HomeMy WebLinkAbout04-15-03 (3)
INDEX TO WITNESSES
FOR THE PETITIONER DIRECT CROSS REDIRECT RECROSS
1. Marilyn Jo Gerber 11 56 73 78
FOR THE RESPONDENT
1. Michelle Harold 80 88 108 109
2. Joan Jackson 110 123 136 137
3. Frederick E. Gerber, II 138 162 181 183
REBUTTAL
1. Marilyn Jo Gerber 185 190 ....
INDEX TO EXHIBITS
FOR THE PETITIONER MARKED ADMITTED
1 Letter dated April 4, 2002 20 78
2 Letter dated April 5, 2002 21 78
3 Letter dated April 15, 2002 26 78
4 Letter dated April 16, 2002 26 78
5 Letter dated April 19, 2002 26 78
6 Letter dated April 30, 2002 26 78
7 Letter dated May 3, 2002 27 78
8 Letter dated May 6, 2002 28 78
9 Letter dated May 13, 2002 28 78
10 Letter dated May 21, 2002 29 78
11 Letter dated May 23, 2002 30 78
12 Letter dated May 30, 2002 30 78
13 Letter dated June 19, 2002 33 78
14 Letter dated June 27, 2002 33 78
15 Letter dated July 6, 2002 36 78
16 Letter dated July 22, 2002 36 78
17 Letter dated July 30, 2002 36 78
18 Letter dated August 6, 2002 37 78
19 Letter dated August 7, 2002 37 78
20 Letter dated August 28, 2002 39 78
21 Letter dated September 15, 2002 45 78
22 Letter dated September 19, 2002 45 78
23 List of expenses 52 78
4. LeHal fees 54 78
FOR THE RESPQNDENT
2. Two sheets from an Embassy Suite 148 184
3-by-5 notepad with notes written
by Mildred Gerber 6.
3. Notes written by Mildred Gerber 148 184
dated April 12, 2002, and
June 16, 2002
4. Letter dated May 30, 2002 157 184
February 6, 2003, 8:55 a.m.
2 Carlisle, Pennsylvania
3 (Whereupon, the following proceedings
4 were held:)
5 THE COURT: I have read the motion for the summary
6 judgment. It seems to me that if the incapacitated person is
7 deceased that this has to be treated at this stage as a
8 petition for indirect criminal contempt. It is certainly not
9 civil contempt.
10 Civil contempt is to coerce the compliance with a
11 court order for which there is no independent authority to
12 impose sanctions absent a continued noncompliance with the
13 court order, as I see it.
14 So what I think we are left with is indirect
15 criminal contempt. It is not criminal contempt because
16 criminal contempt has to be in the presence of the court. I
17 throw that out. What do you gentlemen think?
18 MR. RUPP: I agree completely with Your Honor.
19 THE COURT: I certainly cannot force compliance
20 with my order.
21 MR. LASKOWSKI: No, you can't, Your Honor. That's
22 the problem, and that's one of the issues raised was
23 remediation possibilities which certainly cannot occur.
24 THE COURT: I take it at the time I signed this
25 order -- when was the death?
5
MR. RUPP: January 14 of this year.
2 MR. LASKOWSKI: This year.
3 THE COURT: When I signed the order on December
4 18th, I am not even sure at that time whether I was aware of
5 whether -- I might have been -- whether the courts in Cook
6 County had altered the order.
7 MR. LASKOWSKI: In January on date of death?
8 THE COURT: No, when I signed my petition for
9 contempt on December 18th. Had Cook County Court acted at
10 that point?
11 MR. LASKOWSKI: On December 18th of 2002, there
12 was an order pending from October 29th of 2002 of the court
13 that suspended the visitation for a period of approximately
14 eight weeks. Correct, Mr. Rupp, if I'm wrong.
15 MR. RUPP: Correct.
16 MR. LASKOWSKI: There was scheduled to be a
17 hearing for December 24th of 2002 before the DuPage County
18 Court, or District Court or Circuit Court, excuse me, as they
19 are referred to.
20 At or about, I believe it was, December 18th or
21 19th there was an additional proceeding. The record has been
22 submitted as part of the motion for summary judgment, and the
23 court continued that pending further evaluation by the doctor
24 of Mildred Gerber for early January. January 6th, I believe,
25 was the date for that, as the record would reflect.
6
And then what transpired thereafter, Your Honor,
2 was we had received word early that week of about the 6th from
3 Mr. Gerber through his counsel, and I believe that counsel in
4 Illinois had received communication from their counsel out
5 there, that Mrs. Mildred Gerber was very ill, and she was not
6 expected to survive the week. Her condition had taken a turn
7 for the worse.
8 And thereafter the record shows that our Illinois
9 counsel, Mr. O'Halloran, had gone in with an emergency
10 petition to request some additional visitation that week, and
11 subsequent events took place.
12 THE COURT: Well, this hearing is clearly
13 scheduled solely on the rule to show cause issued on December
14 18th as to why he should not be adjudicated in contempt. As I
15 said, I think what we are left with is whether or not he is in
16 indirect criminal contempt for failure to comply with my court
17 order up until the time that there was a modification of it by
18 the courts in Illinois. I am ready to proceed on that.
19 MR. RUPP: Your Honor, we would raise the issue of
20 collateral estoppel in that Ms. Gerber raised the exact same
21 issues, same subject matter, in the Illinois Court. That's
22 how she got into court. That's how she modified the court
23 order on October 11.
24 Then the court revisited it, and on October 29,
25 based on a petition both by the guardian now that they were
7
brought in and the Sunrise Assisted Living, the court filed
2 the order dated October 29.
3 The same date that you signed the contempt order,
4 December 18, the Chicago attorney for Marilyn Gerber went in
5 and asked for a motion to vacate the October 29 order. That
6 was denied on October 20th, 2002, in Chicago in DuPage County,
7 and basically the contempt is a caboose to the same train, and
8 we would ask for -- that's why we have a motion for collateral
9 estoppel.
10 THE COURT: I do not believe the collateral
11 estoppel applies, at least that is my gut feeling at this
12 point. It seems to me that there was a duty to comply with
13 the order until it was changed either by this court or some
14 other court. So the issue of whether or not there is indirect
15 criminal contempt up until the time that that order was
16 changed is properly before me, and I will take whatever
17 testimony that the parties wish to present on that.
18 MR. RUPP: Thank you, Your Honor.
19 MR. LASKOWSKI: Your Honor, with respect to the
20 indirect criminal contempt that you'll be hearing today, so
21 that we do not unnecessarily lengthen the proceedings, part of
22 our request at least is certainly with the civil side was for
23 reimbursement or consideration for reimbursement of certain
24 fees and expenses ~hat were incurred by my client as a cause
25 of these actions.
For purposes of clarification throughout the
2 testimony, so that it's not referred to needlessly from time
3 to time, is that remedy a remedy that you would consider in
4 addition to -- as part of the indirect criminal contempt?
5 THE COURT: I will consider it. Whether it is
6 awardable or not, I am quite honest to say I don't know. In
7 19 and a half years on the bench, this is the first indirect
8 criminal contempt proceeding that I have ever held. You may
9 proceed.
10 MR. LASKOWSKI: I would like to call our first
11 witness which is Marilyn Gerber.
12 MR. RUPP: Your Honor, may I just for the record
13 just state that I don't believe there was any damages
14 requested in the petition.
15 THE COURT: I understand.
16 MR. LASKOWSKI: Your Honor, we of course amend our
17 petition accordingly and will present evidence and testimony
18 to that effect at its conclusion.
19 One last housekeeping matter, Your Honor, is with
20 respect to the motion for summary judg~nent that was filed
21 yesterday. Will you be issuing a ruling today on that or is
22 that a matter that I would need to still respond to the
23 motion?
24 THE COURT: The summary judg~nent, am I correct,
25 was related to entering a judgment dismissing the petition for
9
1 contempt?
2 MR. RUPP: Yes, Your Honor.
3 THE COURT: That is what it was solely related to?
4 MR. RUPP: Yes, Your Honor.
5 THE COURT: At this point I will enter this order.
6 The motion of summary judqment on the within issue of whether
7 the guardian is in indirect criminal contempt of court is
8 denied. So that will take care of that.
9 MR. LASKOWSKI: That would be civil contempt.
10 THE COURT: Indirect criminal contempt. I think I
11 can treat this in the current status even though it was
12 issued. Notice I did not say what kind of contempt when I
13 issued the order. I drafted the order, and I did that on
14 purpose because I think it can be treated now as indirect
15 criminal contempt since that is the only remedy.
16 You do not have to further respond to the motion
17 of summary judgment. I have entered an order dismissing it,
18 and I will take the testimony. Of course, I will have to
19 resolve the legal issues before I can even meet the merits.
20 MR. LASKOWSKI: And then, of course, for the
21 record, we're amending our motion to include also, as may be
22 appropriate and awardable, reimbursement for certain expenses
23 and counsel fees under the circumstances.
24 THE COURT: That amendment is accepted and
25 granted.
10
1 MR. LASKOWSKI: Ms. Gerber.
2 Whereupon,
3 MARILYN JO GERBER,
4 having been duly sworn, testified as follows:
5 DIRECT EXAMINATION
6 BY MR. LASKOWSKI:
7 Q Would you give us your full name, please.
8 A My name is Marilyn Jo Gerber.
9 Q And where are you residing?
10 A I live at 42 Drexel Place, New Cumberland,
11 Pennsylvania.
12 Q Ms. Gerber, you've heard the comments of the Court
13 before we start today. I would like to take you back in time
14 to the period at and about the entry of the judge's order of
15 March 25th of 2002, please.
16 A Yes.
17 Q Did you have any opportunities to have contact
18 with your mother prior to that date?
19 A Yes, I did.
20 Q Did they occur in March or in February?
21 A Per the judge's order and agreement, they started
22 in February.
23 Q And what was the contact in February?
24 A I was instructed that I would be able to see my
25 mother on the 8th and the 9th of February and I took -- had to
11
cancel my shifts. And I flew in on the 8th, and I was
2 informed late on the evening of the 7th that they would
3 instruct me once I got into town --
4 MR. LASKOWSKI: Your Honor, there is a stipulation
5 I believe of the parties that is on record as part of the
6 pleadings with respect to a continuance that was granted, and
7 the visit that we are talking about here is related to that as
8 a precursor to the March 25th order. I would ask that you
9 take notice of the pleadings in this case and particularly
10 that stipulation.
11 THE COURT: I will.
12 MR. LASKOWSKI: Thank you.
13 BY MR. LASKOWSKI:
14 Q Ms. Gerber, can you briefly tell us how that visit
15 went?
16 A I arrived in the late morning, and I had to wait
17 all day to receive a phone call from my brother, and he
18 informed me around 4:00 that the visit would not be until 7:00
19 at night.
20 I objected to the lateness of the visit, and
21 essentially it was take it or leave it. He informed me then
22 at that time in the late afternoon that it would be at the
23 Embassy Suites on Butterfield Road, not where my mother
24 resided.
25 Q Where was your mother residing at that time?
12
1 A She was living with my sister, Jane Heflin, in
2 Lombard, Illinois.
3 Q Did that visit take place on the 8th and 9th?
4 A What I did is I appeared in a hotel room, and
5 there was my brother, my sister, a social worker, and my niece
6 and nephew. It was the first time I had seen my mother in
7 about 13 months, and the visit lasted all of 15 minutes.
8 MR. RUPP: Your Honor, we just would like to
9 object that this date was not in the petition as a problem,
10 and we don't know its relevance to the indirect criminal
11 contempt.
12 MR. LASKOWSKI: Your Honor, with respect to the
13 February dates, there was only the one visit that took place
14 here. We believe it shows a pattern of intent and consistency
15 of conduct regarding Mr. Gerber as to how he approached the
16 order, interpreted the order, and dealt with my client.
17 THE COURT: I will allow the testimony.
18 THE WITNESS: At the end -- I objected to the 15
19 minutes based on that I was to have a visit with her as well
20 as the Judge had ordered telephone calls with my mother on a
21 regular weekly basis starting in January, which did not come
22 to fruition on a regular basis.
23 As I exited and went to the elevator -- the
24 Embassy court is a circular -- the rooms are wrapped around
25 the walls and the inner courtyard from floor to ceiling. I
13
stood at the elevator, and they then joined. And my brother
2 during the 15 minutes tried to prevent me from talking to the
3 social worker, asking her name. At the elevator my sister
4 grabbed me and pushed me from getting in the elevator.
5 We then exited into the front of the Embassy
6 Suites, and as I was walking to my car, which happened -- my
7 brother was ahead of me. He turned and what he does is he
8 charged me with his body and threatened me saying to me, are
9 you following me? And I said, no, I'm going to my car.
10 BY MR. LASKOWSKI:
11 Q Was the social worker identified to you at that
12 meeting?
13 A Yes, her name was Joan Jackson.
14 Q When you came into the room, was she identified?
15 A No. I asked her her name. My brother said you're
16 not to talk to her. I asked her more about it, and he said
17 not to talk to her. My brother sat within less than a foot of
18 my mother the whole time I was there for the 15 minutes. My
19 sister was staring at my mother, as well as Joan Jackson was 4
20 feet in a chair across from my mother as I sat beside her on
21 the sofa.
22 Q You had also mentioned some phone calls that were
23 taking place and you said not with regularity.
24 A Per the agreement, based on my brother's
25 continuance, based on his military activity in Alabama in
14
January, the Judge had continued this visitation until March.
2 So because it was two months, the attorneys agreed that I
3 would have weekly phone calls with my mother.
4 What happened is my brother would -- I'm assuming
5 from where she was, or the conference calls, my mother could
6 not hear me on the phone. There was -- sometimes it wasn't my
7 brother who initiated the call. It was a nonskilled caregiver
8 in the home of my mother. And if I didn't say the right thing
9 or ask her the correct question, my brother threatened me and
10 then terminated the call.
11 I was to have 15, 20 minutes. I never had more
12 than 5 or 10. I would object and he would -- I would object
13 to them -- they would call whenever they wanted each week.
14 Sometimes I was working in the emergency room. I was in a
15 movie theater once, and it was take it or leave it.
16 My mother was -- had difficulty because she was
17 never put on a speakerphone and even the social worker --
18 excuse me, it was never a social worker. It was a caregiver
19 that harassed me when I stipulated that I didn't have my 15
20 minutes.
21 Q Were any calls ever cut short on you?
22 A Yes, my brother would hang up.
23 Q Now, you had no more visits until after the March
24 25th order of the court, is that correct?
25 A That's correct.
15
Q After the March 25th order starting with April,
2 please, can you tell me what visits you asked for in April and
3 what visits you did not receive, please?
4 A I was to have per Judge Bayley's order weekly
5 visits for four continuous hours when I could arrange it where
6 my mother was located. We requested immediately, I believe,
7 you'll have to help me, Stan, on the 26th -- he has -- I'm
8 sorry, Your Honor, he has some of the original notes there.
9 We immediately faxed Mr. Rupp with the dates in April, which
10 were the 7th, the 12th, the 17th, the 24th or the 25th of
11 April.
12 Q Now, you did have a couple of visits in April, did
13 you not?
14 A Yes, I did.
15 Q You had two visits, was that correct?
16 A I had -- Stan, I might --
17 Q Did you have a --
18 A Yes, I did.
19 Q Did you have a visit on the 12th of April?
20 A You have the original note.
21 Q Did you?
22 A Yes. I can't answer because -- I'm sorry.
23 Q Did you have a second visit on or about the 17th?
24 A I had the 7th and I believe the 12th and the 17th.
25 My brother refused me on the 17th.
16
Q Now, can you tell me with the visits that you did
2 have, okay, who was present at those visits?
3 A Yes. My brother was present on the 7th, and,
4 again, it was hostile, and Joan Jackson was present. And my
5 brother was sitting beside my mother, and Joan Jackson was
6 sitting in a chair 4 feet across in a chair looking at my
7 mother.
8 It was in a strange -- again, at the Embassy
9 Suites. So it's a strange environment for her. And I asked
10 to sit beside my mother, and he refused. So I turned to Joan
11 Jackson and said, would you please ask him to move? So when
12 Joan Jackson asked him to move, he got up and moved.
13 He then -- I sat beside my mother. She had not
14 seen me since early February, and my brother then went onto
15 his computer and took a call and worked on his computer, which
16 was distracting because there was a lot of people in the room
17 besides me and my mother.
18 Q What were the timings of these visits? What hours
19 did they occur during the day?
20 A Because of my schedule and my travel time, I had
21 to get up early in the morning and drive to BWI, take a
22 flight, get in, rent a car, and it was about a 30 to 45 minute
23 drive out to the western suburbs of Chicago.
24 Q That's from O'Hare?
25 A No, from Midway.
17
1 Q Midway International.
2 A Southwest only flies into Midway.
3 Q All right.
4 A I asked from 1:00 to 5:00, and there was always,
5 always hostility as to the times. Again, we reminded him
6 frequently it was when I could arrange it. Often I would come
7 off a night shift --
8 THE COURT: When did you see her on April 7th?
9 What were the hours?
10 THE WITNESS: I never saw her for four continuous
11 hours, Your Honor. The 7th and the 12th my brother was --
12 that was the only time he was ever present as a guardian from
13 April until January of this year. And from the 7th to the
14 12th, they were cut short around two hours, two and a half
15 hours.
16 BY MR. LASKOWSKI:
17 Q When you say cut short, how did they get cut
18 short?
19 A My brother would say these visits are over, or he
20 would prompt my mother and say do you want to go home. Of
21 course she always said she wanted to go home.
22 As a nurse, I interpret that she was in a strange
23 place. She wasn't in her home, and she had been removed from
24 her home in Pennsylvania. So she has now only been in
25 Illinois for a few months, and then she's taken to a -- in a
18
1 car to a lobby and then up to a strange suite, and she's to
2 sit there and told that she is to have a visit.
3 She was also informed that she had to do this, and
4 it was my impression that she had been prompted and
5 intimidated into this, and that it was not something that was
6 pleasurable for her. She had been -- you know, she was
7 prepped with --
8 Q Did you make --
9 A -- what a terrible person I was, how horrible this
10 was, she has to do it, the good judge has ordered it.
11 Q Did you object to the location of the visits?
12 A Yes. I objected under my Nurse Practice Act. I
13 objected under a geriatric nurse. I objected as her daughter.
14 I objected as someone who had cared for her for five years,
15 that this was inappropriate and confusing to her. It was
16 cold, especially in April. She didn't want to remove her
17 coat. She didn't know what she was doing there.
18 THE COURT: This was Embassy Suites?
19 THE WITNESS: Yes, sir.
20 THE COURT: Next question.
21 BY MR. LASKOWSKI:
22 Q Did all of the visits occur at the Embassy Suites?
23 A Yes, with the exception of one day. On May 1, my
24 sister failed to make a reservation, and so we got there to
25 the restaurant, and then after we finished a light lunch we
19
had to get up and go to another hotel which was a couple miles
2 away.
3 By this time, we had gotten my mother in there to
4 smaller quarters. My mother became very agitated. She was
5 angry, and at one point she got to the door and ran out of the
6 door down the hallway.
7 Then in August there were three visits where my
8 mother absolutely refused to get out of the car, and the
9 visits occurred for four hours for the first time. From the
10 order of March to August was the first time I had a four hour
11 visit, and she sat in the car for four hours, and the other
12 two she was in the parking lot because she refused to enter
13 the hotel or to get out of her chair.
14 Q Now, we also communicated or -- excuse me, you
15 also communicated your objections through me to opposing
16 counsel, did we not?
17 A That's correct.
18 Q I would like to show you --
19 (Whereupon, Petitioner's Exhibit No. 1
20 was marked for identification.)
21 BY MR. LASKOWSKI:
22 Q -- Petitioner's Exhibit No. 1. And this is a
23 letter that I sent on your behalf and with your authorization,
24 is it not?
25 A That's correct.
20
1 Q Regarding portions of the April visits?
2 A Yes, sir.
3 Q And notifying the guardian that you were making
4 efforts to accommodate and make yourself available to go to
5 Chicago, is it not?
6 A Yes, sir. I wanted to add that I could only do
7 same day travel because of the enormous expense involved in
8 this and the fact that they had taken my mother out of state.
9 I could not afford to stay over.
10 And also I had to wait until the very last hour
11 for each of the visits from April to January of this year --
12 we would wait until the final hour, despite the fact that we
13 had given them a month worth of dates, to hear whether or not
14 I could go.
15 Oftentimes it was the day of the morning I was
16 driving to the airport whether or not they would let me know
17 if I could see her despite the court order of when I could
18 arrange to go there.
19 Q Now, you also expressed concerns regarding the
20 condition under which the visits were taking place at Embassy
21 Suites, did you not?
22 A That's correct.
23 (Whereupon, Petitioner's Exhibit No. 2
24 was marked for identification.)
25 THE WITNESS: Are you asking me to voice --
21
1 BY MR. LASKOWSKI:
2 Q I'm showing you Petitioner's Exhibit No. 2. After
3 you have looked at that, would you confirm that also is the
4 letter you authorized me to write on your behalf?
5 A That is correct.
6 Q With respect to the conditions under which the
7 visitations were taking place, is that correct?
8 A That's correct.
9 Q Now, Ms. Gerber, can we move onto May of 2002,
10 please.
11 A Yes.
12 Q Can you tell me what visits were asked for in
13 May --
14 A I asked for --
15 Q -- and which visit you actually had in May?
16 A I asked for May 1, 7, the 15th, the 21st, the
17 26th, and the 31st. Now, these are more than four, but these
18 are based on through that month I was prevented from seeing
19 her. So I kept adding dates to try to get four days.
20 Q Right. Can you tell me what date you actually had
21 a visit in May?
22 A In May, I saw her the 1st and I believe the 7th.
23 Stan has the master sheet there. The 1st and the 7th. I was
24 refused the 21st, the 30th, and the 31st, and that got to the
25 point that -- sometimes we never got even a response to my
22
1 requests.
2 And each time I had to book these airline tickets,
3 and because they would make me wait until the very last hour
4 and you had to prepay for any airline ticket, I ended up
5 carrying months of credit card charges with interest. Often
6 to get discounted fares and often these fares were not
7 refundable, they were credited but not refundable, so I
8 carried interest charges.
9 In May, on the 1st of May was the date I --
10 THE COURT: Hold on. You have answered the
11 question. Next question.
12 THE WITNESS: Thank you.
13 BY MR. LASKOWSKI:
14 Q With respect to the visit that took place in May,
15 under what conditions did it take place? It was at the
16 Embassy Suites, I assume?
17 A Yes.
18 Q Okay. Who was present?
19 A By May, we were objecting to bringing her to the
20 Embassy Suites. We also asked if I could have lunch with her
21 or if I could take her shopping or if I could take her to a
22 park or if I could take her anyplace else other than the hotel
23 suite.
24 We voiced my concerns as an events practice nurse
25 and a geriatric nurse that to take her out of her surroundings
23
where she would have a comfortable chair, her bedroom and her
2 place at my sister's, which it still wasn't her original home,
3 I felt it was punitive to essentially imprison her for four
4 hours in this hotel room to no avail.
5 So on the 1st of May -- what would happen is I
6 would arrive. I would never know where they would be, but I
7 would find them in a restaurant. They had already started
8 feeding my mother and I would -- probably an hour before so
9 she would be tired before -- I'm sorry, but it was like a
10 setup. She would be tired because she would be there at least
11 30 minutes to an hour before approximately, and then my visit
12 would happen.
13 After we finished lunch on the 1st, my sister said
14 we have to go to another hotel, the hotel is booked, and I
15 objected that she didn't make reservations. So we had to get
16 in the car, get my mother in the car. We drove about two
17 miles to another place called Studio One, got my mother in the
18 room. The room was much smaller, and we were all crammed
19 together, and my sister sat down at a chair.
20 By this time in May through the rest of the visits
21 through this January 03, my sister was on the cell phone. She
22 received cell phone calls. She conducted business. She was
23 doing paperwork. Joan Jackson would receive phone calls, and
24 I was expected to have a visit with my mom.
25 My mom became angry and agitated. She went for
24
the door, opened the door and ran down the hallway. My sister
2 stayed in place at the desk, and Joan Jackson, the social
3 worker, went after my mom and brought her back.
4 I terminated the visit before four hours out of
5 sheer compassion for my mother, and I asked to -- you know, I
6 agreed for her to go home because she begged. On that day,
7 she said openly to all of us, she says, I want to go home and
8 commit suicide.
9 I then walked her -- each time we would leave the
10 hotel I would ask to walk my mother to the car, and each time
11 my sister would body block me. She was always hostile. She
12 would not answer any of my questions, and she would do this
13 openly in front of my mother. She would berate me in front of
14 my mother.
15 On May 1st when I tried to walk my mother to the
16 car and put her in the car seat, she body blocked me and got
17 between my mother. And I wasn't willing to have a tug-of-war
18 with her, and I would say, Jane, please let me have time with
19 my mother.
20 I might add too that if my plane was late, I would
21 always call. I would call my brother, the guardian. He would
22 hang up when he answered the phone. So then I would call back
23 again and leave a message.
24 I would call my sister. She would hang up when
25 she would hear my voice, so I left a message. And if I was
25
1 late, I would call them from the plane. And when I got there,
2 they wouldn't let the visit start from four hours. They
3 informed me that if I was late that we took it off the four
4 hours, and I objected to this.
5 There was no way to step away and discuss this. I
6 tried to do this quietly under my breath. My mother had to
7 sit there and listen to this.
8 Q Now, Marilyn, you have mentioned several
9 conditions that took place during May, and all of these also
10 as to the setup, the arrangements, the hours, your work
11 schedule, were all communicated, your concerns, your
12 objections, and your availability to the guardian through me,
13 did you not?
14 A Yes, sir.
15 (Whereupon, Petitioner's Exhibits 3, 4,
16 5 and 6 were marked for identification.)
17 BY MR. LASKOWSKI:
18 Q I'm going to show you Petitioner's Exhibits 3, 4,
19 5 and 6, please. Those are the efforts to communicate with
20 the guardian regarding some of your concerns regarding the
21 visits that were taking place, are they not?
22 A Yes. These letters are April 15th, 16th, and 19th
23 and 30th. It became a pattern that for each visit there was a
24 minimum of two letters from you and two letters from Mr. Rupp
25 to allow me to see my mother on a weekly basis. This was
26
punitive. At the legal fees, this became harassing, and we
2 objected consistently to this, you know, method when we would
3 give them at least three to four weeks.
4 I was also denied seeing her on dates that I had
5 days off. I was denied seeing her on weekends. I was denied
6 to see her on holidays. I asked to escort her to her -- they
7 said that she was -- sometimes the excuse was she had a
8 medical appointment. I said, well, I can go with her, or she
9 was going to the Alzheimer's day care center. I said I could
10 go with her. They denied all of it with no explanation.
11 (Whereupon, Petitioner's Exhibit No. 7
12 was marked for identification.)
13 BY MR. LASKOWSKI:
14 Q Marilyn, you also asked through me -- we also did
15 ask for information about your mother's activities, did we
16 not?
17 A That's correct.
18 Q She was supposedly going to an Alzheimer's center
19 two days a week?
20 A Yes, sir.
21 Q We were informed?
22 A Yes.
23 Q And I'm showing you what's been marked as number
24 7.
25 A On May 3rd, I asked every which way to have a
27
1 change of venue, take her to mass. My mother was a devout
2 Catholic, to take her to a park, as it was getting warmer, to
3 go to her Alzheimer's, and they denied.
4 I felt that an Alzheimer's setting would be good
5 for her because she would interact, and there would be other
6 people there, and I didn't see why that couldn't happen. This
7 became a consistent pattern on Tuesdays and Thursdays I
8 believe it was.
9 It made it difficult for me to get work, and I had
10 to book work by the month or two months. There was no
11 changing it because I was an intensive care nurse, and due to
12 the shortage of nursing I was trapped. And the days that I
13 couldn't go, I could not replace those days because the months
14 were generally booked by the hospitals.
15 I discovered later by calling around through Joan
16 Jackson, who started showing some empathy in this situation,
17 that my mother, indeed, did not go on a regular basis nor did
18 she go to the Alzheimer's Senior Center.
19 THE COURT: Well, that is beyond the issue here.
20 Next question.
21 (Whereupon, Petitioner's Exhibits 8 and 9
22 were marked for identification.)
23 BY MR. LASKOWSKI:
24 Q Marilyn, the objections continued through me to
25 counsel, opposing counsel, did they not?
28
1 A Yes.
2 Q And I'm showing you Petitioner's Exhibits 8 and 9,
3 please, which are letters of May 6 and May 13.
4 A Yes.
5 Q Which also again follow-up with a request for
6 information regarding activities and objection to the
7 insistence on the schedule of 1:00 to 5:00 p.m.?
8 A Yes.
9 Q Or other than 1:00 to 5:00 p.m., correct?
10 A Again, we would know late, at 4:45 or 5:00. One
11 time you had to come in on a Saturday to let me know if I was
12 going to leave, and for every requested visit there was a
13 minimum of four letters for each visit between the attorneys.
14 (Whereupon, Petitioner's Exhibit No. 10
15 was marked for identification.)
16 BY MR. LASKOWSKI:
17 Q Ms. Gerber, I'm showing you Exhibit No. 10. Is
18 this a response from Mr. Rupp with regard to the hours?
19 A Yes. On May 21st in the third paragraph they say,
20 further all other visits will occur from 10:00 to 2:00 unless
21 otherwise mutually agreed. They tried this on numerous
22 occasions. We informed them that this was not possible for
23 me.
24 I worked evening shifts often, sometimes night
25 shifts. It would have been absolutely impossible for me. I
29
1 would have to sleep four hours, three hours, get up at 3:00 in
2 the morning, 4:00 in the morning to get down to BWI with the
3 security clearance and all that.
4 We kept informing them it was when I could arrange
5 it. I had to be able to be awake and be able to get there and
6 drive often two hours each way, and as it was, I didn't get
7 home often until 1:00 or 2:00 in the morning on each visit.
8 Q Marilyn, I would like to show you next --
9 MR. LASKOWSKI: May I have these marked 11 and 12,
10 please.
11 (Whereupon, Petitioner's Exhibits 11 and 12
12 were marked for identification.)
13 BY MR. LASKOWSKI:
14 Q I'm showing you Petitioner's Exhibit No. 11, and
15 again on the 23rd of May your objection was reiterated
16 regarding the hours at least, was it not?
17 A Yes.
18 Q I'm also showing you Exhibit No. 12. Is this a
19 response -- a response or one of the responses received from
20 the guardian on behalf of his counsel regarding the conditions
21 that were placed on the visitations?
22 A Yes.
23 Q Do you recognize that?
24 A Yes. On May 30th, then they tried to limit this
25 and dictate when I would come. It would be from 10:00 to 2:00
30
again. They kept repeating themself only Monday, Wednesday,
2 Fridays.
3 I had to give them a month's notice. I had to
4 clear it with him. I couldn't go on Sundays because she was
5 unavailable. I couldn't go to church with her. Irrespective
6 of my schedule, my availability, they made it impossible for
7 me to access her.
8 Q Marilyn, with respect to that letter of May 30th
9 that was received from Attorney Rupp, is that indicative of
10 the discussions and communications of the various issues and
11 their positions that had been taken up to that point and time?
12 A Yes, sir.
13 Q Marilyn, I would like to move on to June, please,
14 if we may.
15 A Yes.
16 Q Can you tell me what visits you asked for in June
17 and which ones you actually received?
18 A In June I asked for the 7th, the 4th, the 19th and
19 the 28th. I only was allowed to go once on the 7th without
20 any explanation -- I was denied the -- excuse me, I would say
21 the 14th, the 14th, 19th, and 28th.
22 At this point sometimes there was not even a
23 response from Mr. Rupp. I would by this time leave messages
24 for my brother, and if he would answer the cell phone, he
25 would hang up on me immediately.
31
1 There was no availability to discuss with him. In
2 fact, in the five years since my father's death, I've had a
3 total of probably a 20 minute conversation with my brother, as
4 he refuses to discuss anything.
5 Q Could you tell me -- now, did you say you had one
6 visit in June?
7 A That's correct.
8 Q And how did that visit go, please? Can you
9 briefly describe for us who was there and what transpired?
10 A Again, my sister was there, and Joan Jackson was
11 there and it was always -- we would start off in the
12 restaurant. Mom would have started eating. She would want to
13 go home. She didn't know why we were down there. Then we
14 would have to get upstairs.
15 Oh, I would like to also add that my mother would
16 be afraid of the heights because of the way Embassy Suites --
17 it's the same pattern all over the country. They have the
18 open atrium. She would be nervous upstairs looking down
19 because we would always be very high up.
20 Then we would get her into the room, and there
21 would be a moment of -- more than a moment of adjustment. And
22 then she was forced to sit in a chair and essentially say have
23 a visit. My sister often would say, do you want to go home?
24 And obviously -- maybe it's not obvious -- my mother would say
25 yes, or she would get up and say let's go home, let's go home,
32
1 Jane.
2 (Whereupon, Petitioner's Exhibits 13 and 14
3 were marked for identification.)
4 BY MR. LASKOWSKI:
5 Q Marilyn, in June your objections continued with
6 regard to the hours, the conditions, and the locations, did
7 they not?
8 A That's correct.
9 Q I show you Petitioner's Exhibit No. 13.
10 A June 19th we objected.
11 Q And I also show you what's been marked as
12 Petitioner's Exhibit No. 14. Is that also correspondence you
13 authorized that I forward to Mr. Rupp summarizing positions
14 and objections regarding visitations?
15 A Yes. On June 27th, this was a four page letter
16 from my attorney that goes into great detail to my objections,
17 my clinical objections, my sister's hostility, how it was
18 affecting my mother, a reaffirmation of how I needed to get
19 there.
20 Q Made suggestions also at least as to some ideas of
21 different activities other than sitting in a hotel room?
22 A Yes. I would ask, could I take her shopping? I
23 would like to buy her something. Could we go to a park?
24 Could we change the venue? Could we take a drive?
25 THE COURT: Let me ask you this. Were you ever
33
1 allowed to take her anywhere outside of the confines of the --
2 THE WITNESS: I was never -- I'm sorry.
3 THE COURT: -- meeting place, be it a motel or
4 whatever?
5 THE WITNESS: I was never allowed to do anything
6 with her.
7 THE COURT: Okay.
8 THE WITNESS: I was never allowed to be alone with
9 her at anytime.
10 BY MR. LASKOWSKI:
11 Q You did take her outside the hotel on one
12 occasion, on one visit, didn't you, go out by a pond or a
13 walkway and a flower bed?
14 A Right. In July I only had, again, one visit.
15 Q When did that occur?
16 A On the 5th. And then on August we again made four
17 weeks, meaning four weeks and --
18 Q Before we get to August, Marilyn --
19 A You want to go in July?
20 Q Yeah. I wanted to ask to make it clear for the
21 record. In June, just briefly, you said you had asked for the
22 visit on the 14th of June, right, and you ended up canceling
23 that because of a change in your work schedule at the last
24 minute, didn't you?
25 A Right. One of them I had to cancel. I couldn't
34
1 make the flight, and I informed them immediately.
2 Q Now, turning back to --
3 A I take it back. In July I saw her the 5th and the
4 17th, two days only, yes, two weeks out of the four. July I
5 asked for the 5th, the 17th, the 10th, and the 26th.
6 Q In July you did attempt to communicate directly
7 with Mr. Rupp and Mr. Gerber, did you not?
8 A That's correct.
9 Q Did you try to -- did you write to them?
10 A Yes, sir, I did.
11 Q In addition to calling them?
12 A The legal letters were becoming enormously
13 burdensome financially for me.
14 MR. LASKOWSKI: May I have a moment, Your Honor?
15 THE COURT: Yes.
16 MR. LASKOWSKI: This is the July 6th letter. I
17 didn't expect to use this today. I apologize. This was part
18 of the documents that I provided to you and that were mailed
19 out. You should have this already. In fact, all of the
20 exhibits I'm using today you know about, you have them.
21 MR. RUPP: Well, I mean, I was relying on the
22 production of documents standard.
23 MR. LASKOWSKI: I responded exactly to your
24 questions in which you asked them to produce. This is July
25 6th and July 22nd. The other is July 30th. I don't have
35
1 extra copies.
2 THE COURT: You may utilize any letters that were
3 sent to counsel.
4 MR. LASKOWSKI: In fact, it was a request for
5 documents that was made by opposing counsel. They were very
6 specific. Those were responded to.
7 THE COURT: Go ahead.
8 MR. LASKOWSKI: All of the documents today are
9 communications between the parties. I apologize I just don't
10 have copies, extra copies, as I didn't expect to have to use
11 these but we will.
12 (Whereupon, Petitioner's Exhibits 15, 16,
13 and 17 was marked for identification.)
14 BY MR. LASKOWSKI:
15 Q Now, Ms. Gerber, I'm showing you what's been
16 marked as Petitioner's Exhibit No. 15.
17 A Yes, sir.
18 Q And at the same time I'll show you number 16.
19 Those are the communications to your brother and Attorney Rupp
20 that you had made regarding the conditions and the visits, did
21 you not?
22 A Yes, sir. On July 6th, I wrote a letter directly
23 to my brother via Mr. Rupp because you were unavailable for
24 the week, and I needed to see my mother per the order, and so
25 I wrote him directly with my concerns and my issues.
36
1 By this time, I was noticing remarkable medical
2 changes in my mother, and I reiterated this as well as my
3 sister's behavior and her hostility during these visits.
4 Q I would like to show you Petitioner's Exhibit No.
5 17. You authorized me to provide that to Mr. Rupp, please, is
6 that correct?
7 A Yes. On July 30th, I also -- we discussed my
8 intents for August and our concerns about my mother.
9 Q You expressed some concerns again about the
10 location?
11 A Yes.
12 Q And her having to travel to the Embassy Suites?
13 A Yes. And we had stated in earlier letters that I
14 had spent many years and years in my sister's home for the
15 holidays, by weeks at a time, that I didn't understand why I
16 couldn't see her in her habitat where she lived, and we
17 received no response, so that she could lay down, she could be
18 in a chair, she could --
19 THE COURT: Hold on. Next question.
20 (Whereupon, Petitioner's Exhibits 18 and 19
21 were marked for identification.)
22 BY MR. LASKOWSKI:
23 Q Ms. Gerber, I'm showing you Petitioner's Exhibits
24 18 and 19, please. These are letters from Attorney Rupp, are
25 they not, to me?
37
1 A Yes, they are.
2 Q Do you recognize those?
3 A Yes.
4 Q Do they exhibit and state some of the conditions
5 that were placed upon the visitation still at that time?
6 A Yes. On August 6th, Mr. Rupp wrote again trying
7 to force me to a 10:00 a.m. He also told me that I should fly
8 from Harrisburg, there were plenty of flights from Harrisburg,
9 and, yes, there were if you were willing to pay 800 to a
10 thousand dollars round trip, which was out of my budget.
11 He started wanting breaks. He started making
12 comments of what he observed about my mother, and yet he had
13 not seen her since the first two visits of April 7th and 12th.
14 He had never seen her since those times, and started making
15 characterizations about my mother's condition. And then there
16 was a slur at the end there he noted that I believe -- that
17 they say that I believe that I'm a superguardian over and
18 above the court-appointed guardian.
19 I might add that Joan Jackson was not a clinical
20 nurse or --
21 THE COURT: Hold on. You have answered the
22 question.
23 THE WITNESS: To make these --
24 THE COURT: Hold on. Next question.
25 THE WITNESS: On August --
38
1 THE COURT: Stop.
2 THE WITNESS: I didn't answer this one. Okay.
3 (Whereupon, Petitioner's Exhibit No. 20
4 was marked for identification.)
5 BY MR. LASKOWSKI:
6 Q Ms. Gerber, I'm showing you what's been marked
7 Petitioner's Exhibit 20. Is that another communicational
8 letter that you wrote to Mr. Rupp and your brother concerning
9 your concerns and also requesting the visitations for
10 September?
11 A Yes. This letter is dated August 28th, and I
12 requested the 3rd of September, the 9th, the 16th, and the 1st
13 of October. I started then voicing specifically --
14 THE COURT: Tell me first how many times did you
15 see her in August?
16 THE WITNESS: In August, sir, I saw her the 7th,
17 the 14th, and the 21st, and in August was the first time and
18 only time that I saw her for four hours.
19 THE COURT: Each time?
20 THE WITNESS: Yes, sir, the first time.
21 THE COURT: When did you see her in September?
22 THE WITNESS: In September, I saw her -- where are
23 my notes? I think I ran out of my notes, Your Honor. In
24 September, I saw her only twice, and I requested the 3rd, 4th,
25 9th, 16th, and 23rd.
39
THE COURT: Were they four hours each time?
2 THE WITNESS: No, because by that time my mother
3 had been admitted. I thought my mother had been admitted on
4 or about the 1st of September. What we discovered just
5 recently, last night at 3:00 p.m., that my mother had been
6 admitted on August 20th. And I would like to go back and just
7 state, Your Honor --
8 THE COURT: Wait. Let counsel proceed.
9 BY MR. LASKOWSKI:
10 Q Now, you were requesting for September, and you
11 said we did find out yesterday that your mother was admitted
12 August 20th to Sunrise facility, correct?
13 A Right.
14 Q Was that ever communicated to you, that she was at
15 Sunrise?
16 A No. What happened was --
17 Q How did you find out about that?
18 A What happened is that in August was the first time
19 that I ever had four continuous hours with my mother, and that
20 happened because the first time in August --
21 THE COURT: Wait. The question is, how did you
22 find out she was admitted to Sunrise?
23 THE WITNESS: I found out she was admitted
24 yesterday at 3:00 p.m. when Mr. Rupp sent over by courier
25 about a hundred pages of testimony.
40
1 BY MR. LASKOWSKI:
2 Q That was the answer to the petition?
3 A The answer to the petition, yes.
4 Q Now, did you go to Sunrise in September?
5 A Yes. After I had my visits, my three successful
6 visits with my mother --
8 A In August, which one occurred four hours in the
9 front seat of her car. The next two occurred in a wheelchair
10 in the parking lot in the gardens and with the ducks, and my
11 sister stayed away and did not participate.
12 During those visits, my mother interacted with me.
13 She touched me. She kissed me. She talked to me. She
14 independently would embrace me. We picked flowers. We
15 watched the ducks. But she was remarkably declining and was
16 moving from a limp to a wheelchair by the end of August. I --
17 THE COURT: I have lost track of the question.
18 What is the question again, counsel?
19 THE WITNESS: About August, I believe, yeah.
20 MR. LASKOWSKI: I was asking about the August
21 visits.
22 THE COURT: You have said 7, 14. There must have
23 been something other than 21. She was admitted to a nursing
24 home on the 21st. Did you see her on the 21st?
25 THE WITNESS: Yes, sir, I did.
41
1 THE COURT: Next question.
2 BY ~R. LASKOWSKI:
3 Q In August on the 21st, you saw her at the Embassy
4 Suites though, right?
5 A Right.
6 Q You didn't go to Sunrise until September?
7 A No. I didn't know that she had been admitted on
8 the 20th, which meant she had been brought --
9 Q Transported from Sunrise to the Embassy Suites?
10 A That's right. They probably didn't want me to
11 know.
12 Q At anytime from March until this point, and I will
13 say also through the end of October, did you ever have a visit
14 alone with your mother?
15 A Never.
16 Q Now, on September 16th, you did go to Sunrise, did
17 you not, for a visit?
18 A Yes. Actually, Stan, I believe --
19 Q Did you actually see your mother that day?
20 A No. There was one earlier.
21 Q I'm asking you about the 16th of September.
22 A Yes, sir.
23 Q Did you go there?
24 A Yes.
25 Q Did that visit occur?
42
1 A No, it did not.
2 Q Where was your mother?
3 A After I had had one visit with her at Sunrise,
4 which was very unpleasant, I was informed the 16th would be at
5 the Embassy Suites, and I wrote a letter objecting under my
6 Nurse Practice Act that I would not participate in this
7 because this would be destructive for her emotionally and
8 physically based on my mother's medical condition.
9 And the reason I objected to this was because my
10 mother -- after my complaining to the Department of Aging and
11 the local police department of victims unit, my mother was
12 admitted with wounds and problems, significant medical
13 problems, from my sister's home into Sunrise.
14 And so I objected to her being transported with
15 her right heel wound, her left blackened toe, her coarsen
16 lungs, and her dramatic weight loss to be yanked out of
17 Sunrise into a van, into a wheelchair, into Embassy Suites and
18 back.
19 And so I arrived at Sunrise, sat in the lobby, and
20 informed the director -- or the care manager for the day that
21 I would wait for my mother to return. At which point the care
22 manager, whose name is Michelle Harold, told me I had to
23 leave, threatened me with arrest, and called a police
24 detective of Glen Ellyn Police Department. I exited the
25 facility and called my attorney, John O'Halloran, in Chicago.
43
1 Q You were very much concerned about your mother's
2 condition at that point?
3 A Yes, I was.
4 Q It bothered you, didn't it?
5 A Yes, sir.
6 Q She had these heel wounds that appeared to you not
7 being attended to, is that correct?
8 A Yes.
9 Q They were like -- were they bedsores of sorts?
10 A My mother -- I was never allowed to see the wound,
11 but she had a full dressing and gauze wrapped around her
12 entire right heel.
13 In August I had observed when I was massaging her
14 hands and feet and I would comb her hair on the only three
15 successful visits I had with my mother, which were of four
16 hours' duration, that my mother's left toe was totally
17 blackened, which had to have happened from a tight shoe or
18 some type of distress.
19 Her temporomandibular joint, which is called a
20 TMJ, was firing at 80 beats a minute. She had significant
21 coarsen lungs, and she looked essentially like a Holocaust
22 victim.
23 And I shared with Joan Jackson, who was a clinical
24 social worker, and my sister my significant concerns about my
25 mother's medical condition, as she was under my sister's care
44
1 and the guardian, and she had no skilled care.
2 THE COURT: Hold on. You have answered the
3 question. Next question.
4 (Whereupon, Petitioner's Exhibits 21 and 22
5 were marked for identification.)
6 BY MR. LASKOWSKI:
7 Q Ms. Gerber, I'm showing you Petitioner's Exhibits
8 21 and 22, and these likewise are additional letters that you
9 had forwarded to your brother and Mr. Rupp?
10 A Yes.
11 Q Regarding some of your concerns?
12 A On the 15th --
13 Q That you had just described for us, is that right?
14 A On the 15th and 19th, I elaborated in great
15 clinical detail my concerns that my mother had --
16 THE COURT: You do not have to give me all of the
17 concerns. They are in the letter, and they speak for
18 themselves.
19 THE WITNESS: Exactly.
20 BY MR. LASKOWSKI:
21 Q They follow-up what you had just told us?
22 A Yes, sir.
23 Q So you were attempting to communicate those
24 concerns to your brother?
25 A Yes.
45
Q Ms. Gerber, movinH on to October, please.
2 A Yes.
3 Q Did you have any visitations in October?
4 A Yes.
5 Q Can you tell me how many you had in October?
6 A In October I had the 3rd and the following week.
7 I'm sorry, you have --
8 Q Was that the 16th of October?
9 A Yes, sir.
10 Q And there was the third one that was supposed to
11 take place on October 30th, is that riHht?
12 A You mean September 30th?
13 Q No, October 30th.
14 A Yeah.
15 Q And that was preempted because of the Court's
16 order on October 29th, is that riHht?
17 A Yes. What happened is on the 23rd of September,
18 on the 3rd of October, and the 16th of October each time I
19 accessed Sunrise to see my mother --
20 THE COURT: You are beyond the scope of the
21 question. It was preempted by the Illinois court order, is
22 that correct?
23 MR. LASKOWSKI: The 30th visit.
24 THE COURT: Is that correct?
25 THE WITNESS: RiHht. The police --
46
1 THE COURT: Hold on. Next question.
2 BY MR. LASKOWSKI:
3 Q Now, you said you went to Sunrise for the three
4 visits in October, the 3rd, the 16th and the 23rd, is that
5 right?
6 A Yes, sir.
7 Q Who was present for those visits?
8 A My sister was never present after my mother's
9 admission to Sunrise. Who was present and waiting for me
10 would be Joan Jackson, and at one other time Barbara who was
11 the owner. I believe it's either Barbara Warden or Barbara
12 Sanders, but something else happened --
13 THE COURT: Hold on.
14 BY MR. LASKOWSKI:
15 Q No, they are not the owners of Sunrise. That was
16 regarding the agency that was used --
17 A Right.
18 Q -- and for which Joan Jackson was working, is that
19 correct?
20 A Right. In addition to my mother being in the
21 reminiscence unit which is --
22 THE COURT: Wait. You have got to wait. You have
23 got to respond to the questions that he is asking you.
24 THE WITNESS: Sorry.
25 MR. LASKOWSKI: That's okay.
47
1 BY MR. LASKOWSKI:
2 Q Can you tell me how you were treated by Sunrise at
3 these two visits?
4 A Yes.
5 Q Or three visits, excuse me.
6 A From the first time I accessed my mother in
7 September until the week of my -- previous to my mother's
8 death on January 14th this year --
9 THE COURT: I want you to listen to the question.
10 How were you treated?
11 THE WITNESS: How I was treated --
12 THE COURT: Hold on. Listen to the question. How
13 were you treated at Sunrise on the 3rd and the 16th of
14 October?
15 THE WITNESS: I was treated with hostility by
16 Michelle Harold and some of the staff. I was also -- when I
17 accessed her, within an hour Michelle Harold called the
18 police, local police in Glen Ellyn. Two uniformed officers
19 would show up. They would then threaten me that I had to
20 leave, and I would show them the court order from Judge Bayley
21 and Judge Wheaton, which the full faith and credit order had
22 been admitted on the 18th of September.
23 THE COURT: So you were treated poorly, right?
24 THE WITNESS: I was treated poorly and then --
25 THE COURT: Hold on. You are beyond the scope of
48
1 what I need to know, ma'am. Answer the questions. Next
2 question.
3 THE WITNESS: Okay.
4 BY M_R. LASKOWSKI:
5 Q At the three visits in October, were the police
6 called at those three visits?
7 A Yes. Michelle called them, and then she would get
8 on the phone with my brother. And then after the police
9 arrived, then a detective, Sergeant Crawly (phonetic), would
10 show up, and Sergeant Crawly would get on the phone with my
11 brother. And Michelle Harold would have this, like, 10 page
12 affidavit of all of the terrible things that I was or did. I
13 saw a few of the pages, and my brother would ask for me to be
14 arrested.
15 And then Sergeant Crawly would look at my full
16 faith and credit order and then Judge Wheaton's order on the
17 llth of October and say she has a right to be here. So then
18 the cops would have to leave, and Sergeant Crawly would leave.
19 And then we would restart the visit from the time all this
20 commotion started, and I would get a visit with my mother.
21 Q Now, you did have --
22 A But Joan Jackson was always there watching.
23 Q You did have a visit, you know, on the 3rd of
24 October. That visit was a little over four hours, was it not?
25 A Yes, sir. And the reason it was is because I had
49
1 so many months where I didn't have a visit I considered that I
2 had a bank of time coming to me.
3 Q You stayed a little extra. You only stayed how
4 long?
5 A Once it was an extra hour.
6 Q And did you stay a second time a little more than
7 four hours?
8 A Yes, I did.
9 Q And that was about 45 minutes or so?
10 A Yes, sir. It was very hard for me to leave her.
11 Q Now, throughout this process, I would say from
12 April, obviously, through October, did your brother ever call
13 you back?
14 A Never. He would always hang up on me.
15 Q Did your sister ever call you back?
16 A Never. She would always hang up on me.
17 Q We heard you were never allowed in her home, is
18 that right?
19 A Never.
20 Q As a result of all these activities, did you incur
21 certain expenses?
22 A Yes, sir, I did.
23 Q And can you describe briefly for me the types of
24 expenses you incurred throughout this whole process?
25 A The expenses would be rather obvious in that there
50
was the airline expense, which were of an average 276 to
2 $320.00; rental cars, which in the winter were cheap, in the
3 twenties, but then they started being 40 and $60.00 for a day,
4 less than a day, less than, you know, six hours; the parking
5 at BWI, the gas, some minimal food, lost wages.
6 In some instances, when he would cancel on the day
7 that I would go, or the February fiasco, I had to literally
8 take the 8th and 9th off for 15 minutes; telephone calls,
9 faxes, credit card interest that I would carry for months and
10 months on these nonrefundable fares that had to be bought at
11 the last moment at the highest prices.
12 MR. RUPP: Your Honor, we would object to this
13 line unless -- we have never been provided any --
14 THE COURT: Overruled.
15 MR. RUPP: -- documentation.
16 MR. LASKOWSKI: I do have an exhibit, and this was
17 just prepared by this morning. Certainly I understand this is
18 the first time you have seen it. It is a summary regarding
19 some of her testimony, and I would have no objection to you
20 before cross examination having an opportunity to review that.
21 THE COURT: Let's do that then. Let's take a
22 recess. Show him the exhibit.
23 PIR. LASKOWSKI: As an offer, Your Honor, these are
24 some notes that Marilyn had put together just summarizing her
25 expenses.
51
THE COURT: Let him see what you are going to show
2 her afterwards, and we will take a recess.
3 THE WITNESS: May I step down?
4 THE COURT: Yes. Quarter after.
5 MR. LASKOWSKI: Thank you, Your Honor.
6 (Whereupon, a brief recess was taken.)
7 THE COURT: You may continue.
8 BY MR. LASKOWSKI:
9 Q We left off with expenses. Marilyn, I'm going to
10 show you what's been last marked Plaintiff's Exhibit No. 23.
11 Now, just very briefly, this is a summary of your expenses, is
12 it not, that you incurred with respect to the visits?
13 A Yes, sir.
14 Q Through what time?
15 A Through January llth of 2003. I would like to say
16 that --
17 THE COURT: Wait. You have just got to answer the
18 questions. It's not a like to say operation. Go ahead.
19 THE WITNESS: I just want to --
20 THE COURT: No. Next question. Next question.
21 BY MR. LASKOWSKI:
22 Q You prepared these notes, right?
23 A Yes, sir.
24 Q And you prepared these expenses, correct?
25 A Yes, sir.
52
1 Q And this is what it's cost you in order to be able
2 to visit your mother, has it not?
3 A That's correct.
4 Q Now, the total -- and to expedite this, you just
5 recently prepared this, I guess, between last night and this
6 morning, is that correct?
7 A That's correct.
8 Q The total of all of the expenses is $14,616.00, is
9 it not?
10 A That's correct, minus your legal and --
11 Q No.
12 A Sorry.
13 Q Now, as part of that, it's broken down for airline
14 expenses of $7,427.00, is it not?
15 A Yes, sir.
16 Q You had car rental expenses of $1,119.007
17 A Yes, sir.
18 Q You had gas and parking of about approximately
19 $305.00?
20 A Yes, sir.
21 Q You had some miscellaneous hotel expenses?
22 A Yes, sir.
23 Q Of $398.00?
24 A Yes, sir.
25 THE COURT: Three what?
53
1 MR. LASKOWSKI: Three ninety-eight, Your Honor.
2 THE COURT: Go ahead.
3 BY MR. LASKOWSKI:
4 Q And you had miscellaneous items which would be
5 phone, fax, food, tolls of $1,315.00, is that correct?
6 A That's right.
7 Q And then you also included in here some lost wage
8 time for yourself of $4,052.00, is that right?
9 A Yes, sir.
10 Q And these are for days of work that you had missed
11 because of either travel or rescheduling visits, is that
12 correct?
13 A Yes. And that rate was calculated at $42.00 an
14 hour for an ICU nurse at any hospital that I worked at with my
15 agency.
16 Q Is that your standard rate that you have been
17 charging?
18 A Yes, it is. In fact, it's a lowball.
19 Q Thank you. Now, you've also incurred some legal
20 fees with respect to this, have you not?
21 A Yes, I have.
22 (Whereupon, Petitioner's Exhibit No. 24
23 was marked for identification.)
24 BY MR. LASKOWSKI:
25 Q I'm showing you Exhibit No. 24. Those are copies
54
1 of invoices from our office and from myself to you with
2 respect to the visitation issues and the review hearing
3 matters, is that correct?
4 A That is correct, sir.
5 Q And that covers from April through October?
6 A Yes. It does not include --
7 Q That is correct?
8 A Right.
9 Q And the billing -- there is first a cover page
10 that is a billing summary of each of those accompanying bills,
11 is there not?
12 A Yes, sir.
13 Q And those are the totals that you would have --
14 A For each month, yes.
15 Q Expenses that you would have incurred through this
16 process, is that correct?
17 A That's correct, for these letters.
18 MR. RUPP: Your Honor, I have to object to this
19 line of questioning. I thought we were here on indirect
20 criminal contempt, and this is for the whole process versus
21 the five dates that are complained of in the petition.
22 THE COURT: They are introducing the evidence. If
23 something is awardable, the amount, of course, is at issue.
24 That is what they have put it in.
25 MR. LASKOWSKI: Correct.
55
1 THE COURT: I mean, I understand where they are
2 coming from.
3 MR. LASKOWSKI: Sure. There is a second part to
4 that, not just a reimbursement portion, and that is that Ms.
5 Gerber here has been put through as a result of these
6 actions --
7 THE COURT: I understand.
8 MR. LASKOWSKI: -- untold expenses.
9 THE COURT: The objection is overruled.
10 MR. LASKOWSKI: Thank you.
11 BY MR. LASKOWSKI:
12 Q Now, Ms. Gerber, if it's possible, you would like
13 to be reimbursed for all of those expenses if you could, is
14 that right?
15 A Yes, sir. They were a very difficult financial
16 burden.
17 MR. LASKOWSKI: Your Honor, I have no further
18 questions at this time. As you've indicated in your opening
19 remarks, we're only concerned with issues up through the end
20 of October.
21 THE COURT: I agree. Cross-examine.
22 MR. LASKOWSKI: Thank you.
23 MR. RUPP: Thank you, Your Honor.
24
25
56
1 CROSS EXAMINATION
2 BY FiR. RUPP:
3 Q Ms. Gerber, when you made the visits to see your
4 mother, did your mother make any statements to you?
5 MR. LASKOWSKI: Objection, it's too broad.
6 THE COURT: I agree. Ask a specific question.
7 BY MR. RUPP:
8 Q Marilyn, when you visited did -- I'll just go to a
9 specific question. Did your mother evidence that she wanted
10 the visits over at any point?
11 A On which date, sir?
12 Q Well, how about February 9, the one you mentioned.
13 A February 9th was a Sunday and --
14 THE COURT: The question is, did she want the
15 visit over?
16 THE WITNESS: No. I didn't even see her on
17 February 9th. She couldn't have voiced the opinion.
18 BY MR. RUPP:
19 Q Well, there was a visit in February, was there
20 not?
21 A Yes, there was, sir.
22 Q And wasn't that visit on February 9?
23 A Oh, I'm sorry.
24 Q It was, wasn't it?
25 A Nope.
57
1 Q What date do you say it was on?
2 A It was the 9th.
3 ~R. LASKOWSKI: Of February?
4 THE WITNESS: Um-hum.
5 THE COURT: Okay. Go on.
6 BY MR. RUPP:
7 Q Did your mother indicate she wanted the visit
8 over?
9 A No, she did not. I'm sorry, I was thinking the
10 following day was the 10th. It was a weekend visit. I was to
11 see her the 9th and the 10th. I apologize.
12 Q Did the guardian raise with your legal counsel
13 that it would seem to be better to have the visits occurring
14 earlier in the day, say at like 10:00 a.m., starting at
15 10:00 a.m.? Do you know whether that was raised with your
16 legal counsel?
17 A I believe the guardian attempted to raise that.
18 It was impossible for me to be there at 10:00. The order
19 stated when I could arrange to be there.
20 Q Did you ever provide any kind of evidence of what
21 your work schedule was to the guardian?
22 A That wasn't part of the court order, sir.
23 Q But did you ever provide a photocopy, this is my
24 work schedule, you can see I can't make the 10:00 a.m.?
25 A No, because my word is my bond, and when I
58
1 couldn't do it, I couldn't do it. That would be an invasion
2 of my privacy.
3 Q Did the guardian attempt to make accommodations
4 when you requested accommodations for your schedule?
5 A Never.
6 Q Never. Okay.
7 A He consistently wanted to know my schedule, and
8 based on my past history of my brother's stalking me and
9 following me --
10 THE COURT: Hold on.
11 THE WITNESS: -- I refused to provide him --
12 THE COURT: Stop. Next question.
13 THE WITNESS: Sorry.
14 BY MR. RUPP:
15 Q In your petition, Ms. Gerber, you complained that
16 the access visits were cancelled, denied, ignored, or not
17 responsive to the following dates by the guardian, and the
18 first one you have in paragraph 13 of your petition was July
19 10. What is your testimony on July 10 that was -- let me just
20 go through your petition.
21 A I don't have a petition in front of me, sir.
22 Q Well, do you recall July -- do you recall the July
23 10 visit?
24 A I don't understand the question, sir.
25 Q Do you recall requesting a July 10, 2002, visit?
59
1 A I have on one of my notes July 5th, 17th, 10th,
2 and the 26th.
3 Q I'm sorry, I could not hear you.
4 A I have on my notes, July 5th, 17th,~the 10th, and
5 the 26th I requested.
6 Q So the 10th is in your notes then?
7 A I believe that's true, yes.
8 Q So it's your recollection that you did request a
9 July 10 visit?
10 A I would have to see the letter with the request of
11 when that was made, sir, to give you an affirmative --
12 complete affirmative answer.
13 Q But on the July 10 visit, it's part of your
14 petition. Now, was that visit cancelled?
15 A As I stated, sir, there were two visits that I had
16 to cancel, and when I had to cancel the visits, then I
17 requested another date to make the four weeks per month per
18 the court order.
19 Q Well, I'm going to give you the July 10 date, July
20 10, 2002. Did the guardian cancel that visit?
21 A I'm not sure exactly on which -- whether it was
22 the 10th. I'm sure you know -- I'm sure you have a motivation
23 in the question.
24 THE COURT: You cannot recall, ma'am. Next
25 question.
60
1 THE WITNESS: I can't recall if it was the 10th.
2 THE COURT: Next question.
3 THE WITNESS: There was two that I had to cancel.
4 BY FiR. RUPP:
5 Q So you don't recall what happened or why that July
6 10 visit did not occur?
7 A No, it's immaterial. If it was for personal
8 reasons, it was not for -- my brother did not need to know why
9 I had to cancel it. All he needed to know was I had four
10 visits per month.
11 Q But you cancelled the July 10 visit?
12 A I believe that that was one of the dates, yes,
13 sir. I would have to see the --
14 Q In your petition, paragraph 13, the next date, you
15 say that the guardian cancelled, denied, ignored, or not
16 responded to was July 26. Do you recall what happened with
17 the July 26th requested access visit?
18 A He did not respond to it, and it was not granted
19 to me. Again, my brother knew that I was to have a weekly
20 visit, four continuous hours when I could arrange it. So
21 there was no mystery, each month four visits, one visit a
22 week.
23 Q Is it possible, Marilyn, that the July 26th visit
24 was denied because of medical reasons for your mother?
25 A I can't answer your question of what I think
61
1 you're thinking, Mr. Rupp.
2 Q Well --
3 A My brother gave reasons --
4 THE COURT: She says she doesn't know. Next
5 question.
6 BY MR. RUPP:
7 Q Ms. Gerber, now, do you recall on the September 3
8 date -- this is also out of paragraph 13 in your petition --
9 do you recall why you say the guardian cancelled, denied,
10 ignored, or did not respond to for the September 3 requested
11 access visit?
12 A He totally didn't respond. By September, he was
13 ignoring all of the requests, no response, nothing.
14 Q Do you recall when you asked for the September 3
15 access visit?
16 A No, it was immaterial. He knew each week there
17 was a visit four continuous hours when I could arrange it.
18 There was no mystery on that.
19 Q But do you recall when you asked for that visit?
20 A I don't recall. I believe, if you look in
21 August -- in the August letter, I think there is a September
22 date mentioned.
23 Q Is that possibly the August 28th letter?
24 A Are you asking me to look at the August 28th
25 letter?
62
1 Q I'm asking if you recall.
2 A I don't have these memorized, Mr. Rupp.
3 Q Did you ask on August 28 in a letter -- I'm sorry.
4 Did you ask in a letter dated August 28th for a September 3
5 access visit?
6 A Yes, I did, for the 9th the 16th and the 1st of
7 October. No response for the 3rd.
8 Q And you also have in your petition that you
9 requested September 4, 2002.
10 A Oh, when I didn't hear about the 3rd, I asked for
11 the 4th. I kept asking for every date that he didn't respond
12 to because I had a right to a weekly visit.
13 Q When did you ask for the 3rd? I'm sorry, or --
14 A I don't recall at this time.
15 Q Do you recall when you asked for the September 4
16 access visit?
17 A No. But, sir, she was at Sunrise is immaterial.
18 She was there. We knew she was there. We knew there were
19 people there. It was immaterial what day. Any day I could
20 have come once a week at Sunrise Assisted Living. She was no
21 longer living at my sister's. She was wheelchair bound and
22 had significant wounds and medical problems.
23 Q Ms. Gerber, did you previously testify though that
24 you had told the Court that you were giving the guardian two
25 weeks' notice for the access visits?
63
1 A Would you repeat the question, please?
2 Q Did you previously indicate to the Court that you
3 were asking -- you were giving two weeks' notice before the
4 requested access visits?
5 A I recall that I testified that I would give as
6 much time as I had my schedule available, and again there was
7 no stipulation by Judge Bayley to any notice I had to give.
8 The notice read weekly visit, four continuous hours, when I
9 could arrange it.
10 Q As the guardian, Mr. Gerber asked you for some
11 notice?
12 A The guardian demanded 30 days' notice which was
13 punitive and abusive.
14 Q Is it possible he had asked for as much as 30
15 days' notice?
16 A That's correct, he did.
17 Q And you had indicated to the guardian that you
18 would be providing approximately two weeks' notice, but that
19 did not happen, did it?
20 A I'm sorry, I don't understand your question. On
21 which month, which dates are you asking?
22 Q In July, had you indicated that you might be
23 providing two weeks' notice to the guardian?
24 A I may have once been able to do that per my
25 schedule -- schedule availability and knowledge, but, again,
64
1 the guardian was never there. It was immaterial. He was
2 never there. So it was just about me coming each week to see
3 my mother.
4 Q Well, you say it's not immaterial -- you say it's
5 not material, but at one point you said to the guardian in a
6 letter, did you not, July 6, that --
7 A Are you asking me to look at the July 6 letter?
8 THE COURT: Hold on. Just answer the question.
9 BY MR. RUPP:
10 Q You needed two weeks' notice because of
11 arrangements for airfares, am I correct?
12 A Could I look at the letter, sir?
13 Q All right.
14 A Would you point out the paragraph for me, please.
15 It will make it go quicker.
16 Q The second paragraph on the first page.
17 A Um-hum.
18 Q Seven lines down.
19 A In order to reserve discounted fares, I need to
20 purchase tickets two weeks in advance. That doesn't say I was
21 going to give you two weeks in advance. It said if I wanted
22 to purchase discounted I would have to do it two weeks in
23 advance.
24 Q So that's what your letter stated, is that
25 correct?
65
1 A My letter states only what that sentence says.
2 Q Thank you. Then on August 28 you asked for a
3 September 3 access visit, is that correct?
4 A May I look at the letter, please?
5 Q Yes.
6 A Would you repeat the question, please.
7 Q Then in your August 28 letter, which was dated
8 August 28th, you asked for a September 3 visit?
9 A That's correct.
10 Q Was there a holiday weekend intervening in that
11 time frame, if you recall?
12 A Yes, it was Labor Day. But, again, my mother was
13 at Sunrise and it was immaterial. It was once a week, four
14 continuous hours, when I could arrange it.
15 Q Obviously there is not a two weeks' notice?
16 A I didn't say I would give two weeks' notice, sir.
17 Q But I'm just saying -- Ms. Gerber, I'm just asking
18 you, obviously, between August 28th and September 3 there is
19 no two weeks' notice, is that correct?
20 A There was no court order that I had to give any
21 notice.
22 Q Can you just answer my question, please. Is there
23 two weeks between August 28th and September 3?
24 A No, there is not.
25 Q Thank you. Did you have a September 16 visit with
66
your mother?
2 A No, I did not.
3 Q Did you ask for one?
4 A Yes, I did.
5 Q May I ask why you did not have a September 16
6 visit?
7 A The guardian refused to produce her.
8 Q Did you go to Chicago?
9 A Yes, I did.
10 Q And what were you informed?
11 A That she was at Embassy Suites.
12 Q And you had been informed of that even in advance
13 of arriving in Chicago, is that correct?
14 A That's correct.
15 Q In fact, your attorney attached my letter to his
16 petition, is that correct?
17 A Are you talking about one of these exhibits here?
18 Q Well, in your petition you attached --
19 A Which one are you talking about?
20 Q Your petition that you filed in December.
21 A You'll have to show it to me. I can't say yes
22 without seeing it.
23 MR. RUPP: Your Honor, may I approach the witness?
24 THE COURT: Sure.
25
67
1 BY MR. RUPP:
2 Q Ms. Gerber, do you remember a handwritten letter
3 dated September 137
4 A From you, yes.
5 Q Did you attach this to your petition that you
6 filed with this court?
7 A If I can see the whole thing so I can say yes to
8 that.
9 Q Sure.
10 A Yes, that's correct.
11 Q So you arrived in Chicago, knew your mother was at
12 the hotel, and refused to go see her, is that correct?
13 A I informed you by letter that I refused to see her
14 under my Nurse Practice Act. I did not want to risk losing my
15 license to participate in that.
16 Q Just a yes or no. Did you refuse --
17 THE COURT: She said she did not see her.
18 MR. RUPP: Thank you.
19 BY MR. RUPP:
20 Q Did you have a September 9 visit with your mother?
21 A Yes, I did.
22 Q How did that visit go?
23 A It was hostile from the personnel at Sunrise from
24 the time I arrived to the time I left.
25 Q Well, was it always supervised?
68
1 A Yes.
2 Q Was there possibly part of the time it was not
3 supervised?
4 A There was people all the time watching us.
5 Q Did you take your mother into the bathroom and
6 take off her clothes?
7 A No, I did not.
8 Q Can you tell us how Mildred J. Gerber ended up
9 naked on the toilet?
10 A My mother was never naked on the toilet.
11 Q And were you photographing your mother on
12 September 9 naked on the toilet?
13 A No, I did not.
14 Q Do you recall an October 3 visit with your mother?
15 A Yes, sir.
16 Q And do you recall that the Sunrise staff wanted to
17 take Mildred J. Gerber, your mother, to the toilet?
18 A Yes, sir.
19 Q And what did you do?
20 A They were -- this was a nonskilled facility.
21 There were no nurses, LPN's, or even certified nurses' aides.
22 I had turned my back for a moment, and three people grabbed my
23 mother, and they were holding her inappropriately at her risk.
24 And I said to them, I said, what are you doing?
25 And they said, we want to take her to the bathroom. I said, I
69
1 can do that, and they refused me to do it. And I informed
2 them I was a nurse, and this was my time with my mother.
3 And then two other people grabbed my mother, and
4 my mother became hysterical. And then I turned to the social
5 worker and I said, please get a chair, my mother needs to sit
6 down, because my mother did not want to go. And she was at
7 that point surrounded by four people from Sunrise, unskilled
8 people.
9 Q Did your mother get to the toilet?
10 A They never checked my mother, and during the
11 entire time that I had visits, they never once came up and
12 every two hours --
13 THE COURT: Did she get to the toilet?
14 THE WITNESS: They never checked her.
15 THE COURT: No is the answer?
16 THE WITNESS: No, they did not do it. They did
17 not take her -- they did not check for her to go to the
18 toilet.
19 BY MR. RUPP:
20 Q Because you stopped them from taking her to the
21 toilet?
22 A No, I did not, sir. I stopped them from grabbing
23 her and making her --
24 Q In fact, Ms. Gerber, your mother had to remain for
25 the rest of your visit in soiled clothing?
70
1 A I'm not aware of that, sir. There is no proof of
2 that. They never checked my mother on a regular basis per the
3 protocol of the assisted living facilities and the Department
4 of Health of Illinois.
5 Q Well, you know that was charged though, don't you?
6 A What was charged?
7 Q Against you -- you know that was charged against
8 you, do you not?
9 A I don't understand your question.
10 Q You know that was raised by the Sunrise Assisted
11 Living Center against you, that you prevented them from
12 allowing your mother --
13 A I know there was testimony on that, but it was not
14 true, sir. They never checked my mother. The entire time I
15 ever visited my mother at Sunrise of the four hours they never
16 followed their protocol checking her --
17 THE COURT: You have answered the question. Next
18 question.
19 THE WITNESS: They never checked.
20 BY MR. RUPP:
21 Q October 8, did you request an access visit?
22 A I don't recall what I testified about October.
23 Q I did not hear October 8th testified to. I'm just
24 relating that.
25 A Pardon me?
71
1 Q On your direct examination by your counsel, I did
2 not hear of an October 8th date requested.
3 A Okay. Then I didn't respond to that date then.
4 We would have to ask the court reporter to read it back.
5 THE COURT: She said she does not know. Next
6 question.
7 BY MR. RUPP:
8 Q Ms. Gerber, you --
9 THE COURT: She was there on the 3rd and the 16th
10 of October. Continue.
11 BY MR. RUPP:
12 Q Ms. Gerber, in your petition, paragraph 13, you
13 say several visits were cancelled, denied, ignored, or not
14 responded to. Did you ask for an October 8, 2002, visit?
15 THE COURT: If you remember.
16 THE WITNESS: I don't -- I cannot memorize that
17 petition, sir. Is it listed there? I have to see it, please.
18 BY MR. RUPP:
19 Q October 8th.
20 A I know it's written there, but we did not discuss
21 October 8 in any of this testimony today. I can't remember
22 why that's there.
23 MR. RUPP: Thank you. Your Honor, I have no
24 further questions.
25 THE COURT: Any redirect?
72
1 MR. LASKOWSKI: Yes, I have just a couple of
2 follow-ups, Your Honor.
3 REDIRECT EXAMINATION
4 BY MR. LASKOWSKI:
5 Q Ms. Gerber, Attorney Rupp referred to the July
6 23rd visit, and he said it was cancelled for medical reasons
7 by him with respect to your mother.
8 A Um-hum, that's correct.
9 Q Were you ever told what those medical reasons
10 were?
11 A No. My brother never allowed me to attend any of
12 the -- we offered to go --
13 THE COURT: You were never told?
14 THE WITNESS: I was never told. I never was even
15 asked --
16 THE COURT: Next question.
17 THE WITNESS: -- about my visits.
18 BY MR. LASKOWSKI:
19 Q Now, on September 16th, you were at Sunrise, your
20 mom was at Embassy Suites?
21 A That's correct.
22 Q Why did you go to Sunrise?
23 A I had informed them the day before early that
24 morning, I cannot recall whether it was the night before or
25 early that morning, that for clinical reasons under my Nurse
173
Practice Act that I would not participate in what they were
2 doing to her.
3 At this point she had significant medical
4 problems. She had a right heel wound. She did not have
5 appropriate shoes. She had a blackened left toe. She had
6 coarsen lungs. She had a TMJ that was firing.
7 She was absolutely at a low weight point that
8 I would not participate and risk losing my license and
9 having them transport her out of the facility to imprison
10 her into a hotel room. She did not live there. She lived at
11 Sunrise.
12 Q Would it have added more stress to your mother to
13 have her travel at that point?
14 A Absolutely, which is why I would not participate
15 as a nurse.
16 Q Let me finish the questions.
17 A I'm sorry.
18 Q Did you believe at that point that you under the
19 Court's order had an ability to go to Sunrise and see her at
20 that location?
21 A Yes, because the court order read where she was
22 located.
23 Q Did you ever see your mother on a holiday?
24 A Never.
25 Q There was a reference made to the October 3rd
74
1 visit and a bathroom incident, and you said that a couple of
2 the caretakers had grabbed your mother and your mother
3 reacted. Was her reaction what caught your attention?
4 A She was hysterical. She screamed no, no, and I
5 came up to them and asked them to stop. At one point the care
6 manager, Michelle Harold, grabbed my mother's pants and
7 created a wedgy with her, which is painful and takes the pants
8 into a woman's vagina. And, again, none of these people were
9 skilled or certified. I asked them to stop. They literally
10 were on top of her touching her, surrounding her. There were
11 four around her.
12 Q Did you touch your mother?
13 A No, I did not.
14 Q Did you grab her and hold her back?
15 A No, I did not.
16 Q Did you block the door to the bathroom?
17 A No, I did not.
18 Q Did you block or grab or restrain any of the
19 individuals that were surrounding your mother?
20 A No, I did not.
21 Q Ms. Gerber, there was a little bit of discussion
22 about the October 8th visit that's also noted in the petition.
23 At this point in September and into October you were going
24 directly to Sunrise, were you not?
25 A That is correct.
75
Q Did you feel that that was an appropriate place to
2 be able to see your mother?
3 A I'm not sure if I understand. If I liked the fact
4 that she was at Sunrise or I thought the whole --
5 Q Well, we can take that into parts. I mean, given
6 the circumstances, did you feel that was the appropriate place
7 to see her?
8 A No. My mother should have been at home by herself
9 with a skilled facility.
10 Q Did you understand the Court's order to restrict
11 you in any respect from not going to Sunrise?
12 A No, I did not.
13 Q Does Sunrise, to your knowledge, have policies or
14 procedures regarding access by family members?
15 A Absolutely.
16 Q Did they have people on staff there that managed
17 the facility?
18 A Yes.
19 Q Do they monitor who comes and goes from that
20 facility?
21 A Yes.
22 Q When you did go to Sunrise, you did go during
23 those times that were normal types of visiting hours?
24 A They are open 24 hours a day.
25 Q But you weren't going --
76
A No.
2 Q -- and nothing occurred in the late evening --
3 A No.
4 Q -- or morning, it was during the day?
5 A But there are family access.
6 Q Is it possible that given that with October 8th
7 that that was an attempt by you simply to go out --
8 A Yes.
9 Q -- to Sunrise to see your mother?
10 A Yes, sir.
11 Q Around the early part of September, the petition
12 references September 3rd and the 4th date, did you make phone
13 calls to your brother over that holiday weekend?
14 A Absolutely.
15 Q So when the 3rd wasn't going to be available, you
16 were providing the 4th as an alternative?
17 A I kept making reservations and left messages with
18 him because each time he would hang up or he wouldn't answer
19 the phone.
20 Q So you tried to provide alternative dates?
21 A Absolutely.
22 MR. LASKOWSKI: I have no further questions.
23 THE COURT: Anything else? Any other questions?
24 MR. RUPP: Your Honor, I know this is outside the
25 redirect.
77
1 RECROSS EXAMINATION
2 BY MR. RUPP:
3 Q But, Ms. Gerber, do you have any supporting
4 documents for this chart that you made up?
5 A Yes.
6 MR. RUPP: Thank you. No further questions.
7 THE COURT: You may step down.
8 MR. LASKOWSKI: Lastly, Your Honor, before she
9 steps down, I would like to request the admission of the
10 exhibits, all of them that I have submitted this morning so
11 far.
12 MR. RUPP: Your Honor, we would object to the
13 chart, as there are no supporting documents. Also, we were
14 given these at the last minute. The other thing is that these
15 relate to a lot more than the ones that are complained of in
16 the petition.
17 THE COURT: I will admit them. Everything is
18 admitted. You may step down.
19 MR. LASKOWSKI: Thank you, Your Honor.
20 THE COURT: Any further witnesses?
21 MR. LASKOWSKI: No, Your Honor. There will be
22 cross examination of Mr. Gerber. To expedite the matter, I'll
23 certainly reserve those questions until his testimony.
24 THE COURT: You may proceed.
25 MR. RUPP: Your Honor, per our telephone
78
conference with Mr. Laskowski, I've arranged for some
2 telephone testimony from people at the Sunrise Assisted Living
3 Center in Illinois. I think, because I don't know what their
4 schedule is, we're slightly beyond the time that I told them,
5 and I wonder if we could set them up.
6 THE COURT: Go ahead. Set them up. When somebody
7 is on the phone and ready to go, just ring me in.
8 MR. RUPP: Thank you, Your Honor
9 (Whereupon, a brief recess was taken.)
10 MR. RUPP: Your Honor, we have reached Michelle
11 Harold at the Sunrise Assisted Living Center.
12 THE COURT: Ms. Harold, if you will raise your
13 right hand, you will be sworn in.
14 Whereupon,
15 MICHELLE HAROLD,
16 having been duly sworn,
17 testified via telephone as follows:
18 THE COURT: Counsel.
19 MR. LASKOWSKI: Your Honor, for the record, I just
20 wish to note the objection to the phone testimony,
21 particularly to the extent that if there are any exhibits that
22 come to light that need to be addressed or reviewed with the
23 witness we don't have the capacity to do so today for this
24 hearing.
25 THE COURT: I understand. You may proceed.
79
MR. RUPP: Thank you, Your Honor.
2 DIRECT EXAMINATION
3 BY MR. RUPP:
4 Q Michelle, can you hear us?
5 A Yeah, kind of.
6 THE COURT: Why don't you walk up in front of the
7 microphone. That will make it a little easier.
8 BY MR. RUPP:
9 Q Michelle, I'm Hoing to ask you some questions.
10 A Okay.
11 Q We're here in a contempt hearing aHainst Colonel
12 Fred Gerber. Do you know who Colonel Fred Gerber is?
13 A Yes, I do.
14 Q Do you remember his mother?
15 A Yes, I do.
16 Q And do you remember what her name is?
17 A Mildred Gerber.
18 Q And do you remember that there was a sister of
19 Fred, a daughter of Mildred, who visited?
20 A Yes, I do.
21 Q And I'm going to take you back in time. Do you
22 recall --
23 THE COURT: Ma'am, what is your work capacity at
24 the center? What do you do at the assisted living center?
25 THE WITNESS: I am the reminiscence coordinator.
80
1 I basically manage the neighborhood where Mildred was living.
2 THE COURT: Go ahead.
3 BY MR. RUPP:
4 Q So are you in charge of the reminiscent center at
5 Sunrise?
6 A Yes, I am.
7 Q And was Mildred a resident of the reminiscent
8 center?
9 A Yes, she was.
10 Q And approximately what date did Mildred arrive?
11 A I believe it was in September.
12 Q Was it possibly a few days before September?
13 A Very possible. I don't remember the exact date.
14 Q Well, we're going to go back. There was a date
15 asked for an access visit between Marilyn and her mother
16 Mildred. Do you recall a September 9, 2002, access visit?
17 A I want to say that might have been one of the
18 first visits.
19 Q Okay. And do you remember who supervised that
20 visit?
21 A I believe it was Joan Jackson from Sanders and
22 Warren. She had to leave early that day.
23 Q She had to leave early. Now, was there something
24 disturbing that happened after Joan Jackson, the supervisor
25 from Sanders and Warren, had to leave early?
81
A That was my care -- I'm trying to get my days
2 right. My care manager was going in to check and make sure
3 that things were going okay because the visit was not supposed
4 to be unsupervised, and when she entered the room, Marilyn had
5 asked for the care manager to get her a drink of water or get
6 her a drink and bring it in.
7 Q All right.
8 A And she did so. She went back to the kitchen and
9 brought in some juice, and when she came back into the room,
10 it was reported to me that Marilyn had been taking pictures of
11 Millie without clothes on as she was sitting on the commode.
12 Q And did you report that incident to the guardian?
13 A Yes, I did.
14 Q What happened, if you know, when your caretaker
15 found Marilyn photographing mom naked on the toilet?
16 MR. LASKOWSKI: Objection, hearsay.
17 THE COURT: Overruled.
18 THE WITNESS: When she walked in, Marilyn had
19 stopped quickly and just asked for help getting Mildred back
20 into the wheelchair and out for dinner, and it wasn't reported
21 to me until later that night of this incident having happened
22 earlier.
23 BY MR. RUPP:
24 Q Now, do you recall a September 16 visit which
25 would have been one week later?
82
1 A That was the visit that due to --
2 THE COURT: Are you sure you are not working on
3 October?
4 THE WITNESS: -- the problems, I believe, Fred had
5 set up at a hotel.
6 BY FfR. RUPP:
7 Q All right. So Fred had arranged mother to not be
8 at Sunrise but to be at the hotel?
9 A Yes.
10 Q Did Marilyn show up at Sunrise?
11 A I believe she did.
12 Q And what was she told when she showed up at
13 Sunrise?
14 A She was told that the visit was to be -- I told
15 her where the visit was supposed to be. She got here at about
16 2:30, and I told her that the visit was at, I believe, the
17 Marriott, and she didn't want to leave.
18 Q So she stayed at Sunrise, is that correct?
19 A Until I asked her to leave. I told her there was
20 really no reason for her to be here because her mom wasn't
21 here. If she wanted to have her access visit, that she needed
22 to go to the arranged place.
23 Q And now, going to October, do you recall an
24 October 3 visit?
25 A I believe I do.
83
Q You gave an affidavit to a Robert Neiman in
2 Chicago, and there is apparently an incident involving
3 toiletry that you stated in your -- going to the toilet you
4 stated in your affidavit filed in DuPage County, Illinois?
5 A Yeah. That was the visit where -- when Marilyn
6 was on the phone, we decided to take that opportunity to help
7 Millie to the bathroom because she is incontinent. And when
8 we started to do that, Marilyn just refused to let us do it.
9 She insisted she could do it.
10 However, per the guardian, we said that we were
11 going to do it, and that that was how it was. She stood
12 directly in front -- after trying to physically push me away,
13 she stood in front of the walker and would not allow Millie to
14 go to the bathroom.
15 Q What happened to mother then because she couldn't
16 go to the toilet, Michelle?
17 A Marilyn finished her visit and left, and after she
18 was done, we took her to the bathroom at which time she was
19 soaked.
20 Q She was soaked?
21 A Yeah.
22 Q In urine?
23 A Her product was soaked with urine, yes.
24 Q Did you report that to the guardian?
25 A Yes, I did.
84
1 Q Now, Marilyn had said in her petition that she had
2 requested an October 8 access visit. Do you recall anything
3 about an October 8th access visit?
4 A I don't recall anything about an October 8th
5 access visit.
6 Q How was Marilyn when she came in to these access
7 visits when they were held at the Sunrise Assisted Living
8 Center? What was Marilyn's demeanor?
9 A I'm in charge would probably be about the best way
10 to describe it. Nobody's going to bother me. Nobody's going
11 to stop me. This is my time. She said that several times,
12 this is my time.
13 Q Okay. And to the point that your staff was not
14 able to take Millie to the -- Mildred to the toilet on October
15 3, is that correct?
16 A That is correct.
17 Q Besides that, how was Marilyn's demeanor towards
18 your staff or you?
19 A It got to be verbally abusive at times if we
20 didn't -- for example, she had asked for information, medical
21 information, regarding her mom. When I would tell her that,
22 you know, I'm not able to give that out, she became verbally
23 aggressive and threatening, that she was the daughter and she
24 had a right to that information.
25 And, you know, I was very calm. If you have a
85
1 right to it, then you can call your brother or you can get it
2 through the lawyers, but I am instructed that I'm not able to
3 share it, which she was not happy with.
4 Q Did she display her unhappiness towards you?
5 A Yes.
6 Q Would you say she was aggressive toward you or
7 your staff?
8 A She was threatening. She actually at one point
9 threatened that I was going to be out all over the newspaper
10 and that, you know, she was going to call the news and have
11 Sunrise, you know, bad-mouthed, so to speak.
12 Q Do you feel that Marilyn's conduct was detrimental
13 to Mildred?
14 MR. LASKOWSKI: Objection, no foundation.
15 THE COURT: Sustained. Next question.
16 BY MR. RUPP:
17 Q Michelle, did you observe any upset by Mildred in
18 the presence of Marilyn?
19 A At times I did, yes. There were at times when
20 Millie would -- actually, she threw a ball at Marilyn at one
21 point or attempted to slap her or told her to go away.
22 Q Any other displays of agitation by the mother?
23 A When Millie got agitated, a lot of times her jaw
24 would start clicking. I'm looking for the word, excuse me.
25 It would start clicking, and that was noticed often during
86
Marilyn's visits.
2 Q Michelle, what did Sunrise do about these access
3 visits then at the end of October, if you know?
4 A We ended up with the guardian -- actually
5 supporting the guardian saying -- you know, verifying these
6 visits were detrimental not only to Mildred but to the
7 neighborhood, my neighborhood itself, because of the conduct,
8 the uproar in the neighborhood. We ended up getting a
9 trespass order saying that she could not come into Sunrise and
10 visit her mom.
11 Q Now, the visits were reinitiated in January. Do
12 you recall anything like that?
13 A They were initiated --
14 MR. LASKOWSKI: Objection, beyond the scope.
15 THE COURT: Sustained. Hold on, ma'am.
16 THE WITNESS: I can't hear the background. If I'm
17 not supposed to talk, you have to tell me.
18 MR. RUPP: Okay. Michelle, stop right now.
19 THE WITNESS: Okay.
20 MR. RUPP: Your Honor, if you don't want to hear
21 about the January visits, then I think I'm done with my
22 questions.
23 THE COURT: Cross-examine.
24 MR. LASKOWSKI: Thank you.
25
87
1 CROSS EXAMINATION
2 BY MR. LASKOWSKI:
3 Q Miss Harold, my name is Stan Laskowski here, and I
4 am an attorney representing Marilyn Gerber. Can you hear me
5 fine?
6 A Pretty good, not as good as Mr. Rupp.
7 Q I'm going to try to move a little closer then. If
8 at anytime you do not hear me, would you please let us know.
9 A Yes, I will.
10 Q Thank you. Miss Harold, can you tell me what --
11 very briefly, please, what professional training and education
12 and background do you have?
13 A I have been working in geriatrics since 1979. I
14 got my LPN certificate in 1982, and I have been specializing
15 in Alzheimer's and dementia since that time.
16 Q Thank you. Did you have specialty training for
17 Alzheimer's and dementia?
18 A I did through Manor Care as well as through
19 Sunrise, and I've been to several different seminars as well.
20 Q Miss Harold, we were talking about the September
21 9th visit, okay.
22 A Um-hum.
23 Q Who was the caretaker that came into the room?
24 A Her name was Mary Shields.
25 Q You were not present, is that correct?
88
1 A That is correct.
2 Q Okay. So you did not observe any of the events
3 that took place that you testified to, correct?
4 A Of that event, I didn't. I do have her affidavit
5 though.
6 Q Thank you. With regard to the October 3rd visit
7 and the bathroom incident --
8 A Yes.
9 Q -- how many people, personnel, if you will, from
10 Sunrise were in the room at that time when this took place?
11 A It was actually just in the common area, and we
12 were trying to ambulate her to the bathroom, and there was one
13 on each side.
14 Q And did they have these caretakers -- is there
15 another word for them by the way?
16 A Caretaker is fine.
17 Q Thank you. These caretakers, did they grab Mrs.
18 Gerber or hold onto her in any respect?
19 A Which Mrs. Gerber?
20 Q I'm sorry, I'll call her Millie.
21 A Okay. No, they didn't. We were just assisting
22 her and standby assist. She was holding onto the walker.
23 Q You never grabbed Millie?
24 A No, I didn't.
25 Q You never helped her up?
89
1 A I was helping her with her walker.
2 Q Never grabbed her by the back of her dress or
3 pants?
4 A No.
5 Q How many times -- I should say how many visits.
6 Strike that. How many visits -- strike that. During the
7 visits that Marilyn had with her mother at Sunrise, okay, how
8 many times did your staff go in and check Millie for her
9 condition as to whether or not she had to go to the bathroom,
10 for example, needed assistance or changing?
11 A We usually try to check between every two and
12 three hours.
13 Q But during the visits that Marilyn had with her
14 mother, was that done then? Is that what you're saying?
15 A Yes.
16 Q You're certain of that?
17 A It usually is.
18 Q But you weren't present to do that?
19 A No, not all the time. I was on the October 3rd
20 visit.
21 Q Other than that, what you're saying is that's just
22 protocol for Sunrise?
23 A That is protocol. She was --
24 Q Thank you.
25 A Okay.
90
1 Q Miss Harold, can you tell me what information you
2 received from Fred Gerber, okay, about Marilyn Gerber before
3 she had come to her first visit?
4 A Basically nothing with the exception that these
5 are four hour visits, and they are to be supervised visits.
6 Q Did he give you any documentation at anytime?
7 A I believe it was after that first visit he did
8 make a document stating that these are the things that he
9 feels causes his mom -- are detrimental to his mom's health,
10 well-being.
11 Q Thank you. Would you tell me what that document
12 is, please.
13 A It was just a statement saying that she shouldn't
14 be left alone, that there was no physical examination. I
15 don't have it in front of me, but it was very basic. It did
16 not in any way, shape, or form seem out of the ordinary.
17 Q Do you have this record, Miss Harold?
18 A I do have a copy of it, but like I said, I do not
19 have it in front of me.
20 Q Would you be willing to produce that for us?
21 A Certainly.
22 MR. LASKOWSKI: I would ask that you do so, and,
23 Your Honor, perhaps that can be forwarded to Attorney Rupp and
24 of course to the Court.
25 THE COURT: I will let counsel deal with that.
91
1 THE WITNESS: Actually, I have it.
2 THE COURT: Hold on. Do you have it in front of
3 you, ma'am?
4 THE WITNESS: I do have it in front of me now.
5 THE COURT: Go ahead.
6 BY MR. LASKOWSKI:
7 Q How lengthy is it?
8 A It has --
9 Q Is it one or two --
10 A -- two pages actually.
11 THE COURT: Get her to read it. That is the
12 easiest thing to do.
13 BY MR. LASKOWSKI:
14 Q Michelle -- Miss Harold, excuse me. I'm sorry.
15 Can you read this document for me, please. Before we start
16 that, is this signed by Mr. Gerber at the end?
17 A It is on his letterhead. It does not have his
18 signature.
19 Q Could you read -- is it dated, please?
20 A It's dated October 1st.
21 Q Would you read it for us, please?
22 A Stating that I, Frederick Gerber, II, am
23 court-appointed plenary guardian for my mother, Mrs. Mildred
24 Jane Gerber, who was declared legally incapacitated. I serve
25 as her legal agent, executor, or trustee with durable power of
92
1 attorney --
2 Q Miss Harold, could you slow down just a little
3 bit. We have a court reporter here who is taking your
4 testimony.
5 A Okay.
6 Q Thank you.
7 A Trustee with durable power of attorney for
8 personal and medical matters.
9 And then it says, Jane Noel Heflin, my youngest
10 sister, who resides in Lombard, Illinois, is the alternate
11 designated agent, executor, or trustee legally appointed by
12 Mildred Jane Gerber.
13 I authorize Jane Heflin to act as my agent in my
14 absence to direct Mildred's local care, feeding, personal
15 maintenance, to serve as Mildred's personal advocate and to
16 protect Mildred's personal dignity and physical person in any
17 manner necessary.
18 Then it says, I have consulted routinely and
19 continue to consult with Mildred Jane Gerber's geriatric
20 psychiatrist, Dr. Pauline Wiener, and social work case
21 manager, Mrs. Joan Jackson, in the medical treatment and
22 personal care management of Mildred Gerber.
23 Marilyn Gerber is the oldest daughter of Mildred
24 Gerber with the documented history of emotional, verbal, and
25 physical abuse towards Mildred Gerber and three caretakers of
93
Mildred Gerber.
2 Marilyn Gerber was jailed in Pennsylvania for
3 contempt of court, was charged with criminal trespass,
4 stalking, and harassment of Mildred Gerber. After fleeing
5 jail, Marilyn was eventually extracted from California to
6 Pennsylvania and went to trial and was convicted of criminal
7 trespass.
8 Marilyn systematically withdrew over $50,000.00 in
9 cash, every penny of Mildred's checking account, money market,
10 and credit card accounts before she was discovered and
11 stopped. Marilyn fought but lost a court battle to provide
12 Mildred Gerber financial and personal guardianship.
13 The Court allowed Marilyn four hours of limited
14 visitation with Mildred each week. The dates and times and
15 locations of these weekly visits are arranged between
16 Marilyn's lawyer and my lawyer as the guardian. The Court did
17 not give Marilyn unhampered or unconditional four hour access
18 to Mildred.
19 Q Michelle, can I ask you to stop just for a second.
20 A Okay.
21 Q Mr. Rupp has produced a document for us here, Your
22 Honor. It also goes on for another page or two.
23 A It's actually one page and one signature.
24 Q And let me ask this. What I have in front of me
25 at the top it says instructions of plenary guardian Frederick
94
1 Gerber for care and protection of Mildred Jane Gerber. Is
2 that what your says?
3 A That is it.
4 Q I have a date on this one here that says
5 September -- it says 16 September, abbreviated Sep., and it
6 looks like it's either a 2 or a 12, I think a 12. Is that
7 noted on your copy?
8 A I have October 1st, 2002.
9 Q So this may be a different document. On page 3 of
10 mine that's in front of me, I have a signature from Fred
11 Gerber, and it's dated 14 September 2002. Is it correct that
12 your document does not have a signature or a date there?
13 A That is correct.
14 MR. LASKOWSKI: Your Honor --
15 THE COURT: I will let her continue to read. Tell
16 her to finish.
17 MR. LASKOWSKI: It appears to be a second
18 document.
19 BY MR. LASKOWSKI:
20 Q Miss Harold, we're going to ask you to continue,
21 please.
22 A Okay.
23 Q I believe you were to start a new section.
24 A Then he went on as number two, conditions and
25 standards for access and/or visitation with Mildred Gerber.
95
After consulting with Mildred Gerber's professional health
2 team care -- care team in Chicago, Mildred Gerber's lawyer,
3 and lawyers for the estate of Mildred Gerber, I am directing
4 the following stipulations regarding conditions and standards
5 for access and/or visitation with Mildred Gerber.
6 (A) Mrs. Joan Jackson is empowered by the guardian
7 to monitor, control, and terminate visits. Miss Joan Jackson,
8 social worker case manager for Mildred Gerber, is employed by
9 the guardian as an advocate for Mildred, and I as the
10 guardian, after legal consultation with Mildred's lawyers,
11 have empowered Joan Jackson to personally direct, facilitate,
12 and terminate the court directed visits between Marilyn Gerber
13 and Mildred Gerber.
14 (B) Periodic breaks directed. Miss Jackson is
15 directed to implement periodic breaks during each four hour
16 visit with Mildred. Dr. Wiener suggested routine 10 minute
17 breaks every 50 minutes with a longer 10 to 15 minute break at
18 the two hour visitation point. These breaks are part of the
19 four hour visit Marilyn is allowed with mom. Visits conducted
20 1:00 to 5:00 p.m. central daylight time. Each court ordered
21 visit is to last for the time agreed upon by Marilyn and her
22 lawyer. The visit is conducted from 1:00 to 5:00 central
23 daylight time. If she arrives late, the visits are not
24 extended.
25 On termination of the visit, Mildred is to be
96
returned to her Sunrise Assisted Living quarters without
2 interference or continued access with Marilyn. I do not
3 authorize Marilyn access to Mildred after the formal
4 designated visit time. If Marilyn follows, stalks, or refuses
5 to depart Mildred's personal safe or living quarters, I
6 request the local police be called to remove Marilyn and/or
7 charge her with disturbing the peace.
8 (D) Visits take place in a common area. All
9 visits with Mildred at Sunrise will take place in a common
10 area and not allowed in mom's personal room. Marilyn is not
11 authorized access in Mildred's private room. Visits scheduled
12 for hotel rooms may take place in Mildred's room, the common
13 areas inside or immediately adjacent to the hotel. Marilyn is
14 not authorized to remove or direct Mildred's removal off of
15 the hotel premises.
16 (E) No physical examination of Mildred. No
17 physical examination of Mildred by Marilyn is authorized.
18 This includes listening to Mildred's heart, taking a pulse,
19 removing clothing to examine parts of Mildred's anatomy,
20 removing dressings, et cetera. I do not authorize any
21 photographs to be taken of Mildred by Marilyn.
22 (F) No health personal questions answered. I do
23 not authorize any release of patient privacy information to
24 Marilyn dealing with Mildred's health or dental status,
25 attending physician, caregivers or well-being, no question on
97
Jane or my family should be answered.
2 (G) Do not leave Mildred alone. Mildred should
3 not be left alone with Marilyn under any circumstances. This
4 includes Marilyn attempting to take Mildred behind closed
5 doors for a rest room break, et cetera.
6 (H) No unauthorized visitors. Mildred is not
7 authorized any visitors not specifically approved by the
8 guardian. Marilyn is not authorized to bring guests during
9 her visit with Mildred. And that's it.
10 Q Miss Harold, I'm going to ask that you forward a
11 copy of that to Attorney Rupp. I do believe you have his
12 address.
13 A I will take it down again just in case.
14 Q Pardon?
15 A I said, if you don't mind, if I can get it again
16 just in case. I probably have it somewhere.
17 MR. LASKOWSKI: Mr. Rupp, would you provide an
18 address for her to forward the copy that she had just read?
19 MR. RUPP: Michelle, do you have my address from
20 any of your paperwork?
21 THE WITNESS: Is this Mr. Rupp?
22 MR. RUPP: Yes, it is.
23 THE WITNESS: I'm looking through it. I'm sure I
24 do somewhere.
25 THE COURT: Just give her your address right now.
98
1 an exhibit.
2 THE COURT: We will do that after we get finished
3 with this witness.
4 MR. LASKOWSKI: Thank you.
5 BY MR. LASKOWSKI:
6 Q How did you receive these directions from Mr.
7 Gerber?
8 A Via fax.
9 Q And is there a fax notation on the date you
10 received that?
11 A October 1st.
12 Q Thank you. Did you receive any other directions
13 from Mr. Gerber in writing or verbally?
14 A The only directions that we received, again, was
15 that these visits were to be supervised, that she should not
16 be left alone, and that she should not be doing any physical
17 examination of mom.
18 Q Did you receive any other instructions or
19 conditions or requirements on behalf of Mr. Gerber from his
20 attorneys who represented him or anyone else?
21 A I don't understand.
22 Q We had just talked about instructions that you had
23 received directly from Mr. Gerber, right?
24 A Correct.
25 Q What I'm asking is did you receive any
100
1 instructions from his attorneys?
2 A No.
3 Q And instructions I mean about visitations between
4 Marilyn and her mother?
5 A They came through from Colonel Gerber, as far as I
6 know.
7 Q Miss Harold, did you have the opportunity to call
8 the police to the Sunrise facility for any visitations?
9 A Yes, I did.
10 Q Can you tell me what dates those occurred, please?
11 A On October 3rd, on September 9th. On September
12 16th, we called the police, but they did not come because she
13 didn't want to leave even though mom wasn't here. On the
14 23rd.
15 Q Is that it, Miss Harold?
16 A I'm just going through. I know the last visit
17 that she was here, I believe it was, January 8th.
18 Q Okay. Before October 29th, ma'am, I would like
19 you to focus between when Ms. Gerber, Mildred Gerber, first
20 arrived at your facility in late August through October 29th.
21 THE COURT: Those are the three days she says.
22 There won't be any others because that is the three she said
23 she was there. Next question.
24 BY MR. LASKOWSKI:
25 Q What was the purpose for calling the police,
101
1 ma'am?
2 A From not following the guardian, which she had
3 been trying to undress the foot, taking the dressing off the
4 foot.
5 Q Did you call? Did you call the police directly
6 yourself?
7 A Yes, I did.
8 Q Did you consult with Mr. Gerber before you had
9 done so?
10 A I had been talking to the colonel throughout the
11 whole thing, yeah.
12 Q Would you call him first before you called the
13 police?
14 A Usually, yes.
15 Q And he would instruct you and authorize you to
16 then take that action, is that right?
17 A Yes.
18 Q Did he give you -- that is Mr. Gerber, did he
19 give you a copy of the Pennsylvania court order from Judge
20 Bayley?
21 A Yes, I have a copy of that.
22 Q And the copy you have in front of you, that order
23 does not contain any restrictions in it, does it?
24 THE COURT: Well, the order speaks for itself.
25 MR. LASKOWSKI: Well, I want to be sure she has
102
1 the same order you do, Your Honor, and that we have in this
2 case.
3 THE COURT: Do you have the order of March --
4 MR. LASKOWSKI: 25.
5 THE COURT: -- 25, ma'am?
6 THE WITNESS: I am looking back to get that order.
7 What date did you say?
8 MR. LASKOWSKI: March 25.
9 THE WITNESS: The one I have in front of me says,
10 And now, this 22nd day of March, 2001.
11 MR. LASKOWSKI: The numbers may be a little hard
12 to read there. All right.
13 THE COURT: Well, that is a 2002 order. Go ahead.
14 MR. LASKOWSKI: Thank you.
15 THE WITNESS: I have the one you are talking about
16 now.
17 MR. LASKOWSKI: Okay. Thank you.
18 BY MR. LASKOWSKI:
19 Q Miss Harold, there was a visit on October 16 by
20 Marilyn with her mother, was there not?
21 A I believe there was.
22 Q My question to you is, this visit occurred without
23 any problems, did it not?
24 A This visit occurred without any problem.
25 Q Miss Marilyn Gerber she had an opportunity to
103
1 quietly read and pray and talk with her mother, did she not?
2 A She did.
3 Q What was your observation of that particular visit
4 and the interaction between Marilyn and her mother?
5 A That was the visit that actually Millie seemed
6 more anxious with the teeth chattering. At one point I heard
7 her shout, how can you do this, and was punching Marilyn in
8 the face with a ball.
9 Q Now, was this a supervised visit?
10 A No, it wasn't.
11 Q Now, Miss Harold, did Millie Gerber get agitated,
12 upset at other times?
13 A Sometimes.
14 Q Did she -- did you encounter difficulties with
15 her, for instance, when she had to eat or dress or change
16 clothes or move about the facility?
17 A At times, yes.
18 Q Would she exhibit frustrations to your caretakers
19 as she did these things?
20 A In the beginning she did.
21 Q This was a new and strange environment for her,
22 was it not?
23 A Yes, it was.
24 Q Does that have an effect on Alzheimer's patients?
25 A Certainly.
104
1 Q It takes them time to get acclimated, does it not?
2 A Yes, it does.
3 Q And because there is an Alzheimer's component and
4 a senile dementia component it takes a little bit longer,
5 okay, and that the acclimation process is extended, is it not?
6 A Yes.
7 Q So it's not something that occurs over just a few
8 days or a few weeks, is that right?
9 A That's true.
10 Q Miss Harold, did you have any other staff present
11 to supervise Jane Heflin when she was there?
12 A We are always in contact with the family when they
13 are here.
14 Q I know you are in contact but I mean --
15 A Did we sit in the room with Jane when she visited?
16 Q Yes.
17 A No.
18 Q How often did Mr. Gerber visit his mother between
19 August and October 29th?
20 A I believe twice.
21 Q And did Jane visit her mother during that period
22 of time?
23 A Yes.
24 Q And how often was that?
25 A Two to three times a week usually.
105
1 Q How would you know that? What record do you keep
2 of that?
3 A I don't keep records of that. I just --
4 Q There is no visitor log?
5 A No.
6 MR. LASKOWSKI: Your Honor, if I may have a
7 moment, I would like to consult with my client. Ms. Harold,
8 we're going to take a short break for about a minute, please.
9 THE WITNESS: Okay.
10 MR. LASKOWSKI: Thank you.
11 BY MR. LASKOWSKI:
12 Q Miss Harold, I have just one or two brief
13 follow-up questions for you --
14 A Yes.
15 Q -- to help understand your role in Sunrise as
16 well. Can you tell me briefly what the scope of your practice
17 as an LPN is?
18 THE COURT: That is not relevant. You do not have
19 to answer, ma'am. She is a fact witness. Next question.
20 THE WITNESS: I didn't hear that.
21 THE COURT: You do not have to answer.
22 MR. LASKOWSKI: Your Honor, I do believe it's
23 relevant for the record with this respect. She has made
24 observations based upon that practice and experience,
25 particularly about Millie Gerber's reactions and her conduct.
106
THE COURT: Factual observations. She works
2 there. She is the manager. She has a lot of experience in
3 the business.
4 MR. LASKOWSKI: Okay. Noted then. Thank you.
5 BY MR. LASKOWSKI:
6 Q Can you tell me how often a nurse visits Millie in
7 your facility?
8 THE COURT: It is not relevant. Next question.
9 BY MR. LASKOWSKI:
10 Q Can you tell me, Miss Harold, what is the protocol
11 for your office checking for incontinency?
12 THE COURT: I have got the story here. That is
13 just too collateral.
14 BY MR. LASKOWSKI:
15 Q Do you document when you check Mildred for whether
16 she needs fluid or other services such as going to the
17 bathroom?
18 THE COURT: Again, too collateral. I won't allow
19 getting into that.
20 MR. LASKOWSKI: I'll just note my exception --
21 THE COURT: Sure.
22 MR. LASKOWSKI: -- to the objection. No further
23 questions, Your Honor.
24 THE COURT: Any redirect?
25 MR. RUPP: Just a few, Your Honor.
107
1 THE COURT: Five minutes maximum.
2 MR. RUPP: Thank you, Your Honor.
3 REDIRECT EXAMINATION
4 BY MR. RUPP:
5 Q Michelle, it's Rich Rupp again.
6 A Hello.
7 Q Hello. I'm just going to ask you a couple of
8 questions. Do you recall the calling of the police? The
9 questions that Mr. Laskowski just asked you and you answered
10 made it sound like the guardian told you when to call the
11 police.
12 Was that the case or were you in consult with
13 counsel or did you make that decision? Can you tell us and
14 tell the Court what the process was when you decided or
15 someone at Sunrise decided to call the police?
16 MR. LASKOWSKI: Objection as to someone. If she
17 is a fact witness, I would like to know what she did.
18 THE COURT: Sustained to the question. I have
19 already had the testimony put in. She has told me.
20 BY MR. RUPP:
21 Q The instructions that the guardian gave you to
22 conduct and allow the visits between Marilyn and her mother,
23 their mother, did you have any objection to any of them?
24 A No.
25 Q In handling this process, were you in consultation
108
1 with leHal counsel for Sunrise?
2 A Yes.
3 MR. RUPP: No further questions, Your Honor.
4 THE COURT: Any follow-up on those redirect?
5 RECROSS EXAMINATION
6 BY FLR. LASKOWSKI:
7 Q Miss Harold, one question. Did any other families
8 have restricted visitations at your facility?
9 A I didn't hear you.
10 Q Did any other families have restricted visitations
11 at your facilities, so that Mr. Gerber's requested
12 instructions to you were the norm or whether they were the
13 exception to the rule?
14 A We --
15 MR. RUPP: Objection, that's speculative.
16 THE COURT: It is interestinH. Go ahead. I will
17 let her answer. Did any other families have restrictions on
18 visitation?
19 THE WITNESS: Yeah. Yes.
20 THE COURT: Any other questions?
21 BY MR. LASKOWSKI:
22 Q What kind --
23 THE COURT: No. Some others did.
24 MR. LASKOWSKI: I have no further questions.
25 THE COURT: Ma'am, you are excused. Thank you
109
1 very much.
2 THE WITNESS: Thank you.
3 THE COURT: Yes. What is next?
4 MR. RUPP: Thank you. We were going to call Joan
5 Jackson from Sanders and Warren on some of the other visits.
6 THE COURT: I want to hear from Colonel Gerber
7 first. Is he going to testify?
8 MR. RUPP: Yes, Your Honor.
9 THE COURT: We will take a five minute break, and
10 we will hear from Colonel Gerber.
11 (Whereupon, a brief recess was taken.)
12 MR. RUPP: Your Honor, we have Joan Jackson who
13 was involved with most of the supervision and visits, and we
14 just have a few questions before we go into Colonel Gerber.
15 THE COURT: Is she on the line?
16 MR. RUPP: She is on the line.
17 THE COURT: Miss Jackson, if you would raise your
18 right hand, the stenographer will swear you in.
19 Whereupon,
20 JOAN JACKSON,
21 having been duly sworn,
22 testified via telephone as follows:
23 DIRECT EXAMINATION
24 BY MR. RUPP:
25 Q Miss Jackson, or Joan, state your full name for
110
1 the record.
2 A Joan Jackson.
3 Q And where are you employed, Joan?
4 A At Sanders and Warren.
5 Q And what do you do there? What is your position?
6 A I'm a geriatric care manager.
7 Q And what are some of your duties as a geriatric
8 care manager?
9 A I do assessments and evaluations of the older
10 population. I do counseling, money management, you know,
11 coordination of services. Many of our elderly want to stay in
12 their home, and so we try to connect them with community
13 services that will be helpful to them so they can remain
14 independent. Often the children ask us for monitoring to see
15 that their parents are doing well, to monitor caregivers who
16 come in and help them.
17 Q Joan, what were your duties for the family of
18 Millie Gerber?
19 A I was asked by her guardian, Fred Gerber, Colonel
20 Fred Gerber, to come in and observe the visits with Mrs.
21 Gerber and her daughter Marilyn who was coming in, I believe,
22 from Pennsylvania.
23 Q And do you recall when you started supervising the
24 visits?
25 A I believe it was December of -- I'm sorry, you
111
know, I don't have the exact date. I think it was before
2 Christmas last year 2002.
3 Q Okay. Let me just get to some more specific
4 questions. What do you recall your doing in providing the
5 supervision when Marilyn came to visit?
6 A My focus was on Mrs. Gerber and how she was
7 reacting to the visits and her perception of the visits. In
8 my initial reports, I often wrote down comments she made
9 because it was her perception that I was listening to and her
10 behavior that I was watching and observing.
11 Q Well, can you generalize, if you can, what Millie
12 Gerber's reaction was to the visits from Marilyn?
13 A They varied, actually. I would like to say that
14 Mrs. Gerber had a lot of the symptoms of someone with
15 Alzheimer's, that is sometimes she could be very lucid and
16 very direct in her comments. Sometimes she seemed to shut
17 down. Sometimes she did seem confused.
18 She could sense emotions, as most people with
19 Alzheimer's. She could understand that something was going
20 on, there was anger. She didn't like any invasive behavior.
21 She liked quiet and peace. She didn't like loud noises. She
22 didn't like to be asked a lot of questions. When I engaged
23 with her, I tried to be calm and not invasive.
24 Q Do you recall a July 17 visit between Marilyn and
25 mother?
112
1 A Yes, I do.
2 Q And can you recall for the Court what happened on
3 that visit?
4 A On July 17th, the visit occurred at the Embassy
5 Suites, and it was begun in the dining room. At that point
6 Mrs. Gerber indicated -- Marilyn came in for the visit, and we
7 were seated in the dining room.
8 Mrs. Gerber did become agitated and somewhat
9 irritated when she was asked too many questions, and she
10 really didn't like to have her eating structured by anyone,
11 that is, she preferred to eat on her own when she wanted to.
12 Q Did Marilyn make a comment at that meeting, if you
13 recall, about mom not eating or anything like that?
14 A Yes, she did. Marilyn was concerned about her
15 mother's weight loss, and she was very critical of nutrition,
16 you know, wondering, and she made the comment that her mother
17 was not able to eat.
18 Q Did Millie Gerber react to that comment by
19 Marilyn?
20 A Visually and verbally she said nothing, but a few
21 moments later she picked up a spoon and she took a little
22 soup, and then later picked up her fork and ate a little bit
23 of her fruit salad.
24 Q Anything else on that visit?
25 A I can say this was behavior that I saw several
113
1 times from Mrs. Gerber. She many times seemed to understand
2 more than she was indicating.
3 Q Okay. Do you recall -- let's see, do you recall
4 some visits in August then?
5 A Yes, I do recall visits in August.
6 Q Do you recall any kind of upset by Millie Gerber
7 during any of the August visits?
8 A In August?
9 Q Correct, August. Can you tell the Court how
10 Millie Gerber resisted or tried to react to Marilyn, if you
11 remember?
12 A In August?
13 Q If you can.
14 A Do you want me to be specific on the visit?
15 Q If you can.
16 A Well, on the two that -- the last two visits in
17 August, actually although they took place in the Embassy
18 Suites, the one on August 14th we never got out of the car
19 actually. Mrs. Gerber refused to leave the car, and, you
20 know, we were in the process of trying to convince her it
21 would be a good idea to leave the car.
22 And then Marilyn came and said she would do it,
23 and all three of us were unsuccessful in getting her out of
24 the car. So the entire visit remained in the car. Marilyn
25 sat in the front seat with her mother, and Jane and I sat in
114
the back of the car, and she just refused to leave. So the
2 visit continued for the four hours in the car.
3 I was a little worried about her at that time, but
4 it was a fairly nice day. There was a good breeze, and, you
5 know, Jane and I sat in the back and engaged with each other
6 in conversation. Marilyn was left to spend time with her
7 mother, and Mrs. Gerber just stayed where she was. We all
8 allowed that.
9 Q Was there one hotel where one of the visits
10 occurred at where there was a gift shop and/or a water park?
11 A Yes. On 8/21, we were back at the Embassy Suites,
12 and most of that visit took place in public areas. It was a
13 large hotel. They had a garden area, and they had a pool with
14 gold fish. They had a gift shop.
15 We spent some time at the pool. Marilyn took her
16 mother to the gift shop, and apparently they looked at the
17 gift shop, and she apparently bought a camera there. And we
18 went out to the parking lot, and Mrs. Gerber was looking at
19 the ducks, and she and Marilyn were spending some time
20 together. I was further away, and Jane was quite a ways away,
21 although she would join me and sit with me.
22 Marilyn had earlier been looking at her mother's
23 feet, and Mrs. Gerber had indicated that she did not care for
24 that. But while they were out in the parking lot she did
25 unwrap her mother's foot, and she did take a photo of it. I
115
1 did go over and suggest that Mrs. Gerber had originally not
2 wanted that to happen.
3 Q What did Marilyn say to that when you said that?
4 A Marilyn just said she didn't think she minded now,
5 but she didn't take anymore photos.
6 Q Did Marilyn act either at the hotels when the
7 visits were at hotels or at Sunrise as if Marilyn was the
8 nurse for Millie Gerber?
9 A Yes. Yes, she did. She did insist that she was a
10 nurse, that she would take care of her mother, and no one else
11 had the ability to do so. She was very capable of taking care
12 of her mother by herself.
13 Q Was Marilyn adamant in taking that position?
14 A Yes.
15 Q Was Marilyn confrontive during her visits with her
16 mother?
17 A Yes, she was.
18 Q Was she aggressive?
19 A I would say so.
20 Q Was she critical of people who were present?
21 A Yes.
22 Q Was she critical of people who were present at the
23 access visits?
24 A Yes.
25 Q Was she critical of people at Sunrise?
116
A Oh, yes. Yes, she was. I felt that -- I suppose
2 being a social worker there is a certain naivete or a certain
3 hope, and I had thought that the tenure of the visits would
4 change because, first of all, I would be the only one there.
5 There would be no family members there.
6 It's a fairly large facility. There are a number
7 of possibilities there. There's a nice garden area. There is
8 the dining room. There are rooms upstairs. But, you know,
9 Marilyn was upset that her mother was at Sunrise, and she was
10 critical of the facility, and, you know, was very questioning
11 aggressively of the staff and really didn't want them to have
12 much to do with her mother when she was there.
13 Q Okay. Did you find that Marilyn tried to ask her
14 mother a lot of questions during the access visits?
15 A You know, she did off and on through all of this
16 have a lot of questions for her mother. I did say to her once
17 or twice that she did not like all those questions, and Mrs.
18 Gerber didn't take to having one question after another. It
19 put a lot of pressure on her, and she would get irritated
20 after awhile, and she would become agitated. Sometimes
21 Marilyn would stop asking her the questions, but, you know,
22 she would begin again.
23 Q Would you describe some of the questioning periods
24 as interrogation?
25 A You know, I would, from the reaction from Mrs.
117
1 Gerber, and I don't know whether Marilyn meant to be that way
2 or not, but the constant questioning you could see that it
3 became intolerable to Mrs. Gerber, and that's when she would
4 become irritated and she would become agitated.
5 Q Okay.
6 A Or on occasion she would shut down, and that would
7 be she would close her eyes. At one point she just closed her
8 eyes, and I thought pretended to be sleeping only because she
9 opened them periodically from where I was sitting.
10 Q Do you feel it was appropriate to have supervision
11 of the access visits with Marilyn and Millie Gerber?
12 A I did. And I feel that way because you are
13 dealing with a woman who has been diagnosed as Alzheimer's,
14 and I think I said before, you know, her behavior was
15 inconsistent, that is, sometimes she could make a comment that
16 was dead on. Sometimes she seemed very alert. Other times
17 she could become confused. But she couldn't always advocate
18 for herself, and I thought someone there would be able to
19 advocate for her.
20 Q So you felt like, for example, yourself
21 supervising the visit you sort of were an independent advocate
22 for Millie Gerber?
23 A I certainly was attempting to do that, yes.
24 Q Do you feel that a supervisor or supervision was
25 necessary, in fact?
118
1 A Yes.
2 Q Did mother, Millie Gerber, protest things that
3 Marilyn was doing?
4 A Yes, she did.
5 Q And how did Marilyn react to that?
6 A It depended. Sometimes she would stop. Sometimes
7 she would -- sometimes she used humor with her mother, say
8 that's the Millie I know, that type of thing. And, you know,
9 she tried to use different methods of dealing with her mother.
10 But it always came back to the fact that she was very intense
11 on her visits, and it was something that Mrs. Gerber couldn't
12 handle.
13 Q What kind of atmosphere then was best suited for
14 Millie Gerber?
15 A I think she certainly perceived the tension. She
16 perceived that there was anger in the room, and, you know, she
17 also I think felt just invaded.
18 Q Do you think that the supervisor or intermediary
19 present was helpful or harmful to the visit?
20 A I thought it was helpful. I hope it was. That
21 was my intent. I wanted things to stay as calm as possible.
22 I certainly want to see any daughter and mother interact well,
23 you know, and they had a certain amount of time they were
24 going to do that. But Mrs. Gerber was -- you know, it was a
25 woman who was looking for peace.
119
1 Q There was testimony by Marilyn earlier that --
2 THE COURT: You have got three more minutes.
3 MR. RUPP: Thank you, Your Honor.
4 BY MR. RUPP:
5 Q That the room at the Embassy was oppressive or
6 harmful to Millie. Do you recall anything like that?
7 A It was a hotel room. I actually had never been to
8 the Embassy Suites before, and I thought what was nice about
9 it is that, first of all, one wall was a window into a
10 hallway. It had two rooms.
11 It had a bedroom with a view looking outside, and
12 then it had a sitting/living room type of thing with a small
13 kitchenette. Often the door was open out to the hallway,
14 although not always. The heat and the cold could be regulated
15 there. You know, you could bring things in to eat. You could
16 make coffee there.
17 Q Joan, thank you. Let me move onto a question. Do
18 you recall an October 3 visit?
19 A Yes.
20 Q Where did that visit occur?
21 A That was at Sunrise.
22 Q And after you arrived we heard testimony from
23 Michelle Harold earlier about that the staff wanted to try to
24 take mom to the toilet. Did you witness that incident?
25 A I did.
120
1 Q What happened?
2 A Marilyn left her mother briefly to, I believe,
3 make a phone call, and the staff at that time then was taking
4 Mrs. Gerber to the bathroom for toileting. And as they were
5 partway there, she was using her walker, and there were, I
6 believe, two staff members, including Michelle, and Marilyn
7 came back and was very unhappy with the fact that they were
8 taking her mother to the bathroom and wanted to be the one to
9 take her mother to the bathroom.
10 There was some disagreement about that, and, you
11 know, eventually Mrs. Gerber did not get to the bathroom, you
12 know. Mrs. Gerber was standing there for quite awhile with
13 her walker and --
14 Q Okay. So she never made it to the bathroom?
15 A No, she did not.
16 Q A couple of final questions. The visits, did
17 Colonel Gerber as guardian terminate the visits early, or can
18 you tell us how the visits and their length of time were
19 handled, if you can tell us?
20 A There was some discussion about morning or
21 afternoon visits, and, you know, the favorite visit was in the
22 morning, but Marilyn preferred the afternoon visits. That, in
23 fact, was why we had afternoon visits. One time --
24 Q But, Joan, the question is then, going through the
25 visit, how were they terminated? Can you tell the Court how
121
they were terminated?
2 A They were sometimes terminated by Marilyn.
3 Sometimes the visits went on beyond the time they were
4 supposed to terminate. I let time go by if things seemed calm
5 and if the visit didn't seem to be agitating Mrs. Gerber or
6 she didn't seem to be irritated.
7 THE COURT: Were any of the visits -- ma'am, were
8 any of the visits terminated early?
9 THE WITNESS: Pardon?
10 THE COURT: Were any of the visits terminated
11 early by either you or somebody else before the four hours was
12 up?
13 THE WITNESS: Some visits were terminated at
14 Sunrise.
15 THE COURT: Any visits terminated early before
16 Sunrise?
17 THE WITNESS: Not that I recall.
18 THE COURT: Okay. I am going to have cross
19 examination, 20 minutes.
20 THE WITNESS: There was a question?
21 THE COURT: No. You are going to get some
22 questions now from the other attorney.
23 THE WITNESS: Okay.
24
25
122
1 CROSS EXAMINATION
2 BY MR. LASKOWSKI:
3 Q Miss Jackson, my name is Stan Laskowski. I'm the
4 attorney here for Marilyn Gerber. Can you hear me okay?
5 A Pretty good.
6 Q Great. Can you tell me what your experience or
7 training is in dealing with Alzheimer's patients?
8 A Yes. I've worked for Sanders and Warren for about
9 ten years now, and on a regular basis we deal with Alzheimer's
10 and various types of dementia. A lot of our families call us
11 in when dementia starts, and some of them would like their
12 parents to stay at home so --
13 Q Thank you, Miss Jackson. I'm asking specifically
14 do you have any specific training or education? Are you
15 licensed for that, take any classes? Do you have a degree for
16 this?
17 A I'm a licensed clinical social worker and --
18 Q And my question specific was with regard to
19 Alzheimer's patients and dementia, anything specifically
20 there?
21 A Yes. I take continuing education courses.
22 Q Thank you. Miss Jackson, you said that Millie
23 Gerber's moods change. She went from lucid to shutting down
24 to confusion from different times, correct?
25 A Yes.
123
1 Q Was that difficult to tell?
2 A Well, she was relatively specific in terms of when
3 she said something and --
4 Q Did her moods change frequently?
5 A Off and on.
6 Q Is that typical for Alzheimer's patients?
7 A Yes.
8 Q Did you observe Millie Gerber outside of the
9 visitations between Marilyn and Millie?
10 A Yes, I did.
11 Q And how often did you do that?
12 A You mean seeing Mrs. Gerber at a time when Marilyn
13 was not there?
14 Q That's correct, alone, somewhere else.
15 A I saw her -- yes, I saw her off and on. I saw
16 her --
17 Q How many times would you say you've done that
18 between April in 2002 and October 29th, 2002? Can you give me
19 an estimate of that, please.
20 A About six times.
21 Q Were you aware of whether or not Millie Gerber was
22 on any medications?
23 A I was aware that she was on medication through her
24 psychiatrist.
25 Q Did these medications have an effect on her mood
124
1 or condition?
2 A I really could not talk to that.
3 Q So you wouldn't know what to look for in terms of
4 mood or condition changes, correct?
5 A It would be difficult for me in the time span when
6 I saw Mrs. Gerber to decide whether her mood was improved on a
7 continuous basis.
8 Q We've talked about a lot of visits. You've
9 characterized the interaction between so far Marilyn and her
10 mother. Were there good moments and good visits between
11 Marilyn and her mother?
12 A Oh, yes.
13 Q Would you tell me about some of those, please?
14 How would you characterize those interactions?
15 A I would characterize it as when Marilyn was quiet,
16 when Marilyn was specifically low-key with her mother -- for
17 instance, one time she brought her a shirt, and she had an
18 interaction with her mother with pictures. And there were
19 times when it was more of a quiet time, her mother was calmer
20 and she did interact with Marilyn several times.
21 Q Isn't it important with Alzheimer's patients and
22 those suffering from senile dementia to engage them, to get
23 them to interact and remember their family and their friends
24 and their surroundings and their past to keep them active and
25 alert?
125
1 A It depends -- it really depends on the Alzheimer's
2 patient. Yes, of course, you need to have -- you need to see
3 what they need and what they will tolerate and --
4 Q So Marilyn --
5 THE COURT: Let her finish. Let her finish. Go
6 ahead, ma'am. You can finish your answer.
7 THE WITNESS: I'm sorry, was that directed to me?
8 THE COURT: Yes. Are you finished with the
9 answer?
10 THE WITNESS: You are going to have to come
11 closer. I'm sorry, I can't hear that.
12 THE COURT: Ask another question, but let her
13 finish her answers.
14 MR. LASKOWSKI: Okay.
15 BY MR. LASKOWSKI:
16 Q Let's go back to that question. I said, isn't it
17 important, isn't it good, to interact and engage Alzheimer's
18 patients and people, you know, who suffer from senile dementia
19 to keep them alert and active and their mind going and to
20 engage them? Isn't that a good thing for them?
21 A Yes.
22 Q Now, when Marilyn would visit her mother, she
23 typically had a short period of time, is that correct?
24 A She had about four hours, yes.
25 Q That was the most. Now, Marilyn -- you said she
126
1 tried to engage her mother, is that right? She made an effort
2 to communicate with her?
3 A She did.
4 Q And that effort was difficult many times, was it
5 not?
6 A Yes, it was.
7 Q Was that effort to communicate made more difficult
8 because of the tensions that existed between Marilyn and her
9 sister Jane?
10 A I don't think so on the whole. I think that's an
11 oversimplification.
12 Q So at the visits that took place in the early part
13 of the year, April, May, June, and July, those that did occur
14 when Jane was present, there was no hostility exhibited in
15 front of Marilyn from Jane to Marilyn Gerber?
16 A There certainly was tension there.
17 Q Were there words exchanged?
18 A At times, yes.
19 Q And did that come from Jane too? She got into
20 arguments with Marilyn?
21 A Yes.
22 Q Thank you. You had mentioned the July 17th visit,
23 and that you say that Marilyn Gerber was concerned and
24 critical about the nutrition and mom's weight loss and her
25 ability to eat. Was there cause for concern for that?
127
1 A Yes, of course. Everyone was concerned about her
2 weight loss, as she was under a doctor's care, and were
3 working to see if they could get her to eat more.
4 Q Was it ever communicated during those visits to
5 Marilyn what was being done with her mother to address those
6 concerns specifically?
7 A I wasn't aware that that was the area where that
8 was to be addressed.
9 Q Certainly you didn't do that, right?
10 A No, I did not.
11 Q Thank you. You had mentioned in August there were
12 a couple of visits that took place in the hotel gift shop and
13 around an outdoor area with some ducks. Were those the only
14 two visits outside the hotel room at Embassy Suites?
15 A Yes.
16 Q Did you receive any specific instructions from Mr.
17 Gerber, Fred Gerber that is, about how to conduct the visits?
18 A I did receive that she should have some breaks.
19 Mrs. Gerber should be allowed to have some breaks if she
20 needed them, if she needed to take a time-out, if there needed
21 to be a little change in the intensity that she should be
22 allowed to have that time-out.
23 Q Did you communicate that to Marilyn?
24 A Yes.
25 Q Was that attempted from time to time?
128
A From time to time it was.
2 Q You had mentioned a visit that took place in an
3 automobile.
4 A Yes.
5 Q Marilyn was in the front seat with her mother.
6 A Yes.
7 Q Was Millie in any obvious distress?
8 A No. If she had been in distress, we would have
9 had to end the visit.
10 Q So she seemed peaceful and quiet and content where
11 she was at, correct?
12 A She was very happy in the front seat that day.
13 Q And Marilyn accommodated that, did she not?
14 A Pardon?
15 Q Marilyn accommodated that, that's where the visit
16 took place?
17 A Yes, that's true.
18 Q Miss Jackson, I would like to move to a bit about
19 Sunrise, please. Now, at this point, and this is September
20 and October of 2002, you would agree that Millie Gerber was
21 still losing weight, okay, and having the physical
22 difficulties we talked about earlier, correct?
23 A Yes.
24 Q Were they getting worse at that point and time?
25 Would you say she was losing more weight, she was getting more
129
1 irritable, more agitated as a general matter?
2 A No, not necessarily. I think she had an initial
3 weight loss. She was always a slender woman when I knew her.
4 I knew there were some concerns about her eating. I did not
5 witness a lot of her eating except when I was at the Embassy
6 Suites. In terms of irritability and agitation, I think she
7 was a little bit more agitated, yes.
8 Q Miss Jackson, the folks at Sunrise in some of
9 their affidavits and statements indicate that Mrs. Gerber was
10 losing weight since she had arrived at that facility. Was
11 that communicated to you?
12 A Pardon?
13 Q Was that communicated to you?
14 A Not in that particular form, no.
15 Q Now, at Sunrise Mildred Gerber shared a room, did
16 she not?
17 A Yes, she did.
18 Q So she had a roommate, right?
19 A Yes.
20 Q And Mildred's bed was closest to the door, was it
21 not, and the other roommate had the one closest to the window,
22 right?
23 A That's right.
24 Q So there were people that would come and go
25 freely, right?
130
1 A Yes.
2 Q Wouldn't you say that it was a fairly small room
3 too, was it not?
4 A It was not a terribly large room, no.
5 Q So wouldn't you agree that when you have a small
6 enclosed room like that Mrs. Gerber, Mildred Gerber, did have
7 difficulty moving, she was losing some weight, she did have a
8 right heel wound, she did have some coarseness in her
9 lungs and --
10 THE COURT: You better take those individually.
11 You are whipping along at about eight of them.
12 BY MR. LASKOWSKI:
13 Q Well, what I'm asking her is that Mildred had
14 these various conditions. Were you aware of them?
15 A I was aware that she had the wound in her foot,
16 and I knew that was being treated. I was aware that, you
17 know, she was now having a physical therapist because she did
18 not always want to walk on her own, although she still had the
19 physical capability. I was aware that they were monitoring
20 her food and offering her food frequently to see that she
21 would eat as much as possible.
22 Q Given all these conditions, wouldn't you agree
23 that it was reasonable for not only Marilyn but anybody else
24 to have a reasonable concern about Mildred Gerber's condition
25 in that facility?
131
1 MR. RUPP: Objection, Your Honor.
2 THE COURT: Sustained. Next question.
3 THE WITNESS: Do you want me to answer that?
4 THE COURT: No, I do not want you to, ma'am. He
5 will ask you another question.
6 BY MR. LASKOWSKI:
7 Q Miss Jackson, is it normal for families in
8 facilities like this, whether it's Sunrise or even in a
9 regular visitation, for them to interact with and help the
10 Alzheimer's patient with their daily living activities?
11 A Yes. In fact, Sunrise encourages families to be
12 involved with their loved ones who are there.
13 Q So they would encourage them to help to sit and
14 not just read with them but to help them with daily living
15 needs like dressing or eating or walking back and fourth and
16 getting to the rest room, right?
17 A They encouraged them to do a lot of things, yes.
18 Q That wasn't done in this case though with Marilyn
19 Gerber, was it?
20 A Marilyn Gerber was really allowed a lot of
21 opportunity to engage with her mother and do exactly those
22 things. She asked for juice for her mother. She asked for
23 some -- asked about what was available in the kitchen for her
24 mother.
25 Q But when she wanted to do a simple task like help
132
1 her mother to the rest room, they wouldn't let her do it, did
2 they?
3 A Well, you know, that's a question that --
4 Q Just yes or no, Miss Jackson.
5 THE COURT: Let her explain. I already know she
6 didn't get to the rest room. Go ahead, explain, ma'am. Go
7 ahead.
8 THE WITNESS: Am I talking to Judge Bayley?
9 THE COURT: Yes, I am the Judge. You can answer
10 the question.
11 THE WITNESS: All right. There is a difference of
12 how you help your mother. That was not -- that was not
13 helpful for anyone.
14 BY MR. LASKOWSKI:
15 Q Why not?
16 A The bathroom incident.
17 Q Why not, Miss Jackson?
18 A Because it wasn't a kind and loving helping a
19 mother to the bathroom. It was a control issue, and the only
20 one that suffered from that issue was Mildred Gerber.
21 Q How many people were present in the room during
22 that event?
23 A Well, that's debatable because this was an
24 Alzheimer's unit where a number of residents also gathered,
25 and there were other staff present in the larger room but not
133
1 focused right at that point. So you had several of the
2 residents who were sitting in the dining area. You had at
3 least -- you had Michelle, and you had one of the healthcare
4 workers and Marilyn and Mrs. Gerber.
5 Q What was Mrs. Mildred Gerber's reaction?
6 A Well, confused.
7 Q And basically what you have just described for us
8 with all of the people present and everything going on that
9 was totally contrary to the peace and quiet that you
10 originally testified to that Mildred Gerber liked, is that
11 right?
12 A Yes.
13 Q Were you at all the visits --
14 A No.
15 Q -- Miss Jackson?
16 A No, I was not.
17 Q Which is easier for you to say? It sounds like
18 you were at most of them.
19 A I was at most of them. I was --
20 Q Can you identify which ones you might not have?
21 I'm presuming, and perhaps I shouldn't, that that was a small
22 number.
23 A There were -- I was not there on July 5th. Louise
24 Warren, a colleague of mine, was at that visit. I was not
25 at -- I was not there on September 23rd. That was an
134
1 unscheduled visit, and I was elsewhere and Barbara Sanders
2 went to Sunrise.
3 Q Did you -- lastly, Miss Jackson, throughout her
4 visits Marilyn many times attempted to communicate with her
5 mother, as you have said. Did you see Marilyn engage in what
6 could be considered kind and loving acts towards her mother?
7 A Yes.
8 Q She would read with her, she would pray with her,
9 for example, is that right?
10 A She would pray with her, and she did read with
11 her.
12 Q She would massage her feet and hands to comfort
13 her, would she not?
14 A Yes, she did that.
15 Q Did that bring great comfort to Mildred Gerber?
16 A She did -- she appeared to be comfortable with
17 that.
18 MR. LASKOWSKI: Thank you. I have no further
19 questions.
20 THE COURT: Any redirect?
21 MR. RUPP: Yes, Your Honor.
22 THE COURT: Five minutes.
23 REDIRECT EXAMINATION
24 BY MR. RUPP:
25 Q Joan, Rich Rupp again.
135
1 A Yes.
2 Q Did you report to the guardian on each visit that
3 you were at?
4 A Yes, I did send reports. I didn't call right
5 after a visit, but I did talk to Colonel Gerber or I did send
6 some written report depending on --
7 Q But did you keep Colonel Gerber informed of how
8 the visit occurred and how mom reacted to it?
9 A Yes.
10 Q And can you tell the Court whether or not you
11 perceived that Colonel Gerber was attempting as guardian to
12 accommodate Marilyn's request for access visits, if you can?
13 A I thought he was. I felt he was. I felt that,
14 you know, the 1:00 to 5:00 shift was definitely something that
15 Marilyn needed, and it was changed to that. At one point the
16 visit was extended because it had started so late, and Colonel
17 Gerber had made the comment to accommodate Marilyn.
18 MR. RUPP: Very good. Joan, I have no further
19 questions.
20 THE COURT: Any recross?
21 MR. LASKOWSKI: Just one question.
22 RECROSS EXAMINATION
23 BY MR. LASKOWSKI:
24 Q You mentioned that a visit was extended because it
25 started late. That was one time or more than once?
136
1 A That was more than once.
2 Q How many?
3 A You know, I have to tell you I don't have -- I
4 don't have notes specifically. Sometimes visits were extended
5 a half an hour. Sometimes they were shortened at Sunrise.
6 The Glen Ellyn Police sometimes shortened the visit.
7 Q And visits were also -- strike that.
8 MR. LASKOWSKI: I have no further questions.
9 THE COURT: Thank you, ma'am. You are excused.
10 THE WITNESS: Thank you.
11 MR. RUPP: Thank you, Miss Jackson.
12 THE COURT: Do you have more than the one
13 additional witness?
14 MR. RUPP: I just have Colonel Gerber.
15 THE COURT: We will take a five minute break.
16 (Whereupon, a brief recess was taken.)
17 THE COURT: Next witness.
18 MR. RUPP: Your Honor, I would call Colonel Fred
19 Gerber.
20 Whereupon,
21 FREDERICK E. GERBER, II,
22 having been duly sworn, testified as follows:
23 DIRECT EXAMINATION
24 BY MR. RUPP:
25 Q Colonel Gerber, would you state your full name for
137
1 the record, please.
2 A My name is Colonel Frederick E. Gerber, II.
3 Q And where are you employed?
4 A I'm a member -- I'm a colonel in the United States
5 Army active duty. I'm the director of healthcare operations
6 for the U.S. Army Surgeon General in Washington D.C.
7 Q And were you appointed plenary guardian of your
8 mother?
9 A Yes, sir, I was.
10 Q And do you recall approximately when that was?
11 A I'm sorry?
12 Q Do you recall approximately when that occurred?
13 A That was in December of 2000.
14 Q Now, could that have been 20017
15 A I'm sorry, January 2001, January 2001.
16 Q I think the hearing was in December.
17 A The hearing was in December of?
18 Q 2000.
19 A That's correct.
20 Q And that's of record. Fred, in doing so, do you
21 recall that there was an order issued by the Court in March of
22 2002 to allow access visits?
23 A Yes, sir, I do.
24 Q And have you been complying with that order?
25 A Absolutely.
138
Q Now, there were some things raised earlier today,
2 and we'll just start to go over them. Did you perceive as
3 guardian, and maybe before becoming guardian, that there was a
4 difficult tension between your mom and her daughter, your
5 sister, Marilyn?
6 MR. LASKOWSKI: Objection, calls for a conclusion.
7 THE COURT: He can answer.
8 THE WITNESS: Most affirmative. I've watched this
9 very closely for the last five years since my father's death.
10 In 1998, there was --
11 THE COURT: The answer is yes. I am well aware of
12 the conflicts that have occurred in the past.
13 BY MR. RUPP:
14 Q And was Marilyn Gerber convicted of criminal
15 trespass against your mother's property?
16 A Yes, she was.
17 MR. LASKOWSKI: Objection.
18 THE COURT: Sustained, stricken. It has nothing
19 to do with this issue. I issued a guardianship, and I set the
20 parameters of this visitation after considerable thought about
21 it given the background of the parties which I know well.
22 Move on.
23 MR. RUPP: Thank you, Your Honor.
24 BY MR. RUPP:
25 Q Fred, in the petition of Marilyn Gerber, the dates
139
1 that she's complaining about are several dates. There are two
2 in July. Do you recall a visit requested for July the 10th?
3 A Yes, sir, I do.
4 Q And can you tell the Court about that requested
5 date?
6 A Absolutely. Marilyn had requested a visit
7 originally on the 12th and the 18th. She later amended that
8 request to move the visit from the 12th to the 10th of July,
9 and the visit from the 18th to the 17th of July.
10 So we accommodated her request to see mom on the
11 10th per her request. We set the -- like every other visit,
12 we made extraordinary attempts to accommodate the dates and
13 the times, and Marilyn did not show.
14 Q So she did not show up for that July 10 requested
15 visit?
16 A That's correct, although we were prepared, waiting
17 and had arranged to be there for the four hours.
18 Q Very good. Now, do you recall that she asked for
19 a July 26 visit?
20 A That's correct. She had asked for a 26 July
21 visit, and based on mom's geriatric case manager, geriatric
22 psychiatrist, physician, discussion with Jane who lived with
23 mom, I had just had five previous visits, five visits in the
24 weeks prior to the 26th of July, and none of them had gone
25 very well.
140
1 In consultation with the geriatric psychiatrist
2 and the social work case manager, it was our belief that mom's
3 depression needed to be treated, that the visits should be
4 slowed or ceased.
5 On or about the 14th of July, I began working
6 through you as my counsel to bring a motion before Judge
7 Bayley to modify the court order, and based on competent
8 medical authority, we decided that the visit on the 26th was
9 not in mom's best medical interest.
10 Q And you had a medical doctor tell you that?
11 A Absolutely.
12 Q Can you be more specific. What was the doctor's
13 concerns?
14 MR. LASKOWSKI: Objection.
15 THE COURT: Sustained.
16 THE WITNESS: Does that mean I answer?
17 THE COURT: That means you do not answer.
18 (Whereupon, Respondent's Exhibits 4 and 5
19 were marked for identification.)
20 BY MR. RUPP:
21 Q Upon getting medical opinion, you went into court,
22 did you not, and you filed a motion to temporarily interrupt
23 the access visits, is that correct?
24 A Yes, sir, I did.
25 Q And is this -- do you think this is a copy of it?
141
1 A Yes, sir, it appears to be.
2 Q What did you call it?
3 A A motion for temporary suspension of access visits
4 with incapacitated person.
5 Q Did you attach some of the medical --
6 MR. LASKOWSKI: Objection, Your Honor.
7 THE COURT: Was that here?
8 MR. RUPP: Yes, that was here.
9 THE COURT: The record speaks for itself.
10 MR. RUPP: Your Honor, can we just -- can I just
11 show him the letters that the doctor wrote?
12 THE COURT: He has already said he acted in part
13 on the information he obtained from his doctors. What the
14 information was, that is hearsay.
15 MR. RUPP: Well, Your Honor, under an exception to
16 the hearsay rule, it's not beinH presented for the truth, it's
17 beinH presented for what was received.
18 THE COURT: He told me he acted upon it and
19 cancelled the visit of July 26th. I understand his position.
20 Move on.
21 MR. RUPP: Okay. Thank you, Your Honor.
22 THE COURT: For the record, do you have that
23 motion he filed here?
24 MR. RUPP: Yes, Your Honor.
25 THE COURT: What date was it filed and when did I
142
1 deny it?
2 MR. RUPP: Your Honor, it was filed July 24 of
3 2002, and you denied it by order of court on July 29, 2002.
4 THE COURT: Okay. And the medical stuff was
5 attached to it, right?
6 MR. RUPP: Yes, Your Honor.
7 THE COURT: All right. Go ahead. Next.
8 MR. RUPP: Your Honor, we believe that under an
9 exception to the hearsay rule that would be admissible.
10 THE COURT: I understand. Move on.
11 MR. RUPP: Thank you.
12 BY MR. RUPP:
13 Q Upon Judge Bayley denying the motion for temporary
14 suspension, did you agree to a further continuation of the
15 access visits?
16 A Absolutely.
17 Q And did further visits occur?
18 A Absolutely.
19 Q Now, in the petitioner's petition, she is
20 complaining about a requested date for September 3 and
21 September 4. First, can you address for the Court why a
22 September 3 visit did not occur?
23 A Yes, sir, I can. I received Marilyn's request for
24 a 3 September visit on the 30th of August. That was a Friday
25 of a four day Labor Day holiday. So I received it three days
143
1 before the planned visit was supposed to happen.
2 I just felt that was discourteous to mom. It was
3 disruptive to the Sunrise associate staff and residents, and
4 we declined the visit on the 3rd of September based on common
5 courtesy and our continuous request that they give us a couple
6 weeks' notice.
7 Q Did you believe that with the holiday intervening
8 there was just insufficient time for you to set up?
9 A Well, sir, there was. I mean, it was a holiday
10 period. People were hard to get a hold of. It was just
11 unfair and discourteous to mom and the residents.
12 Q Do you recall a request for a September 4 visit?
13 A I absolutely do not request -- I'm sorry. I
14 absolutely do not remember any request for a visit on the 4th
15 of September.
16 Q Very good. Do you recall a request for a visit
17 occurring on October 8th?
18 A Absolutely not. I poured over my record. There
19 is no request or was never any request for a visit on the 8th
20 of October.
21 Q Now, you were setting up some supervision, and
22 Miss Jackson was one of the primary persons who effectuated
23 that. Can you tell the Court what your thinking was, Fred, in
24 setting up supervision for these visits?
25 A Yes, sir, I can. After Judge Bayley made his
144
ruling that Marilyn would be allowed four hours of visits each
2 week now, as you recall, I sat down to strategize with you how
3 we should handle this to be sure that when this day came that
4 we would be aboveboard.
5 I consulted with healthcare providers in Chicago.
6 I discussed this with the case manager, and my strategy was to
7 have a geriatric case manager assigned to mom who would be
8 first and foremost mom's advocate.
9 My first meeting with Joan Jackson was to be that
10 advocate, that if Jane and I seemed to be doing something
11 wrong I wanted her to let us know to have us step aside. Joan
12 guided every one of those visits or her associates at the
13 facility she worked at. So central to my strateqy was an
14 advocate for mom to help guide us in abiding by Judge Bayley's
15 order.
16 Q And did the supervisor, whoever supervised the
17 visit, report back to you on how the v~sit occurred?
18 A Yes. Joan, as you just heard her testify,
19 routinely gave me debriefs of how things went.
20 Q Did you need a little bit of time to set up these
21 access visits?
22 A Yes, sir, I did. You know, as mom's guardian, mom
23 lived in Chicago, I lived in Fairfax, Virginia. I mean,
24 again, out of common courtesy to mom, I mean, I needed time
25 first of all for Jane to be able to react when mom was living
145
with Jane, and then when mom moved to Sunrise Assisted Living,
2 the staff there out of professional common courtesy required
3 time to accommodate the visits.
4 Q Before mom was moved into Sunrise Assisted Living,
5 where were you trying to have the visits?
6 A I felt that we should select a neutral territory
7 to conduct the visits, felt that it was totally improper to
8 have the visits inside of Jane's home based on previous
9 experience with the conflict with Marilyn and the extended
10 family.
11 So I selected the Embassy Suites which, you know,
12 it's a four-star hotel. It's in Chicago, luxury suites, as
13 you heard Joan Jackson describe, sitting room, private toilet,
14 a bedroom with a great view of the duck pond, three television
15 sets, a coffee maker, shops. I mean, it had two eating areas
16 inside and an inside brook and walking area with a bridge. It
17 was a four-star luxury accommodation.
18 Q Very good. Now, did Jane have any kind of
19 position on whether the access visit could occur at Jane
20 Heflin's home?
21 A Did Jane have anything to say?
22 Q Right. Did she take a position?
23 A Well, Jane felt it would be totally inappropriate
24 to --
25 MR. LASKOWSKI: Objection, hearsay.
146
THE COURT: Overruled. He may answer.
2 THE WITNESS: Jane and I talk frequently and it
3 was -- I mean, she stated, and I fully agreed, that it would
4 be inappropriate to take place inside of Jane's home.
5 BY MR. RUPP:
6 Q So you went out and you found a four-star hotel.
7 Then after you had to place your mom into Sunrise Assisted
8 Living, then did you discuss that with the staff at Sunrise?
9 A Absolutely. You know, the court record will show
10 that Dr. Cadieux and all of the previous geriatric
11 psychologists and psychiatrists who evaluated mom, and if you
12 read the literature, they all predicted that sooner or later
13 mom's advanced stage of Alzheimer's would require her to go
14 into an assisted living or perhaps a nursing home.
15 I consulted with the 24/7 nursing healthcare staff
16 that stayed with mom 24/7 while mom lived with Jane. I
17 consulted with the geriatric case manager, the geriatric
18 psychiatrist, the geriatric physician, and the staff at
19 Sunrise Assisted Living to insure that this was -- we were
20 making the right move, this was the right time, the right
21 place with the right accommodations.
22 Q Did Marilyn ever make known to you that she did
23 not approve of where you had selected to place mom?
24 A She made it very clear.
25 Q What did she want?
147
1 A I'm sorry?
2 Q What did Marilyn want?
3 A Marilyn's made it very clear in all of her verbal
4 and written records that she would stand for nothing less than
5 returning mom to 623 Hilltop Drive under her guardianship or
6 care. I mean, that was her stated and implied threat.
7 Q And has she even taken the step now to even block
8 a sale of the residence at 623 Hilltop?
9 MR. LASKOWSKI: Objection.
10 THE COURT: Sustained.
11 (Whereupon, Respondent's Exhibits 2 and 3
12 were marked for identification.)
13 BY MR. RUPP:
14 Q Fred, I'm going to show you two documents we have
15 marked Respondent's Exhibit 1 and Respondent's Exhibit 3.
16 Will you identify these for me. Take them one at a time,
17 please.
18 A I'm looking at Respondent's Exhibit No. 2.
19 MR. LASKOWSKI: Which is two and which is one?
20 MR. RUPP: Two is the one with two notes, and
21 three is the one with the one big note in the middle.
22 MR. LASKOWSKI: I'm going to object to hearsay,
23 Your Honor.
24 THE COURT: What are they?
25 MR. RUPP: These are notes from Mildred Gerber
148
1 written during a couple of the access visits to Fred.
2 THE COURT: About what?
3 MR. RUPP: About that she does not want to see
4 Marilyn anymore, and I need some rest from her.
5 THE COURT: I will let him identify them.
6 BY MR. RUPP:
7 Q Fred, can you identify number two for us?
8 A Yes, sir. Respondent's Exhibit No. 2 are two
9 Embassy Suite Hotel 3-by-5 telephone notepads. The first note
10 was -- I mean, this was the second visit that I was in
11 attendance with with mom, Joan Jackson, and Marilyn Gerber at
12 the Embassy Suites Hotel.
13 During the course of the visit, mom scribbled a
14 note, this is cruel. Why is Marilyn making me stay here?
15 Joan is nice. I like her. When are you going home, Fred? I
16 need to take a nap.
17 The second note. Fred, II, she is crazy,
18 parenthesis, Marilyn. I don't want to be here. Why can't I
19 go? She is a bad person. I don't want to stay here. Take me
20 home now, underlined, exclamation.
21 Q Can you identify then what we have called and
22 identified as Exhibit No. 3, Respondent's No. 3?
23 A Respondent's Exhibit No. 3 is from a note dated 16
24 June 2002. I quote, notes for Fred, underlined, do not want
25 to see Marilyn anymore this month, parenthesis June. I need
149
1 some rest from her, Mildred Gerber, June 16, 2001, father's
2 day.
3 Q And were these --
4 THE COURT: One was in June. When was the other
5 one?
6 THE WITNESS: 12 April 2002.
7 BY MR. RUPP:
8 Q Was this indicative of what you thought your mom
9 was basically worried about with Marilyn?
10 A For five years, yes.
11 Q And did you observe personally the agitation
12 during any access visits?
13 A Painfully so.
14 Q Can you describe your mother's agitation?
15 A Well, you heard Joan talk about it. I mean, mom
16 became very hostile, animated, agitated, very combative
17 towards Marilyn. You know, the TMJ 80 clicks per minute that
18 Marilyn observed really only ever occurred when Marilyn had
19 visits with her.
20 Mom became -- I mean, made fists and swung at
21 Marilyn, threw things at Marilyn, swore. I mean, I've never
22 heard mom curse other than during these visits. Agitated,
23 angry, disturbed.
24 Q As guardian -- as plenary guardian of your mom,
25 did you have any understanding of how agitation was for an
150
Alzheimer's/dementia patient?
2 A Well, I didn't before watching mom. I mean, I've
3 watched mom pretty close over the last five years. I've
4 watched mom slip into the advanced stages of Alzheimer's over
5 the last year.
6 So from January 2002 I watched mom move through a
7 very rapid progressive decline until her death on the 14th of
8 January 2003. So, I mean, I have a pretty good firsthand
9 observation of mom's increased agitation.
10 Q From your observations, was the agitation
11 detrimental to your mom?
12 MR. LASKOWSKI: Objection, calls for an opinion.
13 THE COURT: I will let him give me his opinion.
14 THE WITNESS: Absolutely. I mean, you know, days,
15 even weeks after the visit talking with Jane, talking with the
16 in-house 24/7 nursing staff, it was mom's still upset. I
17 mean, after particularly bad visits, mom would just -- when I
18 would talk with her on the phone, it was -- I mean, it was
19 clear. It wasn't anything we fabricated. It was mom
20 evidenced this herself.
21 BY MR. RUPP:
22 Q Did you get another medical opinion in October?
23 A You'll have to be more specific. I mean, mom got
24 routine medical physical examinations and mental psychiatric
25 examinations, I mean, the entire year that she was in Chicago.
151
1 Q Did you get another written medical opinion?
2 A From Dr. Wiener, yes, sir, I did.
3 Q Was that basically similar to the other two?
4 A Yes, sir, it was. Dr. Wiener was trying to make
5 the point that mom's depression --
6 MR. LASKOWSKI: Objection, calls for hearsay.
7 THE COURT: Sustained.
8 BY MR. RUPP:
9 Q Do you recall a September 9 visit?
10 A Yes, sir, I do.
11 Q Can you tell us what happened on September 9,
12 2002?
13 A To the best of my recollection, this was the first
14 visit that Marilyn made to see mom at the Sunrise Assisted
15 Nursing Facility after we had moved her there on the 20th of
16 August 2002. As with all the visits, I received, you know,
17 that same day or early next day debriefings on how things
18 went.
19 THE COURT: What is the question? I lost track of
20 the question.
21 BY MR. RUPP:
22 Q Do you recall an incident that might have happened
23 on September 9?
24 A I do. One of these reports, I'm just trying to
25 collect my thoughts, is --
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1 THE COURT: Are you talking about what is already
2 in the testimony?
3 MR. RUPP: Well, he hasn't testified to it.
4 THE COURT: Well, he wasn't there. Right, you
5 weren't there September 9th?
6 THE WITNESS: Negative.
7 THE COURT: Next question.
8 MR. LASKOWSKI: I have an objection to the last
9 question obviously.
10 THE COURT: Yes. I mean, you got reports on it,
11 right?
12 THE WITNESS: Affirmative.
13 THE COURT: Now, if you want to ask a question, go
14 ahead.
15 BY MR. RUPP:
16 Q Did you receive reports on the September 9 visit?
17 A Most definitely.
18 Q What was your reaction to those reports?
19 A I was shocked, amazed that this -- I was shocked.
20 I was amazed that this could take place, that it was allowed
21 to happen, and that event being that after the unscheduled
22 visit that we leave Marilyn and mom unsupervised for a few
23 brief minutes and then discover mom stripped naked.
24 I mean, this is my -- our beautiful 87 year old
25 just stripped naked on a toilet, Marilyn snapping photographs.
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I mean, I felt outraged that mom's dignity, humanity, patient
2 rights, privacy were violated like that. It was just
3 incomprehensible.
4 Q Did that spur you to inform anyone of anything
5 such as instructions?
6 A Absolutely. I mean, I felt powerless to try to
7 make sure that the visits were as productive as possible.
8 THE COURT: Let me ask you a question. Who told
9 you that happened?
10 THE WITNESS: Michelle Harold, the Alzheimer's
11 nursing staffer that you heard testimony from this morning.
12 THE COURT: Go ahead. Now continue.
13 MR. RUPP: Thank you, Your Honor.
14~ BY MR. RUPP:
15 Q So did you give some further instructions to
16 Sunrise?
17 A Most certainly. I spent several hours talking
18 with Joan Jackson, Michelle, my legal counsel in Chicago and
19 here discussing what was right to be able to live within the
20 rules of Judge Bayley's decree, and you heard Mr. Laskowski --
21 you heard Michelle read them verbatim this morning, and I
22 believe they were reasonable directions to protect mom's
23 dignity, privacy, patient rights for visitation.
24 Q Very good. Do you recall -- now, it's not
25 complained of, but do you recall a September 16 visit?
154
1 A Yes. The September 16 visit was, again, one of
2 the 26 visits we accommodated over the seven month visitation
3 period. We informed Marilyn that the visitation would take
4 place at the Embassy Suites, and, again, like all other 26
5 visits, we arranged, we were there sitting, waiting, prepared
6 with -- you know, Marilyn did not show.
7 Q Mom's living at Sunrise. Why did you choose the
8 Embassy Suites then one week later?
9 A Well, I mean, it just made sense to me with the
10 horrific event that was reported to me that had taken place on
11 the 9th, we just wanted -- you know, by this time, I'm going
12 to tell you, every time I walked in and talked to people, the
13 staff was agitated. They were upset. All the other
14 associates in the Alzheimer's care center were upset being
15 dragged into this ugly situation. So I took mom out of
16 Sunrise for that visit.
17 Q So you granted a September 6th visit. What
18 happened on the September 16 visit?
19 A Well, Marilyn didn't show. We were at the hotel
20 waiting.
21 Q Did you get reports that Marilyn would try to take
22 over the nursing duties of her mom?
23 A It's all I heard about whenever I visited or
24 talked with Michelle on the phone or visited the staff there.
25 Q And were you concerned with that?
155
1 A Of course I was concerned. I was concerned with
2 everything that never went right with a visit with Marilyn.
3 Q Do you recall an October 3 visit?
4 A The 3 October visit was, you know, the second
5 upsetting visit that took place after the 9th of September.
6 So on 3 October, again the report later that afternoon and
7 again the next morning was that Marilyn had come in. At some
8 period of time after loud discussions and --
9 MR. LASKOWSKI: I'm going to object as hearsay.
10 THE COURT: Go ahead. You can tell me.
11 THE WITNESS: To make a long story short, at the
12 end of the visit, as you heard in testimony today, mom --
13 THE COURT: That is the bathroom incident,
14 correct?
15 MR. RUPP: Right.
16 THE COURT: October 3?
17 THE WITNESS: Right.
18 THE COURT: Now, what is your question?
19 THE WITNESS: Some of the associates at Sunrise
20 attempted to take mom to the bathroom.
21 THE COURT: You got this report. Now, what is
22 your question?
23 BY MR. RUPP:
24 Q What was your reaction to the report that mom was
25 prevented by Marilyn from going to the bathroom?
156
1 A Sir, it was like the 9th of September, powerless
2 to help mom as the guardian, to supervise the visits, to
3 protect her dignity, respectful behavior, common courtesy,
4 patient rights.
5 Q You heard the testimony of Michelle Harold today.
6 Are you basically in agreement with her testimony?
7 A Absolutely.
8 Q You heard Joan Jackson testify today about she was
9 even more involved with the access visits. Are you in
10 agreement essentially with her testimony?
11 A Yes, sir, I am.
12 Q Did you attempt to accommodate Marilyn in her
13 request for access visits?
14 A I think my record shows an extraordinary effort to
15 accommodate 26 visits in that seven month visitation period by
16 appointing the patient advocate, licensed, professional,
17 trained, experienced case manager, bending over backward to
18 accommodate dates and times. I think my record speaks for
19 itself.
20 Q I'm going to show you a letter.
21 (Whereupon, Respondent's Exhibit No. 4
22 was marked for identification.)
23 BY MR. RUPP:
24 Q I'm going to show you Respondent's No. 4. It's a
25 letter dated May 30. Can you identify that item?
157
1 A This is Respondent's Exhibit No. 4. It's a letter
2 dated 30 May 2002. The subject is Marilyn Gerber dash Mildred
3 Gerber access visits.
4 Q And what were you trying to do in that May 30
5 letter?
6 A Well, sir, after a little over a month of twice a
7 week telephone calls before we started the Court directed
8 mandatory weekly visits, we had been in a process trying to,
9 as best we could, work out between you and Mr. Laskowski
10 agreed upon dates or the terms of the dates, how soon in
11 advance the dates, out of sheer courtesy and common decency to
12 mom. So the point of this letter was to try to agree on how
13 many days advanced notice we would be given, what the times
14 would be, et cetera.
15 Q Did you consider this letter a request or did you
16 consider it an ultimatum or a demand?
17 A Sir, as it clearly states in paragraph one, it's a
18 respectfully respected request. I mean, it's not a terse
19 letter. It's respectfully requested. I mean, it's there in
20 black and white.
21 Q A little bit down further there is a reference to
22 some times -- suggested times for visits. Can you tell the
23 Court what suggested time -- why you were making suggested
24 times for Marilyn?
25 A Yes. We suggested times from 10:00 a.m. to
158
2:00 p.m. local which happened to be central daylight time in
2 mom's particular case. We selected the times of 10:00 to 2:00
3 based on Marilyn's earlier complaints on or about the 16th of
4 February where she called me repeatedly three times in
5 succession, and obviously those times I did answer her phone
6 call, but she complained that mom was, quote, twilighting,
7 complained that the visits were taking place too late in the
8 afternoon, that mom was too tired that late in the afternoon
9 to accommodate the visits.
10 So, you know, one time I hear that they are too
11 late. We try to accommodate that twilighting concern, alas
12 the 10:00 to 2:00. The 10:00 to 2:00 was hardly ever
13 accommodated. We eventually accommodated Mr. Laskowski and
14 his client from 1:00 to 5:00 central daylight time.
15 Q Did Marilyn or her counsel ever provide you with
16 her work schedule to show you that 10:00 to 2:00 could not be
17 met?
18 A No, sir, he did not.
19 Q And when Marilyn continued to request 1:00 to
20 5:00 p.m., even though she was previously complaining about
21 mom being too tired for the visit, what did you do in reaction
22 to that?
23 A Well, what else could I do? I was very concerned
24 that I kept this thing on the straight and narrow and
25 aboveboard. I gave in and accommodated their request for 1:00
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to 5:00 central daylight time.
2 Q And there were other requests in here concerning
3 holidays and Thursdays and Tuesdays. Can you tell the Court
4 what you were trying to request there?
5 A After getting mom into a routine in Chicago, we
6 set mom up to attend every Tuesday and Thursday Alzheimer's
7 day care, a church run organization, for Tuesdays and
8 Thursdays day care. We tried to get her into a routine there.
9 We respectfully requested that the visits take
10 place on a routinized predictable calendar of Monday,
11 Wednesday, and Friday so we wouldn't have to be going through
12 those, you know, mega letters back and forth between lawyers.
13 So we asked for Monday, Wednesday, and Friday. We
14 asked to keep weekends and holidays free because of mom going
15 to church and usually being away with mom or the extended
16 family on holidays.
17 Q Did you have to set up doctors' visits for your
18 mom?
19 A Dentist, physician physical and psychiatric
20 appointments.
21 Q Did you have to give the doctors some lead time to
22 set up mom's appointments?
23 A As with any common courtesy extended to any
24 professional and human being, that's what we tried to do.
25 Q By asking for certain dates not to be utilized by
160
Marilyn, were you trying to keep a schedule that you could
2 know that for certain you would be able to make those doctor
3 appointments?
4 A Affirmative. As I said, we tried to set up a
5 predictable, routinized schedule that everybody could work off
6 of.
7 Q What happened with that request for a routinized
8 schedule?
9 A Well, to tell you the truth, it seemed to me that
10 the dates I asked for her not to pick, Tuesday and Thursday,
11 were the dates that they actually selected for visitation, but
12 essentially nothing we had asked for respectfully was
13 accommodated.
14 Q Would you tell the Court what your impression is
15 of Marilyn's overall requests? In other words, did you feel
16 that she was in making requests trying to control you as
17 guardian?
18 A Absolutely. I mean, you heard the two previous
19 testimonies. I mean, it's about control. I mean, every phone
20 call ended with a threat to come to court before Judge Bayley.
21 Every visit ended in verbal threats that she is going to drag
22 this in front of Judge Bayley, that she is going to sue us,
23 take us to court. I mean, every visit ended with that threat.
24 Q And, of course, then you were not aware of Judge
25 Bayley's order, but you were also then aware of Marilyn's
161
1 threats, is that right?
2 A I couldn't escape it.
3 MR. RUPP: Your Honor, I have no further questions
4 of this witness.
5 THE COURT: Cross-examine.
6 CROSS EXAMINATION
7 BY MR. LASKOWSKI:
8 Q Mr. Gerber, you still live in Virginia?
9 A Affirmative.
10 Q The same address that you testified to in the
11 original hearing, right?
12 A Well, what address would that be, sir?
13 Q I believe it was Fairfax, Virginia, or Alexandria?
14 A Fairfax, Virginia, is where I live, sir.
15 Q You mentioned your address. I wasn't sure if you
16 relocated or not. During the period of April from March when
17 the Judge entered the order through October you were at that
18 address too?
19 A As I just stated, I live in Fairfax, Virginia,
20 yes, sir.
21 Q How many visits did you attend personally with
22 Marilyn and her mother?
23 A Two that Marilyn showed up and two, I believe, she
24 no-showed. She no-showed for 7 of the 26 visits we
25 accommodated, either no-showed or she cancelled by prior
162
1 arrangement.
2 Q What are those dates, please, do you know?
3 A The two cancellations were 15 May, 28 August. The
4 no-shows were 17 April, 1 May, 10 June, 19 June, 10 July, 16
5 September, 1 October.
6 Q You lost me at June. Could the reporter read
7 those back for me, please.
8 (Whereupon, the court reporter read back
9 the requested answer.)
10 THE COURT: What were the two visits you attended?
11 THE WITNESS: 9 February, 12 April, and 16 June
12 no-show were the three that I best recall.
13 THE COURT: Okay.
14 BY MR. LASKOWSKI:
15 Q You said your mother went to the senior center
16 Alzheimer's on Tuesdays and Thursdays, and your attorney
17 communicated that to us, correct?
18 A That's correct.
19 Q When did she start going?
20 A I don't recall.
21 Q Where did she
22 A Where did she
23 Q Yes. What is the name of it?
24 A Esse -- I believe it was called Esse. It was
25 three miles from mom's residence.
163
1 Q You said S something?
2 A E-s-s-e.
3 Q And when did she stop going there?
4 A I don't recall. It was close to 20 August when
5 she went to Sunrise Assisted Living.
6 Q So you're telling us that she went the whole
7 summer to the Alzheimer's center every Tuesday and Thursday?
8 A Sir, what I said was our schedule was to have mom
9 in Esse from Tuesday and Thursday. That was the plan. She
10 didn't go every time but she went --
11 Q I understand that, and I'm just asking you what
12 information -- what record you have as to how often she went?
13 A I don't have that record.
14 Q So you can't say to us today whether she went
15 absolutely every week or not?
16 A I can't say that, but that was the plan. That was
17 the schedule.
18 Q I understand that was the plan. So it's possible
19 she didn't go every week, right?
20 A It is possible.
21 Q Now, you've heard testimony earlier today as well
22 that information was requested from you about that facility as
23 to what Millie Gerber's activities were at the center, right?
24 Would you agree with that?
25 MR. RUPP: Objection, Your Honor. I don't think
164
1 that's relevant.
2 THE COURT: It is beyond the scope of what I am
3 dealing with here.
4 MR. LASKOWSKI: No, Your Honor, I don't believe
5 it's beyond the scope. My client testified that we had
6 requested various information about the Tuesday and Thursday
7 visits. We were told that those visits couldn't occur.
8 THE COURT: That is beyond the scope. I am
9 dealing with whether he is in contempt of my order, and that
10 is the only thing I am dealing with.
11 MR. LASKOWSKI: Correct. And I'm asking him about
12 those events and why those dates weren't available to us, and
13 that directly relates to whether he complied.
14 THE COURT: He just said the schedule was for her
15 to be on Tuesdays and Thursdays. He does not know whether she
16 was there all the time. He has answered your question. Next
17 question.
18 BY MR. LASKOWSKI:
19 Q Didn't Marilyn ask to be able to attend those
20 sessions when they did occur on Tuesdays and Thursdays?
21 A I believe she did.
22 Q But you never allowed that, did you?
23 A After consulting --
24 THE COURT: Did you or didn't you?
25 THE WITNESS: Negative.
165
BY MR. LASKOWSKI:
2 Q We had talked about the July 10 visit earlier, and
3 you said that Marilyn was a no-show. What was the timing for
4 that visit?
5 A I can't recollect, but, I mean, it was either
6 10:00~to 2:00 or 1:00 to 5:00. It was one of those two
7 times.
8 Q It was supposed to be a 10:00 to 2:00 visit,
9 wasn't it?
10 A Well, I just said I didn't recollect, but it was
11 either 10:00 to 2:00, sir, or 1:00 to 5:00.
12 Q At that time you would agree that you were
13 certainly informed by Marilyn either directly and/or through
14 counsel that 10:00 to 2:00 didn't work for her and she could
15 not arrange to be there at that time?
16 A I don't recall that correspondence.
17 Q So before the July visits, you are not aware of
18 Marilyn ever complaining about not being able to make 10:00 to
19 2:00 visits?
20 A I am aware of Marilyn asking to accommodate her
21 1:00 to 5:00 request, alas the memo to you, sir, on the 30th
22 of May to ask you to respectfully accommodate our concerns and
23 desires.
24 Q And every request that you made up until that
25 point was always for a 10:00 to 2:00 visit, was it not?
166
1 A For the reasons I stated, that Marilyn was
2 concerned about twilighting and sundowning. It was my belief
3 as guardian in consultation with my case manager that 10:00 to
4 2:00 was an appropriate time to visit.
5 Q This twilighting and sundowning issue that you
6 reference, that had to do with the February 9th visit, didn't
7 it?
8 A It actually was a theme Marilyn had on a couple of
9 phone calls to include the visit on 9 February.
10 Q Because that visit on February 9th was in the
11 evening, was it not?
12 A 1900 hours.
13 Q Did you ever return any of Marilyn's calls?
14 A I did not. I'm going to tell you, I made it very
15 clear I wanted -- because of Marilyn's confrontational,
16 abusive communication with --
17 THE COURT: You were not willing to communicate
18 with her, right?
19 THE WITNESS: I respectfully asked that --
20 THE COURT: Is that fair enough?
21 THE WITNESS: That's correct.
22 BY MR. LASKOWSKI:
23 Q And you didn't want to respond to her directly in
24 writing when she wrote you memos or letters, correct?
25 A That is also correct.
167
1 Q You had mentioned and you had described at length
2 the Embassy Suites Hotel and the accommodations that were
3 there. There was only one time when actually a visit ever
4 occurred outside the room, isn't that correct?
5 A Are you talking about the entire seven month
6 visitation period?
7 Q From April -- right, from the March 25th order
8 through October 29th.
9 A Oh.
10 Q At the Embassy Suites now.
11 A That's not true. I mean, the visit on the 9th of
12 February, for example, started in the restaurant.
13 Q I asked between March, and I asked between in
14 October, when the order came out from Judge Bayley.
15 A To the best of my recollection, there were visits
16 to the gift shop downstairs in the common area of the hotel.
17 Q We heard of one visit today that was testified to
18 earlier by, I believe, Miss Jackson, okay, and you were here
19 for that. Were there any others, and can you tell me when
20 they were?
21 A I can't tell you when, but to the best of my
22 recollection, I believe there were others that they either met
23 Marilyn in the restaurant, which was typical to meet in the
24 restaurant, get nourishment for mom, and then move to the
25 hotel room, and then take a walk in the brook/bridge area and
168
atrium or visit the gift shop.
2 Q Didn't Marilyn ask you through counsel to be
3 able to take mom elsewhere, such as a short shopping trip
4 down the road to TJ Max or to church or to a park or to any
5 other location other than the Embassy Suites and the hotel
6 room?
7 A To the best of my recollection, the only request
8 Marilyn made was to take mom to a shopping center, and I
9 again after consulting with the case manager felt that was
10 not appropriate.
11 Q You had mentioned that you had a team of
12 individuals that you consulted with, and you mentioned that
13 several times. Who was -- so we understand, who was her
14 doctor?
15 A Dr. Lawless her pediatric -- I'm sorry, her
16 geriatric physician; Dr. Wiener, her geriatric psychiatrist;
17 Joan Jackson, her geriatric case manager social worker. She
18 had a dentist. I don't know his name. She had a podiatrist,
19 and I don't know his name.
20 Q Thank you. Now, you said your concern was to have
21 visits supervised when Marilyn was there with mom. Why
22 couldn't that supervision occur in her home -- excuse me, at
23 Jane's home where Mildred was staying?
24 A I felt that was discourteous, disruptive, and
25 abusive to Jane and the extended family based on my last five
169
1 years of experience with Marilyn being inside mom's home in
2 New Cumberland. I felt it was disruptive and discourteous to
3 mom.
4 Q Didn't that result in additional stress to mom in
5 having to move her?
6 A Absolutely not.
7 Q Was your mother familiar with the Embassy Suites
8 Hotel and that room that you took her to?
9 A Of course not.
10 Q She had not been there before, to your knowledge?
11 A No, she hadn't.
12 Q You had testified earlier about agitation during
13 visits. For clarity, you've only told us now about two visits
14 actually that you were attending with Marilyn and her mother.
15 So your testimony is qualified by the actual visits. Anything
16 else would have been a report?
17 A That's correct.
18 Q After the September 9th visit at Sunrise, did you
19 make an effort to talk to Marilyn at all?
20 A No, I did not.
21 Q To your knowledge, did any of the team of
22 individuals that you consulted with, doctors that you
23 identified, did they consult with Marilyn about any of the
24 visits, any of your concerns, any of the activities that were
25 seen and reported to you?
170
1 A Well, the nursing -- the professional staff at
2 Sunrise Assisted Living most certainly did.
3 Q And would that have been Michelle Harold?
4 A Michelle Harold. There were other -- the CEO, the
5 executive director, their lawyer, their counsel. I mean, the
6 entire management team at Sunrise was involved in these visits
7 and agitations.
8 Q Mr. Gerber, you've also told us that you
9 accommodated 26 visits by Marilyn with your mother. Were
10 those 26 visits between Judge Bayley's order of March and
11 October 29th?
12 A Well, sir, as I said --
13 Q Yes or no. Were they?
14 THE COURT: Was it a greater period than that?
15 THE WITNESS: It was the period of April through
16 October. That was the visitation period I described.
17 BY MR. LASKOWSKI:
18 Q Based on all of the testimony we've heard today, I
19 come up with two in April, one in May, one in June, one in
20 July, three in August, three in September, two in October, I
21 believe, if my count is right. I'll defer to the good judge
22 on that. That's pretty close. That doesn't add up to 26,
23 sir.
24 Are there other specific dates and visits that we
25 haven't heard about today in the testimony that actually
171
occurred and that's what you're telling us?
2 A Well, my perspective and experience is obviously
3 different than yours, sir. I come up with four in April,
4 three in May --
5 THE COURT: Hold on.
6 BY MR. LASKOWSKI:
7 Q Before you go with your numbers, we're talking
8 about actual visits that Marilyn actually went to Chicago and
9 met with her mother.
10 A Well, I was just trying to parallel your numbers
11 for those various months.
12 Q Right. That's kind of the ground where we're
13 starting with. I don't want visits that are no-shows.
14 THE COURT: You tell me what visits you say she
15 attended in Chicago and what dates.
16 MR. LASKOWSKI: Physically.
17 THE WITNESS: April 7, 12, 17, no-show 24.
18 THE COURT: Hold on. Seven.
19 THE WITNESS: Seven, 12, 17th, no-show --
20 MR. LASKOWSKI: I'm not asking for no-shows.
21 Please leave out the no-shows. Just tell me the actual visits
22 because you testified about no-shows earlier.
23 THE COURT: I just want to know the times she was
24 there and with your mother.
25 THE WITNESS: 7, 12, 24 April, break; May 1, 7,
172
31, break; June 5th, 7th, 16th, 28th, break; July 5, 17,
2 break; August 7, 14, 21, break; September 7, 9, 23, break;
3 October 3, 16. Sir, does that add up to 26?
4 MR. LASKOWSKI: No, sir, it doesn't.
5 THE WITNESS: Did you add the seven no-shows?
6 THE COURT: That adds up to 20. And then when you
7 say six, that is six no-shows?
8 THE WITNESS: Sir, I had seven no-shows or
9 cancellations.
10 THE COURT: That is 20. The 20 you just gave me,
11 are those the ones that you think Marilyn was there?
12 THE WITNESS: That's correct. I'm counting 26
13 with seven no-shows. When I back seven no-shows out, I get
14 26.
15 THE COURT: What do you think the no-show dates
16 are?
17 THE WITNESS: 17 April, 1 May, 10 June, 19 June,
18 10 July, 16 September, 1 October.
19 THE COURT: Okay.
20 THE WITNESS: I'm getting 26 there.
21 MR. LASKOWSKI: You've added them together.
22 THE WITNESS: It's 26, is that correct?
23 THE COURT: Yes. You have listed 20 that she
24 attended and six that she did not. Continue.
25
173
1 BY MR. LASKOWSKI:
2 Q Were there times that Marilyn did give you
3 alternate dates for visitations?
4 A Yes, sir, as I had said previously.
5 Q So her requests from her point of view weren't
6 always -- were not a take it or leave it proposition either,
7 were they?
8 A I'm sorry, could you say that again.
9 Q There were times when Marilyn provided alternate
10 dates, for example, September 3 or 4 or September 16 or 17. I
11 believe there was also a set in August.
12 A Well, let me just say, you said 3 and 4. As I
13 said, again, I want to be very clear, since those 3 and 4 are
14 part of five dates you argued, I never got a request for the
15 4th of September. And on the 3rd, you are correct, I thought
16 three days' notice was too discourteous, could not
17 accommodate.
18 There were other dates that I felt we had
19 everything locked in, and I would not accommodate her. But
20 there were many other dates that I accommodated her change in
21 dates, one of which was in your five band of dates that I
22 denied visits, and that being the 10th of July. Her original
23 request was the 12th. She came in later and asked to move it
24 to the 10th, which we accommodated.
25 Q In August you moved your mom to Sunrise facility.
174
When did you communicate that to Marilyn, that there was a
2 change in location?
3 A I don't recall when we actually communicated that
4 to Marilyn.
5 Q Were there Sunrise facilities in the vicinity of
6 where you lived in Virginia?
7 THE COURT: That does not make any difference.
8 Next question. He was the guardian. He had the right to
9 place her in the facility that he chose.
10 BY MR. LASKOWSKI:
11 Q When you placed your mom into the Sunrise
12 facility, what information by way of documents did you give
13 Michelle Harold and their staff over there?
14 A When I placed mom into Sunrise Assisted Living, I
15 filled out the routine panoply of entry forms, the admission,
16 the registration, the personal medical information, the DNR,
17 the emergency contact number. That was all the written
18 information I provided Sunrise.
19 Q Did you give Miss Harold or anyone there any of
20 the documentation that was related back to the events of 1998
21 or 1997 or, as you put it earlier, during the prior five
22 years?
23 A I did not.
24 Q None whatsoever?
25 A Sir, I just said I did not.
175
Q What instructions did you give Michelle Harold and
2 the Sunrise facility about visits with Marilyn when she was
3 first put in in August?
4 A I gave Michelle verbal instructions that I was the
5 personal guardian, trustee, executor. I indicated there was a
6 court order for four hours mandatory visits per week, and I
7 gave her verbal instructions very similar and in parallel to
8 the instructions I gave later in September that the visits
9 were to be monitored, they were to be scheduled, so scheduled,
10 approved -- scheduled, approved, monitored.
11 Q You had heard Michelle Harold's testimony earlier,
12 and you said you concurred with it. So you agree particularly
13 with the fact that when the police were called to the Sunrise
14 facility you were consulted about that directly at that time
15 when it was happening?
16 A Let me retract. I generally and globally agreed
17 with what Michelle said. On that particular fact, Michelle
18 did not, let me repeat, did not consult me every time the
19 police were called because after the first couple of visits it
20 became -- it started becoming disruptive to the other clients
21 and associates in the center. They did not -- in fact, I'm
22 going to tell you, I can't recall a single instance where
23 Michelle called me and asked my permission or direction to
24 take on who to call.
25 Q For those incidents that you've heard about today,
176
1 you would agree that certainly Marilyn was never arrested as a
2 result of that at the facility, right?
3 A That's correct.
4 Q And that each of those incidents the police did,
5 in fact, leave?
6 A That's true, and contrarily, you know, Marilyn
7 left before there was a need to arrest because the desire was
8 to get her off the premises.
9 Q Do you have any reason to believe or knowledge
10 that the police in DuPage County there that were called to the
11 scene were not going to abide by Judge Bayley's order of MarCh
12 25th?
13 A I spoke with one of the police officers actually
14 who called me and explained why they couldn't resolve the
15 Sunrise request to have Marilyn removed, that being that this
16 was a civil matter, not a criminal matter, and in DuPage it
17 had to be a criminal matter to remove her.
18 Q Other than the Alzheimer's center visits that were
19 scheduled, as you say, did you or your sister Jane take your
20 mother elsewhere outside the home?
21 A For scheduled visits with Marilyn?
22 Q No, no, no, not with scheduled visits with
23 Marilyn. I'm talking about other than visits with Marilyn. I
24 know she went to doctors and dentists and her care providers,
25 as you say, and she went to the Alzheimer's center you tried
177
1 to schedule for Tuesdays and/or Thursdays. Were there any
2 other family activities that she was taken out to or a part of
3 outside the home?
4 A Not routinely. I recall a couple of hairdressing
5 appointments, dental, as you mentioned, but for most intents
6 and purposes on 20 August when mom was entered into the
7 assisted living that was pretty much where mom was staying.
8 Q Did your mom ever go to church during that time up
9 until August?
10 A Yes, sir.
11 Q Was that a regular attendance?
12 A Prior to -- Sunrise Assisted Living, you know,
13 they've got their own chapel and reverends that come in
14 there.
15 Q I understand that. I'm talking about before
16 Sunrise though.
17 A Yes, sir, it was.
18 Q Is that an activity that Marilyn could have
19 participated in?
20 THE COURT: Well, if he had scheduled the four
21 hours during that period of time, the answer is yes;
22 otherwise, no.
23 BY MR. LASKOWSKI:
24 Q Well, did you allow any visits on weekends,
25 Saturdays and Sundays?
178
1 A Mr. Laskowski, as you're aware, I asked that no
2 visits take place on Sundays for church or weekends or
3 holidays.
4 Q Okay. And holidays -- there weren't very many in
5 that summer -- but that was also refused too because mom had
6 spent the holiday with Jane's family, is that right?
7 A Well, you'd have to be more specific, what
8 holidays you're talking about.
9 Q Well, I said in the summer there's only a few.
10 A Okay.
11 Q You have Memorial Day and you have the 4th of
12 July.
13 A So Memorial Day, and the 3rd of September because
14 you gave me three days' notice we denied it. It had nothing
15 to do with the holiday. I can't think of another holiday that
16 occurred.
17 MR. LASKOWSKI: One moment, Your Honor. I think I
18 am finished.
19 BY MR. LASKOWSKI:
20 Q You visited your mother throughout the summer from
21 March until Sunrise, correct?
22 A I generally visited mom every four to six weeks,
23 from January 2002 until January 2003.
24 Q I'm just asking between the March 25th order.
25 A Sir, generally every four to six weeks.
179
1 Q Do you have any recollection today of any
2 particular dates --
3 A I don't.
4 Q -- or events that you attended?
5 A Sir, I could tell you it was in my annual report
6 that we provided to you.
7 Q And you didn't give dates in that report though
8 either, right?
9 A I don't recall.
10 Q So the report speaks for itself, of course.
11 A I agree the report speaks for itself.
12 Q Lastly, Mr. Gerber, is there any particular reason
13 why it had to be so lengthy, four to six weeks apart, and in
14 the last proceeding you testified that you had seen your mom
15 pretty much every weekend?
16 A That's correct.
17 THE COURT: Well, yeah, that is when she was in
18 New Cumberland, right?
19 THE WITNESS: Yes, sir.
20 THE COURT: She is out in Chicago. That is not an
21 issue I have to deal with, how many times he saw her. Next
22 question.
23 MR. LASKOWSKI: I have no further questions.
24 THE COURT: Any redirect?
25 MR. RUPP: Thank you, Your Honor.
180
1 REDIRECT EXAMINATION
2 BY MR. RUPP:
3 Q Fred, there are five dates complained of --
4 THE COURT: I am going to go back to my five
5 minute limitation on redirect and recross.
6 MR. RUPP: Okay.
7 THE COURT: I put no limitations on the direct and
8 cross. Five minutes on redirect and recross.
9 MR. RUPP: Thank you, Your Honor. That will be
10 fine.
11 BY MR. RUPP:
12 Q Fred, the adult day care, to the best of your
13 knowledge, did the times that you had scheduled -- the five
14 dates complained of were July 10, July 26, September 3,
15 September 4, October 8. To the best of your knowledge, did
16 the adult day care interfere with those dates?
17 A Negative.
18 Q To the best of your knowledge, did a holiday
19 interfere with July 10, July 26, September 3, September 4, or
20 October 8?
21 A Absolutely not.
22 Q Initially when Marilyn was asking for a date at
23 the very beginning of the access visits, did she actually
24 specify a time if you can recall? Did she actually specify a
25 time?
181
1 A For what visit?
2 Q Initially, when she was asking for visits from the
3 very, very beginning, do you recall --
4 A I don't recall.
5 Q -- whether she actually specified times?
6 A I don't recall, but her favorite times were 1:00
7 to 5:00.
8 Q No. But then in the beginning did -- because of
9 the visit and because you had supervision scheduled, did you
10 have to give her the time?
11 A Oh, absolutely, right. I mean, the general
12 algorithm was they picked the date, we pick the time
13 convenient to mom.
14 Q They're complaining about September 3 and 4. In
15 listening, I thought I heard a September 7 date. Do you
16 recall any September 7 visit?
17 A That's one of the dates I had -- I reflected as a
18 visit occurred, but the 3 September is very clear it was too
19 soon, discourteous. I never got a request for the 4th and
20 never heard a request for the 8th. So there's three of the
21 five dates.
22 Q Did you attempt at all times to accommodate
23 Marilyn's requested access visits?
24 A I'm going to tell you, I think the record speaks
25 for itself. I bent over backwards to accommodate every one of
182
1 her visits?
2 MR. RUPP: Thank you, Your Honor.
3 THE COURT: Any recross?
4 MR. LASKOWSKI: Very brief, Your Honor.
5 RECROSS EXAMINATION
6 BY MR. LASKOWSKI:
7 Q The visits we just talked about, those 20 some
8 that you mentioned earlier --
9 A Twenty-six.
10 Q Twenty-six, right, that included the no-shows.
11 Did you keep a diary of those or is that something you just
12 put together today and calculated?
13 A I have notes.
14 Q Do you have those notes here with you today?
15 A Not all of them, sir.
16 Q Can you produce those notes through counsel for
17 us, please?
18 THE COURT: It is too late. This is it.
19 MR. LASKOWSKI: I have no further questions, Your
20 Honor.
21 THE COURT: You may step down. Anything further?
22 MR. RUPP: Just argument, Your Honor.
23 THE COURT: I have admitted all of your exhibits?
24 MR. RUPP: We would like the Court to take notice
25 of the jury conviction in Judge Hess's court. We would like
183
1 you to --
2 THE COURT: You are talking about something
3 outside of the parameters of the time frame I am dealing with,
4 right?
5 MR. RUPP: But we would like you to take notice.
6 THE COURT: I want you to remember that I sat
7 through two extensive hearings, both on the petition for the
8 appointment of a personal guardian and estate guardian. I
9 cannot forget those hearings. So what is in there I won't
10 forget. Other than that, the record in this case I just got
11 in here. I am not taking notice of anything else.
12 MR. RUPP: We would like the items that we've
13 marked for exhibits admitted and we would --
14 THE COURT: All of your exhibits are admitted.
15 MR. RUPP: And then, of course, all of the
16 pleadings and motions that were filed.
17 THE COURT: They are part of the record. Now,
18 have I got your exhibits admitted?
19 MR. LASKOWSKI: Yes, we took care of that earlier.
20 THE COURT: Any rebuttal?
21 MR. LASKOWSKI: Yes, I would like about a few
22 minutes of rebuttal from Ms. Gerber, please.
23 THE COURT: I will give you ten minutes of
24 rebuttal.
25 MR. LASKOWSKI: Thank you.
184
1 MR. RUPP: Your Honor, will I be able to make
2 argument?
3 THE COURT: Yes, we will have argument afterwards.
4 We have got to get the record closed first.
5 Whereupon,
6 MARILYN GERBER,
7 having been previously sworn, testified as follows:
8 REBUTTAL
9 DIRECT EXAMINATION
10 BY MR. LASKOWSKI:
11 Q Ms. Gerber, you understand you are still under
12 oath?
13 A Yes, I do.
14 Q I would like to get to the point on a couple of
15 matters regarding testimony we've heard today after your
16 initial testimony this morning, a couple of things. First of
17 all, there was some remarks by Miss Jackson that all of the
18 visits were about four hours in length. Would you disagree
19 with that?
20 A Absolutely I do.
21 Q There were only two or three visits that were four
22 hours in length?
23 A The only visit that occurred four hours was not
24 until August.
25 Q Thank you. Next, we heard also varying testimony
185
1 again today about your taking photographs of your mother with
2 her naked on the toilet. Is it your testimony that that did
3 not occur?
4 A Absolutely that did not occur.
5 Q And you have no pictures to that effect?
6 A All the negatives were submitted to my attorney in
7 Chicago in the completeness of the 27 frames, and there was at
8 no time did I -- there would be no reason for me to undress my
9 mother to nakedness.
10 When my mother went to the toilet, she did have to
11 lower her pants and her adult diaper, Depends. She was never
12 naked. She was never photographed naked. The negatives speak
13 for themselves.
14 Q Now, part of your practice is you've helped
15 patients like your mother in her condition before?
16 A Many, many years.
17 Q We talked about that in prior hearings too. Since
18 the last hearings, okay, regarding your experience, have you
19 become more or less involved with Alzheimer's patients?
20 A I've become more involved with Alzheimer's
21 patients.
22 Q What new things have you been doing since the last
23 hearing before the Judge?
24 THE COURT: Wait a minute. How is this relevant
25 on rebuttal? It isn't. Next question.
186
1 MR. LASKOWSKI: Well, Your Honor, it's relevant
2 with respect to her experience, okay. This is not just an
3 ordinary family member who has no idea of how to handle or
4 deal with --
5 THE COURT: For goodness sakes, I know that from
6 all of the hearings I have had. I already know that. That is
7 just not rebuttal.
8 THE WITNESS: I could add --
9 THE COURT: No.
10 MR. LASKOWSKI: That's okay.
11 BY MR. LASKOWSKI:
12 Q Would you tell us, please -- you have heard
13 various testimony again today about the 10:00 to 2:00 versus
14 1:00 to 5:00.
15 A Yes, sir.
16 Q And the sundowning. The sundowning comment that
17 was mentioned by Mr. Gerber had to do with the February 9th
18 visit only, did it not?
19 A That's correct.
20 Q And what was your reason for stating that?
21 A Because the visit was agreed upon by the courts in
22 January, and I was brought in for two days, the 8th -- I mean,
23 the 9th and the 10th.
24 Q When did the visit occur?
25 A The visit occurred for 15 minutes only on Saturday
187
1 the 9th.
2 Q So that was in the evening?
3 A And it occurred at 7:30 at night when he had
4 arrived in the day. I had arrived in the late morning, and I
5 objected because she sundowns. She had been sundowning for
6 years.
7 Q So you have -- and you had a concern about future
8 visits occurring in evening hours, correct?
9 A Yes, or them bringing her into the restaurant an
10 hour before the 1:00 to 5:00 so that by the time I got to see
11 my mother that 1:00 to 5:00 became five hours for her and she
12 would become tired, and they were unnatural hours for a
13 daughter to see a mother in a hotel room. That was not
14 natural to the four years that I took care of her prior to
15 that.
16 Q Did you try to work out alternate dates with Mr.
17 Gerber for visitations?
18 A Yes, I did. Each time that he would essentially,
19 I guess in the vernacular, blow me off or not respond or we
20 never heard from his counsel, I then offered as many dates as
21 possible to get four dates.
22 There were also months where I could not get four
23 in because he refused me dates, the weekend, Saturdays,
24 Sunday, holidays, Tuesday, Thursdays, and my schedule as a
25 nurse is set to availability.
188
Q So during this time, after the December hearings
2 when the guardianship was determined, your schedule was it
3 basically the same from March through the end of October, you
4 were doing the same work and the same types of hours?
5 A Relatively, yes. Sometimes I did days. Sometimes
6 I did evenings, and sometimes I did nights. And in order to
7 be able to work as a nurse, an advanced clinical nurse
8 delivering narcotics, I could not set myself up to be sleep
9 deprived or to travel and drive under severe sleep
10 deprivation.
11 Q And also there was an added expense to you of
12 traveling to Chicago, is that correct?
13 A I could not stay overnight. I only stayed
14 overnight when I had to meet with counsel. I do want to say
15 that there was an accusation by Joan Jackson and my brother
16 that I was there actually a night before a visit based on Joan
17 Jackson's testimony. Absolutely I was not there.
18 I have all my plane cancellations, tickets. I was
19 never there the night before any of the visits. They
20 intimated that I could have been there at 10:00 in the
21 morning, absolutely not.
22 MR. LASKOWSKI: I have no further questions.
23 THE COURT: Anything?
24 MR. RUPP: Yes, Your Honor.
25
189
1 CROSS EXAMINATION
2 BY MR. RUPP:
3 Q Marilyn, I don't know if it's relevant because
4 it's not complained of in your petition, but you keep going
5 back to February 9. Had you arrived in the day on February 9?
6 A Yes, I did.
7 Q And do you know what time you went to the visit on
8 February 9?
9 A My brother didn't inform me until late afternoon
10 on that Saturday, and he gave me just a couple hours to get
11 there with an address. It was like a mystery tour. I got in
12 late morning.
13 THE COURT: Wait. Wait. What time did you get
14 there is the question?
15 THE WITNESS: Late morning, sir.
16 THE COURT: No, to your brothers, to the visit.
17 THE WITNESS: 7:30.
18 BY MR. RUPP:
19 Q And was that late from the scheduled time?
20 A He said -- he demanded that I be there at 7:00,
21 and I had never been there before, and I got lost and had
22 difficulty. And when I called him on his cell phone to get
23 help, he said, well, I had no trouble finding it, you should
24 be able to find it. So I got there at 7:30.
25 Q Which was late, is that correct?
190
1 A I couldn't -- I had difficulty finding it, sir.
2 It was very complicated multihighways, freeways, cloverleaves.
3 I had never been there before. It was dark and it was in the
4 winter.
5 Q Did you travel out to Chicago on May 1, 2002?
6 A You'll have to go back to the record. I don't
7 have my notes in front of me. Yes, I believe I testified to
8 May 1. That was the date when my sister created the fiasco
9 with the two hotel rooms, that she didn't have a reservation
10 so we had to go to Studio One Plus.
11 Q When did you fly out for that visit?
12 A I flew out that day.
13 Q On May 17
14 A Yes, sir.
15 Q Is it possible you were out there on April 30?
16 A Absolutely not.
17 Q Is it possible you told Joan Jackson that you had
18 stayed over?
19 A Absolutely not. She lied. I had dinner --
20 THE COURT: Hold on. You are both talking at
21 once. She said she wasn't.
22 THE WITNESS: I know exactly where I had dinner.
23 THE COURT: Wait. You have answered the question,
24 ma'am. You were not there.
25
191
1 BY MR. RUPP:
2 Q In the materials you provided for expenses, did
3 you have hotel expenses put into that?
4 A For the one stated in the blocks, yes.
5 Q And what were they for?
6 A They were for when I had to meet with my attorney
7 in Chicago and stay over.
8 Q And that was for the DuPage County, Illinois,
9 litigation, is that correct?
10 A Yes, sir. And one night I missed my flight, and I
11 took the wrong L, or the loop there, and so I had to stay
12 because I missed all of the flights.
13 Q Had you ever given a letter through counsel asking
14 for reimbursement or anything like that?
15 A Absolutely. In fact, if you'll recall, you
16 offered me money for the February 9th and 10th. I submitted a
17 request for it, and you have yet to provide me the money. You
18 offered a minimum of $200.00 and my expenses. And in Judge
19 01er's chambers, I requested for $2,500.00 that my brother
20 promised me with Michael Kane --
21 Q Well, I'm not involved --
22 A -- and it was refused.
23 THE COURT: Stop.
24 BY MR. RUPP:
25 Q Did you send a photocopy of your expense or
192
1 anything like that?
2 A I sent a letter requesting the money from --
3 THE COURT: Have they paid you anything?
4 THE WITNESS: Nothing.
5 THE COURT: I understand that. Next question and
6 last question.
7 MR. RUPP: No further questions, Your Honor.
8 THE COURT: You may step down, ma'am. The record
9 is closed. Now, I am going take a five minute break. What we
10 are going to do is we are going to argue whether or not your
11 client is in contempt of this order of March 25, 2002, and
12 then I am going to let both of you file a very succinct brief
13 on the legal procedural issue on the contempt and to comment
14 in that brief whether any sanctions are legally warranted, and
15 if so, what they should be. We will deal with that in the
16 brief. Ail I want to do now is deal with orally arguing
17 whether or not there is contempt. Take a five minute break.
18 Argument will be off the record. Be sure Pamela has all of
19 the documents. She does not have to stay.
20 (Whereupon, the hearing was concluded
21 at 3:45 p.m.)
22 (Whereupon, argument was held off
23 the record.)
24
25
193
1 CERTIFICATION
2 I hereby certify that the proceedings are
3 contained fullY and accurately in the notes taken by me on the
4 above cause and that this is a correct transcript of same.
5
6 ~'~~~'~'~Sheaffer
Pamela R. /7~
8 Official Court Reporter%~-~'
10 The foregoing record of the proceedings on the
11 hearing of the within matter is hereby approved and directed
12 to be filed. .~-~~
13
15 Edgar~.~. ~yley' J.
16 Ninth JudiCial District
17 ,
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20
21
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