. -- OF 1995. LET'S TALK ABOUT THE TIME PERIOD FROM SAY
10 APRIL TO THE TIME YOU LEFT IN 1995.
11 A. OKAY.
12 Q. DID YOU HAVE OCCASION DURING THAT TIME PERIOD TO SEE THE
13 DIFFERENCE IN THE WAY THESE TWO DOCTORS DEALT WITH PATIENTS?
14 MR. STIRBA: I'M GOING TO OBJECT, YOUR HONOR. LACK
15 OF FOUNDATION. MAY I VOIR DIRE?
16 THE COURT: YES.
17 VOIR DIRE EXAMINATION
18 BY MR. STIRBA:
19 Q. MS. MOORE, YOUR POSITION AS HEAD NURSE WAS AN
20 ADMINISTRATIVE POSITION, WAS IT NOT?
21 A. YES, SIR.
22 Q. THE FACT OF THE MATTER IS, DURING THE TIME PERIOD THAT
23 WE'RE TALKING ABOUT, YOU WERE NOT HANDS-ON AND PROVIDING
24 PATIENT CARE IN THE GEROPSYCHIATRIC UNIT, WERE YOU?
25 A. YES, I WAS.
152
1 Q. FACT OF THE MATTER IS, YOU WERE THERE ONLY PART-TIME,
2 ISN'T THAT TRUE?
3 A. I WAS THERE TWO DAYS A WEEK.
4 MR. STIRBA: WELL, I'LL RENEW MY OBJECTION, YOUR
5 HONOR.
6 MS. BARLOW: YOUR HONOR, SHE --
7 THE COURT: OVERRULED.
8 MS. BARLOW: THANK YOU.
9 DIRECT EXAMINATION, CONT'D
10 BY MS. BARLOW:
11 Q. DURING THE TIME -- THE TWO DAYS A WEEK THAT YOU WERE
12 THERE, YOU WERE DOING HANDS-ON CARE, DID YOU HAVE OCCASION
13 TO SEE THE DIFFERENCE -- ANY DIFFERENCE, NOT ASSUMING THERE
14 WAS ONE, BUT WAS THERE ANY DIFFERENCE BETWEEN THE WAY
15 DR. JENSEN AND DR. WEITZEL TREATED PATIENTS?
16 A. YES.
17 MR. STIRBA: OBJECTION. RELEVANCY, YOUR HONOR.
18 THE COURT: OKAY. WHAT DO YOU CLAIM THE RELEVANCY?
19 MS. BARLOW: YOUR HONOR, THIS -- THIS WILL ALL TIE
20 IN AS WE GO ON. I MEAN, THIS IS THE SECOND WITNESS THAT WE
21 HAVE. I MEAN, I -- IT SEEMS A LITTLE -- YOU'VE GOT TO START
22 SOMEWHERE WITH SOME OF THIS TESTIMONY AND THIS IS WHERE I
23 WANT TO START WITH SOME OF THIS TESTIMONY. IT WILL BE TIED
24 IN AS OTHER WITNESSES COME IN.
25 THE COURT: OKAY. MR. STIRBA?
153
1 MR. STIRBA: WELL, THE DIFFERENCE BETWEEN DOCTORS
2 IS NOT RELEVANT, AND MUCH LESS THE TIME PERIOD IS NOT
3 RELEVANT. SHE WASN'T EVEN THERE DURING THE PERTINENT TIME
4 PERIOD. THIS IS NOT A QUESTION OF -- OF PERCEPTION BETWEEN
5 HOW DOCTORS WORK. SHE HAS NO FACTS RELATING TO THE ISSUES
6 BEFORE THE COURT. IT'S TOTALLY IRRELEVANT.
7 MS. BARLOW: YOUR HONOR, IT GOES TO THE MENTAL
8 STATE.
9 THE COURT: WHY DON'T -- WHY DON'T WE DO THIS.
10 LADIES AND GENTLEMEN OF THE JURY, THIS IS ONE OF THOSE TIMES
11 THAT I SAID WE WOULDN'T TRY TO HAVE VERY MANY OF, BUT
12 IT'S -- THERE'S A LEGAL ISSUE THAT NEEDS TO BE DISCUSSED, SO
13 DON'T GO HOME RIGHT NOW.
14 AND IT'S YOUR DUTY WHILE YOU'RE ON THIS BREAK NOT TO
15 CONVERSE AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW
16 ANY -- ALLOW YOURSELVES TO BE ADDRESSED BY ANY OTHER PERSON
17 ON THE SUBJECT OF THIS TRIAL. AND IT'S YOUR DUTY, ALSO, NOT
18 TO FORM OR EXPRESS AN OPINION THEREON UNTIL THE CASE IS
19 FINALLY SUBMITTED TO YOU.
20 SO IF YOU WOULD JUST TAKE A BREAK AND THEN THE BAILIFF
21 WILL HAVE YOU COME BACK.
22 (WHEREUPON, AT THIS TIME THE JURY LEAVES THE COURTROOM,
23 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOWS:)
24 THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT
25 THE JURY HAS GONE OUT AND WE'RE -- OKAY. WHAT IS THE -- I
154
1 DON'T KNOW WHO'S NEXT TO SPEAK TO THIS ISSUE. MAYBE
2 MS. BARLOW, IF YOU'D LIKE TO SPEAK?
3 MS. BARLOW: YES, YOUR HONOR. THE RELEVANCE OF
4 THIS IS NUMBER ONE, WE'RE GOING TO BE SHOWING A PATTERN OF
5 CONDUCT AND THAT PATTERN OF CONDUCT WILL GO TO THE MENTAL
6 STATE OF THE DEFENDANT, AND PARTICULARLY A -- A DEPRAVED
7 INDIFFERENCE, AS IT WERE. AND -- AND I THINK TESTIMONY
8 COMPARING -- AND I CAN SAY TO YOU BECAUSE THE JURY'S NOT
9 HERE, WE'RE GOING TO HAVE DR. JENSEN WHO WOULD SPEND A GREAT
10 DEAL OF TIME WITH THESE PATIENTS ON THE UNIT, AND WE HAVE
11 DR. WEITZEL WHO WOULD SPEND VERY LITTLE TIME.
12 AND I -- YOU KNOW, I JUST WANT TO GET THAT INFORMATION
13 IN. IT WILL COME IN WITH OTHER WITNESSES AS WELL IN MORE
14 DETAIL, BUT, YOU KNOW, I THINK IT'S APPROPRIATELY SOMETHING
15 SHE CAN TESTIFY TO.
16 THE COURT: WELL, DO YOU PLAN ON SAYING OKAY,
17 DURING THIS PERIOD OF TIME FROM APRIL TILL NOVEMBER OF 1995,
18 THIS WITNESS IS GOING TO SAY, BASICALLY, THAT DR. WEITZEL
19 SPENT LITTLE TIME THERE AS COMPARED TO -- TO DR. JENSEN? OR
20 IS THERE ANYTHING ELSE ABOUT DEPRAVED INDIFFERENCE THAT
21 SHE'S GOING TO TESTIFY ABOUT?
22 MS. BARLOW: WELL, I THINK THAT GOES TO THE
23 DEPRAVED INDIFFERENCE, THAT HE WOULD SPEND VERY LITTLE TIME
24 WITH THE PATIENTS THEMSELVES.
25 THE COURT: OKAY. AND THEN DO YOU PLAN ON HAVING
155
1 OTHER WITNESSES AFTER NOVEMBER OF 1995 SAY THAT THAT
2 CONTINUED ON OR IS THAT --
3 MS. BARLOW: EXACTLY, YOUR HONOR.
4 THE COURT: OKAY. MR. STIRBA?
5 MR. STIRBA: YOUR HONOR, THE -- THE PROBLEM I HAVE
6 WITH THIS IS IT'S SORT OF FUNDAMENTAL. FIRST OF ALL, THE
7 FACTS ARE THAT HE HAD A CONTRACT. THEY KNOW IT, THEY DON'T
8 PRODUCE IT. THEY KNOW IT'S A PART-TIME CONTRACT. HE WASN'T
9 SUPPOSED TO BE THERE FULL TIME, 24 HOURS A DAY. THAT'S THE
10 FIRST FACT.
11 THE SECOND FACT IS, IF THIS CASE IS GOING TO BECOME --
12 THEY'RE GOING TO TROT IN ALL THESE NURSES WHO ARE GOING TO
13 SAY, GEE, DR. WEITZEL WASN'T AS GOOD AS DR. JENSEN, THEN
14 WE'RE GOING TO TROT IN ALL OUR NURSES WHO ARE GOING TO SAY
15 DR. JENSEN WAS NEVER THERE AND DR. WEITZEL WAS 10 TIMES THE
16 DOCTOR THAT DR. JENSEN WAS.
17 SO THAT'S THE PROBLEM. IT DOESN'T FOCUS ON THE REAL
18 FACTUAL QUESTION OF WHETHER OR NOT THE FIVE PATIENTS IN THIS
19 CASE DURING THE RELEVANT TIME PERIOD WERE THE VICTIMS OF A
20 CRIMINAL ACT. AND THIS IS MERELY LAY OPINION AT BEST, AT
21 BEST, AND IT DOESN'T REALLY GET YOU ANYWHERE OTHER THAN,
22 OBVIOUSLY, MS. MOORE MAY HAVE SOME FEELINGS WHICH SHE LIKES
23 DR. JENSEN MAYBE MORE THAN SHE LIKES DR. WEITZEL. BUT I'M
24 TELLING YOU, WE HAVE THE SAME KIND OF WITNESSES AND IT'S A
25 TOTAL IRRELEVANCY IN THIS CASE.
156
1 AND THE FACT OF THE MATTER IS, IT ISN'T A TRUE
2 REPRESENTATION EITHER BECAUSE DR. WELBY JENSEN -- IF WE'RE
3 GOING TO GET INTO THIS, WE'RE GOING TO GET INTO THE FACT HE
4 WAS FULL TIME AT F.H.P. DURING THE TIME THAT HE HAD A
5 CONTRACT WITH HORIZON. SO HE WASN'T UP THERE MUCH. AND HE
6 ALSO -- THERE ARE PEOPLE WHO ARE GOING TO TESTIFY THAT THAT
7 WAS PART OF THE PROBLEM, THAT WELBY JENSEN WAS NEVER THERE
8 AND THEY HAD TO GO TO THIS MAN OVER HERE TO COVER ALL OF HIS
9 PROBLEMS, AND SO THAT THIS PARTICULAR PSYCHIATRIST WAS DOING
10 DOUBLE TIME.
11 AND WE GET INTO ALL THESE -- THESE -- THESE DISPARATE
12 KINDS OF QUESTIONS WHICH I THINK ARE WHOLLY IRRELEVANT. I
13 MEAN, THE FACT OF -- OF HOW DR. WEITZEL PRACTICED OR DIDN'T
14 PRACTICE WHEN THIS WOMAN WASN'T EVEN THERE -- IN OTHER
15 WORDS, DURING THE PERTINENT TIME PERIOD -- IS IRRELEVANT AND
16 THAT'S REALLY ALL THIS EVIDENCE IS ALL ABOUT.
17 AND I'D SUBMIT IT'S IRRELEVANT, IT'S LAY OPINION, IT
18 DOESN'T REALLY ASSIST THE FACT-FINDER FOR PURPOSES OF
19 DETERMINING ANY RELEVANT ISSUES IN THIS CASE.
20 AND I ALSO WILL TELL YOU, JUDGE, IT'S REALLY, REALLY
21 IMPRESSIONISTIC. SEE, THIS IS ONE OF THE PROBLEMS WITH THIS
22 KIND OF CASE. YOU GET -- YOU GET A BUNCH OF PEOPLE WHO ARE
23 WORKING TOGETHER, AND I'LL TELL YOU RIGHT NOW, YOU'RE GOING
24 TO HAVE A BUNCH OF PEOPLE THAT ARE GOING TO LIKE ONE GUY AND
25 YOU'RE GOING TO HAVE A BUNCH OF PEOPLE WHO ARE GOING TO LIKE
157
1 ANOTHER GUY. AND IF THIS IS WHAT THIS CASE IS GOING TO
2 DEGENERATE INTO, I'D SUBMIT THAT'S WRONG. IT SHOULDN'T BE
3 THAT WAY AND IT'S TOTALLY IMPROPER CONSIDERING THE
4 SERIOUSNESS OF THESE CHARGES.
5 AND THAT'S ALL THAT REALLY IS GOING ON HERE. AND IT
6 DOES HAVE A TENDENCY, OBVIOUSLY, TO PREJUDICE THE JURY
7 BECAUSE -- YOU KNOW, REMEMBER THE OTHER THING. THIS IS A
8 NURSE. THIS -- THIS IS NOT THE EXPERT. THIS IS NOT
9 SOMEBODY WHO HAS EXPERTISE IN THE FIELD OF PSYCHIATRIC CARE
10 FROM A MEDICAL STANDPOINT. SO TO HAVE HER ASSESSING IN ANY
11 WAY, SHAPE, OR FORM WHAT THIS DOCTOR DID IS TOTALLY LACKING
12 IN ANY QUALIFICATION AND ANY FOUNDATION AND SHOULDN'T BE
13 ALLOWED IN ANY EVENT.
14 AND IT SEEMS TO ME, IF WE WANT TO GET THE FACTS, WHY
15 DON'T WE GET THE FACTS. WHY DON'T WE HAVE DR. JENSEN COME
16 IN HERE AND SAY, HOW MANY HOURS DID YOU WORK? HOW MANY
17 HOURS DID HE WORK? SHE DOESN'T KNOW THAT, MAYBE JENSEN DOES
18 BECAUSE JENSEN WAS THE MEDICAL DIRECTOR AND HE WAS THE
19 ASSOCIATE MEDICAL DIRECTOR. LET'S GET THE FACTS. SHE
20 DOESN'T KNOW THE FACTS. SHE ALREADY TESTIFIED THAT HE WAS
21 FULL TIME AND SHE'S FLAT OUT WRONG. THERE'S A CONTRACT,
22 THEY HAVE IT, THEY DON'T USE IT.
23 AND I'D SUGGEST THAT THAT'S WHERE WE OUGHT TO LITIGATE
24 THIS CASE, ON THE FACTS. NOT IMPRESSIONS, NOT THESE LAY
25 OPINIONS, NOT THESE DRAWN CONCLUSIONS ABOUT SOMEBODY'S
158
1 CONDUCT, AND THAT'S ALL THIS IS. AND ONCE AGAIN I SUGGEST
2 NOT ONLY IS IT IRRELEVANT, IT DOESN'T HELP THE JURY.
3 THE COURT: OKAY. WELL, THERE'S SOME --
4 MS. BARLOW: YOUR HONOR, IT'S ALSO --
5 THE COURT: WELL, LET ME --
6 MS. BARLOW: -- NOT WHAT I WAS ARGUING.
7 THE COURT: WELL, LET ME JUST ASK A QUESTION FIRST.
8 OKAY, MR. STIRBA, SHE'S SAYING THAT WHETHER IT'S AN
9 OPINION -- I THINK WHAT SHE'S SAYING IS THAT SHE'S GOING TO
10 SAY WHAT SHE OBSERVED. AND IF WHAT SHE OBSERVED -- I MEAN,
11 DOES IT GO TO WEIGHT OR NOT IF SOMEBODY IS THERE MORE
12 FREQUENTLY OR LESS FREQUENTLY, AND DOES IT GO TO THE ISSUE
13 OF DEPRAVED INDIFFERENCE. LIKE IS -- IS ABSENCE ONE OF THE
14 ELEMENTS OF DEPRAVED INDIFFERENCE.
15 AND -- AND SHE TESTIFIED -- YOU KNOW, WHAT -- WHAT
16 YOU'RE SAYING IS YES, SHE'S ONLY THERE TWO DAYS. ALL THIS
17 CAN BE BROUGHT OUT IN CROSS-EXAMINATIONS. ON THE DAYS SHE'S
18 THERE, CAN SHE TESTIFY ABOUT THAT ISSUE TO GO TO THE ISSUE
19 OF DEPRAVED INDIFFERENCE?
20 MR. STIRBA: TO -- TO A STATE OF MIND? ABSOLUTELY
21 NOT. I MEAN --
22 THE COURT: WELL, NOT A STATE OF MIND.
23 MR. STIRBA: OKAY.
24 THE COURT: I THINK JUST -- JUST PRESENCE. ARE YOU
25 ASKING ABOUT PRESENCE THERE?
159
1 MS. BARLOW: NOT JUST PRESENCE WHETHER HE WAS THERE
2 ALL DAY OR NOT ALL DAY, BUT THE TIME ACTUALLY SPENT WITH
3 THE -- THE PATIENTS, WHICH I THINK GOES TO DEPRAVED
4 INDIFFERENCE. I -- I'M NOT --
5 THE COURT: WELL, I GUESS -- I GUESS --
6 MS. BARLOW: -- I'M NOT GOING TO BRING IN ANYTHING
7 THAT'S HE'S ARGUING I SHOULDN'T BRING IN. I'M NOT GOING TO
8 ASK HER OPINION; I'M NOT GOING TO ASK WHETHER SHE LIKES
9 DR. WELBY -- OR EXCUSE ME --
10 THE COURT: JENSEN.
11 MS. BARLOW: -- DR. JENSEN OR DR. WEITZEL. THAT'S
12 NOT RELEVANT. I DON'T CARE ABOUT THAT.
13 THE COURT: OKAY. BUT ISN'T ONE OF THE ISSUES THAT
14 WE'VE GOT HERE -- I MEAN, WE HAVE PEOPLE IN A
15 GEROPSYCHIATRIC UNIT AND NOT EVERYBODY IN THE
16 GEROPSYCHIATRIC UNIT HAS THE SAME CONDITIONS AND THE SAME
17 PROBLEMS. AND IF ONE DOCTOR SPENDS MORE TIME WITH A PATIENT
18 WHO HAS MORE TROUBLING PROBLEMS THAN ANOTHER DOCTOR WITH A
19 DIFFERENT PATIENT -- BECAUSE EVERYBODY'S PROBLEMS ARE NOT
20 THE SAME -- HOW DO WE -- HOW DOES THAT GO TO A JURY?
21 I MEAN, A JURY SAYS GEE, ONE PERSON SPENT IT, BUT WE
22 DON'T KNOW ALL THE FACTORS AND THE BACKGROUND OF WHO THE
23 PATIENTS ARE THAT THEY'RE WITH AND WHAT THEY'RE DOING. AND
24 THIS PERSON ISN'T AN EXPERT TO SAY, YOU KNOW, IS IT -- IS IT
25 RIGHT THAT THEY SHOULD BE THERE MORE TIME OR LESS TIME.
160
1 SHE'S JUST OBSERVING WELL, DR. JENSEN GOES IN THERE, SPENDS
2 A LOT MORE TIME, MAYBE HAS A BETTER BEDSIDE MANNER;
3 DR. WEITZEL SPENDS LESS TIME. AND WE DON'T KNOW WHAT THE
4 CHARACTER OF THE PATIENTS ARE OR THEIR CONDITIONS.
5 MS. BARLOW: BUT WE'RE TALKING ABOUT A PATTERN AND
6 THE PATTERN WILL SHOW THAT DR. JENSEN SPENT TIME ACTUALLY
7 SITTING AND TALKING WITH PATIENTS AND FINDING OUT WHAT WAS
8 GOING ON. DR. WEITZEL CAME IN, LOOKED IN WHILE THEY WERE
9 ASLEEP, TALKED TO THE NURSES, WROTE HIS NOTES AND LEFT.
10 THE COURT: OKAY. WELL, LET'S SAY THAT'S ALL TRUE.
11 IF IT'S A PATTERN BETWEEN WHAT DR. JENSEN DOES AND WHAT
12 DR. WEITZEL DOES, UNLESS -- YOU KNOW, WE ALL HAVE SEEN
13 DOCTORS OR PROFESSIONALS AT ANY POINT AND SOME OF THEM ARE
14 MORE CURT THAN OTHERS, AND ESPECIALLY I THINK EVERYBODY'S
15 HAD AN EXPERIENCE WITH A DOCTOR THAT ONE'S MAYBE MORE
16 FRIENDLIER AND MORE OPEN THAN ANOTHER ONE IS. BUT IS THAT
17 THE ISSUE THAT ONE IS NICER THAN THE OTHER OR --
18 MS. BARLOW: IT HAS NOTHING TO DO WITH NICE. IT
19 HAS TO DO WITH LOOKING IN AT A PATIENT WHO IS ASLEEP. IT'S
20 NOT THE SAME AS ACTUALLY DOING AN EVALUATION WITH THEM OR --
21 OR TRYING TO HELP THEM.
22 THE COURT: OKAY. WELL, HOW -- HOW DOES THIS HELP
23 US IF WHAT THIS PERSON IS SAYING IS THIS IS WHAT HAPPENED
24 BEFORE THE RELEVANT TIME PERIOD FOR ANY OF THE DEATHS?
25 WE'RE TALKING SHE LEFT IN NOVEMBER OF '95 AND --
161
1 MS. BARLOW: BECAUSE IT'S --
2 THE COURT: -- AND THE EARLIEST --
3 MS. BARLOW: -- IT'S A PATTERN THAT CONTINUED. AND
4 OTHER WITNESSES WILL TESTIFY THAT IT CONTINUED DURING THIS
5 TIME.
6 THE COURT: AND THE PATTERN -- THE PATTERN IS WHAT?
7 THAT HE -- HE DOESN'T COME IN AND SPEND MUCH TIME?
8 MS. BARLOW: EXACTLY. IN FACT, SOME DAYS HE
9 DOESN'T COME IN AT ALL.
10 THE COURT: OKAY. AND HOW DOES THAT GET US TO
11 DEPRAVED INDIFFERENCE? IS DEPRAVED INDIFFERENCE GOING TO BE
12 HE DOESN'T GO IN AND SPEND MUCH TIME, AND HE COMES EARLY
13 AND -- AND LATE?
14 MS. BARLOW: THE DEPRAVED INDIFFERENCE IS THAT --
15 WELL, LET'S -- IT'S THE TOTALITY OF EVERYTHING WE'RE LOOKING
16 AT. THAT'S A FACTOR. IT'S NOT THE ONLY THING THAT'S GOING
17 TO SHOW US DEPRAVED INDIFFERENCE, BUT IT'S -- IT'S GOING TO
18 SHOW THE ATTITUDE THAT HE HAD TOWARDS THESE PEOPLE AND --
19 AND THAT GOES TO THE DEPRAVED INDIFFERENCE, YOUR HONOR.
20 WELL, AND THE DETERMINATIONS HE'S MAKING WHETHER THESE
21 PEOPLE ARE TERMINALLY ILL OR NOT. GRANTED, SHE WASN'T THERE
22 DURING THAT TIME FRAME, BUT IT'S A PATTERN THAT EXTENDED
23 BEYOND AND INTO THE PERTINENT TIME FRAME.
24 THE COURT: OKAY. AND HOW FREQUENTLY IS SHE SEEING
25 THESE DOCTORS DOING WHAT THEY'RE DOING? AND I GUESS WHAT
162
1 DR. JENSEN -- I GUESS THE QUESTION IS, WHATEVER DR. JENSEN
2 DOES, WHAT RELEVANCE DOES THAT HAVE TO WHAT DR. WEITZEL IS
3 DOING? I MEAN --
4 MS. BARLOW: YOUR HONOR, I -- I CAN JUST -- I CAN
5 JUST ASK HER ABOUT HOW -- HOW DID DR. WEITZEL DO IT, IF --
6 IF THAT'S GOING TO ALLEVIATE EVERYBODY'S CONCERNS.
7 THE COURT: WELL, I MEAN THE ONE CONCERN IS THAT I
8 AGREE WITH -- ONE THING MR. STIRBA SAID IS THAT WE'RE NOT
9 GOING TO SAY, DO YOU LIKE THIS ONE OR DO YOU LIKE THAT ONE?
10 AND THEN --
11 MS. BARLOW: I HAVE NO INTENTION OF ASKING THAT.
12 THE COURT: AND THEN WE HAVE 105 WITNESSES THAT ARE
13 GOING TO LINE UP --
14 MS. BARLOW: I HAVE NO INTENTION OF ASKING. WHO
15 LIKES WHO IS JUST NOT RELEVANT AT ALL --
16 THE COURT: NO, BUT I --
17 MS. BARLOW: -- AND I HAVE NO INTENTION --
18 THE COURT: I'M NOT SAYING THAT --
19 MS. BARLOW: -- AND I'M A LITTLE UPSET THAT HE EVEN
20 ASCRIBES THAT TO ME BECAUSE I HAVE NEVER SAID THAT.
21 THE COURT: WELL, MY VIEW IS THAT NOBODY -- I PLAN
22 THAT NOBODY IS GOING TO GET UPSET IN THIS CASE. I DON'T
23 PLAN ON GETTING UPSET. AND IF SOMEBODY BRINGS UP A POINT,
24 LET'S JUST ARGUE THE POINT, LET'S NOT ARGUE THAT SOMEBODY
25 ATTRIBUTE BAD MOTIVES TO ANYBODY. LET'S JUST ARGUE THE
163
1 POINT.
2 OKAY. SO RIGHT NOW YOU'RE SAYING THAT -- GIVE HER THE
3 OPPORTUNITY TO STATE WHAT SHE OBSERVED DR. WEITZEL DOING
4 WHEN SHE SAW DR. WEITZEL WITH PATIENTS.
5 MS. BARLOW: I WILL KEEP IT TO THAT, YOUR HONOR.
6 THE COURT: OKAY. THEN RESPOND TO THAT.
7 MR. STIRBA: YEAH. THERE ARE TWO PROBLEMS. ONE, I
8 THINK IF WE ALLOW THIS, WE'RE -- WE'RE STARTING DOWN THAT
9 ROAD OF HE'S BEING TRIED FOR BEING PERHAPS NOT A GOOD DOCTOR
10 AND NOT FOR MURDER BECAUSE REALLY THIS IS NOT PROBATIVE OF
11 THE FACTS THAT HAVE BEEN ALLEGED IN THE INFORMATION.
12 THE SECOND THING IS, JUDGE -- AND SO UNDER 403 I THINK
13 IT CERTAINLY WOULD BE INADMISSIBLE IN ANY EVENT.
14 BUT THE OTHER PROBLEM IS, REMEMBER, WE -- WE HAVE FIVE
15 PATIENTS AND WE HAVE A BUNCH OF FACT WITNESSES WHO WERE
16 THERE. AND IT SEEMS TO ME THEY'RE CERTAINLY ENTITLED TO
17 BRING THOSE PEOPLE IN AND SAY OKAY, WHAT KIND OF CARE DID
18 DR. WEITZEL GIVE THIS PATIENT AND WHAT HAPPENED AND WHAT DID
19 YOU OBSERVE?
20 THAT'S RELEVANT, THAT'S PROBATIVE TO THE STATE OF MIND
21 WHICH HAS TO EXIST AT THE TIME OF THE ACT. HIS STATE OF
22 MIND FOUR MONTHS BEFORE IS IRRELEVANT. THIS PATTERN
23 EVIDENCE IS IRRELEVANT TO WHAT IS BEING CHARGED. AND IT'S
24 CERTAINLY, AS I SAY, NOT NECESSARY GIVEN THAT WE HAVE REAL
25 FACT WITNESSES WHO WERE PART OF THE CARE THAT WAS PROVIDED
164
1 AT THE TIME WHO CAN TELL US, WAS DR. WEITZEL THIS OR WAS
2 DR. WEITZEL THAT OR WHAT DID DR. WEITZEL DO OR WHAT HE
3 DIDN'T DO. AND THIS JUST BECOMES SORT OF EXTRANEOUS.
4 AND REALLY MY POINT, I WASN'T SUGGESTING AT ALL THAT
5 COUNSEL REALLY IS INTERESTED IN HAVING THIS WITNESS SAY SHE
6 LIKES DR. WEITZEL, SHE DOESN'T LIKE DR. WEITZEL. MY POINT
7 IS THAT THERE ARE LOYALTIES WITH ALL OF THESE WITNESSES.
8 BASED UPON THOSE LOYALTIES THEY HAVE PERCEPTIONS, AND THOSE
9 PERCEPTIONS ARE JUST LAY PERCEPTIONS AND, THEREFORE, THEY'RE
10 NOT REALLY THAT HELPFUL IN TERMS OF EDUCATING THIS JURY
11 ABOUT THE EVENTS OF DECEMBER AND JANUARY OF '95 AND '96.
12 AND I EMPHASIZE AGAIN, WE DO GET DOWN TO THAT ROAD
13 WHERE WE'RE CRIMINALIZING ESSENTIALLY ALLEGATIONS OF
14 MALPRACTICE. FOR EXAMPLE, OBVIOUSLY YOU CAN DRAW AN
15 INFERENCE THAT A DOCTOR IS NOT BEING A -- CERTAINLY A
16 COMPASSIONATE OR A GOOD DOCTOR IF WE'RE SAYING HE DOESN'T
17 SPEND TIME WITH PATIENTS. YOU CAN DRAW THAT INFERENCE.
18 BUT BY THE SAME TOKEN, WHAT RELEVANCE DOES THAT HAVE TO
19 THE EVENTS THAT OCCURRED THAT HAVE BEEN CHARGED IN THE
20 INFORMATION? AND YOU HAVE A TENDENCY TO THINK, OKAY, IF
21 HE'S A BAD DOCTOR FOUR MONTHS BEFORE, THEN OBVIOUSLY HE'S
22 GOING TO BE A BAD DOCTOR AGAIN. AND I JUST DON'T SEE HOW
23 THAT INFERENCE LINES UP WHATSOEVER AND I THINK IT'S 403 --
24 CLEARLY -- MATERIAL AND I THINK IT'S HIGHLY IRRELEVANT. AND
25 THAT'S MY RESPONSE.
165
1 THE COURT: WELL, IS THIS A 404 PROBLEM? IT SAYS:
2 EVIDENCE OF A PERSON'S CHARACTER OR TRAIT IS NOT ADMISSIBLE
3 FOR THE PURPOSE OF PROVING ACTION AND CONFORMITY THEREWITH.
4 IF WE'RE TALKING ABOUT WHAT HAPPENED PRIOR TO NOVEMBER, AND
5 THEN SAYING WHAT HAPPENED IN DECEMBER OR JANUARY.
6 MS. BARLOW: WELL --
7 MR. STIRBA: THAT'S AN ADDITIONAL PROBLEM.
8 MS. BARLOW: -- DOESN'T THAT GO ON TO STATE YOU CAN
9 BRING IT IN -- I -- I'M NOT GETTING INTO HIS CHARACTER.
10 THE COURT: WELL --
11 MS. BARLOW: I'M GETTING INTO WHAT HE DID AS A
12 PHYSICIAN. AND TIME IS IMPORTANT --
13 THE COURT: WELL, I KNOW, BUT --
14 MS. BARLOW: -- WHEN YOU'RE TALKING ABOUT A
15 PSYCHIATRIST.
16 THE COURT: BUT WHAT -- BUT WHAT YOU'RE SAYING IS
17 THAT WHATEVER HE DID IN APRIL TO NOVEMBER, HE DID IN
18 DECEMBER AND JANUARY.
19 MS. BARLOW: YES.
20 THE COURT: SO THAT'S SAYING THAT BECAUSE HE DID IT
21 NOW, HE DID IT THEN. AND THAT'S WHAT THE --
22 MS. BARLOW: NO. NO. WHAT I'M SAYING IS THAT SHE
23 WILL TESTIFY HE WAS DOING IT FROM APRIL TO NOVEMBER. OTHERS
24 WILL TESTIFY THIS -- THIS ACTIVITY OR LACK OF ACTIVITY OR
25 THIS CONDUCT CONTINUED THROUGH THE TIMES OF THE DEATHS. AND
166
1 IT GOES TO THE STATE OF MIND BECAUSE, YOU KNOW, WE'VE GOT TO
2 SHOW MENTAL STATE AND WE CAN'T DO THAT BY REACHING INTO
3 SOMEBODY'S BRAIN AND -- AND PULLING OUT WHAT HE WAS
4 THINKING. BUT I THINK WE CAN SHOW A PATTERN AND A TOTALITY
5 OF THE CIRCUMSTANCES THAT SHOWS NOT THAT HE WAS A BAD
6 DOCTOR, NOT THAT HE DIDN'T SPEND TIME WITH -- ALTHOUGH,
7 FRANKLY, TIME IS MUCH MORE IMPORTANT IN THIS CASE THAN IT IS
8 WITH A MEDICAL DOCTOR BECAUSE THESE ARE PSYCHIATRISTS WHO
9 ARE SUPPOSED TO -- I MEAN, WHAT THEY DO IS TALK TO PEOPLE.
10 THAT'S HOW THEY DO WHAT THEY DO.
11 THE COURT: WELL -- WELL, REFRESH MY MEMORY, IF --
12 IF I MISSED SOMETHING FROM THE OPENING STATEMENTS. DID --
13 BUT CAN ANY OF THESE PEOPLE THAT ARE INVOLVED IN THIS CASE
14 EVEN TALK TO THE DOCTOR AND SAY WHAT IS THE TROUBLE WITH
15 THEM? I THOUGHT ALL OF THEM WERE IN A STATE THAT THEY
16 REALLY COULDN'T ARTICULATE WHAT THEIR CONDITION WAS.
17 MR. STIRBA: IT'S MEDICATION MANAGEMENT I THINK IS
18 WHAT PSYCHIATRISTS ARE DOING ON THIS UNIT, GENERALLY. NOT
19 THERAPY.
20 THE COURT: OKAY.
21 MS. BARLOW: WELL, THERE'S MEDICATION MANAGEMENT
22 AND THERE'S ALSO DEALING WITH THEIR BEHAVIORS. GRANTED,
23 THESE PEOPLE ARE DEMENTED. THEY HAVE THEIR GOOD DAYS AND
24 THEIR BAD DAYS. THERE ARE DAYS WHEN THEY CAN BE DIRECTED,
25 THEY CAN BE HELPED, BUT PART OF IT IS -- PART OF AN
167
1 EVALUATION FOR A PSYCHIATRIST, ESPECIALLY WITH GERIATRIC
2 PATIENTS, IS TO SIT DOWN WITH THEM AND FIGURE OUT, YOU KNOW,
3 WHERE IS THE DEMENTIA. AND -- AND IT DOES FLUCTUATE FROM
4 DAY-TO-DAY.
5 THE COURT: OKAY. WELL, DO YOU AGREE OR
6 DISAGREE -- WELL, THE WAY I'M LOOKING AT THIS, YOU KNOW,
7 WHETHER YOU CALL IT CHARACTER, WHETHER YOU CALL IT A TRAIT,
8 OR WHETHER YOU CALL IT A STATE OF MIND, THE RULE SAYS:
9 EVIDENCE OF THESE OTHER WRONGS OR ACTS IS INADMISSIBLE TO
10 PROVE CHARACTER, BUT MAY BE ADMISSIBLE FOR THESE OTHER
11 PURPOSES THAT YOU'RE TALKING TO.
12 MS. BARLOW: RIGHT.
13 THE COURT: BUT IT ALSO SAYS THAT IT HAS TO SHOW
14 THAT IT -- IT'S RELEVANT FOR A NON-CHARACTER PURPOSE AND
15 MEETS THE REQUIREMENTS OF RULE 403. AND IF WE PUT THIS TO A
16 JURY ON A PERSON -- OKAY, WHAT WE HAVE RIGHT NOW IS A
17 WITNESS WHO IS GOING TO SAY THESE THINGS HAPPENED PRIOR TO
18 THE TIME IN QUESTION. AND THEN THE JURY, WHAT ARE THEY
19 GOING TO DO WITH THIS? BAD DOCTOR BEFORE, BAD DOCTOR NOW?
20 MS. BARLOW: I'M NOT TALKING BAD DOCTOR. I'M
21 TALKING WHAT WAS HIS STATE OF MIND? HOW DID HE FEEL ABOUT
22 THESE PEOPLE? HE DID NOT --
23 THE COURT: WELL, HOW CAN -- HOW CAN SHE TELL HIS
24 STATE OF MIND BY THE AMOUNT OF TIME HE SPENDS WITH THE
25 PATIENT?
168
1 MS. BARLOW: THE ONLY WAY ANY OF US CAN TELL STATE
2 OF MIND IS BY WHAT ACTIONS ARE EXHIBITED. HE DIDN'T CARE
3 ABOUT THE PEOPLE BEFORE, HE DIDN'T CARE ABOUT THE PEOPLE
4 DURING THE RELEVANT TIME PERIOD. AND -- AND IT SHOWS HIS
5 STATE OF MIND THAT HE DIDN'T CARE. AND IT'S A CONTINUING --
6 IT'S A CONTINUING STATE OF MIND.
7 THE COURT: OKAY. LAST -- LAST WORDS?
8 MR. STIRBA: WELL, ONCE AGAIN, IT'S NOT PROBATIVE
9 AS TO THESE DEATHS. AND IF THIS DOOR IS OPEN, THEN I GUESS
10 THIS MEANS WE CAN BRING ALL OF THE OTHER NURSES THAT ARE
11 GOING TO TELL ABOUT WHAT A CARING DOCTOR HE WAS AND WHAT A
12 GOOD DOCTOR HE WAS AND HOW MUCH TIME THEY OBSERVED HIM
13 SPENDING WITH THE PATIENTS AND WE CAN GO DOWN THAT ROAD.
14 AND I JUST THINK THE WHOLE ROAD IS IRRELEVANT AND IT'S
15 403 MATERIAL. IT'S GOING TO MISLEAD THE JURY. IT'S GOING
16 TO CREATE ALL KINDS OF PREJUDICE AGAINST HIM, WHICH HAS
17 NOTHING TO DO WITH THE PROOF OF STATE OF MIND AT THE TIME OF
18 THE EVENT. THAT'S WHAT THE CRIMINAL CASE IS ALL ABOUT. DID
19 HE ACT, WHEN HE ACTED, WITH A DEPRAVED INDIFFERENCE OR
20 KNOWINGLY AND INTENTIONALLY. AT THE TIME. WHAT HE DID
21 BEFORE IS ENTIRELY IRRELEVANT.
22 THE COURT: OKAY. I'M GOING TO TAKE A SHORT BREAK.
23 I WANT TO READ ONE CASE HERE AND THEN I'LL BE BACK BEFORE
24 THE JURY COMES BACK.
25 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
169
1 PROCEEDINGS RESUME OUT OF THE HEARING OF THE JURY, AS
2 FOLLOWS:)
3 THE COURT: OKAY. ON THIS LAST ISSUE OF EVIDENCE
4 THAT HAS BEEN PRESENTED, THE ISSUE OF THIS WITNESS'S
5 TESTIMONY OF WHAT SHE OBSERVED DR. WEITZEL DOING WITH
6 PATIENTS ON -- AT THIS UNIT, I VIEW THIS AS BEING UNDER
7 RULE 404 THAT IT'S A TRAIT OF CHARACTER OR A PERSON'S
8 CHARACTER. AND ALTHOUGH THERE'S AN EXCEPTION THAT SAYS
9 EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS ISN'T ADMISSIBLE
10 TO PROVE CHARACTER OR CONSISTENCY OF PERFORMANCE, BUT IT
11 COULD BE ADMISSIBLE FOR OTHER REASONS THAT HAVE BEEN ARGUED
12 BY THE STATE. BUT THE RULE PROVIDES THAT THE EVIDENCE
13 OFFERED UNDER THE RULE IS ADMISSIBLE IF IT IS RELEVANT FOR A
14 NONCHARACTER PURPOSE AND MEETS THE REQUIREMENTS OF RULE 402
15 AND 403.
16 403 READS ALTHOUGH RELEVANT EVIDENCE MAY BE EXCLUDED IF
17 ITS PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE
18 DANGER OF UNFAIR PREJUDICE, CONFUSION OF THE ISSUES,
19 MISLEADING THE JURY, OR BY CONSIDERATIONS OF UNDUE DELAY,
20 WASTE OF TIME, OR NEEDLESS PRESENTATION OF CUMULATIVE
21 EVIDENCE.
22 GENERALLY WHEN THIS RULE IS USED, WE TALK ABOUT UNFAIR
23 PREJUDICES AS THE REASON. I GUESS THE CONCERN THAT I HAVE
24 IS, YOU KNOW, WHAT IS GOING TO BE THE SCOPE OF THIS TRIAL?
25 IS THE SCOPE OF THIS TRIAL GOING TO BE A SITUATION WHERE IF
170
1 THIS WITNESS TESTIFIES REGARDING WHAT SHE OBSERVED, THEN WE
2 START BRINGING IN OTHER WITNESSES TESTIFYING WHAT THEY
3 OBSERVED? AND DURING THE RELEVANT TIME PERIOD; THAT IS,
4 DECEMBER OF '95 AND JANUARY OF '96, THERE MAY BE MORE
5 ABILITY TO DO THAT.
6 BUT I -- I REALLY THINK THAT THERE CAN BE CONFUSION IN
7 THE MINDS OF THE JURY. I THINK IT IS ALSO GOING TO CAUSE A
8 WASTE OF TIME IN THE SENSE THAT IF WE ARE GOING TO HAVE
9 EVIDENCE THAT'S BEFORE THE PERIOD OF TIME ABOUT WHAT THE
10 DOCTOR DID, AND THEN REBUTTAL EVIDENCE OF THE SAME, THESE 60
11 PLUS WITNESSES AND 49 WITNESSES, WE'RE PROBABLY GOING TO
12 HEAR FROM EVERY ONE.
13 SO I'M GOING TO SUSTAIN THE OBJECTION, AND ASK THE JURY
14 TO COME BACK.
15 (WHEREUPON, AT THIS TIME THE JURY ENTERS THE COURTROOM,
16 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOW:)
17 THE COURT: THANK YOU FOR YOUR PATIENCE, LADIES AND
18 GENTLEMEN. ANOTHER OPTION THAT -- WHEN YOU GET TO GO IN AND
19 OUT LIKE THIS IS YOU DO STAY AWAKE THAT WAY. SO IF WE MAKE
20 YOU STAND UP AND WALK, THEN IT HELPS YOU.
21 OKAY. MS. BARLOW, IF YOU'D LIKE TO CONTINUE?
22 MS. BARLOW: THANK YOU, YOUR HONOR.
23 DIRECT EXAMINATION CONT'D
24 BY MS. BARLOW:
25 Q. MS. MOORE, YOU LEFT THE UNIT; IS THAT CORRECT?
171
1 A. YES, MA'AM.
2 Q. IN LATE NOVEMBER, WAS IT?
3 A. I CAN'T REMEMBER IF IT WAS LATE -- IT WAS AROUND LATE
4 NOVEMBER, FIRST OF DECEMBER.
5 Q. DID YOU EVER HAVE OCCASION -- WELL, LET ME STEP BACK
6 JUST A LITTLE BIT. IF YOU EVER HAD A CONFLICT WITH A
7 DOCTOR, ANY DOCTOR, WHAT WOULD YOU DO? LET'S -- LET'S SAY
8 ON -- ON AN ORDER THAT HE GAVE THAT YOU DIDN'T THINK WAS
9 APPROPRIATE BECAUSE YOU DO HAVE YOUR OWN --
10 A. RIGHT.
11 MR. STIRBA: I WOULD OBJECT, YOUR HONOR. RELEVANCY
12 AND LACK OF FOUNDATION, AND IT'S LEADING AND SUGGESTIVE.
13 THE COURT: JUST LAY A LITTLE MORE FOUNDATION.
14 MS. BARLOW: THAT'S ABOUT 12 STRIKES OUT -- AND I'M
15 OUT, YOUR HONOR.
16 OKAY. LET ME LAY A LITTLE FOUNDATION.
17 THE COURT: I LIKE THOSE BASEBALL ANALOGIES.
18 MS. BARLOW: I DON'T KNOW THAT THERE'S 12 STRIKES
19 AND YOU'RE OUT THOUGH. WELL, IT'S SUMMER SO WE'VE GOT TO
20 TALK BASEBALL.
21 Q. (BY MS. BARLOW) AS A NURSE, DO YOU HAVE ANY OBLIGATION
22 TOWARDS THE PATIENT SEPARATE FROM THE DOCTOR?
23 A. NO.
24 Q. LET'S LEAVE OUT THE DOCTOR PART.
25 A. OKAY.
172
1 Q. DO YOU HAVE AN OBLIGATION TO A PATIENT --
2 A. YES.
3 Q. -- AS A NURSE?
4 A. YES, I DO.
5 Q. WHAT IS YOUR OBLIGATION?
6 A. TO KEEP THE PATIENT SAFE, TO HELP THAT PATIENT, YOU
7 KNOW, GET BETTER, ASSIST THAT PATIENT. MOST --
8 Q. WHAT -- EXCUSE ME.
9 A. MOSTLY SAFETY.
10 Q. WHAT IF YOU WERE GIVEN AN ORDER TO DO SOMETHING THAT YOU
11 DIDN'T FEEL WAS SAFE?
12 A. I WOULD QUESTION THE DOCTOR FIRST, AND IF I STILL DIDN'T
13 GET -- IF HE STILL DIDN'T CHANGE IT, I WOULD CALL THE
14 SUPERVISOR WHO WAS OVER ME AT THE TIME AND DISCUSS IT WITH
15 THEM AND SEE WHAT I SHOULD DO.
16 Q. DID YOU EVER DO THAT DURING THE TIME FRAME OF THE LAST
17 FOUR MONTHS THAT YOU WERE ON THE GEROPSYCH UNIT? DID YOU
18 EVER CONFRONT DR. WEITZEL? AND I DON'T WANT TO GET --
19 MR. STIRBA: OBJECTION.
20 Q. (BY MS. BARLOW) AND I DON'T WANT TO GET INTO ANY
21 DETAIL.
22 MR. STIRBA: OBJECTION, YOUR HONOR. RELEVANCY.
23 MS. BARLOW: YOUR HONOR, IT'S RELEVANT BECAUSE
24 THERE HAS BEEN TALK ALREADY THAT THE NURSES GAVE THESE
25 SHOTS, ALTHOUGH SHE WASN'T THERE AND SHE DIDN'T GIVE THEM.
173
1 THE COURT: OKAY. HOLD ON JUST A SECOND. OKAY.
2 WHAT WAS YOUR -- WHAT IS YOUR OBJECTION?
3 MR. STIRBA: RELEVANCY INSOFAR AS ANY -- ANY
4 CONFLICT SHE MIGHT HAVE HAD AT ANY POINT PRIOR TO THE -- THE
5 EVENTS IN QUESTION. AND THE ONLY -- THE ONLY STATEMENTS
6 THAT HAVE BEEN MADE ABOUT THOSE HAVE BEEN ABOUT THE VERY
7 EVENTS IN QUESTION AND THE VERY NURSES WHO WERE PROVIDING
8 THE CARE.
9 THE COURT: OKAY. SUSTAINED.
10 Q. (BY MS. BARLOW) DID YOU EVER HAVE OCCASION TO GO UP
11 THROUGH THE NURSING CHAIN?
12 A. YES.
13 Q. WITH COMPLAINTS?
14 A. YES.
15 Q. WHAT RESPONSE DID YOU GET -- DON'T GIVE ME EXACT WORDS.
16 WHAT RESPONSE DID YOU GET?
17 MR. STIRBA: OBJECTION, RELEVANCY, YOUR HONOR.
18 MS. BARLOW: YOUR HONOR, IT'S VERY RELEVANT AS THE
19 OTHER NURSES COME IN AND TESTIFY AS --
20 THE COURT: ARE YOU TALKING ABOUT THE PROCEDURE?
21 ARE YOU -- OKAY. WHAT ARE WE GOING TO? THIS IS GOING TO
22 THE PROCEDURE?
23 MS. BARLOW: SHE FOLLOWED THE PROCEDURE WHICH SHE
24 HAS TESTIFIED TO, AND I WANT TO ESTABLISH THE RESPONSE THAT
25 SHE GOT WHEN SHE FOLLOWED THAT PROCEDURE.
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1 THE COURT: OKAY.
2 MS. BARLOW: IT IS RELEVANT BECAUSE OF OTHER NURSES
3 WHO WILL COME IN AND TESTIFY AS TO WHAT HAPPENED DURING THE
4 TIME PERIOD OF THE DEATHS.
5 MR. STIRBA: AND THOSE --
6 THE COURT: ALL RIGHT. COULD COUNSEL JUST APPROACH
7 FOR A SECOND, PLEASE?
8 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION AT
9 THE BENCH.)
10 THE COURT: SO MUCH FOR BEING UP HERE. OKAY. ALL
11 RIGHT. I WAS JUST SAYING --
12 MS. BARLOW: AGAIN, WE'RE TOO WIRED.
13 THE COURT: -- I SAID, DO I WANT TO GIVE YOU -- DO
14 I WANT TO KEEP -- YOU DIDN'T LOOK LIKE YOU WERE ASLEEP, I
15 COULDN'T SEND YOU OUT AGAIN RIGHT NOW.
16 OKAY. I'M GOING TO SUSTAIN THAT OBJECTION.
17 Q. (BY MS. BARLOW) FROM THE BEGINNING OF THE UNIT UNTIL
18 YOU LEFT, ARE YOU AWARE OF WHETHER ANY MORPHINE WAS EVER
19 GIVEN TO ANY OF THESE PATIENTS?
20 MR. STIRBA: OBJECTION. IRRELEVANT, YOUR HONOR.
21 THE COURT: WHEN YOU SAY "TO THESE PATIENTS," ARE
22 YOU TALKING ABOUT --
23 MS. BARLOW: EXCUSE ME. TO -- TO ANY OF THE
24 PATIENTS BECAUSE, AGAIN, WE WANT TO ESTABLISH A PATTERN
25 HERE, YOUR HONOR.
175
1 MR. STIRBA: WELL --
2 THE COURT: OKAY. SUSTAINED.
3 MS. BARLOW: AND WITH THAT, I HAVE NOTHING FURTHER
4 TO ASK.
5 MR. STIRBA: NO QUESTIONS, YOUR HONOR. THANK YOU.
6 THE COURT: OKAY. MAY THIS WITNESS BE EXCUSED?
7 MR. STIRBA: YES.