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INDEX TO WITNESSES
FOR MARILYN GERBER DIREC__ T CROSS REDIRECT ~
1. Mary Grace Pellegrino
By Mr. Laskowski 6 --
By Mr. Rupp -- 11 ....
By Ms. Verney -- 11 ,.
2. Marilyn Jo Gerber ',
By Mr. Laskowski 13 -~ 7~8£-
By Mr. Rupp -- 57
By Ms. Verney -- 71
REBUTTAL . .......
1. Frederick Edward Gerber, II
By Mr. Rupp 81 -- 117--
By Mr. Laskowski -- 88 -- 113
By Ms. Verney -- 110 ....
SURREBUTTAL
1. Marilyn Jo Gerber
By Mr. Laskowski 118 ......
By Ms. Verney -- 120
2
INDEX TO EXHIBITS
FOR MARILYN GERBER MARKED ADMITTED
1. Fee schedule 8 10
2. Consent of Neighborhood Services 10 10
to serve as guardian
3. Caretakers' notes on Mrs. Gerber 17 121
4. Caretakers' notes on Mrs. Gerber 17 121
5. Alumni News Article 56 121
3
December 19, 2001, 9:15 a.m.
2 Carlisle, Pennsylvania
3 (Whereupon, the following proceedings
4 were held:)
5 THE COURT: Next witness.
6 MR. LASKOWSKI: Good morning, Your Honor. Stat
, 7 Laskowski. Before I begin with my first witness I have one
'~ 8 item· Your Honor, I would like to present to the Court. There
9 were two original motions filed this morning on behalf of the
10 Register of Wills. I was asked to bring them upstairs. I
11 deliver the originals to you because you have the file. I'm
12 not asking for a ruling on either of these today, Your Honor.
13 I'm asking that these matters be taken into consideration
14 before a final decision is made by the Court on this matter.
15 THE COURT: What are they?
16 MR. LASKOWSKI: The first motion, Your Honor, is a
17 ~tition on behalf-~f my client for an independent evaluation
18 and the factors supporting that are set forth within it.
19 THE COURT: I will take it under consideration.
20 MR. LASKOWSKI: There's also as part of that
21 motion a smaller secondary part, Your Honor, to request that
22 my client be given some type of personal contact and access
23 with her mother, particularly over the Christmas holiday since
24 it is a week away, and there may be some testimony this
25 morning about that.
The second motion, Your Honor, has to do with the
2 Court's prior order of December 13th to strike the new matter
3 of my client, and I've set forth some matters for
4 reconsideration of that order.
5 THE COURT: Hand them to the stenographer.
6 MR. LASKOWSKI: Your Honor, we're prepared at this
7 point, unless you would like further discussion of those two
8 items, to proceed with our witnesses. The first witness that
9 we would like to call this morning -- we'll take this out of
10 order slightly, Your Honor. I only have two witnesses this
11 morning. Because the witness here has a prior commitment in
12 Harrisburg, her testimony will be very brief. I would like to
13 call Miss Mary Grace Pellegrino, please.
14 MR. ~RUPP: Your Honor, I understand from yesterday
15 that Mr. Laskowski does not have any medical expert, and I
16 would ask the Court to grant a judgment on simply the issue of
17 the-mother is incapacitated in need of a guardian of the
18 person and let the other issue remain in the case.
19 THE COURT: I am going to let what comes in in,
20 and then I will deal with it. If you would stand and raise
21 your right hand, ma'am.
22 Whereupon,
23 MARY GRACE PELLEGRINO,
24 having been duly sworn, testified as follows:
25 MS. VERNEY: Your Honor, may I have an offer of
5
1 proof for this witness?
2 THE COURT: No.
3 DIRECT EXAMINATION
4 BY MR. LASKOWSKI:
5 Q Could you state your full name for us, please.
6 A Mary Grace Pellegrino.
7 Q And can you tell us for whom you work?
8 A Neighborhood Services.
9 Q Is there an address for Neighborhood Services?
10 A 100 South Queen Street, Lancaster.
11 Q Do you also have a Harrisburg address?
12 A We do.
13 Q Where is that?
14 A I couldn't tell you. I don't know. I've never
15 been to that office.
16 Q You work principally out of the Lancaster office?
17 A I do.
18 Q Can you tell me what your position is with
19 Neighborhood Services?
20 A I am a guardianship case manager. -
21 Q Can you tell me what Neighborhood Services does
22 very briefly, please?
23 A Primarily we do guardianships, powers of attorney,
24 and we have a program that is a representative payee program.
25 Q Has Neighborhood Services as well as yourself
6
1 managed both limited and plenary types of guardianships?
2 A We have.
3 Q Have you managed both limited and plenary types of
4 guardianships over the person?
5 A Yes.
6 Q As well as over the property?
7 A Yes.
8 Q How long have you been associated with
9 Neighborhood Services?
10 A Two years.
11 Q And how long has Neighborhood Services been
12 operating?
13 A About 25 years.
14 Q Is Neighborhood Services a profit or nonprofit
15 organization?
16 A It's a nonprofit.
17 Q And how are you principally funded?
18 A We're a United Way agency.
19 Q Can you tell me briefly what your staffing is?
20 THE COURT: What is the relevancy of this? -
21 MR. LASKOWSKI: Your Honor, this is an alternative
22 under the Section 5511 of the Guardianship Act with respect to
23 alternatives for appointment of a guardian in this case.
24 THE COURT: If I appoint a guardian, you want me
25 to consider this agency?
7
1 MR. LASKOWSKI: We would like you to consider this
2 agent as an alternative, Your Honor, so we would like to show
3 it's availability and the fees for those services, and we have
4 a consent from them.
5 THE COURT: Go ahead.
6 BY MR. LASKOWSKI:
7 Q Prior to your association with Neighborhood
8 Services, have you been a caseworker before that?
9 A I worked for a nonprofit agency in Cleveland Ohio
10 and was a guardian for eight years.
11 Q Do you hold any licenses or certifications?
12 A I'm a certified guardian with the National
13 Guardianship Association.
14 (Whereupon, Marilyn Exhibit No. 1 was
15 marked for identification.)
16 BY MR. LASKOWSKI:
17 Q Miss Pellegrino, I would like to show you Exhibit
18 No. 1. Here's a copy, Your Honor. Is that a fee schedule for
19 your agency?
20 A It is. ~_
21 Q And if your agency was appointed a guardian over
22 the person in this case, would you tell us how the fees would
23 be charged briefly?
24 A There is an initial fee of $650.00, and that
25 includes an assessment of the client, and then there is a
8
1 monthly fee of $240.00.
2 Q Can you very briefly explain to me what plan of
3 care or plan of action would be by the agency if it were
4 appointed guardian in this matter?
5 A Neigb_borhood Services establishes a rapport with
6 the client as much as is possible given that person's
7 cognitive level, and we visit the client at least two times a
8 month.
9 I as the case manager visit once a month, and then
10 we have a visitation specialist that visits once a month, and
11 then we determine what our participation with that person
12 needs to be based on what their needs are.
13 Q Are the visits announced or unannounced?
14 A Usually they are unannounced.
15 Q Do you consult with other individuals besides the
16 incapacitated person?
17 A We do. We include anyone that's necessary
18 assist us in managing the guardianship.
19 Q Would that include physicians and medical
20 personnel and other care providers for the individual? -
21 A Yes.
22 Q In this matter, Miss Pellegrino, or in situations
23 where there seems to be a conflict among family members with
24 regards to an incapacitated person, can you tell me how these
25 situations are generally handled and what the philosophy or
9
1 practice of Neighborhood Services is?
2 A Well, the philosophy of Neighborhood Services is
3 to include family as much as possible, and we do that by
4 communicating with family members however we can do that and
5 include them however we can include them.
6 Q Would you allow access to the incapacitated person
7 by all family members under your guidance?
8 A Unless there's some reason not to, yes.
9 (Whereupon, Marilyn Exhibit No. 2 was
10 marked for identification.)
11 BY MR. LASKOWSKI:
12 Q Ms. Pellegrino, I would like to show you Exhibit
13 No. 2. If a guardian was deemed necessary to be appointed in
14 this particular case, Miss Pellegrino, would Neighborhood
15 Services be willing to serve as a guardian over the person?
16 A Yes, we would.
17 Q And Exhibit No. 2 is a consent of Neighborhood
18 Services to do so?
19 A Yes, it is.
20 MR. LASKOWSKI: Your Honor, I request the _
21 admission of Exhibits 1 and 2.
22 THE COURT: They are admitted.
23 MR. LASKOWSKI: I have no further questions, Your
24 Honor.
25 MR. RUPP: Your Honor, first I would like to state
10
1 an objection to this witness.
2 THE COURT: Move on. If you have any questions,
3 ask the questions.
4 CROSS EXAMINATION
5 BY MR. RUPP:
6 Q Miss Pellegrino, are you familiar with powers of
7 attorney, verbal powers of attorney?
8 A I am.
9 Q Do you know -- are you familiar with what courts
10 do with powers of attorney if they name a guardian?
11 A Well, I'm assuming that it's based on how the
12 power of attorney is written up. Powers of attorney actually
13 can continue on as a power of attorney if that power of
14 attorney is written that way. In some cases, powers of
15 attorney are dismissed and guardians are appointed.
16 MR. RUPP: Your Honor, I have no further
17 questions.
18 CROSS EXAMINATION
19 BY MS. VERNEY:
20 Q Miss Pellegrino, have you ever met Mildred Gerber?
21 A I have not.
22 Q Have you ever met Marilyn Gerber?
23 A Just this morning.
24 Q And how were you contacted to testify today?
25 A Mr. Laskowski contacted me.
11
1 Q How many cases do you presently case manage?
2 A Twenty.
3 Q And do you have a limit to that?
4 A Thirty.
5 Q If Mrs. Gerber did not wish to have any contact
6 with Marilyn Gerber, would you enforce that?
7 A I think I would have to determine what was behind
8 that first. I'm not sure I could answer that right now
9 because I've not met Mrs. Gerber, and I don't know the whole
10 situation.
11 MS. VERNEY: I have no other questions, Your
12 Honor.
13 THE COURT: Any redirect?
14 MR. ~LASKOWSKI: No, Your Honor.
15 THE COURT: Ma'am, you are excused.
16 THE WITNESS: Thank you.
17 MR. LASKOWSKI: Thank you very much.
18 THE COURT: Next.
19 MR. LASKOWSKI: Your Honor, next witness I would
20 like to call Marilyn Gerber, please. _
21 Whereupon,
22 MARILYN JO GERBER,
23 having been duly sworn, testified as follows:
24
25
12
1 DIRECT EXAMINATION
2 BY MR. LASKOWSKI:
3 Q Would you please state first your full name.
4 A My name is Marilyn Jo Gerber.
5 Q And what is your current residence?
6 A 42 Drexel Place, New Cumberland, Pennsylvania.
7 Q Do you have any other residences at this time?
8 A No, I do not.
9 Q You did have a residence in California as noted in
10 prior petitions and documents in this case, is that right?
11 A That is true.
12 Q And what has happened with that residence?
13 A I have moved from California back to Pennsylvania.
14 Q And~why have you done that?
15 A In order to be here for my mother in the long-term
16 and to be able to -- hopefully be able to have access and to
17 have some planning and participation in her care.
18 Q Ms. Gerber, could you please tell me briefly
19 whether you hold any specific degrees?
20 A Yes, I do.
21 Q What are they?
22 A My first degree was a BSN in design and apparel
23 engineering from Drexel University. My second degree was an
24 Associate Degree in nursing. I'm actually two courses away
25 from a BSN. That was out in California. My third degree is
13
1 an MBA in organizational behavior and development.
2 Q Do you hold any licenses or certifications?
3 A Yes, I do.
4 Q Could you tell me what licenses and certifications
5 you hold?
6 A I'm a licensed nurse in six states in the United
7 States, California Vermont, New Hampshire, Pennsylvania,
8 Maryland, Virginia. I have advanced life care, which is
9 called ACLS. I have basic CPR. I have a specialty in
10 intensive care, open heart, and I have a specialty in
11 geriatric nursing as well as a specialty in home health
12 management, home healthcare management.
13 Q Have you taken any continuing education with
14 regard to your specialties?
15 A Yes. This year, 2001, I'm mandated by California
16 law to fulfill 30 hours of continuing education, and I
17 completed a course in elderly and geriatric care.
18 Q And how long have you been licensed and a
19 practicing nurse?
20 A Since 1985, approximately 17 years this coming
21 February.
22 Q Are you employed at the current time?
23 A Yes, I am.
24 Q Where are you employed through?
25 A I'm employed with an agency called Intelistaf.
14
1 Q Very briefly, Ms. Gerber, can you tell me prior to
2 your employment with Intelistaf what was your employment
3 background?
4 A The majority of my employment was through -- a
5 full-time nurse through a nursing registry, and I worked at
6 distinguished medical centers such as Stanford University in
7 Palo Alto, California Pacific Medical Center in San Francisco
8 Saint Mary's in San Francisco, John Hopkins in Baltimore, as
9 well as surrounding hospitals here in the Harrisburg area.
10 Q Have you ever had any experience with home health
11 nursing care?
12 A Yes, I did.
13 Q Where was that?
14 A In San Francisco, I was a director of home health
15 nursing and healthcare for a staff of 80 for six counties in
16 San Francisco from one of the tenth largest employers in the
17 United States.
18 Q Did you hold that position or a similar position
19 anywhere else?
20 A I'm sorry? _
21 Q Did you hold that position or a similar position
22 anywhere else?
23 A No. I did that for 26 months in California. I
24 have been a home health nurse though in other states.
25 THE COURT: What do you do for Intelistaf?
15
THE WITNESS: I'm a nurse. I'm an intensive care,
2 recovery and geriatric nurse.
3 MR. LASKOWSKI: Your Honor, what I have in front
4 of me are several documents. These are notes received late
5 yesterday afternoon from Mr. Rupp, part of which were
6 testified to at the last hearing by Mr. Gerber as being notes
7 taken not only by him but Betra agency at the time pertaining
8 to the care that was being provided on a daily basis by --
9 THE COURT: What documents do these notes come
10 from?
11 MR. LASKOWSKI: These are apparently Mr. Gerber's
12 notes that were provided to me.
13 THE COURT: You mean his personal notes?
14 MR..LASKOWSKI: Also the notes of Elder Care
15 Solutions and Betra.
16 THE COURT: The attorney's personal notes?
17 MR. LASKOWSKI: No, sir.
18 THE COURT: I'm asking you, what agency? What is
19 the background of these notes? What are they?
20 MR. LASKOWSKI: Apparently Mr. Gerber's notes_are
21 included in here as well as those of Betra agency, the folks
22 that are providing the day-to-day care for Mrs. Gerber at
23 home.
24 THE COURT: Since when?
25 MR. LASKOWSKI: The notes range from approximately
16
May, Your Honor, through the first few days of November.
2 THE COURT: So these are the agency notes --
3 MR. LASKOWSKI: Yes.
4 THE COURT: -- of the agency that is now taking
5 care of her?
6 MR. LASKOWSKI: Yes.
7 THE COURT: Any objection?
8 MR. RUPP: No, Your Honor.
9 MR. LASKOWSKI: Your Honor, I apologize for the
10 form since we only got them at the end of the day.
11 THE COURT: Mark them.
12 MR. LASKOWSKI: I just need to have these marked,
13 please.
14 (Whereupon, Marilyn Exhibits No. 3 and 4
15 were marked for identification.)
16 THE COURT: Let counsel take a look at them~, and
17 then when you are satisfied we will go. Let's take a recess.
18 (Whereupon, a brief recess was taken.)
19 THE COURT: Continue.
20 MR. LASKOWSKI: Your Honor, I believe we were_at
21 the question of relevancy, number one. Number two, there was
22 an offer of proof with regard to the documents that have now
23 been marked, and counsel has had an opportunity to review
24 them. I would like to proceed.
25 THE COURT: Was there any objection to her
17
1 referring to the documents?
2 MS. VERNEY: No, Your Honor.
3 MR. RUPP: No.
4 THE COURT: Go ahead.
5 MR. LASKOWSKI: I'm going to submit these as
6 Marilyn Exhibits 3 and 4, please, for your consideration.
7 BY MR. LASKOWKSI:
8 · Q Mrs. Gerber, did you have an opportunity to review
9 the notes that are attended to Exhibits 3 and 4, please?
10 A Yes, I did.
11 Q Have you been able to draw any observations of
12 those notes as to the care and treatment of your mother?
13 A Yes, I have.
14 Q Can.you tell me, for instance, is there anything
15 indicative regarding her physical health throughout those
16 notes?
17 A Yes, absolu-tely.
18 Q Is there anything remarkable that you would like
19 to tell us?
20 A What's first remarkable is that the notes end_
21 on -- from my brother, they end on November 2nd. In there
22 these notes of my brother are also mixed up with other nurse's
23 aides and some LPN's nursing notes. My brother's notes don't
24 start until May 26.
25 We understand that my mother was hospitalized on a
18
telemetry unit approximately November 5th to November 9th, and
2 there is no notation from any nurses as to that
3 hospitalization, what occurred or subsequently thereof. There
4 are significant gaps in my mother's care.
5 Q In what respect are there gaps? Can you describe
6 that for me, please, throughout the notes?
7 A I went through this as I would as a director of
8 nursing of healthcare, and I have audited many nurses' notes
9 for Jayco Evaluation Accreditation. The state and federal and
10 hospital organizations require significant notation of what
11 transpires during the day.
12 MS. VERNEY: Your Honor, I'm going to object to
13 her testifying as an expert.
14 THE.COURT: She can tell me what she knows from
15 her years of nursing and experience and education. Go ahead.
16 THE WITNESS: First of all --
17 THE COURT: Tell memabout these notes. Go ahead.
18 Ask another question.
19 BY MR. LASKOWSKI:
20 Q When you say that there are gaps, are there nQtes
21 for every day from May through early November?
22 A No, there are not. I did a tally from February
23 20th, which was the day before the first hearing, and the
24 first notation is assessment of need for Mrs. Gerber. There
25 is no notation and there is no notes of the assessment that
19
was provided on whether a nurse did the assessment and
2 evaluation.
3 Then we go on March, April, May, through December,
4 and on the average there was less than approximately 16, 17
5 days of nursing care, some late as September, six days of
6 nurse's aide; October, eleven days; November, four days. In
7 December, we are now the 19th, five days of nursing care.
8 Sometimes there would be as many as four different
9 people in a month, which is actually very good compared to
10 what you would get if you were in a nursing home. You would
11 see probably up to 30 different nurse providers or care
12 providers in a month.
13 Q Were there any LPN consults?
14 A There was only -- the first -- there was only one
15 nursing visit by a supervisor that was initially done on 2/28,
16 and there was not a nursing contact again until 9 September.
17 Q Were there any types of illnesses-reported
18 throughout the notes --
19 A Yes.
20 Q -- regarding Mrs. Gerber and her condition?
21 A Yes.
22 Q Can you tell me what they were, please?
23 A I made a whole page of notes of --
24 Q Just tell me what they were, please.
25 A They were reports from my mother of being sick, of
20
being nauseated, having pain in her leg, frequent urination,
2 feeling sick, notations from the nurses that she was exhausted
3 from an extended stay in Chicago, notes of not feeling well,
4 notes of her sore throat, notes that my mother didn't want the
5 caregivers there. She didn't want them to take care of her.
6 Notes that my mother had diarrhea, that her eyes
7 were watery, notes that the air-conditioning was broke notes
8 that the heater was broke, notes that the phone bill wasn't
9 paid, notes that the caregivers are asking my brother in the
10 late part of this year that she needed a dental and eye exam.
11 There were notes of her weight loss, her significant weight
12 loss.
13 Q Can you tell me in what respect how much weight
14 she has apparently lost?
15 A In January of this year, my mother weighed
16 approximately 126 to 22 pounds. The last notation from
17 Comfort Care, which is not Betra, which is a certified Jayco
18 accredited home health agency through Holy Spirit Hospital, my
19 mother now ways 105 pounds.
20 Q Throughout the notes, were there any remarks that
21 you had observed pertaining to the correction or treatment of
22 the illnesses or conditions that Mrs. Gerber was relating?
23 A I'm sorry, would you repeat the question. I don't
24 understand.
25 Q Throughout the notes, you had testified that you
21
1 had observed reports of various illnesses by your mother.
2 A Right. I understand the question.
3 Q Were there comparable notes indicating treatment
4 to her or follow-up or improvement of those conditions?
5 A Right. No. The majority of caregivers were -- I
6 have to assume they were certified nurse's aides, but they
7 don't sign CNA after their name. There was no follow-up call
8 by that caregiver to the agency or to a supervising nurse.
9 There was no follow-up notes in my brother's notes
10 or -- excuse me, I take back in my brother's notes. There
11 were no documentation that appointments were made until the
12 later part of this year when they asked about her dental and
13 eye care.
14 There is no documentation as to the doctors she
15 visited. There's no documentation to the amount of medication
16 she took. There's no documentation to the quantity of food
17 she took, the type of food she took, or even a notation of the
18 request and seeking of any nutritional specialists.
19 Q The dietary regimens for Mrs. Gerber, are there
20 notations in those notes about that? _
21 A I'm sorry?
22 Q In other words, what did she eat every day? Did
23 they make notations of that detail?
24 A There are notations of the details but there's
25 no -- and sometimes there are not. Sometimes dinner was ice
22
1 cream and cookies. There are no notations to the quantity of
2 food she ate. They will say she had potatoes, she had meat
3 loaf, she had this, but they don't note the quantity.
4 Under a nursing home home healthcare notes, under
5 the state and federal regs., we must state the quantity of
6 food especially if the patient is going through significant
7 weight loss. I want to state this agency is not accredited,
8 is not found on any recommendation of any area healthcare.
9 Q Which agency?
10 A Betra.
11 Q Okay. Thank you. Ms. Gerber, can you tell me
12 what the last contact you had with your mother was?
13 A January 13th, 2001.
14 Q And.can you describe the circumstances of that
15 contact for me, please?
16 THE COURT: I'm sorry, what date?
17 THE WITNESS: January 13th, 2001.
18 THE COURT: Go ahead.
19 THE WITNESS: I had been taking care of my mother
20 for approximately 16 continuous months, and I was in her house
21 since August of 2000 until January 13th full-time. I never
22 spent a night at my house.
23 My mother had told me on Friday that my brother
24 Fred and my sister Jane were coming to visit, and because of
25 my brother's hatred of me would I step away, go over to my
23
house for the weekend, and I said yes.
2 On the morning of the 13th, I went out and got
3 food for my mother, bananas, milk, and some things I thought
4 my brother and sister would enjoy for the weekend. When I
5 came back into the house approximately 1:00 or 2:00, my sister
6 had arrived, and I went upstairs and I found my sister in my
7 mother's bedroom having pulled out every drawer of her
8 jewelry, her personal possessions and things and was going
9 through them.
10 She stood up and said -- came up to me screaming
11 and yelling saying, why are you here? You're not supposed to
12 be here. I went downstairs. I said to my mother, is there a
13 problem here? She said, no. She came downstairs with me.
14 She gave me a hundred dollars. She said go to the
15 restaurants. They will be gone by Monday. I'll see you then.
16 Q Did you attempt to contact your mother after that?
17 A Yes. I called her over the weekend and the
18 following week, and my sister always answered the phone, and
19 she refused me to talk to my mother.
20 Q Was the phone changed that week -- the phone
21 number?
22 A Shortly after the following week. It was changed
23 for the second time and made unlisted.
24 Q Were the locks to the house changed?
25 A Yes, they were, just days after that weekend.
24
1 Q You've had no personal interaction or discussions
2 with your mother, correct, since then?
3 A No. On January 19th, I received a letter in the
4 mail from Jackie Verney, an attorney that allegedly my brother
5 has testified that he hired for her, informing me that I would
6 be arrested if I went by the house.
7 Q Have you as a matter of course provided care and
8 treatment for both your parents in the past?
9 A Yes, I have.
10 Q And about when did that start?
11 A In 1996.
12 Q Can you very briefly tell me what type of contact
13 and care you provided during 19967
14 A Yes~ I moved down in January 1996 where I was
15 working and I had another consulting business from New
16 England. I stayed with my parents because I had noted that my
17 father was becoming increasingly a cardiac cripple and that my
18 mother was starting to exhibit very subtle memory changes and
19 personality changes.
20 Q How much time did you spend with them? Was it a
21 regular basis?
22 A Yes, I did. I was not able to get a job locally
23 because of the merger of Polyclinic and Harrisburg Hospital
24 because I'm an intensive care specialist. So I had to go to
25 Philly and John Hopkins, and I came every other weekend and
25
1 one night during the week and spent time with them.
2 Q Did you spend Christmas with them in 19967
3 A Yes, I did.
4 Q Did your brother or sister spend Christmas with
5 them?
6 A No, they did not.
7 Q During 1997, Miss Gerber, did you also provide
8 assistance to your mother and father?
9 A Yes, I did.
10 Q Can you tell me what assistance you provided to
11 your mother?
12 A In April -- by the end of April 1997, my father
13 called me, because I went back to California for several
14 months and was working there, and he called me to tell me my
15 mother had fallen and broken her hip and asked me to come. I
16 resigned my position and came out 12 hours later and spent six
17 months with my mother and assisted also in my father's
18 healthcare.
19 Q You assisted your mother in her rehabilitation of
20 her hip during this time? _
21 A Yes. For one month she was hospitalized, and I
22 took my father over twice a day. I came by every night and
23 prepared her for bed and bathed her. I spent many afternoons
24 with her, took care of my father and his needs, took him to
25 his cardiac physician essentially and during her rehab.
26
1 Q And that was for the entire latter five-month
2 period of that six-month term, correct?
3 A That's right. She was hospitalized one month and
4 then five months of rehab.
5 Q You worked part-time during that as well?
6 A Yes, I did, because I did not receive any money
7 from my family. I didn't request or ask them for any money.
8 Q Did your brother or your sister provide any care
9 to your mother during the rehabilitation process for her hip?
10 A No, they didn't. My brother came for about two to
11 three hours once after she was -- a couple days after she
12 broke her hip. My sister visited for a week and then left.
13 Q Did you notice any changes regarding your mom or
14 problems with her after the hip?
15 A Yes, I did.
16 Q What did you observe?
17 A Prior to -- during her hip, my mother-~had ....
18 significant confusion coming out of anesthesia. That was the
19 first episode when I discovered a problem. I wouldn't say a
20 misdiagnosis, but I arrived from the airport and went directly
21. to the recovery room as my mother came out of recovery.
22 I noticed my mother was under too much sedation,
23 and I approached the anesthesiologist and told him that she
24 needed to be reversed. He wasn't sure at that time, but three
25 hours later he concurred when she was in her hospital room
27
1 that she had needed to be reversed.
2 She subsequently was confused and disoriented for
3 two weeks afterwards. It's more than likely my mother
4 probably showered some clots, had some small strokes even when
5 she fell, because from that point on my mother really was
6 never quite the same.
7 Q When you say reverse that means reverse the
8 effects of the anesthesia that she was suffering --
9 A That's correct· you administer medication.
10 THE COURT: How old is she now?
11 THE WITNESS: She's 87, Your Honor.
12 THE COURT: Go ahead.
13 BY MR. LASKOWSKI:
14 Q Were there any appointments with neurologists made
15 at that time?
16 A Yes.
17 Q -Were.r~here~any~ema~kable changes noted regarding~-
18 your mother's condition as a result of that evaluation?
19 A Yes.
20 Q What were they? -~
21 A In January 19 -- I came home for the Christmas
22 holidays Christmas '97. My mother was remarkably different·
23 and her memory was off. On January 6th, 1998, my father and I
24 had stepped away for the day. He wanted to go to Penn State
25 to visit an elderly lady.
28
1 I came back and it was evident to me my mother had
2 had a small TIA, that's a transischemic attack, and I
3 immediately discussed it with my father. We concluded to get
4 a neurolo~F~ appointment which was subsequently done with an
5 MRI on January 30 or 31st of 1998.
6 Q You also rendered some assistance to your father
7 as he was having difficulties at that time, is that right?
8 A That's correct.
9 Q Can you very briefly tell me what difficulties he
10 was having?
11 A My father was essentially a cardiac cripple. He
12 had five vessel disease and two leaky valves, and Dr. Moffit,
13 his cardiac physician, had told me my father had approximately
14 two to four years before probably his heart would give out.
15 What happened and occurred on January 15th, 1998,
16 my father woke me up at 5:00 in the morning and told me he
17- needed to go to the hospital_9~d_~_h~§_~~~geon. He had for
18 the third time a bowel obstruction.
19 Q You assisted in taking him to the hospital and
20 getting him admitted, did you not?
2~ A Yes, I did.
22 MR. RUPP: Objection, Your Honor.
23 THE COURT: What is the relevancy?
24 MR. LASKOWSKI: Your Honor, there was testimony
25 presented by Mr. Gerber at the last hearing that there were
29
certain activities and actions of my client relative to her
2 father instrumental in bringing this petition before the Court
3 regarding the last care during his final days. There are
4 allegations about incantations, magnets --
5 THE COURT: It is all collateral. I don't care
6 what came in. It has no bearing on the issue I have to decide
7 now. The objection is sustained.
8 BY MR. LASKOWSKI:
9 Q Did you take your mother daily to see your father
10 at the hospital?
11 A Yes, I did.
12 Q Did anybody else transport her back and forth to
13 see your father?
14 A In the approximate 34 days, I would say maybe five
15 or six times. From the time my father was hospitalized on
16 January 15th until his death on February 22nd, I did the
17 majority of the caregiuing of my mother and the care and
18 consultation of my father's care.
19 THE COURT: And, again, your father died when?
20 THE WITNESS: February 22nd, 1998, Your Honor¥
2~ BY MR. LASKOWSKI:
22 Q Can you describe very briefly what your
23 relationship with your brother and sister was at that point
24 before your father's death?
25 A My relationship with my sister was one of
30
1 friendly. I had just come through Chicago on December 22nd of
2 '97, Christmas, and picked up gifts and spent the night, and
3 my sister was very grateful and appreciative.
4 THE COURT: It was friendly?
5 THE WITNESS: Yes. Sorry.
6 THE COURT: Next question.
7 THE WITNESS: My brother's relationship --
8 THE COURT: Wait. Next question.
9 THE WITNESS: I'm sorry. He asked me about my
10 brother and sister.
11 BY MR. LASKOWSKI:
12 Q At the time of your father's death, did you
13 perceive a change in that relationship with your brother?
14 A Yes.
15 Q And can you tell me what you believe the reason
16 for that was? Were there events that took place at the
17 hospital that led you to believe this?
18 A Yes, there were.
19 Q What were they?
20 A My relationship with my brother prior to that-
21 event was approximately 30 years of physical and emotional
22 abuse from my brother. On January 19th -- on or about January
23 19th, my brother assaulted me in my father's ICU room.
24 I called security guards and filed a police
25 report, and subsequently three days later my brother locked me
31
1 out of the family home and proceeded to take -- hold my
2 mother, essentially, hostage and prisoner.
3 He also during the family conference hearing
4 spontaneously in front of -- when the problems were occurring,
5 I asked for the in-house legal counsel, Mr. Richard Seneca,
6 for a conference meeting with our family.
7 Q And who else with your family?
8 A There were three senior nurse managers of the ICU
9 at Harrisburg Hospital because my brother had interrupted a
10 planned family meeting with nine doctors to do consultation
11 with my mother and I on my father's care.
12 My brother in front of the three senior nurse
13 managers, myself -- I have to say I was a staff nurse at that
14 hospital -- and Richard Seneca, disclosed that I had accused
15 my father of sexually molesting me and that he did not want me
16 in the hospital room with my father to touch him, to kiss him,
17 to be near him, to be anywhere._~ro~nd him ..... He got up and then
18 walked out.
19 Q At your father's death did you assist the nurses
20 in the hospital with the final preparation? -
21 A Yes, I did, absolutely.
22 Q Did you have any contact with your mother after
23 your father's death?
24 A I had one brief contact. I was locked out of the
25 house. My mother was living in motels and had to rent a car.
32
My mother was taken apparently down to my brother's
2 immediately after my brothers -- my father's death, and I
3 stayed around because I had all my possessions at the house,
4 suitcase, et cetera.
5 On March 13th of 1998, I was able to get in the
6 house and be with my mother. We spent the night and had
7 dinner. The following morning my brother called, and my
8 mother told my brother I was there. I was on the other line.
9 My mother was crying, and she said to my brother,
10 Fred, Fred, please don't make me do this. I know dad would
11 want her to be in the house with me. My brother's response
12 was, mom, mom, be strong. Jane and I have spent all this
13 money to get rid of her. And subsequently he said I'm 30
14 minutes away from Gettysburg, and subsequently I got in the
15 car and left because I've had physical contact with him and
16 harassment and assaults from him and I left.
17 ~ Q When was the next time.~.~.y~.~.saw_¥our mother after
18 that?
19 A I didn't see her -- I saw her briefly in July of
20 1999. -
21 THE COURT: When was that first time?
22 THE WITNESS: That I saw her?
23 THE COURT: You just told me about.
24 THE WITNESS: March 13th, 1998.
25 THE COURT: Continue. When is the next time?
33
1 THE WITNESS: My mother surprised me in April 1998
2 when I went to a dental appointment. I saw her briefly in
3 July of 1998, and then I did not see her until September of
4 1999.
5 BY MR. LASKOWSKI:
6 Q Was there anything prohibiting you from seeing
7 your mother during this period of time?
8 A Yes.
9 Q What was it?
10 A I believe that my brother coerced my mother and
11 asked for a restraining order to be issued against me in
12 December of 1998.
13 Q Was that restraining order ultimately lifted?
14 A Yes, it was.
15 Q When was that?
16 A On November 3rd, 2000.
~17 ............... Q ~ In September of 1999 when you began seeing~your ....
18 mother at this point, can you tell us what you did for her?
19 A Yes. I made contact with my mother in mid
20 September of 1999 and I discovered -- I discovered a much-
2k changed woman. She had been left essentially alone for
22 approximately 13 months by herself with no phone number -- no
23 k~sted phone number, no contact with friends who had called me
24 up and asked how she was doing and where she was. She had
25 lost significant weight. She was at times disoriented.
34
1 Q What was the condition of the house?
2 A The condition of the house. My mother was not
3 taking care of her bathing needs. There were no smoke alarms.
4 There was no adaptation to railings on the staircase. There
5 was no alteration to the steps for her to make it easier for
6 her to get out.
7 Q Now, you talked about the railings and the steps,
8 are these plans that you had made with your mother prior to
9 your absence?
10 A Yes.
11 Q And what was the purpose of adding the railings on
12 the steps, for example?
13 A There was only one railing to go up the staircase,
14 and there was no railing the opposite side. Elderly people
15 should have two railings to hold onto depending on their right
16 and left side of weakness, smoke alarms for obvious reasons.
17 ..... ~ Was there food in the house? ................
18 A There was no food in the house. I discovered my
19 mother was living on Top Ramen noodles, pressed chicken meat
20 and ice cream. -
21 Q Did you spend Christmas of '99 as well as
22 Christmas of '98 with your mother?
23 A I did not spend Christmas of '99, but I spent
24 Christmas '99 and Christmas of 2000 with my mother.
25 Q I'm not sure I understood you correctly. Did you
35
1 say '98 or '99?
2 A I did not spend Christmas '98 with my mother, but
3 I spent Christmas '99 and 2000 with my mother.
4 Q Did your brother or sister spend the Christmas
5 holiday with your mother?
6 A No, they made no attempt to see her.
7 Q In the year 2000, please, can you tell us were you
8 - in Pennsylvania working at that time?
9 A Yes, I was.
10 Q Were you caring for your mother?
11 A Yes, I was.
12 Q And how much care were you providing on a weekly
13 basis to her?
14 A I worked an eight-hour shift, and all the other
15 time I spent with her including the weekends.
16 Q Could you tell me the kinds of things that you did
17 with and for your.mother?
18 THE COURT: Let me ask one question. When did
19 that start?
20 THE WITNESS: September 1999, Your Honor.
2.~ THE COURT: It started?
22 THE WITNESS: Yes, through January of this year,
23 16 months. Sorry, repeat the question, please.
24 BY MR. LASKOWSKI:
25 Q Can you describe for me the kinds of activities
36
1 and the things that you did for your mother during this
2 16-month period?
3 A Well, I immediately started meal planning with
4 her, and we made every dinner together and lunch. I took her
5 out to restaurants. I had curtains for her.
6 Q Did you take her to church?
7 A I took her to church.
8 Q Did you take her to social engagements?
9 A I took her to social engagements, and then in
10 March of 2000 I started taking her to doctors. She had to
11 have her ear wax extracted. I took her to have a mammogram.
12 I took her to have a chest x-ray. I took her to have skin --
13 precancerous skin lesions on her chest removed.
14 I took her to a primary care physician. In August
15 of 2000, I had to go back to California briefly for three
16 weeks, and on June 1st of 2000, unfortunately I was in a car
17 accident. I was disabled andI~.had to go through intensive
18 physical therapy.
19 Q You did return to Pennsylvania then?
20 A I did. I was gone for May, June, July. In Angust
2.1 of 2000 -- during that period, I called my mother every
22 morning and every night. I left her with food and vitamins
23 and care and neighbors in the neighborhood that she could
24 contact and they could contact her with her renewed -- I had
25 her phone number.
37
1 In August of 2000, my mother called me. She was
2 in agony and screaming. I said, mother, what's wrong? And
3 she said, my foot hurts me. I said, mom, I am trying
4 desperately to get back. There were problems with United
5 Airlines that first week in August. When I got back, I
6 discovered my mother, this is the second time, had been
7 misdiagnosed by Holy Spirit Hospital.
8 Q What was the condition of your mother in August
9 2000 when you returned to Pennsylvania?
10 A There was absolutely no food in the refrigerator,
11 and the little food there was -- there was lettuce and some
12 carrots were frozen. My brother had seen her less than five
13 days before that.
14 Q What was her health condition also at that time?
15 A She had been -- my brother had been there the week
16 before. He did not take her to the emergency room. When she
17 cantinued to complain of her pain, he~had-a-~taxi take her to
18 Holy Spirit Hospital.
19 She was given Celebrex, which is an arthritic
20 medication, for her back pain. When I got there, this wa~ by
21 a young nurse practitioner in the emergency room, I discovered
22 my mother had shingles.
23 I immediately took her to a doctor, and I spent
24 three days injecting my mother subcutaneously with a special
25 shingles' vaccine morning, noon and night to stay the shingles
38
1 because you have only a two week window in order to stay and
2 stop shingles.
3 Q That was under the doctor's supervision?
4 A That's correct.
5 Q In September of 2000, you were still in
6 Pennsylvania?
7 A That's correct.
8~ Q Did you encounter any other medical difficulties
9 with your mother that required attention?
10 A At the end of November, my mother had what's
11 called hemoptysis in her sputum. It's blood in her sputum. I
12 took her to her doctor. We had a chest x-ray done, and my
13 mother had two tumors in her right lung.
14 Q Were they treated?
15 A Yes. I then worked with the doctors in getting an
16 emergency CAT scan, a bone scan. We had a biopsy done by a
............ ~7 radiQlogist I took her to an oncologist and-I.lworked ...... I
18 took her to the chief of medicine at Hershey Medical Center, a
19 pulmonologist, and I worked with her in increasing her
20 nutritional status.
21 Q About November of 2000 there were other actions
22 taken by your mother and yourself with regard to your brother
23 as to the family trusts, were there not?
24 A Yes.
25 Q Was there an action started with regard to
39
1 acquiring accounting for those trusts by your mother and
2 yourself?
3 A Yes.
4 Q Did your mother hire her own counsel to take care
5 of that at the time?
6 A Yes, she did.
7 Q Who was that?
8 ~ A She hired Mr. Joseph Metz from Harrisburg.
9 Q And Mr. Metz was subsequently discharged by your
10 mother at a later time in the following year, is that correct?
11 A Yes. I believe my brother fired him and secured
12 Jacqueline Verney as my mother's attorney.
13 Q This took place in early January, did it not?
14 A I'm sorry, what took place?
15 Q The termination of Mr. Metz's services?
16 A Yes. My mother had hired Joseph Metz in October
17 ~ to vacate the restraining order which wasi~.~ .........................
18 THE COURT: When was he discharged?
19 THE WITNESS: There was a letter allegedly written
20 by my mother -- ~-
2~ THE COURT: Just the date.
22 THE WITNESS: January 6th, 2001.
23 THE COURT: Next question.
24 BY MR. LASKOWSKI:
25 Q Can you tell me what transpired on or about
4O
1 January 6th with your mother?
2 MR. RUPP: Your Honor, may I object? The gist of
3 the line of questioning here seems to go to the new matter
4 filed by the protestant.
5 THE COURT: I disagree. It goes to whether or not
6 if I find that a guardian of the person is needed whether or
7 not your client should be appointed. Go ahead.
8~ BY MR. LASKOWSKI:
9 Q Would you describe for me the events and what
10 transpired on the 6th which also leads you to believe that
11 your mother was influenced regarding Mr. Metz's retention and
12 discharge?
13 A Yes. My brother showed up on January 6th, it was
14 a Saturday, and he took her out for almost a six-hour period
15 of time, which was a very long time considering that she was
16 recuperating from her tumors and her lung condition. When she
17 came back, I found my mother agitated ............. _~
18 The date of the letter of the termination of Joe
19 Metz is January 6 which essentially has -- and my brother
20 spent absolutely not even 15 minutes in the house because I
21 lived with my mother then. So I have to assume that this
22 letter was dictated and --
23 MS. VERNEY: Objection, Your Honor, speculation.
24 THE COURT: Overruled. Go ahead.
25 THE WITNESS: I have to assume, because of the
41
1 language or the words that were used, which are not my
2 mother's language, that this was -- this letter was dictated
3 to her, and she was forced and intimidated to hiring her
4 attorney.
5 BY MR. LASKOWSKI:
6 Q What was your mother's --
7 A Firing her attorney I meant to say.
8 Q What did you observe about your mother's condition
9 when she returned to the house that day?
10 A My mother was agitated and upset.
11 Q And how was she before she had left that morning?
12 A Well, she was happy. She always looks forward to
13 seeing my brother essentially.
14 Q During the period of time that you were disabled
15 as a result of your automobile accident, did you have any
16 source of income?
17 A ..... I had no income and no assets or savings. .............
18 Q Did you receive any assistance from the family
19 trust during this period?
20 A My brother refused to give me under any -
2.~ circumstances even an offer of a loan by my Attorney Michael
22 Kane to give me any money.
23 Q Ms. Gerber, do you have concerns about your
24 brother, Fred Gerber, being appointed as a guardian for your
25 mother at this time?
42
1 A Yes, I do.
2 Q Could you tell me, please, what some of those
3 concerns are in addition to the testimony you already provided
4 for us?
5 A I'm concerned because of the fact my brother
6 resides in Virginia and it's a two to three hour -- at best
7 two hours maybe at night, but at the best a three-hour drive.
8~ He does not come every weekend to see my mother, and my tally
9 nine weekends from approximately May to now he was not
10 present.
11 Q That's based upon the notes that you reviewed
12 earlier, is that correct?
13 A That's correct.
14 Q Because there are notations in there about when he
15 visited her?
16 A Yes, with his handwriting, right. I'm concerned
17 because of the estrangement in the family and his past pattern
18 of abuse. I'm concerned about the intimidation and what I
19 consider is a destruction of the fiber and continuity and
20 unity of this family.
2~ I'm concerned because I think he's using this as a
22 tool to punish me and hurt me. My brother knows that there is
23 no other way that he could hurt me unless it was a crime, you
24 know, assaulting me. He knows the only way to hurt me is to
25 take my mother from me.
43
I'm concerned that he doesn't have the medical
2 background and interest, and I am particularly concerned that
3 he wants to institutionalize my mother. Because in the notes
4 as early as July 8th, my brother writes a notation, put my
5 mother in a nursing home because she doesn't like some of the
6 nursing aides.
7 I'm concerned that my brother will very quickly
8 tire of this nursing care for her. He doesn't have the
9 expertise to do this. He doesn't know the medical
10 ratifications.
11 Q Is his military commitment a problem?
12 A Oh, yes. My brother also is involved a minimum of
13 12 hours to 15 hours a day. He can be deployed at any time.
14 As you know, these hearings were continued for an extra month
15 because he had to go out of town down to Fort Bragg on the
16 Anthrax crisis.
17 He's not provided-any consistent care or interest
18 to my mother previous to this. In 23 years, he never attended
19 a family Christmas gathering. He never was there. He's never
20 been involved in her medical care or shown any interest Until
2.% just recently when the accounting was established.
22 I'm concerned because the accounting has not been
23 forthwith and is not complete in Judge Oler's chambers under
24 his order.
25 Q Has he removed your mother from the care of her
44
primary physicians?
2 A I'm also concerned because after January 13th he
3 removed her from her two -- her primary care physician, from
4 her podiatrist, from her physical therapist, from me, from any
5 contact with friends. He unlisted the number and made no
6 contact to let any of her friends of the community know.
7 There's no notation in ten months that he ever
8 I took her to mass. My mother's a devout Catholic. I took her
9 every Sunday. I don't feel that my brother should have put my
10 mother in a position to have to choose one child over the
11 other.
12 I think that my brother's demonstration of outing
13 the dysfunction and the unfortunate relationship with my
14 father and I was paramount to outing me and embarrass my
15 mother, and it has hurt her tremendously to have to do this
16 and has been put out as public record.
17 Q Do you believe your mother_is_susceptible to
18 persuasion and influence by reason of that outing that took
19 place?
20 A Absolutely. Absolutely. My mother is devastated
21 and shamed by having this brought up. I'm also particularly
22 concerned because my brother -- I have to say since 1976 my
23 brother has never had more than a probably total of two hours
24 conversation, but if we come to the present, from the day my
25 brother assaulted me in the hospital on February 19th, 1998,
45
he has made no attempt for mediation.
2 He's had no discussion with me. He had no
3 knowledge about the dysfunction with my father and I. He's
4 never talked to me. He's refused when Mr. Rupp's father asked
5 for a meeting of the three of us. He's refused to give me any
6 money.
7 He has refused my mother now to have any access
8' with me, and my mother throughout this has done everything to
9 have access and to be with me. I don't think this is the
10 qualification of a caregiver and a guardian.
11 Q After your father had died, can you tell me what
12 did you want to see happen with your family after that point?
13 What was your desire for it?
14 A My desire and hope after my -- well, as my father
15 died was that we would all be there as my father died.
16 THE COURT: Afterwards is the question.
17 .......... THE WITNESS: Afterwards. My hope woulx~--have been
18 that we would have had an appropriate family memorial and
19 funeral with all of us participating.
20 THE COURT: I thought you said with respect t~ the
21 mother.
22 THE WITNESS: I'm sorry, excuse me. I would have
23 hoped that my mother would have had my companionship, that my
24 mother would not have had to face my being locked out of the
25 house, that she would not have been alone for approximately
46
1 13, 14 months, that she would have enjoyed the comfort and the
2 support from all of her children, and that she would not have
3 been forced to choose among her children.
4 BY MR. LASKOWSKI:
5 Q Ms. Gerber, are you opposed to the
6 institutionalization of your mother in a nursing home?
7 A Absolutely.
8 ~ Q Could you tell me why that is?
9 A Because of my experience, and I have worked in
10 nursing homes over the last ten years and been a director of
11 home health nursing, s that within 24 hours to 48 hours of a
12 person being institutionalized or in a nursing home they
13 become disoriented.
14 They are forced, more than likely, to be put in a
15 room with a shared partner. It's very rare, and there is a
16 long waiting list, to get your private room. At best she
17 would give, up e~erything she knew. She would not b.e=_ab~.~o
18 close her door. She would be susceptible to anybody wondering
19 around.
20 THE COURT: She does not want her to go in a -
2~ nursing home. I understand that.
22 THE WITNESS: She doesn't.
23 THE COURT: Next question.
24 THE WITNESS: It would be in her demise.
25
47
1 BY MR. LASKOWSKI:
2 Q Your mother is not a candidate for a nursing home?
3 A No, she is not a candidate.
4 Q Do you desire that if anyone should be considered
5 for appointment of a guardian that you also be considered by
6 the Court?
7 A Yes, I do. I feel I've demonstrated the care and
8~ need of my mother on a consistent basis.
9 Q What do you offer in terms of a plan of care for
10 your mother from this point forward?
11 A First of all, I would not -- I have no desire to
12 display any acrimony against my brother and sister, and I
13 would ensure that they have full contact with them.
14 Q Are you willing to work out your differences with
15 your brother and sister?
16 A Absolutely, under any circumstances of mediation
17 or counseling-~or.~soc-ial services or-a social worker. - ........ ~.~i~i
18 Q Would you allow your brother and sister certainly
19 to have contact with your mother?
20 A Absolutely. I would not restrict them. I d6~'t
21 think it's my right. At this point in my mother's life she
22 needs to be around her children and her loved ones.
23 Q What would you do regarding attending to her
24 medical needs?
25 A I would restore her to previous physicians because
48
1 they are the only ones that can do a comparison of where they
2 left off with her and where she is now. I would restore her.
3 I would hire a nutritional consultant and specialist. My
4 mother definitely needs to gain weight.
5 I would return her to her podiatrist for
6 evaluation. My mother was suffering from problems with her
7 right foot and ankle. I would restore her to physical
8~ therapy. I would have a nuclear bone scan done to see if
9 there's been any extenuating progression of her right foot and
10 hip.
11 We are yet to hear the testimony of what actually
12 happened to my mother, but what I do know is that my mother
13 apparently fell. But why she was in a telemetry unit with a
14 chest tube is mysterious to me, which means something else has
15 transpired.
16 I would also -- I had scheduled in March of this
iT ~year -- prior to~my~brother~taki~ng~what- I ~t! hostage
18 control, I had her scheduled with Dr. Anna Barrett at Hershey
19 Medical Center for a one week and complete evaluation of
20 dementia and Alzheimer's. This was suggested by her primary
21 care physician.
22 Q Which was?
23 A William Richwine and the chief of medicine of
24 pulmonology, Dr. Herbert Reynolds, at Hershey Medical Center.
25 Q Can you tell me, while we're on that subject, who
49
1 her other care physicians were such as her podiatrist?
2 A Dr. Todd Pelleschi.
3 Q Was there a physical therapist working with her?
4 A Joyner Sports Medicine and Rehabilitative
5 Medicine.
6 Q Was there anybody else that you haven't mentioned?
7 A Dr. Bill Richwine.
8~ Q Besides him. Anybody else? And Dr. Reynolds?
9 A Dr. Herbert Reynolds, and there was an oncologist,
10 and that was Mary Simons.
11 Q Would you be able to provide care for your mother
12 on a daily basis?
13 A Absolutely.
14 Q And how would that work with your schedule?
15 A I would work -- right now I think -- nobody can do
16 this 24 hours a day, and they would be foolish to think they
17 could. I believe that I can spend every evening with my
18 mother. I can spend the weekends with my mother, and I can
19 have caregivers do respite care during the week.
20 I feel that I need to spend more time with m~
91 mother. I will petition as is appropriate to the trust to
22 have at least some financial remuneration. I can't be left
23 destitute.
24 Q Would you restore her to her social activities at
25 the senior center, the women's club or other items as her
50
1 physical abilities would permit?
2 A Absolutely. In December of 2000, I signed her up
3 with the senior day care center. I would take -- would have
4 her go there for some day care activities and interaction with
5 other people. I would restore her to her church. I would
6 restore her to her friends. I would restore her to the
7 restaurants that she went to so that she would have social
8~ contact.
9 Q Return her to her church at St. Theresa's?
10 A That's correct.
11 Q Would you restore her phone contact?
12 A Absolutely. People call me from all over the
13 country and internationally wanting to know what my mother's
14 number is and why they can't get a hold of her.
15 Q Under medical supervision, would an exercise
16 program be beneficial for your mother?
17 A Absolutely. There'-swonderful senior exercise
18 programs for my mother.
19 Q Would you be available to assist in travel and
20 transport of your mother to these activities?
2.1 A Absolutely. I would take my mother to see my
22 brother in Virginia if necessary. I would take my mother to
23 Chicago and accompany her so she could have contact with my
24 brother and sister.
25 Q Are there any alterations to her home that you
51
feel would be necessary or beneficial to her?
2 A Yes. I left -- in January of 2001 this year, I
3 left smoke alarms for almost every important room, carbon
4 dioxide. I had made plans with a carpenter to put the second
5 railing up, to make adjustments in the exit from the steps of
6 the kitchen to the garage and the front door out to the steps
7 because that's where she originally had tripped and fallen.
8 ~ She needs a new box mattress. She needs some --
9 until we hear the testimony of why my mother was hospitalized
10 and where she is currently, she needs other care. She needs
11 lighting in the hallway. She needs some light activation.
12 She needs a thermostat on the heater so that she
13 doesn't -- excuse me, so she's not found in a cold house,
14 because she's had no supervision the last 11 months. She has
15 no night supervision. She's left alone sometimes during the
16 week, and she's left alone every night except for the -- I see
17 some 24-hour care after her hospitatizat-ion.
18 Q Now, you've talked about on several occasions an
19 event regarding your mother and hospitalization the week of
20 November 5th and specifically you've mentioned the 9th o'~
91 November. Can you tell me what you learned about that event
22 that week?
23 A Yes. My mother's birthday was November 9th. On
24 November 7th, I called a florist locally to deliver flowers.
25 I asked them to be delivered the day before my mother's
52
1 birthday, November 8th.
2 THE COURT: What did you learn about your mother?
3 THE WITNESS: I'm sorry, Your Honor?
4 THE COURT: What did you learn about your mother's
5 hospitalization?
6 MR. LASKOWSKI: What did you learn about your
7 mother's hospitalization?
8 THE WITNESS: I learned through the florist that
9 my mother was hospitalized.
10 THE COURT: When?
11 THE WITNESS: They didn't know when but that she
12 was in Harrisburg Hospital.
13 THE COURT: November?
14 THE WITNESS: Yes.
15 THE COURT: Next question.
16 BY MR. LASKOWSKI:
~-~7-~ ~ ........... Q - That was November 8th that you f~un~-that~-out?
18 A On November 9th, I found out my mother was
19 hospitalized through the florist. They went to neighbor's.
20 Q Did you have any contact from your brother or-your
2.1 sister in any respect or through their legal counsel to you
22 that your mother had suffered any kind of an injury that week?
23 A No, my brother and sister did not contact me to
24 tell me she was hospitalized.
25 Q Did your brother do so?
53
1 A Pardon me?
2 Q Did your brother do so?
3 A No, he did not.
4 THE COURT: Let's take a break, a ten minute
5 break. We will reconvene at --
6 MR. LASKOWSKI: Thank you, Your Honor. I believe
7 I'm finished.
8~ THE COURT: You are finished?
9 MR. LASKOWSKI: I may have one or two follow-ups.
10 THE COURT: We will take a short break.
11 (Whereupon, a brief recess was taken.)
12 THE COURT: Continue.
13 MR. LASKOWSKI: Thank you, Your Honor. I have a
14 few brief follow-up questions.
15 BY MR. LASKOWSKI:
16 Q First of all, Ms. Gerber, the address that you
17 ~a~s earl~er-~is how far away from your mother'~s~-heme~? ..............
18 A Four doors away.
19 Q Ms. Gerber, if you're not appointed individually
20 under consideration by the Court as a guardian for your -
2.1 mother, are you willing to serve as a co-guardian with
22 Neighborhood Services or any other agency as may be determined
23 necessary by the Court?
24 A Absolutely.
25 Q And if you are working in that capacity as a
54
1 co-guardian, what could you provide in terms of assistance?
2 A I feel like I could provide a continuity of my
3 mother's care and who my mother is, and I could micromanage on
4 the medical level and the nursing level in insuring my
5 mother's daily care.
6 Q Could you act as a liaison then for the agency as
7 well as the family members?
8~ A Absolutely. I would be willing to provide weekly
9 reports, monthly reports, telephone calls to my brother and
10 sister as well as the agency.
11 Q Do you feel or believe at this time that your
12 mother requires a plenary guardian for all of her care?
13 A No. If a plenary guardianship means that anybody
14 has the unlimited right to institutionalize her, absolutely
15 not. This would be devastating, probably life threatening, to
16 my mother.
17 Q ~ -D~o.~_you believe a limited guardianship is more ~ ......
18 appropriate for the Court to consider regarding the daily care
19 and supervision of your mother?
20 A Yes, that's what my mother needs at this timeL
~ Q Lastly, Ms. Gerber, have you provided or worked on
22 any projects for your mother that would bring her
23 distinguishment for her prior career or education?
24 A Yes. In December 2000, my mother and I had
25 planned to go to Cornell University where she got her
55
Master's, and when my brother took control of her in January,
2 I did not have any contact with her. I subsequently continued
3 with the college of home economics and her friends came up
4 anyway, and I did research on her deceased friends, and it led
5 to a one page honoring of my mother in the alumni news at
6 Cornell University.
7 MR. LASKOWSKI: Your Honor, I have an exhibit here
8 I would like to show opposing counsel. That's a copy of the
9 alumni news article that Ms. Gerber is referring to.
10 BY MR. LASKOWSKI:
11 Q And it has a background and historical information
12 about your mother, does it not?
13 A Yes, it does, as well as her friends from her
14 class of 1948.
15 Q That page. I'm not going to put in the whole
16 thing.
17 MR.~-LASKOWSKI: We would like to have that marked.--
18 THE WITNESS: I would like to make a copy of that
19 because it's the only copy I have.
20 (Whereupon, Marilyn Exhibit No. 5 was
~ marked for identification.)
22 BY MR. LASKOWSKI:
23 Q I'm showing you Exhibit No. 5. Is this the
24 article to which you were referring to?
25 A Yes, it is.
56
1 Q Page 5 of that?
2 A Yes, it does.
3 MR. LASKOWSKI: Thank you very much. Your Honor,
4 I believe I need to move for the admission of Exhibits 3, 4
5 and 5.
6 THE COURT: I will take care of it after we have
7 the testimony closed here. Cross-examine.
8 MR. RUPP: Thank you, Your Honor.
9 CROSS EXAMINATION
10 BY MR. RUPP:
11 Q Ms. Gerber, are you currently working?
12 A Am I currently working? Not today I'm not.
13 THE COURT: No, he means do you have a job.
14 THE WITNESS: Yes, I do.
15 BY MR. RUPP:
16 Q What's your average annual income?
17 MR. LASKOWSK~-~-0bjection, relevance.
18 THE COURT: Sustained.
19 BY MR. RUPP:
20 Q Ms. Gerber, do you recall the prior hearing ih
21 March of 2001 when your brother testified that in August of
22 2000 your mom had approximately 23,000 in one account and
23 9,000 in another account?
24 MR. LASKOWSKI: Objection, relevance.
25 THE COURT: How is it relevant?
57
1 MR. RUPP: Your Honor, Ms. Gerber caused the
2 depletion and overdrawing of the two accounts which were
3 testified to at the March hearing.
4 THE COURT: How is it relevant? I have already
5 appointed an estate guardian.
6 MR. RUPP: She mismanaged the affairs of her
7 mother from before.
8' THE WITNESS: I didn't have --
9 THE COURT: Hold on. It is not relevant in this
10 proceeding.
11 BY MR. RUPP:
12 Q Ms. Gerber, you testified that you were involved
13 with the care of your mother for approximately 16 continuous
14 months, is that correct?
15 A Yes, I was.
16 Q And can you recall what months those were?
17- A What year are you tatking~-about, sir?~
18 Q Well, you're the one who mentioned the 16
19 continuous months. I'm asking you to clarify it for me.
20 THE COURT: What period was the 16 months?
21 THE WITNESS: It started September of 1999 through
22 January 2001.
23 BY MR. RUPP:
24 Q Thank you. So I presume you have notes, daily
25 notes, of the care of your mother, is that correct?
58
1 A No. At that time my mother didn't require daily
2 notes. She wasn't under a certified nurse's aide by an
3 agency.
4 Q But you did not keep any notes, is that correct?
5 A I kept notes only in providing appointments for
6 the doctors and her weight and what was going on with her.
7 The notes were kept by the physicians. That was the
8 appropriate note depository.
9 Q So then you didn't keep any notes about what your
10 mom ate or anything like that then, is that correct?
11 A Yes, I did. Well, I didn't keep daily notes. You
12 asked me if I kept daily notes. The answer is no.
13 Q Thank you.
14 A My mother wasn't under nutritional guidance. And
15 what period are you talking about?
16 THE COURT: Wait. You answered the question. You
17 did not keep ~daily notes. ......... ~
18 BY MR. RUPP:
19 Q Now, you said that you were present during your
20 father's illness. Your sister Jane and your brother Fre~were
2~ also there, were they not?
22 A I don't understand your question. What period of
23 time are you asking me they were there, or were they there the
24 whole time?
25 Q Hospitalization time.
59
1 A My sister was there for one week out of 34 days,
2 and my brother came up for three independent visits of which
3 only one he stayed overnight, one day in 34.
4 Q But he was present, correct?
5 A For a brief period of time.
6 Q Thank you. Now, you testified that you took your
7 mom in '98 right after your father's death to a neurologist,
8 is that correct?
9 A That's correct. No, not after my father's death,
10 prior to my father's death.
11 Q What neurologist was that?
12 A Dr. Michalek.
13 Q And how did she do on the Mini Mental Test?
14 A That was a 30 minute test. That was not a
15 complete --
16 Q How did she do?
.,l~- ..~ A · ~-I_bel~eve Dr. Cadieux reported 30~-o~c~of 30.
18 Q Correct. Dr. Cadieux, who testified in this
19 hearing, referred to Dr. Michalek's notes that your mom scored
20 30 out of 30 at that point?
21 A He only referred to a 30 minute test, not a
22 complete evaluation, sir.
23 Q Now, you mentioned your father's illness, and you
24 said there was a conference with Pinnacle. That was actually
25 requested by the petitioner, Fred Gerber, was it not?
60
1 A No, it wasn't. It was a second patient family
2 conference that was organized with the social worker, the
3 nursing staff and the nine specialist consultants that I had
4 arranged for my father's care.
5 Q Ms. Gerber, that conference arose because you were
6 interfering with care and the doctors finally asked who's in
7 control --
8~ A Sir, you are testifying. You are not asking me a
9 question.
10 THE COURT: Let him finish the question. He is
11 asking you a question. Ask the question again.
12 BY MR. RUPP:
13 Q Ms. Gerber, that conference was actually called
14 because you were interfering with your father's care, was it
15 not?
16 A No, that's not true.
17 ~--~ .Q~,~In fact, you told the hospital staff that~you were~-
18 in charge because you had your dad's power of attorney and
19 your mom was demented, isn't that correct?
20 A I did not. I might add that --
91 THE COURT: Answer the questions.
22 BY MR. RUPP:
23 Q Ms. Gerber, have you ever been convicted of
24 criminal trespass against your mother's property?
25 A Yes, for one day.
61
1 Q Now, Ms. Gerber, you talked about the 16
2 continuous months, but there was a period, was it not, when
3 there were several months where you were not even present
4 continuously in that period, is that correct?
5 A Yes.
6 Q And is it not your testimony that you were not
7 present with your mother in May of 2000, June of 2000, July of
8~ 2000, and part of August of 2000, is that correct?
9 A I didn't say part of August. I said May, June,
10 July. I arrived August 5th for the lack of five days. If you
11 want to include that, that's true. During that time, I
12 arranged for healthcare for my mother. I arranged for
13 appointments.
14 THE COURT: He asked you the time frame.
15 THE WITNESS: Okay.
16 BY MR. RUPP:
17 Q So your mom was without your care during that
18 period, is that correct?
19 A My specific care?
20 Q Correct.
2.1 A That's correct.
22 Q You mentioned other care. What kind of care are
23 you talking about?
24 A I arranged for appointments. She had a dental
25 appointment. She had an appointment out of Carlisle. I
62
1 arranged for transportation for her. I called her every day.
2 I made sure she took her pills in the morning and at night. I
3 left food for her. I left equipment for her, and I provided a
4 friend to go and visit her if she needed anything.
5 Q How did your mother do during that period when you
6 weren't there?
7 A When I came back, I found out my mother was not
8~ doing well nutritionally because she was alone.
9 Q And you didn't provide anybody to go in and stay
10 with her for 8 or 12 or longer hours a day, did you?
11 A At that time my mother didn't need that kind of
12 care nor -- I might add my brother and sister visited. They
13 never provided any care for her either.
14 Q Ms. Gerber, there was an implication in your
15 testimony, and I would ask you to clarify it. Have you
16 received monies from your late father's trust?
17 A Limited monies.
18 Q Do you know approximately how many dollars you
19 have received from the trust?
20 A I received in 1999, around July, 6,000 some --
21 dollars, and it wasn't until September of this year I was
22 offered $10,000.00 out free and clear.
23 THE COURT: The question is how much have you
24 received?
25 THE WITNESS: And I only received $7,500.00, and I
63
1 did not receive the balance $20,000.00 loan. It was refused
2 to me after it was offered.
3 THE COURT: So you got 6,000 once and $7,500.00
4 next?
5 THE WITNESS: That's correct.
6 BY MR. RUPP:
7 Q Any more dollars?
8~ A I don't know, Mr. Rupp. If you know, you can
9 enlighten me.
10 Q Who took your mom to see Dr. Richwine?
11 A I did.
12 Q Who was your mother's primary care physician
13 before she saw Dr. Richwine?
14 A She saw Dr. Sullivan for her shingles. He was a
15 specialist in that.
16 Q Who would have seen her regularly on a family type
17 of basis?
18 A She didn't have one.
19 Q She must have been getting some ongoing visits.
20 A She saw Dr. Michalek, the neurologist, in JanUary.
2.~ Q I'm talking about just your general year to
22 year --
23 A She saw a urinary specialist.
24 THE COURT: She did not have a family doctor?
25 THE WITNESS: No, she didn't.
64
1 THE COURT: Next question.
2 BY MR. RUPP:
3 Q Has she been in the primary care of the United
4 States military's --
5 A Please, no.
6 Q -- healthcare system?
7 A No, she has not on a regular basis, and they don't
8~ provide ongoing regular primary care physicians.
9 Q Now, during the 16 months that you talked about,
10 during that time, did you add these steps that you talked
11 about, you saw a need for improving the steps?
12 A She said that Fred was going to do it and I had --
13 THE COURT: The question is --
14 THE WITNESS: I did not because she said Fred
15 would do it.
16 THE COURT: Next question.
17 BY MR. RUPP:
18 Q Did you change the box mattress in her home?
19 A I was about to purchase it in January, and my
20 brother took control of her.
2~ Q Now, during that time that you were in
22 Pennsylvania and during the 16-month period from September '99
23 to January 13 of 2001, did you work?
24 A I'm sorry, I lost track of your question.
25 Q During the 16-month period, except for the three
65
1 months that you weren't here in Pennsylvania, during that
2 16-month period, did you work here in Pennsylvania?
3 A Yes, I did. Did I work where? I'm sorry.
4 Q Did you work?
5 A Yes, I did, sir. I took no income from my mother.
6 Q What was your typical daily hourly work?
7 A I worked as an intensive care nurse.
8' Q How many hours did you work?
9 A I worked an eight-hour shift approximately four
10 days a week.
11 Q Was that at one hospital?
12 A Different hospitals.
13 Q Can you tell the Court what hospitals?
14 A I worked at Health South, and I worked at Hanover
15 Hospital.
16 Q I thought I heard Johns Hopkins?
17 A No, that was in 1996, sir.
18 Q Excuse me.
19 THE WITNESS: I apologize, Your Honor, I didn't
20 turn off my cell phone.
21 THE COURT: Go ahead. Turn it off.
22 BY MR. RUPP:
23 Q Ms. Gerber, so when you worked then you were not
24 present with your mother?
25 A That's right. She didn't require constant care at
66
1 that time.
2 Q Ms. Gerber, why did you come back in the year 2000
3 to be with your mom?
4 A I came back -- I started seeing my mother in
5 September of 1999, and I continued seeing '99 through 2000
6 until I went back to California essentially for a three week
7 break -- not break, but I had some responsibilities in May of
8 2000. I had the accident June 1 --
9 THE COURT: Why did you come back was the
10 question.
11 THE WITNESS: It wasn't a question of coming back.
12 You mean after my accident? I only left initially for three
13 weeks. I was coming back.
14 BY MR. RUPP:
15 Q So then before you were in San Francisco in May of
16 2000, in May of 2000, your intent was to be in Pennsylvania,
17 is that correct?
18 A Oh, right. I went home only for three weeks. I
19 had a ticket to come back on June 1.
20 Q So your intent in August when you came back, -
21 August 5th, that was simply to resume your care of your
22 mother?
23 A It had changed then. I was totally disabled. It
24 was to resume to be here with my mother, absolutely, and I
25 also was totally disabled. It was futile to be in California
67
1 at that point.
2 Q Well, Ms. Gerber, on March 22 of 2001, in this
3 courtroom, you told the Court that -- and this was your
4 answer, I came into my mother's home full-time for her medical
5 and financial needs on August 19th -- the first week in August
6 2000 until January 13 2001
7 A I'm sorry, you'll have to repeat that. August 19,
8~ what year?
9 Q You ended with the year 2000. It says, again, you
10 said to the Court, I came into my mother's home full-time for
11 her medical and financial needs on August 19th -- the first
12 week in August 2000 until January 13th, 2001.
13 A I will correct the August 19th. I arrived
14 approximately the 5th, 6th of August and found my mother in
15 agony with shingles, and I didn't leave until January 13th,
16 2001, because my mother had shingles. Then she had the lung
17 tumors --
18 THE COURT: Well, did you move in with her in
19 early August then?
20 THE WITNESS: I didn't move in with her. I j~st
2.1 stayed with her, Your Honor. I spent the evenings and the
22 days with her. There was no need to leave her alone.
23 BY MR. RUPP:
24 Q But you came in for her financial and medical
25 needs.
68
1 A The week that I came back --
2 THE COURT: Wait. There is not a question yet.
3 Go ahead. Next question.
4 BY MR. RUPP:
5 Q Well, when you were in San Francisco at a Rent
6 Control Hearing Board on September 10, 2001, you were asked,
7 were you planning to go to Pennsylvania and stay there? You
8~ answered, no, because this was my -- I didn't move anything.
9 I took two suitcases and a box with me.
10 MR. LASKOWSKI: I'm going to object, Your Honor,
11 as to relevance and an offer where this is going.
12 MR. RUPP: Your Honor, she testified she came back
13 for her mother's care in March of 2001, and she told the Rent
14 Control Hearing Board she came back to rehab herself.
15 THE COURT: The key is she came back. Let's move
16 on from there.
17 THE WITNESS: Sir --_
18 THE COURT: Stop.
19 BY MR. RUPP:
20 Q Ms. Gerber, do you contend that your mom is
21 incapacitated to the extent that she needs a guardian of the
22 person?
23 A I haven't seen my mother in 11 months. From what
24 I know of my mother's condition in January and to what I have
25 seen in the notes and to what your specialists say, I feel at
69
1 this point and time, especially since the hospitalization of
2 my mother and the rapid decline of her weight and my brother's
3 notes and the caregivers' notes, that at this point and
4 time -- well, let me backtrack.
5 THE COURT: Do you feel she needs a guardian of
6 any type at this time?
7 THE WITNESS: She needs supervision and care.
8 THE COURT: That wasn't the question.
9 THE WITNESS: I don't --
10 THE COURT: You don't know?
11 THE WITNESS: When I say I don't know, sir, a
12 guardianship -- the guardianship issue --
13 THE COURT: I do not want to argue about
14 legalities. Do you feel she needs --
15 THE WITNESS: More than likely at this time she
16 needs a quardian.
17 THE COURT: Next question.
18 MR. RUPP: No further questions, Your Honor.
19 THE COURT: Any redirect?
20 MS. VERNEY: Your Honor, I have some cross
2t examination.
22 THE COURT: I'm sorry. I keep forgetting Ms.
23 Verney.
24 MS. VERNEY: I'm just too quiet.
25
70
1 CROSS EXAMINATION
2 BY MS. VERNEY:
3 Q Ms. Gerber, you testified that you presently are
4 employed by Intelistaf?
5 A That's correct.
6 Q Where are the corporate offices of Intelistaf?
7 A They are in Camp Hill.
8' Q And how many hours a week do you presently work
9 for them?
10 A It's as I want. I'm a per diem nurse. So it's as
11 I need to work, and depending upon what my mother's care will
12 need, it will be as I need to work.
13 Q Last week how many hours did you work?
14 A I moved last week. The movers came on December --
15 THE COURT: How many hours did you work last week?
16 THE WITNESS: Excuse me. I worked four days last
17 week, 32 hours. I arrived this Sunday. ~
18 BY MS. VERNEY:
19 Q And did your job with Intelistaf only begin last
20 week? _
21 A No, I worked with them earlier this year.
22 Q What dates?
23 A I worked with them in April and May.
24 Q And on average, how many hours a week did you work
25 for them?
71
1 A Four to five days a week.
2 Q How many hours, full-time?
3 A It depends. Four days is 32 hours and full-time,
4 five days, is 40 hours a week.
5 Q And can I assume that you are assigned to
6 different hospitals as needed?
7 A I decide if I want to work that day or not.
8 Q And so they call you in the morning and ask you?
9~ A No, I determine my schedule and tell them where I
10 want to work and how many days I want to work.
11 Q Prior to working at Intelistaf, where did you
12 work?
13 A I worked at -- I didn't work. I was disabled from
14 June 1 until April -- I was disabled June 1, 2000, until mid
15 April 2001. Prior to that, I worked in San Francisco.
16 Q Who did you work for in San Francisco?
17 A I worked for an agency as a recovery nurse, and I
18 worked full-time. Well, excuse me, I also worked -- as I
19 testified, in 2000 I worked also at Health South and Hanover
20 Hospital. -
21 Q How long -- have you always worked as a nurse?
22 A Always in my whole life?
23 Q Yes.
24 A No, I have not always.
25 Q From the time you received your nursing license,
72
1 have you worked as a nurse?
2 A I've done other things than nursing.
3 Q What other things have you done?
4 A I was a corporate executive for a gift work
5 company, and I was also an importer at Power Trims.
6 Q When was that?
7 A That was from 1988 until 1995, and I also nursed
8 as well.
9t Q Did you tell us when you did start your nursing
10 career?
11 A I received my license 1985.
12 Q Since 1985 to the present, how many different
13 employers have you had?
14 A Approximately two and then when my mother --
15 Q From 1985 to the present, you've had only two
16 employers?
17 A You're asking me to go back 16 years.
18 THE COURT: How is this relevant?
19 THE WITNESS: I don't --
20 THE COURT: Hold on. --
21 MS. VERNEY: Well, Your Honor, I wanted to show
22 that she's had 20, 30 different jobs and she's unable --
23 THE WITNESS: I haven't had 20 to 30 jobs, Ms.
24 Verney.
25 THE COURT: Hold on. Next question.
73
1 MS. VERNEY: I'll withdraw those questions.
2 BY MS. VERNEY:
3 Q Ms. Gerber, is your brother the executor or was
4 your brother the executor of your father's will?
5 A No, he was not. My mother was left executor. My
6 brother was left successor upon my mother's death. A day
7 after my father's funeral my mother --
8 ' THE COURT: You answered the question. Next
9' question.
10 BY MS. VERNEY:
11 Q Did your brother assume the role of executor of
12 your father's will?
13 A Yes, I believe upon intimidation.
14 Q Is he the executor of your mother's will?
15 A Yes.
16 Q And is he the trustee of the family trust?
17 A Yes. ·
18 Q And he's also trustee of your mother's trust?
19 A I think so, yes.
20 Q And he's also the named guardian in your mother's
21 power of attorney?
22 A That was a mistake --
23 MR. LASKOWSKI: Objection, Your Honor.
24 THE WITNESS: -- on January 19th --
25 THE COURT: I know all this.
74
1 THE WITNESS: -- through intimidation.
2 THE COURT: Next question. Get something new.
3 BY MS. VERNEY:
4 Q You testified to an incident at the hospital when
5 your father was in the hospital.
6 A Yes.
7 Q And you indicated that your brother assaulted you.
8 A That's correct.
9 Q Were charges ever filed against him?
10 A No. There were no credible witnesses in the room,
11 other credible witnesses, excuse me. There was a citation
12 written up.
13 Q Your brother was never charged, is that correct?
14 A I never pursued them.
15 Q Did you ever threaten your mother that you would
16 tell all of her friends that your father molested you if she
17 did not --
18 A Absolutely not. There was no discussion about the
19 relationship with my father.
20 Q While you were with your mother for those 16--
21 continuous months, which were really only 13, because there
22 was that three-month gap in the middle, did you remove 93
23 boxes of her personal items from her home?
24 A No. I removed 93 boxes of my personal possessions
25 that I brought from Vermont in 1996.
75
1 Q None of them were any of your mother's
2 possessions, any of her jewelry, her wedding dress, family
3 photographs?
4 A Are you asking about all -- are you asking about
5 those specific items that you just listed?
6 Q Yes.
7 A In January of 2001, after a caregiver gave me
8~ concern about theft and that she was going through my mother's
9~ closet upstairs, I removed some items from my mother's house
10 for safekeeping. I never took anything or stole anything from
11 my mother.
12 Q And have you returned those items?
13 A I, through my attorney Michael Kane, because my
14 brother has asked for them personally and claimed they are
15 his, have notified PNC Bank that we will return them to them
16 so they can be catalogued, appraised and kept in her estate.
17 Q How did your mother meet Joseph Metz, her
18 attorney?
19 A My mother and I were told that because the
20 restraining order still was in effect, the old one from '98,
21 that anytime my brother felt like it --
22 THE COURT: How did she meet him?
23 THE WITNESS: My mother wanted to vacate the
24 restraining order and I took her -- I asked around for
25 different attorneys, and I took her to three different
76
1 attorneys and she chose Joseph Metz. I was never present in
2 the room.
3 BY MS. VERNEY:
4 Q So you introduced her to Joseph Metz?
5 A Yes, as well as two others for her to choose. My
6 mother was not capable at any event to go through and decide
7 how to do this.
8~ Q How many medical experts have you ever obtained
9~ for your mother?
10 A I don't know the number off the top of my head,
11 but I would say the shingles' expert, the osteopathic expert,
12 orthopedic expert, podiatrist, pulmonologist, oncologist,
13 radiologist, physical therapist, a specialty on shoes. That's
14 about nine and there may be -- oh, a skin specialist. That's
15 ten. Then another doctor that took out her ear wax, x-ray
16 specialist, a gynecologist. I think we're at 14.
17 Q Have you ever had a mental health diagnosis?
18 A No.
19 Q Have you ever been hospitalized for mental health
20 concerns? _
21 A No.
22 MS. VERNEY: That's all I have, Judge.
23 THE COURT: Any redirect?
24
25
77
1 REDIRECT EXAMINATION
2 BY MR. LASKOWSKI:
3 Q The specialists that you took your mother to, Ms.
4 Gerber, did they provide treatments to her?
5 A Yes, they did.
6 Q That they felt and reported as necessary for her?
7 A Pardon me?
81 Q That they reported as necessary for her?
9 A Yes.
10 Q Ms. Gerber, you were asked earlier about the need
11 for your mother's guardianship, and you expressed some
12 hesitancy. I'm not asking you about the legalities. But can
13 you tell me in your words what type of assistance she would
14 need to help the Judge if he decides that a guardian is
15 necessary here to frame those powers?
16 A What help she would need?
17 Q Yep.
18 A My mother right now, from what I can see from the
19 nursing notes, she needs nutritional -- seriously needs
20 nutritional consultation. I believe she needs to be returned
21 to her physical therapist, her podiatrist. She needs to have
22 an x-ray.
23 We're waiting to hear about the testimony, Mr.
24 Laskowski, on my mother's hospitalization exactly what
25 transpired. I'm sure -- I know in the telemetry unit she had
78
1 to see specialists. She had a chest tube. She obviously had
2 to see specialists.
3 So my concern is that my mother needs to return to
4 her previous physicians because they also will be able to note
5 and make documentation on any changes. These current people
6 only see her now.
7 Q Do you feel that she needs assistance during the
8 day to help her --
9t A Yes, my mother needs --
10 Q -- to help her with preparation of meals or
11 dressing or whatever?
12 A Yes. She needs some companionship and preparation
13 of meals, to go food shopping, to go out to church. She
14 doesn't drive anymore. She's probably not -- she's not safe
15 to drive.
16 Q And your impression of that is based upon the
17 limited information and notes that you have received since
18 you've had no personal contact?
19 A Yes, and before that my mother needed this help.
20 MR. LASKOWSKI: I have no further questions, Your
21 Honor.
22 THE COURT: Any recross?
23 MR. RUPP: No, Your Honor.
24 MS. VERNEY: No, Your Honor.
25 THE COURT: You may step down. Next.
79
MR. LASKOWSKI: Your Honor, I planned and I think
2 we only have -- is Jane here today?
3 MR. RUPP: She's in the court.
4 MR. LASKOWSKI: There were only two other
5 witnesses, Your Honor. I would like to recall Mr. Gerber as
6 of cross and Miss Jane Heflin as of cross if she's in court
7 today as appointed.
8 Now, as counsel has indicated, Your Honor, for
9' ease of this particular hearing, if there's going to be
10 rebuttal testimony, I could certainly ask my questions as of
11 cross at that time rather than exchange of witnesses, but I'll
12 leave that certainly to your discretion.
13 THE COURT: Is there going to be rebuttal?
14 MR. RUPP: Yes, Your Honor.
15 THE COURT: Let's do it that way, and then if you
16 need to call them separately afterwards, I will let you.
17 MR. LASKOWSKI: Sure, Your Honor. Thank you.
18 THE COURT: Go ahead.
19 MR. RUPP: Your Honor, we would call Colonel Fred
20 Gerber.
21 Whereupon,
22 FREDERICK EDWARD GERBER, II,
23 having been duly sworn, testified as follows:
24
25
80
1 REBUTTAL
2 DIRECT EXAMINATION
3 BY MR. RUPP:
4 Q Fred, have you been present during the testimony
5 of the protestant, Marilyn Gerber?
6 A I have.
7 Q Is there anything concerning your mother's weight
8 ' that you would like to tell the Court?
9~ A Yes, I would. We've talked about these what some
10 have referred to as nursing notes, which I refer to as my
11 personal notes of my observations of mom. When I came back to
12 take care of mom's healthcare, I acknowledged mom's weight to
13 be -- my starting weight was 120 pounds. That was the
14 baseline.
15 Mom has generally weighed between 116 and 120 most
16 of that time since January until her recent hospitalization
17 towards about 112 pounds now. So, you know, you can see my
18 clear documentation of my visit notes that we have monitored
19 mom's weight as one of the documenting -- my personal
20 documenting concern to make sure that her weight stays stable.
21 Q And have you discussed your mom's weight with her
22 family physician?
23 A I have. I discussed -- you know, there's a
24 transition meeting every weekend since we started in-home
25 healthcare with Betra who was recommended by the Department of
81
1 Aging who Marilyn had referred to the house to check because
2 she was so concerned.
3 So the Department of Aging recommended Betra.
4 Betra has come in. There is a transition meeting every
5 weekend that I visit to discuss issues, concerns, et cetera,
6 and weight is one of those items discussed.
7 Q And you also discuss as you said with the family
8 physician?
9~ A Absolutely, yes.
10 Q Marilyn talked about she was unaware of doctor
11 visits during the time since January 13, 2001. What can you
12 tell the Court about your mom's doctor visits in that period
13 since January 13, 20017
14 A Well, mom has -- of course I had started to
15 observe a precipitous decline in mom's cognitive skills and
16 capabilities. We had visits with a clinical psychologist that
17 the Court has heard about, a couple of visits with Dr.
18 Cadieux.
19 We've had mammography. We've had routine physical
20 examinations with the health clinic here at Carlisle Barracks.
2.1 Betra comes in. Betra is the health agency recommended by the
22 Department of Aging, comes in every day other than weekends
23 when I'm there. There are supervisory visits.
24 So I believe there is a tiered multiple levels of
25 concern or observation for mom's health to insure that she is
82
1 not being abuSed or neglected or deteriorating.
2 Q Very good. You heard that Marilyn was concerned
3 about mom not participating in social activities. What would
4 you tell the Court about your mom's social activities?
5 A Well, anybody that knows mom, mom's basic limit of
6 her social activities involve preparing the alter linens. Mom
7 was a periodic member of the New Cumberland Officers' Wives
8 ' Club, but for the past ten years -- for the past ten years,
9~ mom has stopped going to the Officers' Wives Club until
10 Marilyn rejoined so that she could become a member.
11 So for the past ten years, mom has not been an
12 active social member. I mean, she's 87 so, you know, in her
13 mid 70's she and dad became homebodies, stuck to themselves.
14 There were no -- I'll repeat, there were no friends and
15 neighbors in the neighborhood that routinely came over and
16 played bridge or cards or watched TV. They were basically
17 homebodies.
18 They visited her brother in Staunton maybe once a
19 year, dad's sister in Pennsylvania once or twice a year, but
20 that was the extent of their social interaction. -
21 Q And do you feel that your mom is getting enough
22 social contact at this point?
23 A You know, it's a very good question. In fact, mom
24 often complains that she just needs quiet because there is
25 somebody there 24 hours a day. I'm there every weekend, and
83
1 when I'm not Jane is there. So mom has 24/7, you know,
2 personal stimulation and interaction.
3 Q You heard your sister Marilyn testify that she had
4 requested a conference with Pinnacle at the time your father
5 was hospitalized with his illness that eventually took him in
6 February of '98. Can you tell the Court what actually
7 transpired at Pinnacle when your father was ill?
8 ~ A Yes, sir. Marilyn's statement is absolutely not
9t true, absolutely not true. It became clearly evident to my
10 sister and I that doctors or nurses would come in and they
11 would look to Marilyn, well, what do you want us to do?
12 What's the care? She was obviously acting like she was in
13 charge. It became concerning to us that nobody was looking to
14 mom as the wife or, Mrs. Gerber, what do you think? What do
15 you want? They were, you know, completely isolating her.
16 Q Why were the physicians referring to Marilyn for
17 your dad's care?
18 A Well, that's a good question and I asked. They
19 indicated because the initial admission slip had indicated
20 that Marilyn had indicated herself as the power of attorney
21 because mom was, quote, demented. Well, that caused me
22 concern. I called the hospital attorney, Attorney Seneca --
23 THE COURT: You have answered the question. Next
24 question.
25 THE WITNESS: I'm sorry. Did I answer it?
84
1 THE COURT: Yes.
2 BY MR. RUPP:
3 Q Are you the trustee of your late father's
4 irrevocable trust?
5 A Affirmative.
6 Q Have you as the trustee paid dollars out to your
7 sister Marilyn?
8 A Affirmative.
9'
Q Can you recall what dollars have been paid so far
10 out of that trust?
11 A Well, I didn't come prepared with all of the
12 figures, but I can tell you there was a $5,000.00 payment for
13 one of the many court cases she's brought against us since
14 dad's death.
15 There was a 7 point $5,000.00 recent payment.
16 You'll read the last testimony, you know, mom's wired monies
17 to her to the tune of 12, 15, $16,000.00. I'm not counting
18 the money that, you know, my sister took to the tune of --
19 MR. LASKOWSKI: Your Honor, I move to strike,
20 beyond the scope. _
2~ THE COURT: Sustained. You answered the question
22 on the trust.
23 BY MR. RUPP:
24 Q Who do you consider your mom's primary care
25 physician, what group or doctor?
85
1 A That's very easy to answer. Since 1936, mom has
2 been a military United States Army dependent, and since 1936,
3 mom, us three children and dad have been beneficiaries of the
4 United States Army healthcare system. So since 1936, mom has
5 been in the Army healthcare system until Marilyn decided that
6 that wasn't -- didn't meet her standard and found other care
7 for her.
8 MR. LASKOWSKI: Objection, move to strike,
9 ~ non-responsive. The question was who was considered her
10 primary care physician.
11 THE COURT: It is innocuous. She did the same
12 thing. Next question.
13 BY MR. RUPP:
14 Q Your sister Marilyn was concerned in testimony
15 with your mom's food shopping and her church attendance. What
16 would you tell the Court about that since you've been managing
17 her affairs since January 13, 20017
18 A Well, sir, if you go to Karns Market or Weis
19 Market or Giant they'll -- they recognize me. I recognize
20 them. I do mom's food shopping every weekend with the
21 exception of when Jane does it. There is adequate food in the
22 house, always has been. And the other part was?
23 Q The church.
24 A The church. When we know Marilyn's in town, to
25 avoid altercations, which always happens when there's a visit
86
1 or an encounter with Marilyn, Jane or I would take mom to the
2 cathedral downtown in Harrisburg. When mom wasn't -- when
3 Marilyn wasn't in town, then we would take her to Trinity.
4 THE COURT: Are you saying you or Jane do it every
5 weekend?
6 THE WITNESS: It's not every weekend. Mom and I
7 will -- I'm a Christian officer, but mom and I will pray in
8 the morning on Sunday morning when she doesn't feel like
9~ going. I mean --
10 THE COURT: Do you sometimes take her to church?
11 THE WITNESS: Yes, sir, affirmative.
12 BY MR. RUPP:
13 Q And does your mom receive any communion at the
14 house at all?
15 A Affirmative. Father Lawrence will periodically
16 come to the house and deliver communion to mom as an in-home
17 care. I mean, she's 87~years old and doesn't always feel like
18 going out.
19 MR. RUPP: Very good. Thank you, Fred. No
20 further questions, Your Honor. _
21 THE COURT: Cross.
22 MS. VERNEY: Colonel Gerber --
23 THE COURT: Let's have cross first.
24
25
87
1 CROSS EXAMINATION
2 BY MR. LASKOWSKI:
3 Q Mr. Gerber, the food shopping and the items you
4 were just talking about, I'm a bit confused as to what period
5 of time that applies because your testimony seemed to indicate
6 that you're referencing to when Marilyn is or is not in town.
7 Did all of that apply before January of 2001 of this year?
8 A It did not -- it specifically did not apply to the
9t 16 months or 15 months, however you are counting, from
10 September '99 until the 13th of January of 2000.
11 Q So the efforts you are telling us about going to
12 Giant and all of that with you or your sister has been
13 occurring since January, that's what you're saying?
14 A Yes, sir.
15 Q Prior to the hospitalization of your father in
16 1998, how would you describe your relationship with your
17 sister Marilyn?
18 A It was distant, nonexistent. I was in the
19 military. She was on the West Coast. There was -- there was
20 no frequent contact. _
21 Q Did you make any efforts of your own to contact
22 her?
23 A Negative.
24 Q To stay in touch with her?
25 A Negative.
88
1 Q In approximately April of 1997 when your mother
2 broke her hip, how long did you participate or stay with your
3 mother and assist in her care?
4 A Weekends when I could come up from Washington D.C.
5 from my assignments I visited mom and dad.
6 Q What period of time did that cover?
7 A That covered the period of time when she was
8~ actually in the hospital and then post recovery, post
9 discharge from the hospital.
10 Q And how long was she in the hospital?
11 A I don't recall, two or three weeks.
12 Q So you disagree with your sister's testimony that
13 she never saw you at all during this six-month period of time?
14 A Oh, yes, I do disagree, affirmative, most
15 affirmative.
16 Q How many times did you come up?
17 A To the best of my recollection, two or three times
18 during the period of hospitalization.
19 Q Did you ever call and thank your sister for taking
20 care of your mother during her hospitalization as a resul~ of
~ her injuries?
22 A I have no recollection of that.
23 Q Do you spend Christmases with your parents, with
24 your mother since 19987
25 A Since 19987
89
1 Q Yes.
2 A Well, in my 28 --
3 THE COURT: Since 1998 is the question.
4 THE WITNESS: Generally the 26th, the day after
5 Christmas. Having a family of my own, we would spend
6 Christmas Day with the family and then the day after.
7 BY MR. LASKOWSKI:
8~ Q Have you ever asked your family to take any action
9 against your sister to disown her or have nothing to do with
10 her?
11 A Negative.
12 Q Never?
13 A Have I taken action to disown her? I don't
14 recognize that term, no, negative.
15 Q Back in the 1970's you didn't take any action?
16 A Well, what does that mean?
17~ THE COURT: Move on to current-times.~ This is a
18 brother and sister for which there will never be a
19 reconciliation now or after the grave.
20 BY MR. LASKOWSKI: -
2.1 Q You heard Marilyn testify about an incident with
22 the family care conference that was taken place at the
23 hospital.
24 A Yes, sir.
25 Q Correct?
90
1 A Yes, sir.
2 Q What is your recollection of that event?
3 A Well, I recall very clearly that it was news to me
4 that there had been nine primary or specialty healthcare
5 prOviders arranged to take care of dad. I mean, that was the
6 whole point.
7 None of us had ever been consulted that anybody
8~ had been brought in at her request, and certainly, most
9 affirmatively, mom had never been included in this. So it was
10 a total surprise that mom had been left out.
11 Q Was there a family care conference with three
12 nurse supervisors and Mr. Seneca?
13 A The only meeting I had with Mr. Seneca was the
14 meeting that I Called with him and his staff to set the record
15 straight that mom was in charge of dad's healthcare.
16 Q You did meet though that day, as Ms. Gerber had
17-? said. You were there at the conference but you-~ef~ didn't-
18 you?
19 A Sir, the only conference I had with Mr. Seneca was
20 the one that I arranged. I stayed from the beginning to ~he
~ end of the conference with Attorney Seneca.
22 Q At that time did you have any opportunity to
23 discuss with those folks your sister's alleged relationship
24 with your father?
25 THE COURT: I'm not going to get into it. It is
91
1 so collateral.
2 BY MR. LASKOWSKI:
3 Q You had testified, Mr. Gerber, also at the very
4 beginning about your mother's weight and such. You mentioned
5 she had averaged about 116 to 120 pounds. Was that the
6 beginning of January of this year?
7 A Sir, as I stated, when I first took over my
8 ~ personal documentation of mom's situation, I documented her
9 base weight at 120 pounds.
10 MR. LASKOWSKI: Okay.
11 THE COURT: When?
12 THE WITNESS: This was on or about January of '01.
13 THE COURT: Okay.
14 BY MR. LASKOWSKI:
15 Q Well, the notes that you've provided to us through
16 your counsel indicate those notes started a little bit in
17 January but.~mostly in May, is that correct? ~ .......
18 A That's correct.
19 Q And those are your notes, the exhibits are there
20 in front of you? -
2~ A That's correct.
22 Q So the records will speak for itself as to what
23 notation you made regarding her weight and when. Is that a
24 fair statement?
25 A Well, sir, the records do show when I first
92
1 started putting those notes on paper, but you are correct, I
2 maintained she weighed 120 pounds in January of 2001.
3 Q As part of the notes that are submitted, for
4 example, Mr. Gerber, there is a notation dated here from
5 November 28th of 2001 by an outside agency, a nurse from -- an
6 R.N. apparently from Comfort Care which indicates your
7 mother's weight's down to 105.8 pounds. How do you account
8~ for that dramatic change?
9 A In some part it's the digital scale that we use.
10 That's what she weighed on that date.
11 Q You indicated that every week there was a
12 conference with the Betra folks as well as contact with the
13 family physicians about your mother's condition. Now, the
14 contact with the physicians was not weekly from January to the
15 present, is that correct?
16 A I don't believe I said that.
17 Q That's with-Betra that your meeting regularly?
18 A The in-home healthcare agency, yes, sir.
19 Q What course of action was taken to correct your
20 mother's weight?
21 A We discussed continued monitoring to make sure
22 that it didn't drop too low and that, you know -- my
23 discussions with the Betra in-home healthcare agencies was to
24 make sure that we made sure mom ate a good breakfast, a good
25 lunch, a good dinner and, you know, just continue to -- just
93
1 continue to watch the weight.
2 Q Did the doctor make any specific recommendations
3 regarding your mother?
4 A No, she did not.
5 Q Does your mother see any specific one doctor over
6 at the clinic?
7 A Affirmative.
8~ Q Which doctor is that?
9 A Dr. Kimberly Young.
10 Q And what's her specialty?
11 A She~s a family practitioner.
12 Q Is she a geriatric specialist?
13 A I'm not aware that she is.
14 Q Why was Comfort Care brought into the picture, Mr.
15 Gerber?
16 A Comfort Care?
17 Q Um-hum. You've provided notes to us that they
18 are -- apparently an R.N. from Comfort Care is seeing your
19 mother.
20 A Are they -- -
21 Q When did they first come into the picture, and why
22 did you bring them in?
23 A I'm just a little confused at this time.
24 Q Have you ever spoken with anybody at Comfort Care?
25 A Well, Betra's -- I'm just a little confused Betra
94
1 and Comfort Care. Do you have some notes that I can refer to?
2 Q Well, the notes are there, Mr. Gerber, and the
3 exhibits are in front of you.
4 THE COURT: Point out to him what you are showing
5 him, and then he can take a look.
6 BY MR. LASKOWSKI:
7 Q It's on November 28th, and it should be one of the
8~ ones on top. There is a reference to it. I'm not certain --
9 I'm not saying this is the first reference. I'm referring to
10 a notation dated November 28th which I am pointing to, and
11 there is a reference to Comfort Care and an R.N. from Comfort
12 Care. I'll repeat the question.
13 THE COURT: He understands the question.
14 THE WITNESS: Sir, I just need some time.
15 MR. LASKOWSKI: Sure.
16 MR. RUPP: Your Honor, as clarification, these are
17 the Betra Care notes.
18 THE COURT: Okay. To your knowledge, is there any
19 separate agency dealing with her other than Betra?
20 THE WITNESS: Well, my only confusion I'm trY-ing
21 to think of the date. To my understanding, it was only two
22 weeks ago that I brought -- we brought another agency in to
23 fill in the evening 12-hour care.
24 Comfort Inn -- Comfort Care, I don't recognize
25 that name. Betra has changed their name, so it was Betra or
95
1 Comfort. Betra is the overarching coordinating agency. Two
2 weeks ago we brought in another agency to fill in the evening
3 shift.
4 BY MR. LASKOWSKI:
5 Q Are they staying every day, sir?
6 A 24/7.
7 Q And that's the Comfort Care people?
8 ~ A Sir --
9 Q Or is that the Betra? What is your understanding?
10 A. Sir, I deal with one agency, and that's Betra
11 in-home care. They coordinate where they get the shift
12 workers to fill the gaps in.
13 Q So the 24-hour care has been provided during the
14 past two weeks?
15 A Negative.
16 Q That's your understanding?
17 A Negative. It's only in the last two weeks that we
18 couldn't cover the evening shift from 8:00 at night until 8:00
19 in the morning so they had to go -- they didn't have anybody
20 that was on staff that could do it. So they found anothe~
21 agency that could come in to cover the evening shift.
22 Q So it was Betra that couldn't cover the shift so
23 you had to go outside?
24 A Betra found the other agency, yes, sir.
25 THE COURT: She is on now 24 hour --
96
1 THE WITNESS: Sir, there is somebody there 24/7.
2 THE COURT: How long has that been in place?
3 THE WITNESS: Well, she's had 12-hour care
4 since --
5 THE COURT: Twenty-four hour care.
6 THE WITNESS: Twenty-four hour care since
7 November.
8' THE COURT: November this year?
9 THE WITNESS: November 2001.
10 THE COURT: Is that after her hospitalization?
11 THE WITNESS: Affirmative.
12 BY MR. LASKOWSKI:
13 Q Well, Mr. Gerber, if you look at the notes in
14 front of you for December -- please take a moment to do so if
15 you need to with both sets, exhibits -- I believe it's 3 and 4
16 there in front of you. There are no notes, okay, that have
17 been provided to us by you that indicate there's been 24-hour
18 care. In fact, the only notes provided are with respect to
19 the 12-hour care shifts from 8:00 to 8:00. Is that accurate?
20 A That is accurate.
21 Q Is there any particular reason --
22 A May I just qualify it. Would you just ask that
23 question again, please?
24 Q I said there are no other notes regarding -- to
25 fill out the 24-hour care, are there?
97
1 A Well, Betra gave me whatever copies they have. I
2 gave you the copies that I was requested to give you prior to
3 the November, December time frame.
4 Q And those are Exhibits 3 and 4 in front of you,
5 right?
6 A Right~ My exhibits cut off as of the date I
7 provided them to my attorney. So there are -- I have notes
8' subsequent to my cut off when I had to make copies of this. I
9 do make personal notes.
10 Q Is there any particular reason that Millie Scott
11 is no longer seeing your mother?
12 A You must be mistaken, sir. Millie Scott is there
13 three, four, five days a week. She is the chief -- continues
14 to be the chief in-home care provider.
15 Q And she continues to make notes regarding the care
16 and what happens day-to-day at your mom's house?
17 A Affirmative.
18 Q Mr. Gerber, there was an incident that took place
19 regarding your mother the early part of November, which I
20 surmise was around the 5th or so, that resulted in a
21 hospitalization. Could you please tell me what had transpired
22 with your mother? Did she suffer an injury at that time that
23 required treatment?
24 A Affirmative.
25 Q Can you tell me when that occurred?
98
1 A I would ask can I disclose that information?
2 THE COURT: Yes.
3 THE WITNESS: Early November. The exact date I
4 would have to refer to my notes.
5 BY MR. LASKOWSKI:
6 Q Where was she hospitalized?
7 A At Pinnacle Health, Harrisburg Hospital.
8~ Q When did she go into the hospital?
9 A Again, I don't have my notes. It was a Monday
10 morning, Monday morning.
11 Q So it would be Monday of that week, and she was
12 discharged when?
13 A Thursday.
14 Q Are you sure it wasn't Friday, November 9th?
15 A I'm not sure. I don't have the notes here. To my
16 recollection, it was Thursday. It could have been Friday
17 morning.
18 Q What happened that caused her to have to go to the
19 hospital?
20 A Mom tripped in the living room. She broke t~o
21 lungs --
22 THE COURT: What did she break?
23 THE WITNESS: She broke two -- I'm sorry, did I
24 say two lungs? She broke -- correction, she broke two ribs,
25 was taken to the hospital by the ambulance and, you know,
99
1 x-rayed. They put a chest tube in. She apparently had a
2 pneumothorax.
3 THE COURT: You said what caused her to go.
4 BY MR. LASKOWSKI:
5 Q The ribs, were they on the left or right side or
6 one each?
7 A Right side.
8 ~ Q Both of them?
9 A Both ribs on the same side, yes, sir.
10 Q What time of the day did this occur?
11 A We don't know.
12 Q Who was there?
13 A Millie Scott found her at 0730 in the morning,
14 Monday morning.
15 Q When you say Millie had found your mother, what
16 happened that morning?
17 A Well, generally I'm there on the weekends --
18 THE COURT: Well, they found her, right?
19 THE WITNESS: Yes, sir.
20 BY MR. LASKOWSKI: -
21 Q I just want to know what happened that morning
22 that this event occurred. Would you please walk us through
23 that step-by-step as you understand it.
24 A Sir, I was trying to.
25 Q Please do so.
100
1 A I usually leave at 8:00 or 9:00 p.m. on Sunday
2 evening after putting mom to bed, and I received a call from
3 Millie Scott at about 7:45 Monday morning to indicate that she
4 had just found mom on the floor, had just called the
5 ambulance, and they were taking her to the hospital.
6 Q And that's in the living room?
7 A That's in the living room.
8~ Q Were you able to determine what or how or why she
9 tripped?
10 A Never, never able to decide.
11 Q Was she conscious?
12 A She was conscious, affirmative.
13 Q She was alert?
14 A That's what Millie Scott tells me.
15 Q And as you understand it, she was able to
16 communicate with Millie at that time?
17 A That's my understanding. _~
18 Q As to what her .difficulties were?
19 A Yes, sir.
20 Q Was there overnight supervision for Mildred, ~Mrs.
21 Gerber, at the house in the evening immediately prior to this?
22 A Negative.
23 Q Now, can you tell me what care and treatment she
24 received at the hospital that week?
25 A I can tell you generally that she was under the
101
1 care of a great hospital system, specialists and nurses.
2 Q You said she received a chest tube, is that right?
3 A Yes, sir.
4 Q Did she require surgery of any kind?
5 A Well, she required an invasive incision to put the
6 chest tube in but there was --
7 Q Other than that.
8' A Negative.
9 Q What was the diagnosis of her condition that was
10 made, as you understand it?
11 A Pneumothorax, two fractured ribs.
12 Q And what was the follow-up care that was
13 prescribed for her when she returned home?
14 A They prescribed four weeks of follow-up physical
15 and occupational therapy in-home.
16 Q And who was doing that?
17 A In-home. I don't recall'~he name of the agency
18 that was recommended. It was all set up by the hospital.
19 Q So there is a prescribed agency by the doctor to
20 come in and provide the care, is that correct?
21 A I don't know how else to tell you, but the
22 physicians took care of making sure that physical and
23 occupational therapists came into the home to take care of
24 that.
25 Q Is Betra handling and supervising that care at
102
1 this time?
2 A Well, actually, to tell you the truth, both the
3 physical and occupational therapists cut the physical and
4 occupational therapy short by two weeks because mom had made
5 such a dramatic recovery. They both indicated she doesn't
6 need any more -- she doesn't need physical therapy. She
7 doesn't need occupational therapy. So to answer your
8 ~ question, Betra is not currently supervising that because they
9 are no longer there.
10 Q Who is the doctor -- is it Miss Young that's in
11 charge of your mom that's supervising this follow-up care now?
12 A There is no follow-up care.
13 Q Well, you indicated there were four weeks of
14 therapy.
15 THE COURT: Two weeks of therapy I thought he
16 said.
~--~1~ ...... THE WITNESS: Sir, they presc~i~ed.~ou~ weeks.
18 They only did two because they both decided -- they both
19 indicated mom didn't need four full weeks. So in two weeks
20 she had recovered, did not require any physical or
21 occupational therapy so they terminated the service.
22 BY MR. LASKOWSKI:
23 Q Very well, sir. Who is the doctor that's treating
24 your mother now?
25 A Dr. Kimberly Young.
103
1 Q Do you know who the doctors were at the hospital
2 that treated your mother?
3 A I know Dr. Azizkhan was the principal.
4 Q Azizkhan?
5 A Azizkhan.
6 Q Was Dr. Young involved as well?
7 A Negative.
8~ Q Why not?
9 A Dr. Young is her primary care physician at
10 Carlisle Barracks. This was a period of hospitalization.
11 There was no need to.
12 Q How many physical exams has your mother had during
13 the past -- since January 2001 through the Carlisle Barracks?
14 A At least two, maybe three, not counting a separate
15 visit for mammography, prescription refills, chest x-ray.
16 Q Mr. Gerber, throughout the notes that are
%7~ submitted in front of you provided by yourself and/or Betra,
18 there are several that refer to complaints by your mother,
19 urinating frequently, feeling sick, nauseated possibly from
20 medication. She had pain in her right leg. She was
21 exhausted, not feeling well. Were those matters reported to
22 her primary care physician?
23 A Yes, sir, as a matter of fact they were.
24 Q ~ And what was done for your mother in response to
25 that?
104
1 A For the issue of frequent urination, she was
2 prescribed a seven to ten day course of antibiotics. On the
3 feeling dizzy, I had spoken to Dr. Cadieux's office about
4 perhaps switching the medication from, you know, the
5 antidepression medication to the evening to the morning or
6 vice versa.
7 Q Which antidepression medication is she receiving?
8 ' Is it the same one that Dr. Cadieux testified to?
9 A Affirmative.
10 Q So there's been no change?
11 A There was a recent change from Dr. Young about
12 four, five weeks ago, changed it from Celexa to -- I don't
13 recall the name of the new medication.
14 Q Did your mother travel to Chicago this summer?
15 A To the best of my recollection she did.
16 Q How did she get there and back?
17 A I accompanied her.
18 Q Drive or fly?
19 A We took a train.
20 Q A train. How long was the trip in terms of ~ays?
21 A Well, we left --
22 Q How long did you stay?
23 A I'll try to answer the sequence. The trip -- I've
24 got to think back. We left in the evening, and we got there
25 in the morning. So it was, what, a 12, 13, 14-hour trip.
105
1 Q So that far out it took the same amount of time to
2 get back and you came back by train, right, or did you come
3 back by other than train?
4 A I believe Jane flew her back. She did not travel
5 by herself. I believe Jane accompanied her back.
6 Q So Jane took her --
7 A Jane flew her back.
8~ Q Flew her back.
9 A Right. I took her up on the train, and Jane flew
10 her back.
11 THE COURT: Who lives in Chicago?
12 THE WITNESS: My younger sister Jane.
13 THE COURT: You went out to Jane's?
14 THE WITNESS: Yes, sir.
15 BY MR. LASKOWSKI:
16 Q How long were you out there in Chicago?
17 A I was out there for three days and then --
18 Q Let me rephrase that. How long was your mom out
19 there?
20 A Ten days. I don't recall.
21 Q Does your sister come out to spend time with your
22 mother and take care of her?
23 A Oh, yes, she does.
24 Q I'm talking about the period since January.
25 A By sister you refer to Jane?
106
1 Q Yes.
2 A I'm sorry, ask your question again.
3 Q I said, does she come out to spend time with your
4 mother and take care of her? I'm talking about the period
5 since January of this year.
6 A Oh, yes, sir.
7 Q And how often does she come out?
8' A Well, once a month, once every five weeks.
9 Q And how long does she usually stay?
10 A A weekend, weekends and then long weekends,
11 holidays.
12 Q Is your sister Jane employed that she provides for
13 her own transportation?
14 A Jane is employed.
15 Q The trips she's taking out to visit your mother,
16 does she receive remuneration from the trust or family assets
17 for that in any respect?
18 A I pay mom's way, and on occasion I do pay for
19 Jane's way to accompany her.
20 Q Has your sister been employed full-time sinc~
21 January?
22 MR. RUPP: Objection, Your Honor, relevance.
23 THE WITNESS: You'll have to ask her.
24 THE COURT: Sustained.
25 MR. LASKOWSKI: Your Honor, it goes to his
107
knowledge about the care and treatment of his mother.
2 THE COURT: Sustained.
3 BY MR. LASKOWSKI:
4 Q Other than the Celexa that you've mentioned that's
5 been changed recently, are there any other medications, to
6 your knowledge, that your mother is taking?
7 A Dr. Young changed the antidepressant medication.
8 ' Dr. Cadieux the last five or six weeks doubled the dosage of
9 Aricept for her Alzheimer's, and that's it.
10 Q Why was the Aricept doubled? That seems to be a
11 drastic measure.
12 A Sir, you would have to ask Dr. Cadieux who's the
13 physician treating mom.
14 Q What is your understanding of what was explained
15 to you about why it was doubled?
16 A Dr. Cadieux asked how mom was tolerating Aricept,
17 and I said very well, had no difficulties, no visible
18 difficulties over the past --
19 Q Has that resulted in any side effects to your
20 mother?
21 A None, none to my observation.
22 Q Do you know what side effects to look for in
23 your mother in taking this medication?
24 A Well, I'm a layman. You know, this is why I kept
25 my notes. None from my recollection.
108
1 Q I'm asking do you know what ones to look for, what
2 types of problems?
3 A Well, I would think anything that's out of the
4 baseline condition like dizziness or drowsiness.
5 Q Is that something that the doctors instructed you
6 about, to say watch out for these things with your mom?
7 A Yes, sir. As you know, when you go to the
8~ pharmacy you get the contraindications and the concerns.
9 MR. LASKOWSKI: If I can have a minute, Your
10 Honor, I think I may be finished. Thank you, Your Honor. One
11 or two more questions, Mr. Gerber.
12 BY MR. LASKOWSKI:
13 Q With regard to the events of the week of November
14 9th and your mother's hospitalization and fall, did you make
15 any effort to contact your sister Marilyn to advise her at
16 least that this had happened?
17 A N~gative. ~
18 Q Has there been any follow-up, Mr. Gerber, with the
19 social worker through Dr. Cadieux's office regarding the
20 family issues or your mother's care for those family issJes?
21 A I don't understand the follow-up. Mom sees the
22 social worker at Dr. Cadieux's practice twice a month, every
23 two weeks.
24 Q And what is the reason that she's seeing her now
25 or has been seeing her twice a month?
109
A Well, she's been seeing her for, gee, since April
2 or May. She used to see her once a week, and they said she
3 didn't require it so they bounced it down to every two weeks.
4 It was just for general discussion, concern.
5 Q If you are awarded and allowed guardianship, as
6 the Court may direct and make a decision in this case, will
7 you allow your sister Marilyn to visit and see your mother?
8~ A I will.
9 Q And why haven't you allowed her to see her during
10 the last 11 months?
11 A Mom has very clearly indicated she does not want
12 to visit Marilyn.
13 MR. LASKOWSKI: No further questions.
14 MS. VERNEY: Your Honor, if I may.
15 CROSS EXAMINATION
16 BY MS. VERNEY:
17 Q Colonel Gerber, one of -- ..........
18 THE COURT: I am going to take a short break. I
19 am going to take just a five minute break. You may step down.
20 We will reconvene at ten of.
21 (Whereupon, a brief recess was taken.)
22 BY MS. VERNEY:
23 Q Colonel Gerber, one of your sister's concerns to
24 name you guardian is that you are deployable by the Army. Are
25 you, in fact, deployable.
110
1 A Absolutely not, no question about it.
2 Q Are you aware of any mental health diagnosis or
3 hospitalization that your sister has ever had?
4 A Yes, ma'am.
5 Q Do you know what it was for?
6 MR. LASKOWSKI: Objection, Your Honor.
7 THE COURT: Well, she testified. It goes to
8~ credibility.
9 THE WITNESS: I mean, it's well known to family
10 that Marilyn was two times psychiatrically inpatient
11 hospitalized.
12 BY MS. VERNEY:
13 Q At Holy Spirit both times?
14 A Yes, ma'am.
15 Q And was there a diagnosis that you are aware of?
16 THE COURT: She was in the Holy Spirit facility.
17 That's all. You have taken care of it. Move on.
18 BY MS. VERNEY:
19 Q Are you aware that Marilyn has ever threatened,
20 assaulted or intimidated your mother?
21 A Yes, ma'am.
22 Q And can you tell us those occurrences?
23 A Well, I'll tell you a couple that I can think of.
24 There was an incident in September, I believe, where -- I'm
25 sorry, in December where Marilyn had just found out that we
111
had revoked her check writing privileges on mom's accounts and
2 taking her off of mom's credit card account which had been
3 drained and mom -- or Jane had just called her and had heard
4 that -- mom told me that Marilyn had just thrown a picture
5 frame at her. We called the police. The police came up and
6 took a report.
7 A second incident was in the hospital during dad's
8 death that Marilyn -- I mean, it's very well known that
9 Marilyn threatened mom or intimidated mom that she was going
10 to tell her family, friends, church members, neighbors that
11 dad had sexually assaulted her and --
12 Q In January at the bank was there --
13 A Oh, yes. Gees, so many. At the bank on or about
14 the 26th of December of 2000 I received a call from Jennifer
15 Conway at the bank that Marilyn was there pressuring or
16 intimidating mom to sign documents to -- this was, I'm sorry,
17 prior to 26th~of December, but was threatening mom or
18 intimidating mom to sign documents giving her access to her
19 bank accounts.
20 Q Any others that you can think of?
21 A Not right now.
22 MS. VERNEY: That's all I have, Judge.
23 THE COURT: Any redirect?
24 MR. RUPP: No, Your Honor.
25 THE COURT: Any recross?
112
1 MR. LASKOWSKI: On those issues, yes, Your Honor,
2 of course.
3 RECROSS EXAMINATION
4 BY MR. LASKOWSKI:
5 Q With regard to the inpatient reference that you
6 made at Holy Spirit, Mr. Gerber, when was that?
7 A Well, I'll tell you, it was about 1978, the first
8 ~ time I saw my father cry.
9 Q No, I asked you when Ms. Gerber -- and I'll
10 rephrase --
11 A On or about 1978, sir.
12 Q She was hospitalized in 19787
13 THE COURT: You are talking about Marilyn now?
14 BY MR. LASKOWSKI:
15 Q Marilyn Gerber?
16 A Yes, sir.
17 Q For the psychiatric --
18 A For the inpatient psychiatric.
19 Q That's one time. You said there was a second
20 time. When was that?
21 A A year or two after that, '80, '81.
22 Q Where were you during these periods, sir?
23 A San Antonio, Texas.
24 Q Did you have any contact with Holy Spirit, the
25 doctors or your sister?
113
THE COURT: Let me tell you, I could just care
2 less. This is the 70's stuff. The effect of both the direct
3 and now this testimony will have absolutely no bearing upon
4 how I decide this case.
5 MR. LASKOWSKI: Well, Your Honor, I offer the
6 questions only also at this point for credibility purposes.
7 THE COURT: It has been beat to death. Move on.
8 ~ BY MR. LASKOWSKI:
9 Q With regard to -- you had mentioned an incident of
10 assaulting your mother -- Marilyn allegedly assaulting your
11 mother at the time the check writing privileges were revoked
12 and credit cards and she threw a picture frame. When did that
13 occur?
14 A As to the first question on the check writing
15 incident, I believe it was in the last court transcript, it
16 was just prior to the -- it was late December when I received
17 a call from Jennifer Conway at the bank. I think you'll
18 recall if you read --
19 THE COURT: Late December of what year?
20 THE WITNESS: 2000.
21 THE COURT: Next question.
22 BY MR. LASKOWSKI:
23 Q What was the incident regarding the picture frame
24 throwing? How did you find out about it?
25 A My mother called me and just indicated that
114
1 Marilyn had thrown a picture frame at her and hurt her leg.
2 It was in a rage, tirade, yelling, screaming.
3 Q Did anybody witness this?
4 A Well, Marilyn.
5 Q Regarding the threats that Marilyn allegedly made
6 to your mother about telling your family and friends about
7 sexual assault, when were those made by Marilyn?
8~ A Throughout the period of dad's hospitalization in
9 February of 1998.
10 Q Were you present when Marilyn allegedly made these
11 statements?
12 A Negative.
13 Q How did you find out about them?
14 A Mom'relentlessly pined over why Marilyn was doing
15 this to her.
16 MR. LASKOWSKI: No further questions.
17 THE COURT: Now --
18 MR. LASKOWSKI: I'm sorry, Your Honor, there is
19 one more.
20 THE COURT: Go ahead. -
21 MR. LASKOWSKI: If I may.
22 BY MR. LASKOWSKI:
23 Q Mr. Gerber, you had previously testified that if
24 you are appointed quardian you would allow Marilyn to see your
25 mother. Would you be willing to allow Marilyn to see your
115
1 mother today and/or on Christmas Day?
2 A As I discussed this issue with Dr. Cadieux, he
3 said that if mom was consenting and under supervision, and
4 under no circumstances did he say she should be left alone
5 with mom unsupervised.
6 Q Do you know whether or not Dr. Cadieux has ever
7 talked to or evaluated Marilyn since January of this year?
8 ' A If he's evaluated Marilyn?
9 Q Yes.
10 A I'm not aware of any.
11 Q Or even talked to her recently?
12 A You would have to ask Dr. Cadieux. I'm not aware
13 of any.
14 MR. LASKOWSKI: Thank you. No further questions.
15 THE COURT: Anything further from this witness?
16 MS. VERNEY: No, Your Honor.
17 THE COURT: You may step down
18 MR. RUPP: Your Honor --
19 THE COURT: Any further rebuttal? You may step
20 down. Well, first of all by Mr. Rupp. That is what we are
21 working on.
22 MR. RUPP: Yes.
23 THE COURT: Who do you want to call?
24 MR. RUPP: Fred for one more question.
25 MR. LASKOWSKI: May I have a moment, please, to
116
1 read this.
2 THE COURT: Yes.
3 REDIRECT EXAMINATION
4 BY MR. RUPP:
5 Q Colonel Gerber, has Dr. Cadieux written a letter
6 concerning your sister and Dr. Cadieux's concern about Marilyn
7 and your mother?
8 ~ A Affirmative.
9 MR. LASKOWSKI: I'm going to object to the letter,
10 Your Honor.
11 THE COURT: Sustained. It is hearsay.
12 MR. RUPP: Then I have no further testimony.
13 MR. LASKOWSKI: Also additional medical testimony.
14 THE COURT: I agree.
15 MR. RUPP: No further questions, Your Honor.
16 THE COURT: You may step down. Now, any further
17 rebuttal witnesses, Mr. Rupp? ~
18 MR. RUPP: No, Your Honor.
19 THE COURT: Ms. Verney?
20 MS. VERNEY: No, Your Honor.
21 THE COURT: Any surrebuttal?
22 MR. LASKOWSKI: On my part, yes, Your Honor,
23 Marilyn Gerber for a few brief questions, please.
24 MARILYN JO GERBER, recalled.
25 THE COURT: Go ahead.
117
1 MR. LASKOWSKI: Thank you.
2 SURREBUTTAL
3 DIRECT EXAMINATION
4 BY MR. LASKOWSKI:
5 Q Ms. Gerber, you heard your brother's testimony
6 about the Holy Spirit hospitalization. He indicated two
7 periods. First of all, were you ever hospitalized as
8 inpatient at Holy Spirit Hospital?
9 A I was hospitalized for a brief period, yes.
10 Q When was that?
11 A 1973.
12 Q Where were you in 1978 and 19817
13 A In 1978, I was product manager for Levi Strauss in
14 San Francisco.
15 Q And where were you in 19817
16 A 1981 I was an MBA student and a nursing student at
17 San Francisco State in San Francisco.
18 Q What was the hospitalization for in 19737
19 A It was for acute reaction to medication. I had
20 been given complications to medications.
2'1 Q Thank you. Your brother, Mr. Gerber, referenced
22 throwing a picture frame by you as an assault against your
23 mother. Would you explain very briefly for us what events
24 occurred he was referring to?
25 A On January 6th when my brother took my mother out
118
for that six-hour period in which the letter occurred that she
2 fired Joe Metz, mother came back and she was distressed and
3 agitated. We were discussing some things, and I picked up my
4 father's picture which was across the room and I hand carried
5 it over and put it on her lap.
6 She had a lot of lap blankets on her lap, and I
7 didn't realize that her knee was right underneath it, and my
8 ~ mother jumped and reacted. And my brother called 15 minutes
9 later, and there was a discussion, and then the next thing I
10 know my sister called. That was the incident.
11 Q Were there any charges that resulted against you
12 as a result of that?
13 A Absolutely not.
14 Q There was also a statement by your brother
15 regarding that you had threatened your mother to tell your
16 family and friends regarding your sexual assault during
17 February of 1998~ Did you do so?
18 A I did not. The only discussion ever made was back
19 in 1993. There were no discussions. Nobody knew about this
20 anywhere in any shape or form.
21 Q You did not disclose any of this publicly to
22 anyone?
23 A Nobody, no friends, nobody knew about this.
24 Q In December of 2000, December 26th, there was an
25 incident your brother alleged that you were forcing your
119
1 mother to sign some bank documents. Did you do so at that
2 time?
3 A No, I didn't.
4 Q What was occurring at that time with the bank?
5 A On December 26th, my mother signed documents that
6 Joseph Metz had drawn up, and they were forwarded on to the
7 various banks of which some recognized them and some did not
8 recognize those documents.
9 MR. LASKOWSKI: Thank you, Your Honor. No further
10 questions.
11 THE COURT: Hold on.
12 MS. VERNEY: Only one question.
13 CROSS EXAMINATION
14 BY MS. VERNEY:
15 Q When you were hospitalized, did you receive
16 electroshock therapy?
17 A Yes, I did.
18 MS. VERNEY: That's all I have.
19 THE COURT: You may step down. Any further
20 surrebuttal?
2'1 MR. LASKOWSKI: No, Your Honor.
22 THE COURT: Any objection to the entry of Defense
23 Exhibits 1 through 5?
24 MR. RUPP: No, Your Honor.
25 MS. VERNEY: No, Your Honor.
120
THE COURT: They are all admitted. Were there --
2 have I admitted and were there petitioner's exhibits? I think
3 there was.
4 MS. VERNEY: There was at least one, Your Honor.
5 MR. RUPP: Plus the attachments to the petition,
6 Your Honor.
7 THE COURT: Well, the petition is a part of the
8' record.
9 MR. LASKOWSKI: I believe they were admitted at
10 the prior hearing, Your Honor.
11 THE COURT: I have dealt with them then?
12 MR. LASKOWSKI: Yes, Your Honor.
13 MR. RUPP: Yes, Your Honor.
14 THE COURT: So except for my making a decision, we
15 are done with the record unless I grant the motion for an
16 independent evaluation, correct?
17 MR. LASKOWSKI: Your Honor, that's correct, and
18 there's also the pending motion for reconsideration of the
19 striking of the new matter.
20 THE COURT: That latter is denied. I did that on
2'1 a procedural basis only because it is in the middle of trial,
22 and I am not requiring him to file any answer. But the issues
23 raised before me are not affected by that. So that motion to
24 strike -- to reconsider the order striking the new matter is
25 denied.
121
1 Now, let me hear counsel's argument on the record
2 as to why there should be an independent evaluation.
3 MR. LASKOWSKI: Your Honor, as set forth in the
4 petition, and very briefly, I have noted various issues
5 regarding Dr. Cadieux's testimony that should be taken into
6 consideration by the Court.
7 Among those included, he has not fully examined
8~ all of the record. He has not fully interviewed all of the
9 parties, and based upon the testimony you've heard today with
10 respect to Marilyn and her extensive involvement with her
11 mother, there's been absolutely no contact with her to get any
12 insights or information. He has not been, as far as what his
13 testimony indicated, consulting with Betra.
14 The opinion of the doctor himself changed, Your
15 Honor, during the course of that testimony. His original
16 written reports indicated a full-time institutionalization.
17 They at least changed that by the time we were finished that
18 24-hour care was not necessary, and that she could be managed
19 with proper assistance through agencies and otherwise for
20 day-to-day care. Certainly factual situations may have
21 changed recently because of her hospitalization. So in
22 addition to that an update --
23 THE COURT: But the essential issue is whether or
24 not she needs a guardian appointed?
25 MR. LASKOWSKI: And whether or not she needs a
122
guardian, that's correct.
2 THE COURT: You think there is an issue -- that
3 there is a sufficient issue on that that requires an
4 independent evaluation as to whether or not she needs a
5 guardian? I am not talking about what type of guardian or
6 whatever.
7 MR. LASKOWSKI: Your Honor, I have to say yes at
8' this point and time because we still don't have the full story
9 for Mrs. Gerber under the circumstance. We have a situation
10 with both parties that are obviously at odds over this as to
11 the nature and extent of her care. We've not had any access
12 whatsoever to her to even recommend or suggest that evaluation
13 or participate so that we could say that it is accurate.
14 My Client testified today that based on what
15 little we know at this point and time it certainly indicates
16 we need some type of guardianship for her. This woman needs
17 help today because she has been injured at home. The care
18 that she's been receiving is inconsistent. The notes provide
19 for that.
20 THE COURT: You are getting away from my central
21 question. You still think we need an independent evaluation?
22 MR. LASKOWSKI: I think so, Your Honor, because it
23 has to take into consideration all of the medical issues that
24 Mrs. Gerber is having right now.
25 THE COURT: I totally disagree. The motion for an
123
1 independent evaluation is denied. The record is closed. Off
2 the record, argument, moving party.
3 MS. VERNEY: Your Honor, there were two points in
4 that petition and one was for Marilyn Gerber to visit with
5 Mildred.
6 THE COURT: I have got to deal with that as a
7 separate matter. The first issue we are going to deal with is
8~ the moving party on the petition for the appointment of a
9 guardian and the appointment of Mr. Gerber as the guardian.
10 That is the first issue.
11 MR. RUPP: Thank you, Your Honor.
12 (Whereupon, argument was held off the record.)
13 THE COURT: I will take the matter under
14 advisement. I will have an order down on the petition to see
15 her if not today by tomorrow. This will take me a little
16 time, but I will get this taken care of. Court is adjourned.
17 (Whereupon, the hearing was concluded
18 at 12:21 p.m.)
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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.
6 Pamela R. Sheaffe~ I (~)
7 Official Court Reporter ~-
9 The foregoing record of the proceedings on the
10 hearing of the within matter is hereby approved and directed
11 to be filed.
12
13
14
Date Edgar B. Bayley, J.
15 Ninth Judicial District
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