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INDEX TO WITNESSES
FOR THE PETITIONER DIRECT CROSS REDIRECT RECROSS
1. Roger J. Cadieux, M.D. qualifications
By Mr. Rupp 7 ......
By Mr Laskowski -- 9 -- 11
By Ms Verney -- 10 ....
Roger J Cadieux
By Mr Rupp 12 ......
By Mr Laskowski -- 16 ....
By Ms Verney -- 40 ....
2. Mildred R. Scott By Mr. Rupp 41 ......
By Mr. Laskowski -- 48 -- 65
By Ms. Verney -- 63 ....
3. Frederick Edward Gerber, II By Mr. Rupp 66 ......
By Mr. Laskowski -- 77 -- 101
By Ms. Verney -- 99 ....
4. Jane Noel Heflin By Mr. Rupp 102 ......
By Mr. Laskowski -- 105 ....
INDEX TO EXHIBITS
FQR THE PETITIONER IDENTIFIED ADMITTED
1. Letter dated October 7, 2001, 14 109
from Dr. Cadieux
October 8, 2001, 1:35 p.m.
2 Carlisle, Pennsylvania
3 (Whereupon, the following proceedings
4 were held:)
5 THE COURT: I am going to deny your motion
6 for a continuance. If we get through this and I feel that
7 under the circumstances you wish to create additional
8 testimony that you are not prepared to present today and
9 you seek a time to do that, I will consider it at that
10 time, but I am prepared to go forward.
11 MR. LASKOWSKI: Your Honor, because I can
12 tell you at this point I have to renew that motion. I
13 anticipate that there will be witnesses. These witnesses
14 include, as a proof of that, at least at this point and
15 time, neighbors and friends that have had contact with Miss
16 Gerber at one time or another.
17 I do not believe Miss Gerber is even here
18 present today under the circumstances, nor am I alerted as
19 to whether or not she's even had the opportunity to consult
20 with her counsel.
21 THE COURT: Well, I am going to proceed
22 forward, and then we will decide where we are at the end of
23 the day's testimony.
24 MR. LASKOWSKI: Your Honor, I would also
25 like an additional statement. My client certainly does --
4
for the record, to clarify this, she challenges the
2 appropriateness of the appointment of a guardian to begin
3 with in this case, whether it's plenary or otherwise.
4 Secondly, she challenges the appointment of
5 her brother in that capacity as the guardian. Third, she
6 would like to make a presentation if there is a finding of
7 incapacity with regard to Miss Mildred Gerber that she be
8 considered as the appropriate guardian under those
9 circumstances.
10 Fourth, in my petition earlier, there is no
11 emergency basis for today. Fifth, it has recently come to
12 my attention that there may be a conflict of interest in
13 this matter which is going to require further
14 investigation. This was not part of the motion presented
15 before the Court to this point.
16 I believe, Your Honor, that Mr. Rupp's firm
17 or Mr. Rupp has represented, in fact, Mrs. Gerber on prior
18 occasions and for a period of years, and now they are a
19 party opposing her under the circumstances. I believe that
20 merits further consideration of the motion to continue so
21 that these matters can be addressed.
22 (Telephone ringing)
23 THE COURT: Is that the doctor?
24 MR. RUPP: Yes, sir.
25 THE COURT: Let's pick it on up.
1 MR. RUPP: Dr. Cadieux.
2 DR. CADIEUX: Yes, sir.
3 MR. RUPP: Yes, you are in the hearing room
4 now.
5 DR. CADIEUX: Okay.
6 MR. RUPP: Thank you.
7 THE COURT: You are going to call whom?
8 MR. RUPP: Dr. Roger Cadieux. His report is
9 attached as an exhibit to the petition.
10 THE COURT: Doctor, can you hear me?
11 THE WITNESS: Yes, sir, I can.
12 THE COURT: I am Judge Bayley. My
13 stenographer is going to swear you in, and then counsel for
14 both sides are going to ask you some questions.
15 DR. CADIEUX: Yes, sir.
16 THE COURT: If you would raise your right
_17 hand, please ........
18 DR. CADIEUX: It is raised.
19 Whereupon,
20 ROGER J. CADIEUX, M.D.,
21 having been duly sworn, testified as follows:
22 THE COURT: Proceed.
23 MR. RUPP: Thank you, doctor.
24 (Whereupon, the following testimony was
25 taken via speakerphone.)
1 DIRECT EXAMINATION AS ON QUALIFICATIONS
2 BY MR. RUPP:
3 Q Doctor, could you state what your profession
4 is?
5 A Yes, sir. I'm a geriatric psychiatrist and
6 a physician and have a practice of adult geriatric
7 psychiatry in the Harrisburg area.
8 THE COURT: Let's get his name on the
9 record.
10 BY MR. RUPP:
11 Q Would you state your full name for the
12 record.
13 A Roger J. Cadieux, C-a-d-i-e-u-x, M.D.
14 Q Thank you, Doctor. Can you tell the Court
15 what your address is.
16 A My professional address is Commonwealth
17 Affiliates, 2215 Forest Hills Drive, Harrisburg -- excuse
18 me, Suite 38, Harrisburg, Pennsylvania, 17112.
19 Q Thank you, Doctor. And you also teach,
20 Doctor?
21 A Yes, sir. I'm a clinical professor of
22 psychiatry at Penn State University at Hershey.
23 Q And in your employment, what do you do?
24 A My practice is divided actually into three
25 main areas. One is seeing patients in my office which is
1 also comprised of the geriatric assessment unit. The
2 second unit is education and consultation. Education
3 primarily in terms of not only the medical school but on a
4 national basis for geriatric issues. And the third is
5 consultation to various entities including my position as
6 the physician consultant for the Pennsylvania Department of
7 Aging.
8 Q Do you have patients who are actively in
9 your care?
10 A I'm sorry, sir, I didn't hear you.
11 Q Doctor, do you have patients who are
12 currently active in your care?
13 A Yes, I do.
14 Q And do you also -- are you also called upon
15 to submit diagnoses of patients?
16 A Very much so on a daily basis, yes.
17 ~.~ Q Can you tell the Court what kind_of care or
18 diagnosis then would be requested of you?
19 A Again, I didn't hear you, sir.
20 Q What kind of care or diagnosis is requested
21 of you on a daily basis?
22 A Related to assessments and diagnosis of
23 underlying psychiatric as well as cognitive disorders.
24 Cognitive disorders being problems with perception and
25 cognitive memory as well as defining the degree of
impairment and then charting a course of treatment
2 including counseling, case management, as well as
3 pharmacotherapy if necessary.
4 Q Can you tell the Court what your medical
5 training is?
6 A My medical training began at Louisiana State
7 University in Shreveport, Louisiana, where I obtained my
8 medical degree. Then I had a four year residency at Penn
9 State University at Hershey, a general internship and three
10 years of general psychiatry, followed by a fellowship in
11 geriatric psychiatry of one year.
12 Q Thank you, Doctor. Doctor, I would like to
13 move now to our current patient who is an alleged
14 incapacitated person. Do you know who Mildred J. Gerber
15 is?
16 A Yes, sir, I do.
17 MR. RUPP: Your Honor, I would submit Dr.
18 Cadieux as an expert witness.
19 THE COURT: Any questions on qualifications?
20 MR. LASKOWSKI: Yes, I do, Your Honor.
21 Thank you very much.
22 CROSS EXAMINATION AS ON QUALIFICATIONS
23 BY MR. LASKOWSKI:
24 Q Dr. Cadieux, my name is Stan Laskowski. I'm
25 here representing one of the interested parties, Marilyn
9
1 Gerber. Can you hear me all right?
2 A Yes, sir.
3 Q Thank you. Are you currently licensed in
4 Pennsylvania?
5 A Yes, sir.
6 Q And it wasn't quite clear before, you said
7 you do have a private practice in elder care?
8 A That's correct, and adult geriatric
9 psychiatry.
10 Q Do you have any other specialized training
11 with regard to Alzheimer's?
12 A Well, that's what the fellowship in
13 geriatric psychiatry was about.
14 Q Okay. Thank you. How long have you had a
15 private practice?
16 A When I left the university about seven or
17 eight years ago, I established a private practice, and then
18 I became a clinical professor of psychiatry at Phillips
19 University teaching medical students and residents.
20 MR. LASKOWSKI: No more questions. Thank
21 you.
22 THE COURT: He may testify.
23 MS. VERNEY: Your Honor, I have just one
24 question. I represent Mrs. Gerber.
25 THE COURT: You are representing Mrs.
10
1 Gerber?
2 MS. VERNEY: Yes, Your Honor. And Mrs.
3 Gerber is in the courthouse.
4 THE COURT: Okay.
5 CROSS EXAMINATION AS ON QUALIFICATIONS
6 BY MS. VERNEY:
7 Q Dr. Cadieux, my name is Jackie Verney, and I
8 represent Mrs. Gerber.
9 A Yes.
10 Q Are you board certified in psychiatry?
11 A I'm board certified, and I'm also considered
12 a fellow which is an honor given to about five percent of
13 board certified physicians.
14 MS. VERNEY: That's all I have. Thank you.
15 THE COURT: He may testify.
16 MR. LASKOWSKI: Your Honor, I have one more
17 question regarding his qualifications as a result of this,
18 if I may?
19 THE COURT: Go ahead.
20 RECROSS EXAMINATION AS ON QUALIFICATIONS
21 BY MR. LASKOWSKI:
22 Q Doctor, to be clear, please, do you see
23 patients on a continuous and regular basis?
24 A Yes, I do.
25 Q Rather than for diagnostic purposes only and
11
consultation purposes only?
2 A The geriatric assessment portion is a part
3 of my practice, but it's not exclusive to it. I do see
4 patients on a regular basis and, in fact, follow them for
5 quite a long period of time including nursing home
6 practice.
7 MR. LASKOWSKI: Thank you.
8 DIRECT EXAMINATION
9 BY MR. RUPP:
10 Q Thank you. Dr. Cadieux, it is Attorney
11 Richard Rupp representing the petitioner, Frederick Gerber.
12 Then what would you -- can you describe what your meeting
13 or meetings with Mrs. Gerber were like and if you have been
14 able to based on those reached a conclusion. I'm not
15 asking you for your conclusion now, but describe your
16 meetings with Mrs. Gerber.
17 A We actually saw her over a two time period.
18 The initial one was the comprehensive geriatric assessment
19 which took a number of days seen by a number of team
20 members including a psychiatric social worker, the clinical
21 psychologist and eventually myself.
22 At that time we did a psychosocial
23 evaluation, a neuropsychological evaluation and a
24 psychiatric evaluation. That was done and completed on 21
25 March of 2000 -- excuse me, 2001.
12
1 I subsequently reexamined Mrs. Gerber on the
2 3rd day of October of this year to reassess her cognitive
3 status as to whether or not she was stabilized or still
4 exhibiting decline. And I would say, yes, I was able to
5 ascertain her cognitive status on both of those occasions.
6 Q In both cases, did you have the opportunity
7 to write a written report concerning your diagnosis,
8 Doctor?
9 A Yes, I did.
10 Q And did you write the March 21, 2001, report
11 concerning Mrs. Mildred Gerber?
12 A Yes, I did. I dictated that, reviewed it
13 and, in fact, signed it.
14 Q And can you summarize for the Court what
15 your diagnosis was in that report which is part of the
16 petition?
17 i~.~ A In order to be accurate, let me just refer
18 back to it. The evaluation and the diagnosis, according to
19 our nomenclature, that is the DSM-IV, led me to the summary
20 that she was suffering from senile onset dementia which was
21 most likely a combination of vascular and Alzheimer's type.
22 Q Very good. Could you tell from your
23 interview with Mrs. Gerber whether there was anything in
24 her life that was disturbing her?
25 A She referred to the difficulty that she had
13
with one of her children and said that that was very
2 troubling to her. I might add that Mrs. Gerber is rather a
3 very elegant lady and really was trying to minimize, if you
4 will, how much difficulty she was having with her daughter
5 but did, in fact, say on a number of occasions that she
6 was.
7 In fact, I reevaluated her on the 3rd. I
8 didn't really ask any questions along those lines, but she
9 spontaneously turned to me at the end of the interview,
10 touched her son's arm and said how much she loved him and
11 how much difficulty she was having with her daughter
12 Marilyn.
13 Q Thank you, Doctor. And then I will refer
14 you to a report that you wrote on October the 7th which
15 I'll have marked as an exhibit please.
16 (Whereupon, Petitioner's Exhibit No. 1
17 .... was marked for identification.) .........
18 BY MR. RUPP:
19 Q Doctor, we have an exhibit that's been
20 marked. It is not part of the petition. It's dated
21 October 7, 2001, with your letterhead. Can you identify a
22 letter dated October 7, 2001, for the Court?
23 A Yes, I wrote that, yes.
24 Q And from what did this report come from?
25 A This comes from the examination that was
14
obtained on -- the reexamination that was obtained on
2 10/3/2001.
3 Q What was your assessment or diagnosis of
4 Mrs. Gerber from that?
5 A The diagnosis remained the same although the
6 assessment indicated that she was having continuing decline
7 not only in terms of my subjective clinical assessment but
8 also as documented by the Clockrorn (phonetic) Test and
9 more importantly the Mini Mental Examination which
10 continued to deteriorate.
11 Q Did you have the Mini Mental Test from an
12 earlier time frame?
13 A Actually there were three that I'm aware of.
14 She had one in 1998 by Dr. Maria Michalek's office, a
15 neurologist in the Harrisburg area, where she scored 30 out
16 of 30 which would indicate no deficit.
17 Then when we evaluated her in March of this
18 year, she scored 15 out of 29. And then when I reevaluated
19 her again on the 3rd of this month, she scored 11 out of 30
20 which would indicate a severe impairment.
21 Q Then, Doctor, can you state with reasonable
22 medical certainty what Mrs. Gerber's condition would be?
23 A Her condition relates to senile onset
24 dementia probable vascular and Alzheimer's type mixed, and
25 that her prognosis would be not to become better but in
15
fact to have progressive decline.
2 Q And then going to consequences of that
3 diagnosis, Doctor, would it be your recommendation to the
4 Court that Mrs. Gerber have a guardian of the person
5 appointed for her care, caretaking and benefit?
6 A Most definitely, as it appears that she has
7 difficulty understanding not only her condition -- the full
8 impact of her condition but also the impact of what this
9 condition would have on her decision making processes.
10 (Pause)
11 THE WITNESS: Hello.
12 MR. RUPP: Yes. Doctor, I have no further
13 questions then. Thank you.
14 THE COURT: Cross.
15 MR. LASKOWSKI: Thank you very much.
16 CROSS EXAMINATION
17 BY MR. LASKOWSKI: ~
18 Q Doctor, this is Attorney Laskowski again.
19 I'm going to ask you a few questions. I take -- do I
20 understand correctly you've only seen Mrs. Gerber twice,
21 and that was for purposes of the assessment in March and
22 October 3rd and you have not seen her in between that time,
23 is that correct?
24 A That's correct.
25 Q So she is not an ongoing patient of yours,
16
1 is that correct?
2 A That's correct.
3 Q Have you had any opportunity other than
4 those two times in your office to observe Mrs. Gerber
5 outside of your office at any location?
6 A No, sir, I have not.
7 Q So you have not seen her at home or
8 socially?
9 A No.
10 Q On the events of October 3 when she
11 presented again at your offices, were all of the tests
12 redone with Mrs. Gerber?
13 A What do you mean all of the tests?
14 Q Well, was there a full assessment done at
15 that point and time?
16 A Yes, sir. We did the assessment as we would
17 normally do, and we would not expect that to vary other
18 than in terms of decline in mental status, in fact, it did
19 decline as well. So I repeated the Clockrorn Test which
20 actually showed even more signs of concreteness, and I also -
21 repeated the Mini Mental Status Examination.
22 Q Are those tests and results, Doctor,
23 definitive?
24 A Definitive in what sense, sir?
25 Q Well, with respect to your conclusions.
17
1 A They are definitive in terms of the
2 conclusion of further deterioration, yes, sir.
3 Q How are you -- strike that. Doctor, have
4 you had the opportunity to consult with any of Mrs.
5 Gerber's other primary care physicians?
6 A Some consultation in terms of what, talking
7 to them personally?
8 Q Talking to them personally, reviewing their
9 records.
10 A Reviewing the records of her primary care
11 physician?
12 Q Yes, receiving any reports from them,
13 anything along those lines.
14 A I'm sorry, I didn't understand the question.
15 Q I'll repeat it for you then. Have you had
16 the opportunity to acquire any reports from Mrs. Gerber's
17 primary care physicians?
18 A What I had at the original time of the
19 assessment was the office notes from her primary care
20 physician.
21 Q Since that time of the original assessment,
22 have you acquired any of her personal medical records?
23 A No, sir.
24 Q You do not have any results of her lab work
25 or blood work that was done on her?
18
1 A No.
2 Q You do not have any reports of her
3 therapists?
4 A Of her what?
5 Q Of her therapists, physical therapists?
6 A No, I do not.
7 Q Can you tell me what medical conditions Mrs.
8 Gerber is subject to at the present time for which she
9 would require treatment other than your diagnosis?
10 A No, sir, I can't.
11 Q Would that have an impact on your opinion,
12 sir?
13 A Really at the time of our assessment we did
14 not really feel that there was a reversible physical cause,
15 as she was evaluated quite thoroughly by her neurologist on
16 the 8th and also by her primary care physician not to have
17 a reversible cause for her dementia.
18 Q But, sir, permit me, your diagnosis is
19 senile onset of dementia and you testified earlier most
20 likely a mixture of vascular and Alzheimer's type. Isn't -
21 it important for you to determine to what extent this is
22 vascular or not, for example?
23 A Not really because the consequence would be
24 the same, and both would be considered neither a reversal.
25 It doesn't really make a major difference in terms of the
19
1 therapeutic intervention either because the only
2 intervention, if you will, would be the Aricept at this
3 point and/or controlling high blood pressure which really
4 we did not see major evidence of.
5 Q Did you test her for high blood pressure?
6 A Pardon me, sir?
7 Q Did you test her for high blood pressure?
8 A No, sir, we did not.
9 Q Do you know whether or not she's on any
10 medications at the present time, I should say, as of
11 October 3 when she presented at your offices?
12 A Give me a second and I will check. At that
13 time she was on no medication.
14 Q No medication?
15 A She's currently on Aricept and Celexa which
16 is an antidepressant.
17 Q I'm sorry, sir, you were difficult to hear.
18 You said that she is now today --
19 A Now on Aricept which is an agent for
20 dementia to at least slow it down if possible, and also she -
21 is on an antidepressant Citalopram or Celexa.
22 Q When did she start taking these medications?
23 A That was part of my recommendation to her
24 primary care physician in March, and she began taking them
25 shortly after our intervention.
20
1 Q You did not prescribe these for her?
2 A No. I'm considered to be a consultant to
3 the primary care physician, so I make it a point not to do
4 that.
5 Q Who is the primary care physician, please?
6 A Again, I don't have that readily in front of
7 me.
8 Q You have not done any follow-up then with
9 the primary care physician as to how Mrs. Gerber is
10 tolerating or reacting to the Aricept and the Celexa, is
11 that correct?
12 A The standard would be for the primary care
13 physician if need be to give us a call, which oftentimes
14 happens. If it doesn't, we assume that things are going
15 well. I believe it's William Richwine, Dr. William
16 Richwine.
17 Q Were you ever informed at anytime, Doctor,
18 that Mrs. Gerber had difficulty with tolerating Aricept?
19 A No, sir, I wasn't.
20 Q So would that surprise you if you were to
21 find that in Dr. Richwine's records?
22 A Not really. Especially when someone first
23 starts it there is sometimes a bit of GI upset,
24 gastrointestinal upset, but that's usually transient and
25 usually with a period of time it usually goes away.
21
1 Q Are there alternatives to Aricept, Doctor?
2 A There are two other medications, but they
3 usually have more gastrointestinal upset potential than
4 Aricept does. It's usually of the three the best
5 tolerated.
6 Q Thank you, Doctor. In the course of your
7 evaluations of Ms. Gerber, did you have the opportunity to
8 contact any of her family or care providers whom she sees
9 on a daily or other basis?
10 A I'm not sure of the question.
11 Q I'll rephrase that for you then. Did you
12 talk to any family members and interview them about Mrs.
13 Gerber's condition?
14 A Our primary contact was with Colonel
15 Frederick Gerber.
16 Q And he was present during that evaluation,
17 was he not, on October 3?
18 A He was only present during the interpretive
19 interview in terms of what it was that he was allowed to
20 observe. He certainly was not present during our
21 interviews.
22 Q Did you contact -- you then contacted nobody
23 else in her family then, either of her two other sisters?
24 A That would not be our standard protocol.
25 Q Is it not important to have the input of
22
family members, friends, neighbors, relatives, caregivers
2 who see Mrs. Gerber on a regular basis as to her current
3 status and condition?
4 A It's somewhat interesting but a limited
5 possible question because we could have an exhaustive
6 search of other relatives but ours is really a clinical
7 interview. It's not based upon potential legal
8 intervention. So the answer is we do our best as to who it
9 is that contacts us, and we assess what those issues are at
10 the time.
11 Q Well, Doctor, wouldn't you concur that it
12 would be important to be able to assess Mrs. Gerber's
13 ability to function prior to your being called into this
14 matter for an opinion so that --
15 A Not necessarily, no, sir, I don't, because
16 what I'm asked to evaluate is her cognitive status, and I'm
17 very certain of my findings in relation to that. She has,
18 you know, severe cognitive impairment. There's really
19 nothing that the family could tell me one way or another
20 that would change that particular observation.
21 Q Well, Doctor, would you describe for me then
22 and define what is a cognitive impairment that you've
23 referred to that so debilitates her under your diagnosis?
24 A She has major deficits in terms of
25 perceiving information, that is getting information in.
23
She has problems processing that information, and she also
2 has problems recalling that information.
3 Her visual -- her visual and verbal memory
4 are quite impaired, her attention and concentration, her
5 psychomotor skills, and her ability to understand her
6 environment are all severely impaired.
7 Q Doctor, with respect to these impairments
8 that you have just described for us, can you relate to me,
9 please, how they affect or taking place, excuse me, is a
10 better term, in Mrs. Gerber's every day life at home?
11 A They seriously impair her ability to carry
12 through with her activities of daily living.
13 Q Well, Doctor, can you give me an example,
14 please? That's what I'm asking.
15 A Her ability to remain safe. In most
16 circumstances, the elegant nature of her presentation plus
17 ~er premorbid skills would carry her through_with~a _.
18 semblance of intactness, but if she were stressed or placed
19 in an emergency situation, she would have great disability
20 discerning what would be right, wrong, correct, incorrect
21 in order to remain safe.
22 Q Doctor, have any circumstances been relayed
23 to you where these emergency conditions or situations have
24 arisen in the recent past?
25 A Not that I'm aware of.
24
Q Have there been any descriptions given to
2 you or relaying of any events that have indicated in any
3 respect that Mrs. Gerber has placed herself in a harmful or
4 threatening position in any respect because of her lack of
5 care or inattentiveness or because of this visual or other
6 verbal imparity that you have described for us?
7 A We're talking here primarily about the
8 potential for a lack of safety, and it really only takes
9 one event based upon her cognitive status to put her at
10 great harm, potential harm. But the answer to your
11 question is that I don't know of any circumstance,
12 particular circumstance, that would have indicated that she
13 has experienced that harm as of yet.
14 Q So if friends, neighbors, relatives could
15 report to you that Mrs. Gerber is functioning on a
16 day-to-day basis with activities as she's always done
17- throughout her life, making contacts~wi-th those~ friends and
18 neighbors and relatives and there is no perceptible
19 difference, would that change your opinion?
20 A No, sir, it would not. Not only that, I -
21 would say that she needs 24-hour supervision in order to
22 remain safe, and that really cannot be done under the
23 circumstances that you described.
24 Q Are you requiring -- are you recommending
25 then that there be some formal institutionalization of Mrs.
25
1 Gerber?
2 A Not necessarily so. What she needs is
3 supervision on an intensive basis in order to maintain her
4 safety.
5 Q Well, how do you explain that Mrs. Gerber
6 has been home and she does have home care throughout the
7 day but it's not 24 hours and she is still thriving at this
8 point? Does that change your opinion?
9 A No. I would explain that up to this point
10 we haven't had an event that would be considered
11 disastrous, but it's an accident waiting to happen.
12 Q Doctor, has there been any event that's even
13 close to being or remotely close to being disastrous?
14 A Not that I'm aware of.
15 Q She's not inappropriately taken any
16 medications or attempted to drive or wondered off without
-17- knowing where she is? Has any of that been--reported to
18 you?
19 A The potential is there for her to do that
20 although I'm not aware that she has.
21 Q How many patients have you treated in the
22 course of your profession, Doctor?
23 A Thousands.
24 Q Okay. How many times have you testified in
25 guardianship proceedings?
26
1 A Probably maybe eight to ten.
2 Q Can you tell me what the nature and extent
3 of the supervision is that Mrs. Gerber has right now at
4 home?
5 A Repeat the question, sir.
6 Q Can you tell me what the nature and extent
7 of the supervision is for Mrs. Gerber at home right now?
8 A No, sir, I can't in detail tell you that.
9 Q Doctor, do you believe -- or can you tell me
10 what the effect would be on a person assuming that before
11 they come to you for their evaluation that they are
12 suddenly thrust into a new environment, they do not know
13 you, you are a new doctor, a new staff, a new office, they
14 are thrust there into a totally unfamiliar environment and
15 relationship that they never had with you? What effect
16 does that have on the test that you performed to perform
17 your original assessment? _~
18 A Actually we have a very good rapport with
19 our patients and, in fact, if you ask Mrs. Gerber she would
20 say that she felt very comfortable here. As to how it
21 would affect the results of her evaluation, I don't think
22 very much at all.
23 Q But it could affect it, is that right?
24 A Very minimal, if any, certainly not to the
25 extent that her test results would indicate.
27
1 Q Doctor, with senile onset dementia, is this
2 a condition that is triggered by a specific event or set of
3 physical circumstances such that it's an immediate cause
4 and effect? For instance, if I may explain, if you fall
5 down and break your arm and you see that it's broken, you
6 have a course of treatment, or is it something other than
7 that?
8 A It's something other than that in terms of a
9 progressive insidious central nervous system deteriorating
10 condition. It has both physical as well as biochemical
11 constraints.
12 Q How long does it take to onset?
13 A It's variable. We see it occurring and
14 being identified as having a very rapid course, and then we
15 also see some individuals who are diagnosed and would
16 stabilize for a period of time. And then eventually it is
17 a progressive disorder, but it would take not months but
18 years to see the demise of the individual.
19 Q Thank you. Doctor, I would like to ask you
20 a few questions referring back to your report of March 21,
21 please, which was the initial assessment. Do you have that
22 with you in front of you?
23 A Let me find it just for a minute. I have
24 it.
25 Q Thank you. First, we've already talked
28
1 about Aricept a little bit earlier. Can you tell me what
2 the side effects of it are, please?
3 A As I said, the major side effect, if any, is
4 going to be gastrointestinal in terms of having a bit of
5 nausea maybe a few days, if not an extended period of time,
6 maybe a week or so of looser stools, but by and far that's
7 it.
8 Q With respect to your diagnosis on axis one,
9 is this a diagnosis that she is suffering from Alzheimer's
10 or no?
11 A That's part of the diagnosis. Senile onset
12 dementia is more a generic term, whereas the type of
13 dementia is broken down into two possible types, vascular
14 and Alzheimer's.
15 She had an MRI scan done, and it showed
16 perimetricular white matter disease which was another way
17 of saying a small type of stroke, and it also showed
18 atrophy of the brain. But that's really not as important
19 as what we saw on the psychometric test which indicated
20 across the board deficits two to three standard deviations
21 below the norm.
22 Q Have those MRI's or scans been redone, sir?
23 A Has it been redone?
24 Q Yes.
25 A No, not that I'm aware of. I don't expect
29
1 them to improve.
2 Q Does her medical records or history, I
3 should say, indicate any deficiency for B-12 or Vitamin E?
4 A Not that I'm aware of.
5 Q Is that a standard protocol for treatment
6 with regard to Alzheimer's type?
7 A Quite to the contrary. You would not want
8 to provide somebody Vitamin B-12 when, in fact, their
9 levels were normal. There is some controversy as to
10 whether or not Vitamin E would be preventative, but it
11 certainly is not considered a therapeutic treatment.
12 Q Did you do any of those studies, sir?
13 A I didn't do any of those studies.
14 Q Is physical therapy a part of the treatment
15 protocol for the type of diagnosis that you had made?
16 A Not usually, no.
17 Q And why not.~ sir?
18 A Physical therapy is usually reserved for
19 someone who has difficulty post injury either walking or
20 talking or whatever, but Mrs. Gerber didn't have difficulty
21 at least as we could assess with that.
22 Q Well, Mrs. Gerber was under physical therapy
23 for some time prior to your original assessment. Wouldn't
24 you be concerned about her continuing at this time with
25 that therapy?
30
1 A As related to her diagnosis?
2 Q Yes.
3 A Not really, no.
4 Q What about occupational therapy for her?
5 A That could be helpful.
6 Q What about imprinting on her and helping her
7 to imprint and improve her memory, is that part of the
8 protocol for Alzheimer's type treatment?
9 A What you are talking about is the standard
10 protocol for either day care centers and/or assisted living
11 dementia units. That's not usually part of the protocol
12 for someone who is continuing to live at home. If, in
13 fact, she was afforded the possibility of attending one of
14 those types of programs, that certainly would be part of
15 her daily routine but not on an outpatient basis, no.
16 Q Do you see any reason, Doctor, why Mrs.
17 Gerber can't continue to stay at home-and-.receive care
18 there?
19 A Depends upon the circumstances. I can only
20 tell you that with the examination results that she
21 currently has we are going to be seeing progressive
22 decline. One would like to have less of an intervention.
23 The least restrictive alternative is what we usually try to
24 achieve.
25 So if she continues to stay at home and
31
obtain appropriate supervision, then I would have no
2 objection to that, but eventually she will more than likely
3 need 24-hour supervision in a skilled nursing care
4 facility.
5 May I ask if Mrs. Gerber is in the room?
6 MR. RUPP: No, Doctor. We have her in
7 another place in the courthouse. She's not present at the
8 moment.
9 THE WITNESS: Okay. I was going to say this
10 could be very disturbing for her to hear.
11 BY MR. LASKOWSKI:
12 Q Doctor, is there any reason why she could
13 not be kept at home in an environment with which she is
14 familiar for most of her life, at least the last 30 years,
15 if there is sufficient resources available both financially
16 from her own -- for her own estate as well as through
17. outside public agencies, nurses aides, caregiver~ senior
18 centers, et cetera?
19 A I would say that that's possible at this
20 point with the probability that you are going to find
21 somebody to provide -- I would say this on any individual
22 with this kind of condition -- 24-hour supervision that's
23 consistent. So what do you do if somebody doesn't show up
24 for a day of care and then Mrs. Gerber is on her own?
25 So that's kind of the kind of issue that we
32
have to deal with when we make our suggestion to not only
2 the individual but also the family members. If you can
3 insure 24-hour supervision on a consistent basis never to
4 falter, then I would not have an objection to that, but
5 that's not always possible.
6 Q Well, that's a function of proper case
7 management then, is it not, Doctor?
8 A It would have to be superlative. I've never
9 really seen case management that can insure -- absolutely
10 insure that someone is going to show up day after day on a
11 24-hour basis unless they are part of an institutional
12 provider.
13 Q You can provide live-in assistants and aides
14 though, they do exist, don't they, Doctor?
15 A Yes, that's what I'm trying to say. With an
16 aide and assistants or CNA's, whatever, you can hire but
17 how can you make sure that they are going to show up every
18 day? That's the problem that we run into all too often,
19 and then if someone calls up at the last minute or just
20 doesn't show, then we're in that type of situation.
21 Q Well, Doctor, wouldn't it be important then
22 that there be a redundancy of case management to the extent
23 that family who is involved with the individual can assist
24 in those periods if they are available to prevent a gap or
25 a lapse in coverage?
33
1 A Well, I guess again it depends. I'm not
2 really sure what point you are trying to make other than to
3 say that if you provide the highest level of care you can
4 assure that's going to be provided that Mrs. Gerber would
5 do okay. I can't argue against that point.
6 Q You would not be adverse to her receiving
7 that kind of care at home right now?
8 A No, as long as it was considered to be
9 positive for her and that she would not be placed in a
10 dangerous situation, I would say that at this point that
11 would be acceptable, maybe not practical but acceptable.
12 Q Doctor, I would like to move on to another
13 point of your opinion. March 21st of this year you
14 indicated that --
15 A Can I say something to the Judge for a
16 moment?
17 MR. LASKOWSKI: I'll permit it, sure. Your
18 Honor, you've been summoned. The doctor would like to ask
19 you a question.
20 THE COURT: You want to ask me a question.
21 What is your question, sir?
22 THE WITNESS: The problem is that I was set
23 up to do what I thought was going to be a --
24 THE COURT: How much more time do you have?
25 THE WITNESS: Actually, I'm 15 minutes late
34
for my next appointment, but I certainly want to be open
2 with my testimony. I guess I just wanted you to be aware
3 of that.
4 THE COURT: How much more time do you have
5 for cross?
6 MR. LASKOWSKI: I've got a bit, Your Honor.
7 THE COURT: What is a bit?
8 MR. LASKOWSKI: I'm about halfway through
9 his report.
10 THE COURT: Halfway through.
11 MR. LASKOWSKI: Perhaps a little bit more.
12 THE COURT: Make an offer. What do you want
13 to cross-examine him on now?
14 MR. LASKOWSKI: Okay. I have several
15 points. First of all, his original report of March 31st
16 talks about element of depression. I believe that's
17 significant regarding the diagnosis and the medications as
18 a result of that.
19 We need to discuss when and how and where it
20 relates to the current circumstances of Mrs. Gerber's
21 condition. Her family scenario is that there's a
22 significant amount of acrimony between brother and sister
23 and siblings. She's lost a maid of --
24 THE COURT: Let's deal with the doctor with
25 respect to his medical testimony.
35
1 MR. LASKOWSKI: He has given an opinion,
2 Your Honor, regarding --
3 THE COURT: I will give you five more
4 minutes to complete your examination.
5 MR. LASKOWSKI: Your Honor --
6 THE COURT: Well, you have done an extensive
7 examination already. I will give you five more minutes.
8 It is quarter after. You may proceed. Ask your best
9 questions. Doctor, can you spare five more minutes?
10 THE WITNESS: Absolutely. I can do that.
11 BY MR. LASKOWSKI:
12 Q Your Honor, if Mrs. Gerber has been taken
13 out of her normal routines or contacts with her friends,
14 her church, her family --
15 THE COURT: Sir, you are not asking
16 questions of the doctor. Are you finished?
17 MR. LASKOWSKI: That is the question, Your
18 Honor.
19 THE COURT: You said Your Honor. Ask the
20 doctor questions.
21 MR. LASKOWSKI: I'm sorry. I apologize.
22 BY MR. LASKOWSKI:
23 Q Doctor, excuse me. Doctor, if Mrs. Gerber
24 is taken out of her normal routines, contact with her
25 family, her friends, her home of 30 years, her church of 30
36
years, her daily activities, shopping, dinners out, her
2 clubs, et cetera, does this all heighten or impact the
3 grief which she is potentially suffering in addition to the
4 fact that she's lost a maid of nearly 50 years?
5 A That's quite a question, but the answer is
6 that happens unfortunately all the time as cognitive
7 impairment progresses because the individual has to be
8 placed in a higher level of care.
9 There is an initial disruption that does
10 occur when that happens, but placed in a specialized center
11 actually reassures them because of the saneness, if you
12 will, that occurs on a daily basis. So, yes, we anticipate
13 that would happen if, in fact, she required a certain level
14 of care, but that's anticipated and dealt with at the time.
15 Q Well, Doctor, part of your report you
16 recommended -- you said that Mrs. Gerber would benefit from
17 counseling and case management services. You are making
18 that recommendation that she receive that counseling and
19 services then?
20 A She did have counseling for a period of time
21 with one of our case managers here and that went well, well
22 enough that it was discontinued for a bit. In fact, I
23 think she would continue to benefit from that kind of
24 reinforcement.
25 Q Would Mrs. Gerber benefit from counseling by
37
the siblings involved here or mediation by the siblings to
2 resolve those issues between them?
3 A That's not really for me to answer. I don't
4 really know how that could be helpful to Mrs. Gerber at the
5 level of contemptuousness that there is at the present
6 time.
7 Q Would that alleviate some of the depressive
8 or grief conditions that she's experiencing right now?
9 A I can't really testify to that. All I know
10 is that she's quite distressed in terms of her prior
11 interactions with her daughter and I can't testify --
12 Q Doctor, are you aware that Mrs. Gerber's
13 daughter is a nurse and has been taking care of her on a
14 regular basis for a substantial period of time prior to
15 your original assessment in March of this year?
16 A I'm aware of that, but I must also say that
17 I'm not ~aware -- do not know Ms. Marilyn Gerber's ......
18 underlying issues. I did not perform an examination on
19 her. I can't testify as to the appropriateness of that
20 intervention on her part.
21 Q Have you ever been given any reason to
22 suspect Miss Marilyn Gerber, that is, her daughter, of any
23 improper care of her mother?
24 A Only from what her mother said to me on the
25 number of occasions, and actually quite spontaneously the
38
1 last time she said she was distressed by her daughter's
2 intervention.
3 Q Which -- distressed by her daughter's
4 intervention, is that what you said?
5 A That's what I said, yes, sir.
6 Q In what respect was there intervention and
7 in what respect was there distress? I'm not sure I follow
8 you.
9 A She said I've had difficulty with my
10 daughter Marilyn. I really didn't pursue that other than
11 to complete my evaluation.
12 Q Doctor, is it significant -- I believe we
13 may be concluding at this point. Is it significant for
14 Mrs. Gerber's well-being at this point that she continue to
15 be secluded or isolated from her family members, her
16 friends, her neighbors, other relatives, her lifelong
17 contacts through her clubs, through her church?
18 A You mean all of them together?
19 Q Yes. That's what's happening, Doctor. Is
20 that appropriate for Mrs. Gerber and her well-being?
21 A Well, it depends. You have to put it in the
22 proper context, sir, in terms of getting -- staying with
23 her son who she believes loves and cares for her. If that
24 means that she -- if you are asking would she have to move
25 in order to be close to her son so he can take better care
39
1 of her, that would be in her best interest. That is how I
2 would answer that question.
3 Q I'm sorry, sir, I just didn't hear that last
4 part. You trailed off.
5 A I would say that if she would have to move
6 to be with her son, if he is awarded guardianship, if he
7 chooses to provide a higher level of care for her closer to
8 where he lives, I would say that's in her best interest.
9 Q Well, what about her friends, her associates
10 and her past contacts, Doctor, they have no impact here?
11 A Certainly they would have an impact, but
12 what you are asking is what's in the best interest of Mrs.
13 Gerber. This is not an unusual final event, if you will,
14 to the process of dementia.
15 When one loses cognitive abilities,
16 unfortunately we also lose the choice of remaining where we
17 are at times because we do have to depend on others to take
18 care of us and our best interests.
19 THE COURT: Okay. Ms. Verney, do you have
20 any questions?
21 MS. VERNEY: I have one question.
22 THE COURT: One question by Ms. Verney.
23 CROSS EXAMINATION
24 BY MS. VERNEY:
25 Q Doctor, due to the impairments that you
40
1 described, in your opinion as of October 3rd, is Mrs.
2 Gerber partially or totally unable to meet the essential
3 requirements of her physical health and safety?
4 A I would say that she is moderately to
5 severely impaired, and one would say that she still has the
6 ability to carry through with some of the activities of
7 daily living. But the real issue is can she complete all
8 of that consistently and remain safe, and the answer would
9 be in my best medical opinion, no.
10 MS. VERNEY: Thank you.
11 THE COURT: Doctor, you are excused. Thank
12 you very much.
13 THE WITNESS: Thank you, sir.
14 THE COURT: We will take a ten minute break
15 and reconvene.
16 (Whereupon, a brief recess was taken.)
17 THE COURT: Next witness.
18 MR. RUPP: Your Honor, I would call Mildred
19 Scott to the stand.
20 Whereupon,
21 MILDRED R. SCOTT,
22 having been duly sworn, t~stified as follows:
23 DIRECT EXAMINATION
24 BY MR. RUPP:
25 Q Ma'am, would you please state your full name
41
1 for the Court.
2 A Yes, Mildred R. Scott.
3 Q And can you state who you work for, please?
4 A I work for Elder Care Solutions which is
5 known as Betra.
6 Q What is it known as?
7 A Which is known now as Betra.
8 Q And do you know who -- and your name is
9 Millie. Do you go by Millie?
10 A Yes.
11 Q Millie, do you know another Millie, Mildred
12 J. Gerber?
13 A Yes, I do.
14 Q And how do you know Mildred J. Gerber,
15 Millie?
16 A I'm with Millie during the week every day
17 that the company has me planned to be there, and lots of
18 times I spend the night with her. I go over on the
19 weekends and visit sometimes when Fred can't get up or Jane
20 can't get up, and we go to dinner. We're just wonderful
21 friends.
22 Q Wonderful. So what do you think your
23 employment duties are? I know you are talking about your
24 friendship too, but what do you think of as your employment
25 duties with respect to Mildred J. Gerber?
42
A To prepare the meals for Millie, to be sure
2 that she takes her medications, to take her for walks to
3 get some exercise, and to just do whatever she wants me to
4 do, straighten the house or help her clean things, just to
5 help her.
6 Q Okay. Very good. Do you think that it
7 would be a good thing to leave Mildred J. Gerber alone for
8 long periods of time?
9 MR. LASKOWSKI: Objection, no foundation as
10 to qualifications. It calls for an opinion.
11 THE COURT: I will let you develop it, and
12 then you can ask her the question.
13 MR. RUPP: Thank you, Your Honor.
14 BY MR. RUPP:
15 Q Have you had an opportunity to observe
16 Mildred Gerber?
17 A Yes, sir.
18 Q And what have you observed of her ability to
19 handle herself? What observations do you make?
20 A Well, I think she is a wonderful lady. She
21 can do certain things by herself with no problems. Because
22 of the hip that she had broken, she needs a little help
23 when we go out for walks and things like that and when we
24 go out for meals. But Millie can go up and down her stairs
25 at the house. It always amazes me. She's very good at it,
43
1 and she does it beautifully. She's just a wonderful lady.
2 Q What have you observed about her, in your
3 own words, observation about her mentally?
4 A She forgets things occasionally but don't we
5 all. I certainly do.
6 Q Thank you, Millie. From your observations
7 about her memory and forgetting things, tell us -- tell the
8 Court why you give Mrs. Gerber her medications?
9 A Well, I'm always afraid that maybe she'll
10 forget them or she'll get confused on which medication
11 she's supposed to take, but as Fred can tell you when he's
12 up sometimes, she gets her own medication and she takes it.
13 You just have to kind of check on her.
14 Q But is it good -- let me ask you this. Is
15 it good to have someone there to be sure that she is taking
16 them?
17 A Oh, definitely, yes, definitely.
18 Q And from your observations, could she become
19 confused in taking her own medications?
20 A I don't think so. She knows that her
21 morning pill is white and her evening pill is pink. So I
22 really don't think so.
23 Q Okay. Do you prepare meals for?
24 A Yes, I do.
25 Q Could Mrs. Gerber prepare her own meals?
44
1 A She probably could, but I would feel better
2 if someone prepared them for her.
3 Q You say better, is that because it might be
4 a little bit safer for Mildred Gerber?
5 A Yes, much safer.
6 Q And would that go back to maybe your
7 observations about her memory?
8 A Yes, sir. Yes.
9 Q Now, you said you stay overnight. Do you
10 stay overnight every night?
11 A No, I don't. I don't really think Millie
12 needs anyone to spend the night --
13 THE COURT: How often do you spend
14 overnights with her?
15 THE WITNESS: Several times, sir. I can't
16 really tell you what dates, but several times I spent the
17 night with Millie.
18 THE COURT: You mean over the period of time
19 that you have been there?
20 THE WITNESS: Yes, sir.
21 THE COURT: When did you start?
22 THE WITNESS: I think it's been almost a
23 year.
24 MR. RUPP: I have no further questions, Your
25 Honor. Oh, I'm sorry --
45
1 THE WITNESS: Do you mind if I add --
2 MR. RUPP: Well, I wanted to ask her about
3 Colonel Gerber.
4 THE COURT: Question.
5 BY MR. RUPP:
6 Q Do you think he would make an appropriate
7 guardian for Mrs. Gerber?
8 A Yes, sir. And I can tell you that --
9 MR. LASKOWSKI: Objection.
10 THE COURT: Sustained. I do not see the
11 relevancy. Next question.
12 BY MR. RUPP:
13 Q Do you have anything to add for the Court's
14 benefit?
15 MR. LASKOWSKI: Objection.
16 THE COURT: That is an improper question.
17 THE WITNESS: Can I --
18 THE COURT: No, you may not.
19 BY MR. RUPP:
20 Q From your observations, what kind of a son
21 is Fred Gerber?
22 A Well, I can tell you that Fred is always
23 there. When Millie needs him, he's always there. He
24 plants flowers in the yard which Millie really enjoys, and
25 when she needs Fred, he's always there. She wants Fred to
46
1 be her guardian. She is afraid of her other daughter
2 Marilyn. She's afraid of her. She knows that Marilyn is
3 in this --
4 MR. LASKOWSKI: Objection, Your Honor, an
5 awful lot of hearsay.
6 THE COURT: Sustained, beyond the scope of
7 the question. Next question.
8 BY MR. RUPP:
9 Q Has she had any -- has Mildred Gerber had
10 any communication with Marilyn Gerber?
11 A No, sir. Marilyn writes her letters --
12 THE COURT: Ma'am, I want you to stay within
13 the scope of the question. Next question.
14 BY MR. RUPP:
15 Q Has Marilyn written to her mother?
16 A Yes, sir, several times.
17 Q Can you tell the Court your observations of
18 when Mrs. Gerber receives correspondence from her daughter
19 Marilyn?
20 A When Millie receives letters from Marilyn,
21 she gives them to me, and she says, you read them. I
22 always read Marilyn's letters, and they really upset
23 Millie. And she says to me she does not want Marilyn back
24 in her life.
25 MR. LASKOWSKI: Objection.
47
1 THE COURT: Overruled. I will let the
2 answer stand.
3 MR. RUPP: Thank you. I don't have any
4 further questions.
5 THE COURT: Cross.
6 CROSS EXAMINATION
7 BY MR. LASKOWSKI:
8 Q Miss Scott, are you the only person from
9 Elder Solutions -- Elder Care Solutions that goes to the
10 house?
11 A No, sir.
12 Q How many others are there that participate
13 day-to-day?
14 A One or two others and myself.
15 Q Do you have a normal working shift that you
16 are on?
17 ~ A Yes, sir ....
18 Q What is that?
19 A I work Monday, Wednesdays, Fridays.
20 Sometimes if one of the girls is sick I fill in for their
21 days. I have worked five days, and sometimes I do work on
22 Saturdays or Sundays.
23 Q When you work on Monday, Wednesday or
24 Friday, what hours is that?
25 A Twelve.
48
1 Q From when to when?
2 A 8:00 in the morning until 8:00 in the
3 evening.
4 Q Do you have a title, Mrs. Scott? Do you
5 have a title?
6 A Well --
7 Q Your position with Elder Care, what's your
8 position?
9 A Yes, I am a caregiver. I'm a CNA.
10 Q What is that?
11 A A nurse's aide.
12 Q Are you licensed for that?
13 A Yes, sir, I am.
14 Q And how long have you been licensed?
15 A Oh, gosh, seven years I guess, maybe eight.
16 Q Is that how long you have been working for
17 Elder Care?
18 A No. I've been working for Elder Care about
19 two years, and before that I worked for another agency.
20 Q Do you have any other licenses other than a
21 CNA?
22 A A driver's license.
23 Q Do you have any other specialized training
24 with regard to geriatric or elder care?
25 A Yes, sir. I've worked at two nursing homes
49
1 with families. I have primarily been a caretaker though.
2 Q What kind of training did you receive with
3 respect to that and in preparatory for your services to
4 Mrs. Gerber?
5 A Nurse's training. I paid for it myself and
6 took a course from HACC.
7 Q What course was this and when? Strike that.
8 Did you get a certification as a result of this training?
9 A Yes, sir. Don't ask me the year. I don't
10 know. I have forgotten.
11 Q Do you know what the certification was?
12 A Yes, sir, I told you, CNA.
13 Q That's the CNA?
14 ~A Um-hum.
15 Q Are you licensed under Pennsylvania law to
16 give medication to individuals --
17 A No, sir.
18 Q -- in the course of your duties?
19 A No, sir. You cannot give medications. You
20 can put out the medications, but you cannot give them.
21 Q So Mrs. Gerber under these circumstances
22 takes her own medication?
23 A Yes, sir, she does. I do take her blood
24 pressure.
25 Q Are there any other services -- medical
5O
1 services that you provide for her besides taking her blood
2 pressure?
3 A Taking her for walks.
4 Q No. Is there any other exam that you make
5 besides taking her blood pressure?
6 A Any other what? I'm sorry.
7 Q Any other exam that you make of her besides
8 taking her blood pressure?
9 A Only what I can see with my eyes, which you
10 are trained to observe the people when you are with them.
11 Q Do you keep logs or notes of your care of
12 Mrs. Gerber?
13 A Yes, sir, I do, every day.
14 Q Did you bring those with you today?
15 A No, sir, I do not.
16 Q Are those logs or notes in the care and
17 possession of Betra? ....
18 A No, sir, Colonel Gerber.
19 Q Is there a reason that you provided them to
20 Mr. Gerber and not to your director of nursing at your
21 facility?
.22 A My director of nursing has copies but so
23 does Colonel Gerber.
24 Q So he has the originals?
25 A Yes, sir. He has sheets that we comply with
51
1 each day.
2 Q When did you become aware of these
3 proceedings today?
4 A I can't remember, a week ago, two weeks ago.
5 Q Do you receive any continuing education or
6 training for your duties?
7 A Yes, sir. I do read articles that are sent
8 to my home. My husband is a pharmacist so we are both in
9 the healthcare industry.
10 Q No, I'm talking about formal training.
11 A No, I have not taken a refresher course if
12 that's what you mean.
13 Q Have you had any specialized courses on
14 Alzheimer's or the care and treatment of elderly
15 individuals?
16 A Yes, sir, I have. I took care of a
13 .gentleman who had Parkinson's and Alzheimer~'s. Yes, sir, I
18 took a course in Alzheimer's.
19 Q Is Mrs. Gerber the only one that you are
20 taking care of right now --
21 A No.
22 Q -- providing services to? Mrs. Gerber is
23 not receiving 24-hour care through Elder Care Solutions or
24 Betra right now, is she?
25 A If she needed 24-hour care, sir, we would be
52
1 there.
2 Q That wasn't my question, Mrs. Scott. My
3 question is --
4 A No, sir, because we have not been asked for
5 it. If she needs it, we'll be there.
6 THE COURT: Is she receiving 12-hour care
7 now?
8 THE WITNESS: Yes, sir, 12 hours a day.
9 BY MR. LASKOWSKI:
10 Q Is it always 12 hours a day, seven days a
11 week, Mrs. Scott?
12 A No, sir, it is not. Many nights I have
13 spent 'the evening with Millie.
14 THE COURT: The question is, does she always
15 have at least 12 hours' care?
16 THE WITNESS: Oh, yes, sir.
17 ...... THE COURT: Listen to my question. .Each day
18 of the week?
19 THE WITNESS: Yes, sir.
20 THE COURT: Next question.
21 BY MR. LASKOWSKI:
22 Q How do you know that, Mrs. Scott?
23 A Because, sir, we clock in and clock out.
24 That's how we all know.
25 Q Are you a supervisory case manager of Mrs.
53
1 Gerber's care? Do you direct when and where and how
2 caregivers from Betra come to Mrs. Gerber's home to provide
3 care for her?
4 A No, sir.
5 Q You do not schedule any of those
6 individuals?
7 A No, sir, only myself.
8 Q So you do not know then --
9 A Yes, sir, I do.
10 Q -- what care she is receiving?
11 A I do because I talk to the other girl that
12 takes care of Mrs. Gerber when she's there. For some
13 reason, they all call me and ask me questions.
14 Q How many evenings a week does she have
15 overnight care?
16 A When she decides she wants someone there,
17 Millie herself wants someone there, or when Fred asks us to
18 stay overnight.
19 Q How many times has Mrs. Gerber asked you for
20 that overnight care?
21 A I think it was Fred that has always asked me
22 to stay overnight if he couldn't get down.
23 Q Can you quantify how many overnights that
24 is, Mrs. Scott?
25 A You mean since I've been there?
54
1 Q Yes, your best --
2 A Gosh, maybe 10 or 12.
3 Q When did you start again, how long ago?
4 A I think it's been a year. I've been with --
5 Q That would put us in October of last year.
6 Are you sure about that?
7 A No, sir, I'm not really sure. I think --
8 I'm almost sure I've been there almost a year though.
9 Millie and I were talking about celebrating our year
10 anniversary, but I'm not sure.
11 Q How does Mrs. Gerber go to the doctors and
12 keep her appointments?
13 A I take her or the other girl who's there
14 takes her. She also goes to the beauty shop every week.
15 We take her.
16 Q Who are her doctors that she goes to?
17 A She goes to the girl at the Army base here
18 in Carlisle. Her first name is Jane.
19 Q You've personally taken her to this doctor?
20 A Yes, sir. And I've been in the office with
21 her and spoken to her doctor.
22 Q Where else?
23 A She has been to the Commonwealth Group out
24 in Linglestown.
25 Q Do you know the doctor's name there?
55
1 A Yes, sir.
2 Q Who is that?
3 A She was going to Gale, and now she is goin~
4 to, if I can pronounce his last name -- she just went to
5 another doctor there, a new doctor.
6 Q Do you know --
7 A It's the same group.
8 Q Do you know what for?
9 A No, sir, I don't.
10 Q Does she go to a dentist for her dental
11 treatments?
12 A I just mentioned to Fred that she needs to
13 go to the dentist, and he's going to make the appointment.
14 Q Is she receiving any physical therapy?
15 A For what?
16 THE COURT: I guess the answer is no. You
17 have not ever taken her to physical therapy?
18 THE WITNESS: No, sir.
19 BY MR. LASKOWSKI:
20 Q Are you aware that she's had a broken hip?
21 A Yes, sir, I certainly am, but Millie gets
22 around real well and we go for walks. Isn't that physical
23 therapy?
24 Q I'm not a qualified physician, ma'am, so I
25 can't answer that for you.
56
1 A Well, personally I think it is.
2 THE COURT: Next question. She goes for
3 walks.
4 THE WITNESS: If you saw her --
5 THE COURT: Wait. Just answer the
6 questions.
7 THE WITNESS: I can't just talk. I'm sorry.
8 BY MR. LASKOWSKI:
9 Q Miss Gerber gets around pretty good at home,
10 is that correct?
11 A Yes, sir. You should see her go up and down
12 the stairs. She does just great, and I think it's
13 primarily from the walks that we take and the exercise we
14 get.
15 Q Does she need help getting dressed or with
16 her hygiene or bathing?
17- A No, sir. She wants to get dressed by
18 herself, and she always looks very nice. I do help her
19 with her hair. She has long hair and I do her hair up.
20 Q Does she prepare any of her own meals?
21 A Yes. Sometimes she'll come down and piddle
22 around in the kitchen with me, and she'll pour her cereal.
23 Sometimes she'll put her waffles in the toaster or
24 something. So, yeah, she does a few little things.
25 Q Can you tell me who the other individuals
57
1 are that also provide care for Miss Gerber at home?
2 A Well --
3 Q Their names.
4 A Rosalie Aspers is one of the other girls,
5 and we do have fill-ins if someone's sick. So I cannot
6 tell you any others.
7 Q So Rosalie is the most common one, right?
8 A Yes.
9 Q Aspers did you say?
10 A Aspers.
11 Q A-s-p-e-r-s?
12 A Yes, sir, just like the little town.
13 Q You said Fred is always there, her son?
14 A Always.
15 Q Monday to Sunday, seven days a week?
16 A If she needs Fred --
17 Q That's not what I asked, ma'am. ....
18 THE COURT: That is what she said
19 originally. What you said and what she said are two
20 different things. Next question.
21 BY MR. LASKOWSKI:
22 Q Is Fred there every day of the week?
23 A No, sir, there is no reason for him to be.
24 I'm there or Rosalie is there.
25 Q How often does he come up?
58
1 A Every -- almost every weekend even though he
2 has a family himself.
3 Q Is Mrs. Gerber restricted in who she can see
4 or talk to in any respect?
5 A Well, I guess she really isn't because some
6 of Marilyn's friends have been in pretending to be friends.
7 THE COURT: Are you under any orders by
8 anyone to restrict her access to Marilyn?
9 THE WITNESS: No, sir.
10 THE COURT: Next question.
11 BY MR. LASKOWSKI:
12 Q Is there a life line phone in the home,
13 ma'am?
14 A Yes, sir, I guess that's what it is.
15 Q It's there and operating now --
16 A The life line?
17 Q -- for emergency purposes?
18 A I don't think we need the life line phone.
19 I believe it was taken out. I'm not sure. We have a black
20 phone, but I'm not sure. But we don't need the life line
21 phone. We're always there.
22 Q Do you know what a life line phone is?
23 A Yes, sir, certainly.
24 Q Then based on your observations, Mrs. Gerber
25 wouldn't need one there either at night when she's home
59
1 alone?
2 A No, sir, because if she needs something she
3 calls me, and I am 15 minutes away from Millie and I would
4
5 Q Have you ever refused access to Marilyn
6 Gerber, her daughter, to the home?
7 A No, sir.
8 Q Are you aware of anyone else who might have
9 refused her access to the home?
10 A No, sir.
11 Q So based -- is there any reason that you
12 know of why Marilyn Gerber, her daughter, would or should
13 not come to her home?
14 A Because Millie does not want to see her.
15 She has stated that to me herself out of her mouth. She
16 wants nothing to do with Marilyn.
17 Q Have you ever met Miss Gerber before,
18 Marilyn?
19 A I have not. I had a conversation with her
20 on the phone, a very unpleasant one. That's not true. I
21 heard you.
22 THE COURT: Ma'am, just answer the question.
23 BY MR. LASKOWSKI:
24 Q Mrs. Gerber is communicative?
25 A Yes, sir, very, carries a very interesting
60
1 conversation.
2 Q And you can hold conversations with her for
3 an extended period of time?
4 A Oh, yes, sir. We go out to lunch and chat
5 about everything.
6 Q How often do you take her out for lunch?
7 A Two or three times a week just to get her
8 out and go do something interesting. We go have her hair
9 done every Friday.
10 Q Where do you take her to do that?
11 A Well, now you are going to laugh when I tell
12 you.
13 Q No, I won't, I promise.
14 A I live in York Springs, Pennsylvania, and
15 Hanover was kind of my hometown for a long time so we go to
16 Hanover. It's quiet. There's not a lot of traffic, and we
17 have lunch. We have a wonderful day.
18 Q I apologize if I might have covered this
19 before. Do you drive her personally or does the agency
20 come and pick her up or do you use her car?
21 A I drive her personally in my car, sir.
22 Q Is that permitted by Elder Care?
23 A Well, I personally don't want to use Mrs.
24 Gerber's car because I'm not used to it and with the
25 traffic --
61
1 THE COURT: The question is, does Elder Care
2 know that you do that?
3 THE WITNESS: Oh, yes, sir.
4 BY MR. LASKOWSKI:
5 Q They permit you to do that?
6 A Oh, yes, sir.
7 Q So we presume that there is adequate
8 insurance and other coverage?
9 A Oh, absolutely, everything.
10 Q Do you believe based on your observations,
11 Mrs. Scott, that Mrs. Gerber needs 24 hour a day care in a
12 facility of some sort?
13 A No, sir. No, indeed.
14 Q Were you here during the prior testimony
15 about an hour ago?
16 A No, sir.
17 Q You would agree then that Mrs. Gerber could
18 continue to receive care as she has been over the past few
19 months at home through your agency?
20 A Yes, sir, I do. ~-
21 Q And your agency does make available folks
22 who can stay throughout the night if possible?
23 A Yes, sir, we do. I would stay with Millie
24 if she wanted me to.
25 Q Do you think that taking Mrs. Gerber out of
62
1 her home that she's lived in pretty much most of her life
2 would have an effect on her?
3 A Oh, yes, because she's in familiar
4 surroundings, surroundings that she knows, yes.
5 Q Would that be a good effect or a detrimental
6 effect?
7 A Detrimental.
8 Q Do you think she would be likely to become
9 more disoriented or despondent if that were to occur?
10 MR. RUPP: Objection, no foundation.
11 THE COURT: Sustained. You do not have to
12 answer, ma'am.
13 MR. LASKOWSKI: I have no further questions,
14 Your Honor.
15 THE COURT: Any redirect? I'm sorry, I keep
16 forgetting about you. I should pull up another table.
17 MS. VERNEY: I'll speak up.
18 CROSS EXAMINATION
19 BY MS. VERNEY:
20 Q Has Mrs. Gerber ever become ill while in
21 your care?
22 A No, ma'am.
23 Q So just the routine doctors' visits you've
24 taken her on?
25 A Yes.
63
1 Q The examples of forgetfulness that you
2 mentioned, do they concern you of whether or not Mrs.
3 Gerber can live alone?
4 A No, not at all.
5 Q You indicated that she's cooked, she's
6 gotten her own breakfast, cereal and waffles?
7 A Yes.
8 Q Can she use the stove in your opinion
9 safely? Would she remember to turn it off?
10 A Well, I'm not very comfortable with her
11 using the stove. I just prefer that she doesn't.
12 Q In the 12-hour care, somebody is there for
13 all the meals?
14 A Oh, yes, all of the meals, breakfast, lunch
15 and dinner.
16 Q And does someone get her to bed before they
17 leave at night?
18 A Yes, ma'am, we certainly do.
19 Q And so would that be --
20 A We give her her nighttime pills, and the
21 minute we leave she goes upstairs and gets to bed, if
22 that's what you mean. Maybe I didn't answer that
23 correctly.
24 Q Yes, that's what I mean.
25 MS. VERNEY: That's all I have.
64
1 THE COURT: Any redirect?
2 MR. RUPP: No, Your Honor.
3 THE COURT: Step down. Ma'am, you are
4 excused if you wish to be.
5 MR. LASKOWSKI: Your Honor, may I have one
6 follow-up question?
7 THE COURT: Go ahead.
8 RECROSS EXAMINATION
9 BY MR. LASKOWSKI:
10 Q As a result of this, are you aware of any
11 circumstances, Mrs. Scott, over the past, say, six months
12 since March where Mrs. Gerber has done anything where she's
13 placed herself in some type of dangerous situation that
14 would have resulted in injury to her?
15 A No, sir.
16 Q So, you know, she hasn't mistakenly taken
17 the wrong medications or prepared a meal that made her ill
18 or attempted to leave the home and not know where she was?
19 A No, sir, never. And I've been shopping with
20 Millie so --
21 MR. LASKOWSKI: Thank you.
22 THE COURT: Ma'am, you are excused.
23 THE WITNESS: Thank you, sir.
24 MR. LASKOWSKI: Thank you, Your Honor.
25 THE COURT: Next witness.
65
1 MR. RUPP: Your Honor, I would call Colonel
2 Frederick Gerber.
3 Whereupon,
4 FREDERICK EDWARD GERBER, II,
5 having been duly sworn, testified as follows:
6 DIRECT EXAMINATION
7 BY MR. RUPP:
8 Q Colonel, I think the Court probably
9 remembers you, but will you please state your full name for
10 the record.
11 A My name is Colonel Frederick Edward Gerber,
12 II.
13 Q By whom are you employed?
14 A I'm employed by the United States Army.
15 Q And what's your title or position with the
16 United States Army?
17 A I'm the director of operations for the Army
18 Surgeon General, Washington D.C.
19 Q Very good. And are you the petitioner
20 today?
21 A Affirmative.
22 Q And can you tell the Court how old is your
23 mother?
24 A Mom is going to be 87 here next month.
25 Q And she is the alleged incapacitated person?
66
1 A That's affirmative.
2 Q And is it your desire that you wish to be
3 appointed guardian of her person?
4 A Yes, sir. I am requesting guardianship of
5 mom.
6 Q Now, before when we were here before this
7 Honorable Court, we were here for protection of your
8 mother's assets, is that correct?
9 A That's correct.
10 Q And what are your concerns for the Court to
11 become guardian of your mom's person?
12 A Well, over the past three years as we the
13 family gathered around dad's passing away in February of
14 '98, I have spent the last three years with mom, in close
15 counsel with mom. Dad's last mission assignment to me was
16 to watch over mom, become her guardian if and when the time
17 became necessary.
18 I have worked with mom very closely the last
19 three years and believe if asked she'll state the same
20 thing that as she becomes -- as her short-term memory
21 starts to fail, that she is very clear that she has asked
22 me to become her guardian.
23 In fact, I believe in January she put this
24 in writing, that she gave me her durable power of attorney.
25 She also stated that I would become her guardian.
67
I am concerned over the last three years as
2 I've watched the interaction between mom and her daughter
3 Marilyn Gerber. As you said, you recall this last action.
4 We've watched sadly as Marilyn has taken $52,000.00 out of
5 mom's banking accounts, took $7,000.00, or every penny, out
6 of her money market, racked up $13,000.00 in credit card
7 bills without mom's knowledge.
8 We watched sadly as Marilyn had a car
9 accident with mom's car and bickered with the insurance
10 companies and the witnesses to the accident so much that
11 the insurance company refuses to insure mom's car.
12 We've sadly watched Marilyn produce
13 documents that mom has signed to revoke my power of
14 attorney and then walk in the bank to take, you know, every
15 penny out of mom's account.
16 We've watched as mom has signed or been
17 coerced into signing a petition, you know, that joined
18 Marilyn as a plaintiff to get me removed as the executor
19 trustee.
20 Most sadly we've watched as Marilyn has
21 intimidated every caregiver that mom has -- or we have
22 arranged to have brought into the house that, you know, as
23 the Judge recalls, are afraid to encounter Marilyn or
24 refused to work for mom because they are afraid of
25 Marilyn's continuing personal and family harassment.
68
1 Q And what other fiduciary positions has your
2 mother previously appointed you to be?
3 A Sir, a couple. She has appointed me as her
4 durable power of attorney, agent in kind. I am her
5 executor for her estate. I am the trustee for her
6 revocable trust, and I am the trustee for dad's irrevocable
7 trust.
8 Q Your late father you mentioned that
9 that's -- the trust is already set up. Who is the primary
10 beneficiary of your father's -- your late father's trust?
11 A The primary beneficiary is mom, Mildred.
12 Q And where is your mother continuing to
13 reside?
14 A Mom continues to reside at her place of
15 residence at 623 Hilltop Drive, New Cumberland.
16 Q And can you, in layman's terms, describe
17 what you observe your mom -- her mental status ~to be?
18 A I most definitely can. I watched mom very
19 carefully. You know, I've spent 28 years as a medical
20 service corps officer in the active component of the United
21 States Army. I am trained to take care of people and look
22 after their welfare.
23 I watched mom very carefully over the last
24 three years. It's on record that in January of '98 Marilyn
25 Gerber had mom --
69
1 THE COURT: You are beyond the question.
2 Ask the question again.
3 BY MR. RUPP:
4 Q In your observations, what's her current
5 mental status?
6 A Mom is -- over the last three years, I've
7 watched her very carefully. In the last nine months, I
8 have watched a precipitous decline in mom's cognitive
9 skills and capabilities, short-term memory, documented very
10 carefully every day of the week for the last nine and a
11 half months on mom's short-term memory. It has declined
12 precipitously which is why I am in court now. I am very
13 concerned that in the next nine months it will get worse,
14 as you heard Dr. Cadieux mention.
15 Q Have you been involved in taking care of
16 your mother with respect to this cognitive degeneration,
17 and can you tell the Court how you might have been involved
18 in understanding her cognitive degeneration?
19 A Mr. Rupp, I certainly can. In the past nine
20 and a half months, I have spent every weekend with the
21 exception of five or six -- I have spent every weekend with
22 the exception of five or six, every Saturday, Sunday and
23 holiday with mom at 623 Hilltop Drive. That's well
24 documented in the notes.
25 When I haven't been able to be there, my
70
younger sister Jane has been there or I've asked Millie
2 Scott to spend the night on a Saturday or Sunday. I've
3 documented the notes very carefully to record, you know,
4 weight, blood pressure, you know, her memory skills on a
5 scale from one to ten.
6 It's very simple to describe mom's inability
7 to remember the day of the week or what month or what
8 county we live in or who dad is in the picture or who her
9 relatives are in pictures or what events occurred or when
10 they occurred, all the things Dr. Cadieux said. It becomes
11 very evident when you are around a person that often that
12 her skills are declining physically.
13 Q Have you talked with over, say, the last
14 year or so several doctors about mom's care?
15 A Yes, sir, I have. As you recall, in January
16 we had Dr. Sabo, a clinical psychologist, who rendered an
17 opinion. I've talked with mom's primary healthcare
18 provider Dr. Kimberly Young out of the Army Health Clinic.
19 I've talked with other clinicians that have
20 visited and known mom over the years at the Army Health
21 Clinic. I've talked with Dr. Cadieux, a renown geriatric
22 psychiatrist.
23 I've talked with mom's social worker who mom
24 sees almost every week with a few exceptions except when
25 Gerry, her social worker, is on leave or, you know,
71
official absence. I speak with all of them. I feel I am
2 very well informed on mom's mental status.
3 Q And Dr. Cadieux, who was with us today by
4 telephone, he had made a recommendation of counseling. Can
5 you tell the Court what -- you just mentioned though, but
6 what has been going on with your mom?
7 A Yes. Mom, as you heard Dr. Cadieux say,
8 when dad passed away three years ago was obviously very
9 emotionally distraught as anyone would be. After seeing
10 Dr. Cadieux, he recommended counseling which we began
11 promptly after the first visit with Dr. Cadieux in January.
12 Mom, as I said, has seen Gerry, the social
13 worker, or her team members out there almost every week,
14 again, with the exception of holidays and times where Gerry
15 has been on leave. Her next appointment is next week. In
16 fact, the counselor has just recommended seeing -- coming
17 there twice a week as opposed to once every week. They
18 feel mom is making good progress.
19 Q And what are your concerns or are there --
20 are there any concerns that you have concerning your mom
21 and Marilyn or Marilyn coming back into mom's picture?
22 A Mr. Rupp, yes, I do. I've had those
23 concerns for three years or longer. The Court records are
24 very clear on what Marilyn has done to mom. It's very
25 clear that mom has had to come to court to keep Marilyn
72
from her premises, to keep her out of the house.
2 I am very concerned, as I've just described,
3 that in December of last year, less than a year ago, that
4 Marilyn came into the bank with a revocation of my power of
5 attorney in an attempt to draw out, what she eventually was
6 able to do anyway, draw out every penny out of her banking
7 account, money market account, draw off her credit card,
8 rack up $13,000.00 in credit cards.
9 I'm very concerned that Marilyn had somehow
10 gotten mom to change her will. She had got mom -- brought
11 lawyers to the house and coerced mom into siqning and
12 joining her with Marilyn as plaintiff to have me removed as
13 the trustee, you know, arguments with the car insurance
14 companies that caused them to refuse insurance to mom, the
15 healthcare providers that refuse to come. I mean, sir,
16 it's on and on and on. Yes, I am very concerned.
17 Q And is there a concern that if -- or do you
18 have a concern that if Marilyn were allowed to be with your
19 mom that there would be -- that would cause upset to your
20 mother?
21 A Most affirmatively. Dad's last words in his
22 room with mom and I were, Fred --
23 MR. LASKOWSKI: Objection.
24 THE COURT: Overruled.
25 THE WITNESS: Fred --
73
1 BY MR. RUPP:
2 Q Have you observed your mother being upset?
3 A Absolutely.
4 Q And can you describe some examples?
5 A Mom becomes very agitated and animated. She
6 starts shaking. When she knows that Marilyn's back in New
7 Cumberland, she's constantly going to the window and
8 peeking out the curtains, constantly checking the locks,
9 putting bells, you know, articles in front of the door that
10 would tip over if the door was opened. She's asked us to
11 change the locks in the house, you know, you name it.
12 Mom's very concerned.
13 Q Thank you. You are your mom's power of
14 attorney, and we have attached a copy of the current power
15 of attorney. That power of attorney has medical powers in
16 it and also would name you as guardian if the Court would
17 see fit to do that.
18 Do you feel that that power of attorney is
19 sufficient or do you feel that this guardianship that we
20 are here petitioning is important and necessary?
21 A Well, sir, ordinarily I would feel that the
22 durable power of attorney and the guardianship specified in
23 mom's last legal document would be adequate. However,
24 considering the events over the past three years, our
25 anticipated continuation of those events, I feel the
74
guardianship is necessary.
2 It's like a package deal and completing the
3 mission that I accepted in terms of taking care of mom
4 totally, wholly, completely. I would like to close this
5 last loophole up, become mom's legal guardian at her
6 request, and be assured that from start to finish I'll be
7 able to look after mom and not allow anybody to slip in,
8 coerce, control.
9 Q When Marilyn does try to get involved with
10 your mother, does she try to interject herself in your
11 mom's healthcare, and do you have any background that would
12 concern you with respect to that?
13 A Most definitely. I mean, it's a matter of
14 record that when dad was on his deathbed in the hospital
15 she practically took over the hospital room, decorating it
16 with crystals and magnets and incantations and, you know,
17 it looked like a voodoo temple.
18 Q When your dad was ill, did that upset your
19 mother, what Marilyn did?
20 A Absolutely. I mean, it wasn't until we
21 figured out that why is Marilyn being allowed to do this
22 that --
23 THE COURT: Let's move on to another
24 question.
25 MR. RUPP: Thank you, Your Honor.
75
1 BY MR. RUPP:
2 Q Therefore, do you feel, Fred, even though
3 you have the power of attorney it would be very important
4 to protect your mother for her well-being to have this
5 guardianship?
6 A Absolutely. It's the only reason I'm doing
7 it, to close any last loophole in being able to protect
8 mom.
9 Q And did you execute a consent to be quardian
10 of the person for your mother?
11 A Affirmative.
12 Q And is that attached to our petition?
13 A I believe it is.
14 Q Do you have -- you obviously have testified
15 you have the ability to be the quardian of the person. Do
16 you have the time to be the guardian of the person of your
17 mother?
18 A I believe I've shown over the last nine and
19 a half months I am there if mom needs me. I'm in constant
20 communication with Elder and now Betra Care. I have daily
21 contact with mom on the telephone. I have routine contact
22 with Millie and any other caregivers. I feel very
23 satisfied that I am in tune with what's going on with mom
24 on a daily, weekly, monthly, quarterly, yearly basis.
25 Q And do you feel that your duties with the
76
1 United States Army will not interrupt or interfere with the
2 caring of your mother?
3 A Sir, you know, as a member of the Army in 28
4 years, we're trained to take care of families and provide
5 family care plans in the event we are deployed. I'm a
6 member of the headquarters department of the Army staff. I
7 don't deploy. I'm not going anywhere, sadly to say, and I
8 am stuck in Washington D.C. and therefore capable of
9 watching over mom.
10 MR. RUPP: Very good. I have no further
11 questions, Your Honor.
12 THE COURT: Cross.
13 CROSS EXAMINATION
14 BY MR. LASKOWSKI:
15 Q Mr. Gerber, do you reside in Washington D.C.
16 or Virginia?
17 A In Virginia.
18 Q What's your address there? I don't believe
19 we got that going in.
20 A Excuse me?
21 Q Where do you live in Virginia?
22 A I live at 3313 Windham Circle, Alexandria,
23 Virginia.
24 Q How long does it take you to get up here?
25 A It takes exactly two hours.
77
1 Q Are you married, sir?
2 A I am.
3 Q And your family lives with you in Virginia
4 at that address?
5 A My sons have graduated from high school,
6 college and are in the Army. They don't live with me now.
7 Q So they don't live there with you?
8 A Sir, as I said, they have graduated from
9 high school. One is in the Army. One is in college. They
10 do not live with me anymore.
11 Q Do you have any other residences anywhere
12 else besides in Virginia?
13 A Negative.
14 Q Your wife lives with you there in Virginia?
15 A My wife lives in Virginia, yes, sir.
16 Q With you in Virginia. These are not trick
17 questions. I'm just trying to figure out --
18 A She lives in Virginia, yes, sir.
19 Q With you?
20 A Negative.
21 Q You are separated?
22 A That's correct.
23 Q Okay. You had indicated earlier that you
24 have certain training in the care of individuals. Do you
25 hold any licenses or certifications pertaining to medical
78
1 care or treatment of any sort?
2 A Any professional healthcare treatment?
3 Q Yes.
4 A Negative.
5 Q Can you tell me what training you would have
6 received that you eluded to earlier?
7 A Well, I have received training in being able
8 to deploy large systematic healthcare systems on the
9 battlefield in peacetime and wartime. I'm the management
10 of -- I'm the director of operations for peacetime
11 healthcare for Conus for the United States and overseas
12 medical treatment facilities.
13 Q You are ~-
14 A I'm the --
15 Q I'm sorry. Go ahead. Is there another?
16 A Yes, sir.
17 Q Would you continue?
18 A I was trying to, sir. I'm the director of
19 operations for all of these medical treatment facilities.
20 I have a very good concept of the deployment of strategic
21 healthcare both in peacetime and wartime.
22 Q I asked you what your training was, sir,
23 specific training. Did you go to school?
24 A I've attended the --
25 Q Was this all -- or was this all military
79
1 training?
2 A Ail right, sir, I'm about to tell you. I've
3 attended Army Medical Department Officer Basic Course, the
4 Army Medical Department Officer Advanced Course, the
5 Combined Arms and Services Staff College, the Commander
6 General Staff College, the Army War College, various other
7 short courses to sustain our understanding of
8 peacetime/wartime healthcare.
9 Q But you are -- in the capacity of your
10 duties and your experience, you are not licensed or
11 authorized to provide medical care or treatment to any
12 individuals, is that correct?
13 A That's affirmative.
14 Q Have you had, in the course of all these
15 duties and experience, any specialized training or
16 experience with elder care or geriatric care?
17 A Negative.
18 Q In 1997 when your mother had broken her hip,
19 did you come home to provide any care to her at that point
20 and time?
21 A I came home. Dad, of course, was living at
22 that time. I came home to visit mom during the period of
23 her hospitalization.
24 Q But you didn't stay afterwards during her
25 rehabilitation or other care?
8O
1 A Negative. Dad was there.
2 Q Did you take any affirmative action in your
3 father's care or treatment prior to his passing?
4 A By the time I had heard that dad was ill, he
5 was in the hospital, and I was there routinely from the
6 time he came to the hospital and the time he passed away.
7 Q During the period of time -- because you
8 refer back over the last three years, sir, so that takes us
9 through approximately 1997 to 1998 -- did you participate
10 in any respect with your mother in consulting with her,
11 taking her to her primary care physicians prior to the
12 commencement of these proceedings in the beginning of this
13 year?
14 A Negative, not since January -- not since
15 December of -- not since December of 2000.
16 Q And prior to that period of time, who was
17 performing those functions with your mom or assisting her?
18 A Well, let me just back up. I did -- I do
19 recall taking mom to the Army Clinic, New Cumberland Army
20 Depot Medical Treatment Facility in '98, '99, and I do -
21 understand that in the year 2000 Marilyn had taken her to
22 Dr. Richwine and some physical therapists in New
23 Cumberland.
24 Q Marilyn was attending to your mom's physical
25 and medical conditions at that point throughout 2000, was
81
1 she not?
2 A Well, I would say she was living there in
3 New Cumberland and taking her to periodic physical therapy
4 and physician appointments.
5 Q Is your mother undergoing physical therapy
6 for any reason?
7 A Negative.
8 Q You have indicated that you have documented
9 thoroughly various matters concerning your mother, her
10 weight, her blood pressure, her memory skills. Do you have
11 those records with you today?
12 A Negative.
13 Q Can you tell me where are they at and who
14 has them?
15 A I have them with mom's Army health record.
16 Q When did you first become aware of your
17 mother's mental difficulties or dementia that's been
18 diagnosed by Dr. Cadieux?
19 A You know, visiting mom over the past three
20 years, I've watched it slowly decline. I mean, it was
21 almost imperceptible the first year, year and a half, and
22 then slowly it started to occur a year and a half ago.
23 As mom started making these what I
24 considered irrational judqments, you know, signing away
25 power of attorney, letting large sums of money come out, is
82
when I really got a jolt of reality that something wasn't
2 right. It's when I took mom to see Dr. Sabo and then Dr.
3 Cadieux and then follow-up nine months later.
4 Q Is this about the time that there were
5 questions being raised about the trust fund and your change
6 as the trustee of that?
7 A Sir, this was about the time when I
8 discovered that every penny in mom's money market was
9 withdrawn, about the time that I discovered $52,000.00 in
10 checks had been taken, that $13,000.00 in credit cards. It
11 all became apparent over a course of one or two weeks in
12 December of 2000 that caused me to have this concern.
13 Q Are those matters under investigation with
14 the PNC Bank right now who's been appointed guardian of the
15 estate?
16 A I can tell you it is a matter of
17 investigation with the Master Card company at PNC Bank, and
18 I am in consultation with my lawyers to discuss the other
19 matter.
20 Q Have you provided all of the financial data -
21 and accountings of the events as you are aware to PNC Bank
22 to this point and time?
23 A Affirmative.
24 Q Have you appointed them an accounting of the
25 family trusts that have been involved to this date?
83
1 A I'm sorry. Repeat your question.
2 Q Have you provided them with the accounting
3 of the family trusts that have been involved to this date?
4 A Not been required since they became the
5 financial guardian the last court date.
6 Q Is your mother taking any medication at the
7 present time?
8 A Affirmative.
9 Q And who is prescribing that medication?
10 A Dr. Sabo -- I'm sorry, Dr. Cadieux and Dr.
11 Kimberly Young.
12 Q How do you explain the fact that Dr. Cadieux
13 earlier said he wasn't prescribing anything for her?
14 THE COURT: Well, he said he recommended the
15 medication prescribed by the primary physician. That is
16 what he said.
17 THE WITNESS: Well, I mean --
18 THE COURT: I understand what he said. Next
19 question.
20 BY MR. LASKOWSKI:
21 Q Who is her primary care physician?
22 A In the military, you have a primary care --
23 THE COURT: Who is your mother's primary
24 care physician?
25 THE WITNESS: It's Dr. Kimberly Young. But
84
1 in the military that could be Dr. Young if she's there, and
2 if she's not there it's whoever physician is attending.
3 BY MR. LASKOWSKI:
4 Q But your mother isn't part of the military.
5 Why is she going to this facility?
6 A She's an authorized duty beneficiary which
7 is why she employs -- she has her whole life the D.O.D.
8 healthcare system.
9 Q Why were the services of Dr. Richwine
10 terminated?
11 A I have worked with the Army healthcare
12 system for 28 years. Dad worked with it for over 50 in the
13 federal service. Mom has almost exclusively sought
14 Department of Defense beneficiary healthcare system. It is
15 a very competent system, a competent system. She's getting
16 great care.
17 Q Is there a weekly regimen that your mother
18 follows at home, any set schedule?
19 A Yes, sir.
20 Q And what is that?
21 A She gets up in the morning. She takes her
22 medication. She eats her breakfast. She eats her lunch.
23 She eats dinner. She takes her evening medication. She
24 goes to bed.
25 You heard Millie Scott talk about going to
85
1 the hair dresser once a week, generally on Friday, going
2 for drives in the country with the daily healthcare
3 providers.
4 Q Without repeating all of her testimony, you
5 heard Mrs. Scott's testimony earlier, do you concur that
6 her description of the events in a given week are what is
7 actually taking place?
8 A Yes, as I just described them to you.
9 Q Do you have any backup agencies providing
10 services to Mrs. Gerber besides Betra?
11 A Negative.
12 Q How did you find Betra?
13 A Very good question. I found -- Betra was
14 referred to me by the Department of Aging that your client
15 sent to our home several times to check on mom's care. So
16 I asked the Department of Aging for their best
17 recommendation for home healthcare. That was Elder now
18 Betra Healthcare. That's who I hired.
19 Q If you are appointed guardian for your mom,
20 what is your proposed plan of care and treatment for her?
21 A Good question. You know, taken dad's last
22 mission assignment to take care of mom, discussing with mom
23 her desire to stay in the home as long as she can, my
24 desires to keep mom at 623 as long as we can sustain her, I
25 consult routinely with Dr. Cadieux twice a year, Dr.
86
1 Kimberly Young, the home health aides, my own personal
2 observations, I plan to continue the same level of care as
3 mom's physicians and home healthcare aides decide that she
4 needs, continuing hours other than the 12 that they have
5 recommended and I have concurred with.
6 We will continue to up the number of hours
7 on a daily basis that Betra home care provides care. When
8 it becomes time for mom to have 24-hour care, I will make
9 the decision to have 24-hour in-home care at 623 Hilltop
10 Drive.
11 Q And Betra is available and capable of doing
12 that at the present time as far as you understand it?
13 A That's what they have told me in personal
14 discussion.
15 Q Have you given any instructions to anyone to
16 keep Marilyn away from your mom?
17 A Affirmative.
18 Q Can you tell me who you gave those
19 instructions to?
20 A I gave those instructions to Betra home care
21 that there was an injunction to keep Marilyn away from the
22 house.
23 Q Let's stop right there. Where is this
24 injunction issued?
25 A Sir, you'll have to talk with mom's lawyer,
87
1 but you'll find the letter.
2 Q You said an injunction. That's a specific
3 term that intrigues me as a lawyer, of course.
4 A Let me withdraw that.
5 Q Is this a proceeding that is issued
6 someplace and an order has been issued by a court directing
7 no contact by Marilyn with her mother?
8 A That's correct. You can ask mom's attorney.
9 Q So your understanding is there is a valid
10 legal proceeding that said Marilyn is to stay away?
11 A That's correct.
12 Q So your attorney can provide us a caption
13 and the Court where this took place?
14 A Sir, you would have to ask her. But I can
15 tell you that mom has written Marilyn to that effect, has
16 stated it. You've heard Millie Scott say that. Mom does
17 not wish --
18 Q How do you know that your mother's written
19 to Marilyn?
20 A Mom shows me letters.
21 Q Before she sends them?
22 A Absolutely. She shows me all of the letters
23 Marilyn receives, as Millie Scott has shared with you, and
24 the letters she proposes to send back.
25 Q Have you kept any copies of those letters?
88
1 A To my knowledge, mom's only written one
2 letter back to the six or seven that Marilyn has written
3 her.
4 Q Well, I appreciate that, but my question was
5 did you keep a copy of it?
6 A I don't recall.
7 Q And when was that letter written?
8 A Three, four weeks ago.
9 Q Your mother is home alone at nights like
10 Miss Scott said, is that right?
11 A That's correct.
12 Q Why is she no longer attending St.
13 Theresa's?
14 A I don't know who's giving you information
15 that she's not.
16 Q She still goes to St. Theresa's parish
17 regularly, services every week?
18 A Periodically, yes, sir. I don't know where
19 you are getting information to the contrary.
20 Q I'm asking the question what your knowledge
21 is.
22 A Sir, I'm telling you that she goes
23 periodically.
24 Q Who takes her when she goes?
25 A I come up every weekend. We generally go to
89
1 the cathedral in Harrisburg.
2 Q Why not St. Theresa's.
3 A That's a very good question. Because she
4 doesn't want to run into Marilyn, sir. That's what mom --
5 sir, that's what mom tells me. I don't want to run into
6 Marilyn so let's go to the parish in Harrisburg.
7 Q Is Marilyn in Pennsylvania now? Well, other
8 than today. Obviously she's here. But is she residing
9 here?
10 A Well, that's an interesting question. Who
11 knows. Sometimes she lives in California. Sometimes she
12 lives here. One never knows where she is.
13 Q How close does she live to your mother?
14 A I would say an eighth of a mile.
15 Q Your mother's phone number has been changed
16 in her home. Can you tell me why that took place?
17 A Absolutely. Mom's telephone number was
18 changed at her request with my assistance because of mom's
19 persistent -- because of Marilyn's persistent calling,
20 haranquing, harassment, yelling, screaming described to me
21 by mom and mine having overheard on a couple of occasions
22 those phone calls.
23 Q When do these calls take place?
24 A Throughout the day.
25 Q In what period of time, sir? Can you give
90
1 me a month, a year? Is this recent? Are we talking
2 ancient history here?
3 THE COURT: First of all, tell me when was
4 the phone number changed?
5 THE WITNESS: It was changed approximately
6 nine months ago, nine and a half.
7 THE COURT: In what framework were these
8 calls from Marilyn?
9 THE WITNESS: Well, just immediately prior
10 to that as we discovered this great amount of money that
11 had been pilfered from mom's account.
12 THE COURT: Nine months ago, is that right?
13 These calls were occurring until the phone was changed
14 approximately nine months ago?
15 THE WITNESS: Absolutely.
16 THE COURT: Next question.
17 BY MR. LASKOWSKI:
18 Q When did Marilyn live in the house with your
19 mother? What period of time did that cover?
20 A I believe on or about May of 2000 through
21 December of 2000. Well, you say live. It's difficult to
22 say whether she lived at her own home an eighth of a mile
23 away from mom or whether she actually physically lived in
24 mom's home. It's hard to say.
25 Q Dr. Cadieux's recommended that counseling
91
1 and mediation would be appropriate for your mom's
2 well-being. Do you agree with his assessment?
3 A I didn't hear the first part that Dr.
4 Cadieux said.
5 Q Dr. Cadieux's recommended that counseling
6 and mediation would be appropriate and a benefit to your
7 mother. Do you agree with that assessment?
8 A Counseling and mediation, could you describe
9 that, please?
10 Q Those are Dr. Cadieux's words. I'm asking
11 you, do you understand what they mean?
12 A Sir, I don't. She is receiving counseling
13 from his own counseling service once a week.
14 Q Dr. Cadieux alludes to the need for
15 settlement of family issues that would benefit your mother.
16 Have you discussed that with him?
17 A I haven't. Actually I didn't hear him say
18 that.
19 Q Are you amenable to doing so?
20 A I --
21 THE COURT: I don't know if that will ever
22 get settled between these people. Next question.
23 BY MR. LASKOWSKI:
24 Q There was a life line phone that was put
25 into your mom's home at one point, was there not?
92
1 A Affirmative.
2 Q And that has been since removed, is that
3 correct?
4 A That's correct.
5 Q And you removed that?
6 A I had it removed.
7 Q Why did you have it removed?
8 A Mom requested it be removed. It was too
9 complicated. She didn't like it. It was too loud, too
10 complex, asked me to have it taken out.
11 Q This was removed against the advice of PNC
12 Bank and the Red Cross, was it not?
13 A I've never talked with Red Cross, don't know
14 why they would be having any say in whether it's there or
15 not.
16 Q What about the bank, did you have any
17 discussions with them?
18 A I never had any discussion with the bank.
19 The bank is never there to observe mom's personal habitat.
20 Why would they have anything to say about a life line
21 phone?
22 Q Your mother did have a life line phone
23 before, did she not?
24 A She never had a life line phone before.
25 Marilyn installed it in --
93
1 Q Who were the contact individuals that would
2 be placed on the life line phone?
3 A I'm sorry, I can't hear your question.
4 Q Who were the individuals who were to be
5 listed as the contacts on the life line phone?
6 A I have no idea, no knowledge.
7 THE COURT: She has a regular phone?
8 THE WITNESS: Abs°lutely.
9 BY MR. LASKOWSKI:
10 Q You had indicated earlier, sir, that one of
11 your concerns about Marilyn is that there were changes to
12 be made to your mother's will. Did those changes ever
13 occur?
14 THE COURT: How is that relevant to what I
15 need to know to determine whether or not she needs a
16 personal guardian?
17 MR. LASKOWSKI: Well, he raised the issue,
18 Your Honor, that he had several concerns about the
19 propriety of my client's actions under the circumstances
20 and the influence it had upon his mother. I believe it -
21 goes to certainly the credibility of whether or not that
22 even existed in this case and whether that concern is a
23 valid concern or not.
24 THE COURT: It will have no bearing
25 whatsoever on how I decide this. It is not relevant. I am
94
1 not going to let you pursue it even though he raised it.
2 BY MR. LASKOWSKI:
3 Q Mr. Gerber, can you tell me, has there
4 been -- other than the financial matters that you have told
5 us about that underlie your concerns about Marilyn's
6 conduct, has there ever been any incident or event with
7 Marilyn and your mom where there is something that she did
8 with her or to her that placed your mother in harm?
9 A Yes, sir.
10 Q Well, tell me what that is then.
11 A I'll tell you. Marilyn's mental --
12 continuous mental, psychological abuse and one documented
13 case of physical abuse against mom over the past three
14 years is the cause for my grave and urgent concern that I
15 gain guardianship of mom.
16 Q Can you describe for me or tell me then what
17 this instance is of one documented physical abuse?
18 A I would be happy to. Shortly --
19 Q When did it occur? What year are you
20 talking about? --
21 A On or about the last week of December 2000.
22 Q Where is this documented?
23 A It's documented with the New Cumberland
24 Police Department, Officer Brown, Chief Kauffman.
25 Q Is this a report that you or someone else
95
1 had made?
2 A That's affirmative.
3 Q Was that you that made the report?
4 A My sister Jane and myself to follow-up.
5 Q Was there ever any formal legal action that
6 resulted out of that report?
7 A Negative. May I describe the incident?
8 THE COURT: He will ask you if he wants it
9 described.
10 MR. LASKOWSKI: May I have a moment, Your
11 Honor?
12 THE COURT: Yes. We have been at this an
13 hour and 15 minutes. It is a good time to take a short
14 break.
15 MR. LASKOWSKI: I would appreciate that.
16 THE COURT: Reconvene at ten of.
17 (Whereupon, a brief recess was taken.)
18 MR. LASKOWSKI: Thank you for the recess. I
19 have just but a few, very few, follow-up questions.
20 BY MR. LASKOWSKI:
21 Q Mr. Gerber, are you aware that in the fall
22 of last year of 2000, approximately September, October,
23 your mother had some difficulties with her lungs and tumors
24 were found?
25 A That's correct, I have read her health
96
1 record.
2 Q What was the resolution of that, do you
3 know?
4 A They were found to be benign childhood
5 tumors, probably some semblance of tuberculosis, not
6 designed or not judged to be cancerous.
7 Q Have you had your mother in or are you aware
8 whether she's been in for any follow-up examinations to
9 complete annual physicals, including mammogram, testing for
10 TB, for flu shots, things of that nature?
11 A Yes, sir, I am.
12 Q And has she had that kind of care and
13 treatment?
14 A Yes, sir, she had. I think she had her last
15 mammogram about a month and a half ago. She saw her
16 primary care physician about two months before that.
17 Q Is she still seeing a podiatrist for her
18 foot problem?
19 A Mom hasn't, complained of any foot problems.
20 Q Is she wearing her special prescribed shoes
21 for her feet?
22 A Well, sir, she wears shoes. She doesn't
23 complain about the shoes that she's wearing.
24 Q Are you aware that she was under podiatry
25 care?
97
1 A I recall seeing this in the health record.
2 That was not her chief complaint.
3 Q But you haven't taken her for any follow-up
4 on that?
5 A Mom has not -- she's never indicated she's
6 had a complaint that would require me to do that.
7 Q So your judgments regarding her follow-up
8 care during the past year have been based upon your mom's
9 input and complaints, is that right?
10 A Sir, I've read both volumes of mom's
11 detailed health record. I have talked with her primary
12 care provider, her social workers, her psychiatrists, and
13 patient input is a big part of it, and no, sir, there
14 hasn't been any concern.
15 Q Have you spoken with Dr. Richwine?
16 A I have talked with Dr. Richwine.
17 Q When was the last time you consulted with
18 him?
19 A About nine, ten months ago.
20 Q Okay. You mentioned a social worker earlier-
21 named Gerry, I believe?
22 A Correct, Gerry.
23 Q Do you know the last name, please?
24 A I do not.
25 Q Do you know what agency she is assigned at?
98
1 A She works at Dr. Cadieux's agency.
2 Q I just wish to be clear, sir, you are not a
3 doctor, you are not a nurse, you are not a certified
4 caregiver of any sort, is that right?
5 A That's correct.
6 MR. LASKOWSKI: I have no further questions.
7 THE COURT: Now, Ms. Verney, my short-term
8 memory is getting better as we go along, it is your turn.
9 MS. VERNEY: Thank you, Judge.
10 CROSS EXAMINATION
11 BY MS. VERNEY:
12 Q The 12-hour in-home care, was that on
13 someone's recommendation or is that your decision?
14 A This was in consultation with Betra or Elder
15 Care, now Betra, after consulting with the Department of
16 Aging we asked to come in and make an assessment. They
17 have done that assessment. Over the first couple of weeks,
18 they decided that 12 hours was adequate.
19 Q Who did the assessment, the Department of
20 Aging?
21 A My understanding is the Department of Aging
22 had been in the home several times. They consulted with
23 Betra Care, and my final consultation with Betra Care was
24 how many hours, what hours, what services.
25 Q And so on that recommendation you went to
99
1 the 12-hour care?
2 A Affirmative.
3 Q Is it your intention if you are appointed
4 guardian today or in a month to put your mother in a
5 nursing home?
6 .A It is not my intention, no.
7 Q And will you continue to seek the
8 recommendations of the Department of Aging and the other
9 caregivers that your mother has?
10 A Affirmative.
11 Q What concerns -- do you have concerns of
12 safety for your mother in the home alone?
13 A I do, obviously, and as I make this nine
14 month every weekend assessment and talking with the in-home
15 healthcare providers and the supervisors at Betra, I am
16 watching and I anticipate in the coming weeks to months to
17 having to increase the number of hours to eventually
18 requiring full-time healthcare. But I'll take those
19 assessments and inputs from the professionals.
20 Q At one point in your direct examination you
21 were going to say that your father had said something to
22 you and your mother on his deathbed. Can you tell us what
23 that was?
24 A Yes, ma'am. The last words dad said --
25 THE COURT: Well, at the time I was willing
100
to allow that, but it is not really relevant so I am not
2 going to.
3 MS. VERNEY: That's all I have, Judge.
4 THE COURT: Any redirect?
5 MR. RUPP: No, Your Honor.
6 MR. LASKOWSKI: Your Honor, I do have a
7 follow-up.
8 THE COURT: You may follow-up.
9 RECROSS EXAMINATION
10 BY MR. LASKOWSKI:
11 Q Regarding the Department of Aging, sir, you
12 said there was a contact report and assessment there. Who
13 were you dealing with at the Department of Aging?
14 A There were at least two ladies. I don't
15 recall their names.
16 Q Would Betra know this?
17 A You would have to ask them.
18 Q Was there an official report issued by the
19 Department of Aging in any respect?
20 A Not that I'm aware of.
21 Q Any kind of report not necessarily official?
22 A You know, to the best of my recollection,
23 the Department of Aging said that they weren't allowed to
24 release anything other than the individual, you know, mom
25 but --
101
1 Q Did Betra perform or prepare, excuse me, any
2 type of a report regarding your assessment and
3 consultations with you regarding recommended care for Mrs.
4 Gerber?
5 A I can't answer that question. I can tell
6 you they had oral consultation with me, an extensive oral
7 briefing in what their assessment was.
8 Q With whom, sir?
9 A With myself. In fact, my younger sister,
10 Jane, had the initial consultation when they came to make
11 the assessment at the initial interview with mom.
12 FiR. LASKOWSKI: Thank you. No further
13 questions.
14 THE COURT: You may step down.
15 MR. RUPP: Your Honor, we have three
16 questions to ask Jane Heflin. Call Jane Heflin.
17 Whereupon,
18 JANE NOEL HEFLIN,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. RUPP:
22 Q Jane, would you please tell the Court your
23 full name for the record.
24 A My full name is Mrs. Jane Noel Heflin.
25 Q Where do you live?
102
1 A At 270 North Garfield, Lombard, Illinois.
2 Q Do you consent to your brother being
3 appointed guardian of the person for your mother?
4 A I do.
5 Q Are you aware of any instances between
6 Marilyn and your mother which upset your mother?
7 A I do.
8 MR. LASKOWSKI: Objection, too vague.
9 THE COURT: Overruled. It is answered.
10 BY MR. RUPP:
11 Q Can you describe them for the Court or some
12 of them?
13 A Yes. There was an incident that took place,
14 if I can remember, in December of last year where I was
15 notified and told by my mother that there was an incident
16 between her and my sister in which a picture frame was
17 thrown at my mother of my father in a heated argument. It
18 hit my mother and my mother was scared. She called me and
19 was very, very upset.
20 At that point I contacted the New Cumberland
21 Police Department and asked them to go up to the house to
22 please check on my mother because I was very, very upset at
23 what I had heard.
24 Q And did the police check on that?
25 A Yes, they did. When the police came to the
103
house, I happened to be on the phone with my mother and
2 overheard my mother tell my sister to go upstairs because
3 she did not want to have the police question my sister
4 because my sister had done this. My mother is a protective
5 person, and it is her child.
6 When the police got there, at that point --
7 the phone was either hung up or put down and I didn't hear
8 anything after that. And then I subsequently talked to the
9 police department in which they told me that they
10 questioned mom and --
11 MR. LASKOWSKI: Objection.
12 THE COURT: Sustained. Next question.
13 BY MR. RUPP:
14 Q Can you tell the Court of any instances that
15 you are personally aware of that upset your mom by Marilyn?
16 A You mean specific instances or
17 conversations?
18 Q Well, things that you are aware of that
19 Marilyn has upset your mom.
20 A Oh, I can cite many of them.
21 Q Well, just a few.
22 A A few, sitting in the bank in New Cumberland
23 and hearing the bank president sitting there telling me how
24 my sister sat next to my mother and made my mother take
25 out --
104
1 MR. LASKOWSKI: I'm going to object to
2 hearsay.
3 THE COURT: That is not responsive to the
4 question I don't think.
5 BY MR. RUPP:
6 Q What have you observed -- have you observed
7 Marilyn upsetting your mother?
8 A I observed my sister upsetting my mother
9 when my father died in the hospital, at the funeral and for
10 the last three and a half years. I could tell you a lot of
11 times that my sister has upset my mother.
12 MR. RUPP: Thank you. No further questions,
13 Your Honor.
14 CROSS EXAMINATION
15 BY MR. LASKOWSKI:
16 Q What was the incident that took place at the
17 hospital or at the funeral that upset your mother that you
18 observed? Let's start with the hospital. What was the
19 incident that upset your mother that you observed that you
20 are so visibly distraught?
21 A On every day that I visited my father -- do
22 you want me to start at one day and continue?
23 Q I asked you for the incident. You tell me
24 when it occurred and what day it occurred --
25
105
1 A Pushing my mother aside.
2 Q -- and that you observed.
3 A Yes, I can tell you. Going into my father's
4 room and my sister rushing to my father, not letting my
5 mother get to my father first. My mother was very, very
6 upset. The day before my father passed away, my sister
7 objecting to my mother's wishes.
8 Q What wishes was she objecting to that you
9 observed?
10 A Of the fact that my mother wanted my father
11 to be put to rest and to pull him off the respirator which
12 my sister objected to. She was very upset.
13 Q What happened at the funeral? What was the
14 incident there?
15 A Well, we had to hire a private security
16 guard to protect my mother. My sister rushed into the home
17 and went up into the bathroom and got my mother very upset
18 before we went to the funeral.
19 Q You viewed --
20 A I was right there, yes.
21 Q What did your sister do to upset your
22 mother? What did you see?
23 A What did I see? It was what I heard my
24 sister say to my mother, and my mother was hysterically
25 crying after my sister was escorted out of the house.
106
1 Q You heard this in the house?
2 A Yes, on the second floor.
3 Q What was said?
4 A I don't remember the exact conversation, but
5 it upset my mother to the point of her crying hysterically.
6 I remember the incident when my father was being buried and
7 my sister grabbing a rifle and pointing it and having the
8 security guard rush in front of my mother and scaring my
9 mother and crying, upsetting the funeral process in the
10 memory of my father.
11 Q What year was this?
12 A It was the year that my father passed away.
13 Q Was that '98?
14 A Yes.
15 Q How long had your father been ill prior to
16 that?
17 A How long had my father been ill?
18 Q Yes, prior to his passing.
19 A I think it was a total of six weeks.
20 Q That's when he was hospitalized?
21 A Yes.
22 Q Other than the incident that you told us
23 about at your father's -- at the hospital and at the
24 funeral in December of 2000, there are no other incidents?
25 A Yes, there's been a lot of incidents where
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1 my mother would call me and tell me what my sister had said
2 to her and how upset she was.
3 Q Does your mother love your sister, do you
4 know?
5 MS. VERNEY: Objection, Your Honor.
6 THE COURT: Sustained.
7 BY MR. LASKOWSKI:
8 Q What was her relationship with Marilyn, your
9 mother's relationship? How would you characterize your
10 mother's relationship with Marilyn?
11 A Now?
12 THE COURT: When?
13 MR. LASKOWSKI: Okay.
14 BY MR. LASKOWSKI:
15 Q Let's start in 1997 when her hip was broken.
16 A I'm sorry, I really don't understand.
17 Q How would you characterize your mother's
18 relationship with Marilyn at that time?
19 A My mother's relationship with Marilyn has
20 been controversial for as long as I can remember. That's
21 the best way I can describe it.
22 Q Then why would your mother allow Marilyn to
23 provide consistent care and comfort for her for a period of
24 almost two years?
25
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1 A Why would she?
2 Q Yes.
3 A It's her daughter, and my father was also
4 living at that time.
5 MR. LASKOWSKI: I have no further questions.
6 MS. VERNEY: Nothing, Your Honor.
7 THE COURT: Anything else?
8 MR. RUPP: No, Your Honor.
9 THE COURT: Ma'am, you may step down.
10 MR. RUPP: Your Honor, we are finished with
11 testimony. We would like the sheriff's returns be made a
12 part of the record. We would like the two acceptances of
13 service by Jackie Verney and PNC Bank be made a part of the
14 record.
15 We would like the exhibits in the petition
16 made part of the record. We would like our one exhibit,
17 which was Dr. Cadieux's October 7th letter identified as
18 number one, made part of the record. And for the
19 convenience of the Court, we would ask that the Court take
20 judicial notice of the record in the prior quardianship
21 matter.
22 THE COURT: Well, Petitioner's Exhibit No.
23 1, any objection?
24 MR. LASKOWSKI: No, Your Honor.
25 THE COURT: Admitted. All of the filings
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are a part of the record. As to taking judicial notice of
2 the proceedings in the prior record, any objection?
3 MS. VERNEY: No objection, Your Honor.
4 MR. LASKOWSKI: Your Honor, I haven't had
5 the opportunity to review the proceedings in the prior
6 record so I can't agree to that at this point in time so I
7 must object to it.
8 THE COURT: Sustained. I will deal with
9 this record on this issue. The last issue was estate. I
10 got that taken care of. This is personal guardianship. It
11 is separate. I agree there is some overlapping matters,
12 but I can deal with this record as it is developed.
13 MR. RUPP: Very good. That's all we have,
14 Your Honor.
15 THE COURT: Respondent, how long do you
16 think total your case will take or do you know at this
17 point?
18 MR. LASKOWSKI: Your Honor, it's difficult
19 at this point. I can tell you that I will probably have at
20 least somewhere between a half an hour to an hour with Mrs.
21 Gerber here under the circumstances.
22 Number two, there's much work to be done.
23 There were various records alluded to today regarding the
24 caregivers I need to access. I need to talk to Betra. I
25 need to talk to Mr. Richwine. We need to consult with
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potentially our own expert regarding the evaluations and
2 the process that's been completed today.
3 THE COURT: I will give you some time, and I
4 will schedule another half day.
5 MR. LASKOWSKI: I think that would be
6 adequate, Your Honor. We will also need to subpoena
7 appropriate witnesses, neighbors, friends, et cetera, as
8 need be.
9 THE COURT: I will have my secretary contact
10 both attorneys and see if we can get something that is
11 convenient to all of us.
12 MR. LASKOWSKI: I would be willing to do
13 that, sir.
14 THE COURT: Good. We will adjourn for the
15 day.
16 MR. RUPP: Thank you, Your Honor.
17 MR. LASKOWSKI: Your Honor, is there a time
18 frame on this hearing request or is that going to be left
19 to your secretary?
20 THE COURT: I would like to get it done
21 within a couple of weeks.
22 MR. LASKOWSKI: Okay. We were thinking
23 within 30 days.
24 THE COURT: Definitely within 30 days. I do
25 not want to let it hang.
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MR. LASKOWSKI: Thank you, Your Honor.
2 (Whereupon, the hearing was concluded
3 at 4:10 p.m.)
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1 CERTIFICATION
2 I hereby certify that the proceedings are
3 contained fully and accurately in the notes taken by me on
4 the above cause and that this is a correct transcript of
5 same.
6
7 Pamela R. Sheaf [)/~ ~'
8 Official Court Reporte~v
9
10 The foregoing record of the proceedings on
11 the hearing of the within matter is hereby approved and
12 directed to be filed.
13
16 Ninth Judicial District
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