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:
4
THE REPORTER:
5
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.,
22
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
3
consult, this is the form that we use to
4
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
4
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?
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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.
4
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
17
denies suicidal ideations."
18
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
24
read that note to believe that wasn't
25
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
8
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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L. ALDANA-BERNIER
is was behaving bizarre.
Q.
Just so I understand.
He is
been held because he is agitated?
A.
6
Yes.
MR. CALLAN:
7
question.
8
Q.
Wait for the
9
He was being held because you
want to know more about him, correct?
10
MR. CALLAN:
11
of the question.
12
Q.
Objection to form
Is that correct?
13
MR. CALLAN:
14
doesn't make any sense.
15
talking about --
16
MR. SUCKLE:
17
Q.
You are
You have your
objection.
18
That question
19
20
21
22
23
24
25
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
3
the door so they had to break into his
4
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
8
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
13
14
and he can be psychotic.
Q.
The question was:
Is it your
15
understanding of 9.39 of the Mental
16
Hygiene Law that a patient could be held
17
because they're acting bizarre?
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MR. LEE:
Objection to form.
19
A.
He can be a danger to himself.
20
Q.
You have to answer my question.
21
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?
24
A.
Yes.
25
Q.
Can they be held under Mental
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Hygiene Law 9.39, as you understand it,
3
because they are agitated?
4
A.
Yes.
5
Q.
That's your understanding of
6
the law?
7
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
16
make a hospital to hold Mr. Schoolcraft
17
on November 1, 2009, 'cause he was acting
18
bizarre, correct?
19
MR. CALLAN:
20
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
9
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
14
somebody in the emergency room, you have
15
a report that he was behaving bizarre or
16
he was agitated, and if I look at the
17
whole picture from the time that he was
18
taken away from his home where he was --
19
he barricaded himself, then I have to
20
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
24
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.
3
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
21
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?
23
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:
4
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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L. ALDANA-BERNIER
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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