Schoolcraft v. The City Of New York et al

Filing 539

MEMORANDUM OF LAW in Opposition re: 515 SECOND MOTION in Limine to preclude testimony related to plaintiff's purported declaratory judgment claim., 517 MOTION in Limine to preclude testimony from Dr. Roy Lubit., 525 SECOND MOTION in Limine to preclude any testimony regarding DJ action., 513 FIRST MOTION in Limine to preclude testimony from plaintiff's expert Dr. Roy Lubit., 506 FIRST MOTION in Limine to preclude expert from testimony about PTSD. . Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Smith, Nathaniel)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - ADRIAN SCHOOLCRAFT,
Plaintiff,
-against- Index No.
10CIV-6005 (RWS)

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THE CITY OF NEW YORK, DEPUTY CHIEF
MICHAEL MARINO, Tax Id. 873220,
Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL
BOROUGH BROOKLYN NORTH GERALD NELSON,
Tax Id. 912370, Individually and in his
Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO, Tax Id. 895117,
Individually and in his Official
Capacity, CAPTAIN THEODORE LAUTERBORN,
Tax Id. 897840, Individually and in his
Official Capacity, LIEUTENANT JOSEPH
GOFF, Tax Id. 894025, Individually and
in his Official Capacity, stg. Frederick
Sawyer, Shield No. 2576, Individually
and in his Official Capacity, SERGEANT
KURT DUNCAN, Shield No. 2483,
Individually and in his Official
Capacity, LIEUTENANT TIMOTHY CAUGHEY,
Tax Id. 885374, Individually and in his
Official Capacity, SERGEANT SHANTEL
JAMES, Shield No. 3004, and P.O.'s "JOHN
DOE" 1-50, Individually and in their
Official Capacity (the name John Doe
being fictitious, as the true names are
presently unknown)(collectively referred
to as "NYPD defendants"), JAMAICA
HOSPITAL MEDICAL CENTER, DR. ISAK ISAKOV,
Individually and in his Official
Capacity, DR. LILIAN ALDANA-BERNIER,
Individually and in her Official Capacity
and JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEES "JOHN DOE" # 1-50, Individually

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(Continued)

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morning.

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MR. LEE:

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THE REPORTER:

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6:30 in the

morning.

6
7

At what time?

MR. SUCKLE:

Just give me a

second.

8

MR. SMITH:

9

Did you see 11/1?

THE WITNESS:

Yes, 11/1/2009 at

10

6:30 in the morning.

11

Q.

And this is a note by who?

12

A.

Dr. Lewin.

13

Q.

Spell that?

14

A.

L-E-W-I-N.

15

Q.

It says 1 of 3 on top, correct?

16

A.

Yes.

17

Q.

It's a three-page note,

18

correct?

19

A.

Yes.

20

Q.

And it ends and the three pages

21

end with a note on 11/1/09 at 6:30 a.m.,

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correct?

23

A.

Yes.

24

Q.

This is called a "Consultation

25

Form."

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What is that?
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A.

When the doctor calls for a

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consult, this is the form that we use to

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write our notes.

5

Q.

What was the purpose of having

6

Mr. Schoolcraft evaluated, if you recall,

7

from your review of the chart?

8
9
10
11
12

A.

Okay.

It said in here that a

psych consult was called and reported as
patient was acting bizarre.
Q.

Did you read this note prior to

your evaluation of the patient?

13

A.

Yes.

14

Q.

Is this one of notes that you

15

read prior to coming here to testify in

16

preparation for your testimony today?

17

A.

Yes.

18

Q.

And were you able to read the

19

note, the handwriting, when you read

20

it --

21

A.

Yes.

22

Q.

-- back in 2009?

23

A.

Yes.

24

Q.

Have you seen Dr. Lewin's

25

handwriting before?

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A.

Yes.

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Q.

And you had become familiar

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with it?

5

A.

Yes.

6

Q.

And if you go to the second

7

page of that note, did you see from that

8

note there had been no prior psychiatric

9

history?

10
11

A.

It says in here, "Denied past

psych hospitalization or treatment."

12

Q.

Or suicidal attempt?

13

A.

Yes.

14

Q.

And after this note was

15

written, was Mr. Schoolcraft free to go

16

home?

17
18
19

A.

After this note was written,

she had recommendations.
Q.

I know.

But my question was:

20

Was Mr. Schoolcraft free to go home after

21

that note was written?

22

A.

No.

23

Q.

When you say "no," why not?

24

A.

Because then that was her

25

recommendation he needed one-to-one

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observation for unpredictable behavior

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and escape risk.

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5
6

Q.

What was he escaping from, what

was the escape risk from?
A.

He might run out of the

7

emergency room because it's unlocked

8

door.

9
10

Q.

He needed to be held because he

was an escape risk?

11

A.

He needed to be observed more.

12

Q.

He needed to be observed more?

13

A.

One-to-one, yes.

14

Q.

Did you also read in the note

15

on the second page, the last line on the

16

second page where the note reads, "He

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denies suicidal ideations."

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that?

Do you see

19

A.

Yes.

20

Q.

And "He denies homicidal

21

ideations."

22

A.

Yes.

23

Q.

Do you have any reason when you

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read that note to believe that wasn't

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true?

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MR. LEE:
A.

Objection to form.

But you are missing the point

4

in there when he is paranoid about his

5

supervisors.

6

Q.

I asked you whether you had any

7

reason to believe he was not suicidal and

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not homicidal?

9

A.

I think I need to know further

10

if he was suicidal or homicidal.

11

point in time, I need to assess suicidal

12

or homicidal.

13

Q.

At that

You didn't have enough

14

information by just reading suicidal or

15

homicidal, correct, you needed more

16

information, correct?

17

A.

Yes, it's saying here he was

18

paranoid about his supervisors.

19

MR. CALLAN:

20
21
22

Q.

Objection to form.

So he was being held because he

was paranoid?
A.

Not only that.

He became

23

agitated, uncooperative, verbally abusive

24

while he was in the medical ER so we have

25

to find out why there is agitation, why

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is was behaving bizarre.
Q.

Just so I understand.

He is

been held because he is agitated?
A.

6

Yes.
MR. CALLAN:

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question.

8

Q.

Wait for the

9

He was being held because you

want to know more about him, correct?

10

MR. CALLAN:

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of the question.

12

Q.

Objection to form

Is that correct?

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MR. CALLAN:

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doesn't make any sense.

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talking about --

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MR. SUCKLE:

17

Q.

You are

You have your

objection.

18

That question

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20
21
22
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24
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Is that your understanding of

the note?
A.

There was more to that.

The

patient was behaving bizarre.
Q.

What action was he taking that

was bizarre?
A.

According to the note, when

they went to his house, the patient

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barricaded himself and he will not open

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the door so they had to break into his

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apartment.

5

Q.

Is it your understanding under

6

9.39 of the Mental Hygiene Law, someone

7

can be held because they are acting

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bizarre?

9

MR. CALLAN:

10

MR. LEE:

Objection to form.

Objection to form.

11

Q.

Is that your understanding?

12

A.

That's my -- he can be bizarre

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14

and he can be psychotic.
Q.

The question was:

Is it your

15

understanding of 9.39 of the Mental

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Hygiene Law that a patient could be held

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because they're acting bizarre?

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MR. LEE:

Objection to form.

19

A.

He can be a danger to himself.

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Q.

You have to answer my question.

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Can a patient be held under

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Section 9.39 of the Mental Hygiene Law

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because they are acting bizarre?

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A.

Yes.

25

Q.

Can they be held under Mental

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Hygiene Law 9.39, as you understand it,

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because they are agitated?

4

A.

Yes.

5

Q.

That's your understanding of

6

the law?

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MR. CALLAN:

Objection to the

8

form of the question.

9

Q.

Correct?

10

A.

[No response.]

11

Q.

Am I correct that's your

12

understanding?

13

A.

My understanding, yes.

14

Q.

So a good and accepted medical

15

practice as you understand it allowed to

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make a hospital to hold Mr. Schoolcraft

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on November 1, 2009, 'cause he was acting

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bizarre, correct?

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MR. CALLAN:

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MR. LEE:

Objection to form.

Objection to the form.

21

Q.

Correct?

22

A.

It's not only the behaving

23

bizarre.

24

going on at the time.

25

Q.

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It's the whole picture that was
From the --

Did you see anything in this
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note that Mr. Schoolcraft was exhibiting

3

a threat to another person?

4

A.

Not a threat to another person.

5

Q.

Did you see anywhere in here

6

that he was suicidal?

7

A.

He is not suicidal.

8

Q.

Did you see anywhere in here

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10
11

that he was going to harm himself in any
way?
A.

That I have to question if he

12

was going to hurt himself or if he was a

13

danger to himself because if I have

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somebody in the emergency room, you have

15

a report that he was behaving bizarre or

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he was agitated, and if I look at the

17

whole picture from the time that he was

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taken away from his home where he was --

19

he barricaded himself, then I have to

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consider him to be held against his will.

21

Q.

Did you see anything in this

22

record that Mr. Schoolcraft indicated to

23

the consulting physician that he was

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going to harm himself?

25

A.

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He said in here that he denied
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that he was going to hurt himself.

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is nothing that he was going to hurt

4

There

himself.

5

Q.

Or hurt anybody else, correct?

6

A.

Nope.

7

Q.

Do you know the physician, the

8

psychiatric resident, that signed that

9

note?

10

A.

That is Dr. Lewin.

The

11

resident was Dr. Lewin, and the attending

12

Dr. Patel.

13

Q.

On the last page of that note,

14

it's a three-page note, is there a stamp

15

there for the resident?

16

A.

Yes.

17

Q.

So Dr. Lewin was a resident?

18

A.

Yes.

19

Q.

And did Dr. Lewin provide any

20

notice to Mr. Schoolcraft under 9.39 of

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the Mental Hygiene Law?

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MR. RADOMISLI:

Objection.

23

A.

I would not remember that.

24

Q.

Did Dr. Lewin, from your review

25

of the records, produce any forms, signed

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any form, under 9.39 of the Mental

3

Hygiene Law in order to admit Mr.

4

Schoolcraft against his will?

5
6

MR. RADOMISLI:
Q.

Did you see any form?

7

MR. RADOMISLI:

8

MR. CALLAN:

9

Q.

10

Objection.

Objection.

Objection.

Did he fill out any such form?
MR. CALLAN:

She is supposed to

11

get into his mind and know what he

12

did?

13
14

MR. SUCKLE:
you see any forms.

15
16

Forms, forms, did

MR. CALLAN:

Did you see any

forms, that's fine.

17

Go right ahead.

18

A.

No.

19

Q.

Is there anything in the file

20

that suggests that Dr. Lewin actually

21

filled out any form with regard to 9.39

22

of the Mental Hygiene Law?

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24

MR. RADOMISLI:
Q.

25

Anything to suggest that?
MR. RADOMISLI:

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Objection.

Objection.

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Q.

From your prospective?

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MR. RADOMISLI:

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MR. SUCKLE:

5

MR. RADOMISLI:

6

Objection.

I heard it.
I strenuously

object.

7

MR. SUCKLE:

8

I heard your

strenuous objection.

9

MR. CALLAN:

Do you want her to

10

look through the entire record?

11

A.

There are no forms.

12

Q.

Did Dr. Lewin, do you see

13

anything to suggest that Dr. Lewin then

14

ensured within 48 hours that another

15

physician evaluated Mr. Schoolcraft?

16

MR. RADOMISLI:

17

MR. CALLAN:

Objection.

Objection.

18

Q.

Does it say anything in there?

19

A.

She indicated in here he needs

20

to be transferred to the psych ER.

21

Q.

And after Dr. Lewin, there is

22

another signature.

23

is?

Do you know who that

Did I ask you that already?

24

In the note of November 1, that

25

Dr. Lewin wrote, underneath his signature

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is another signature.

3

Do you know whose

signature that is?

4

A.

That is Dr. Patel.

5

Q.

Did Dr. Patel fill out any form

6

that you are aware of in order to comply

7

with 9.39 of the Mental Hygiene Law?

8

MR. LEE:

9

MR. RADOMISLI:

10

Objection to form.

MR. CALLAN:

Objection.

Same objection.

11

Q.

No?

12

A.

There is no form in here.

13

Q.

There is no form in the record,

14

correct?

15

A.

None.

16

Q.

Did you read Dr. Patel's note

17
18
19
20
21
22

at the end there where he signed?
A.

"I concur with above doctor's

treatment recommendations."
Q.

What is psychotic disorder,

what is that?
A.

Psychotic disorder is one of

23

the categories of diagnosis wherein

24

patient is not in touch with reality.

25

He can have the following

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symptoms, like, agitation, aggressive

3

behavior, delusions, hallucinations,

4

impairment in reality testing.

5
6

Q.

That's a pretty broad category,

correct?

7

A.

Yes.

8

Q.

What does Axis I stand for?

9

A.

Those are our DSM categories

10

when we are diagnosing patients.

11

Axis I is for psychotic

12

disorders or mental health disorders.

13

Axis II would be our personality

14

disorder.

Axis III is the medical

15

disorder.

Axis IV is the social

16

stressor.

And Axis V is the global

17

functioning.

18

Q.

So when you read that note, you

19

learned that there was some social

20

stressors; being, a conflict at the

21

worksite for Mr. Schoolcraft, correct?

22

A.

That's correct.

23

Q.

Do you know what the nature of

24
25

a that conflict was?
A.

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Something -- a conflict between
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A.

It was the next day, yes.

3

Q.

Why did you wait till the next

4

day to fill out that form?

5
6

A.

upstairs to the inpatient unit.

7
8

That's when he was going

Q.

Where was he from November 2nd,

at 3:10 until he went upstairs?

9

A.

He was in the psych ER.

10

Q.

Why did he stay in the psych ER

11

after you saw him on November 2nd, 2009?

12

A.

Why did he stay in the psych

13

ER?

14

Maybe there were no beds available, I

15

have to let him wait in the emergency

16

room.

17

I do not know what happened in 2009.

Q.

Did you do your mental status

18

examination of Mr. Schoolcraft on

19

November 2nd, 2009, November 3rd, 2009

20

2009, or some other date?

21

A.

It was on November 2nd.

22

Q.

When you did your mental status

23

examination of Mr. Schoolcraft, did you

24

make -- let's go back.

25

Did you take a history of Mr.

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Schoolcraft?
A.

I spoke to Mr. Schoolcraft, and

I did take a history on him.
Q.

Did you write that history

down?
A.

No, because I did agree with

the notes of the resident.
Q.

Did you make a note of what Mr.

10

Schoolcraft told you regarding his

11

history?

12
13
14

A.

It's -- all of the notes was in

the resident notes.
Q.

And did you do a mental status

15

examination of Mr. Schoolcraft in your

16

presence?

17
18
19

A.

I did a mental status exam, and

I agreed to the notes of the resident.
Q.

Am I correct other than the

20

November 2nd, 2009 note, and the November

21

3rd 2009 mental hygiene form that you

22

filled out, you make no other notes in

23

this chart?

24
25

MR. RADOMISLI:

Objection to

form.

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Q.

3

Am I correct?
MR. RADOMISLI:

Objection to

4

form.

5

A.

That's correct.

6

Q.

So the residents had evaluated

7

him and made notes, correct?

8

A.

Yes.

9

Q.

And you were the director of

10

the emergency room, correct?

11

A.

Correct.

12

Q.

And you had this patient in

13

front of you, correct?

14

A.

Yes.

15

Q.

And you had the wherewithal,

16

you had the chart in front of you,

17

correct, when you saw the patient?

18

A.

That's correct.

19

Q.

And you had the ability and did

20

in fact make notes in the chart, correct?

21

A.

That's correct.

22

Q.

Just so we are clear:

You did

23

not make any independent notes regarding

24

your own findings during your

25

examination, correct?

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A.

That's correct.

I agreed with

the notes of the resident.
Q.

Doctor, do you believe not

5

making any notes regarding your

6

examination and findings with regard to

7

Mr. Schoolcraft was in the bounds of good

8

and accepted medical practice?

9

A.

I have the residents that saw

10

that patient and I agreed with their

11

notes so that is my -- the agreement with

12

regards to the notes of the residents

13

since I agreed with the above, I

14

considered that as my notes.

15
16

Q.

I understand when you say you

considered it.

17

The question is:

Does good and

18

accepted medical practice require you to

19

make your own notes regarding your

20

examination and assessment of the

21

patient?

22

MR. CALLAN:

Objection to the

23

form of the question.

24

You can answer.

25

A.

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If I'm agreeing with notes of
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