HomeMy WebLinkAbout10-21-04 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: : NO. 21-03-936
:
:
ELEANOR U. COOLIDGE :
VIDEOTAPE DEPOSITION OF HERBERT MYERS
SEPTEMBER 21, 2004
4:00 P.M.
CEDAR HAVEN NURSING HOME
590 SOUTH FIFTH AVENUE
LEBANON, PENNSYLVANIA
APPEARANCES:
R. HARK THOMAS, ESQUIRE
For - Petitioner
JAMES D. FLOWER, JR., ESQUIRE For - Respondent
KATHY J. SHEFFY,
COURT STENOGRAPHER
2
INDEX TO WITNESS
DIRECT CROSS REDIRECT RECROSS
HERBERT MYERS
On Qualifications 4 ......
HERBERT MYERS 6 17 34, 38 37
INDEX TO EXHIBITS
Petitioner's
Exhibit Identified Admitted
Letter Dated 4/30/04 19 --
3
1 PROCEEDINGS
2 VIDEOTAPE OPERATOR: This is the videetape
3 depositien of Dr. Nerbert Hyers taken by the Plaintiff in
the matter of Petitiener's Challenge of the Last Will and
5 Testament ef Eleanor U. Ceelidge in the Ceurt ef Cemmon
6 Pleas ef Cumberland Ceunty, PA, Orphans' Ceurt Divisien,
7 Case Ne. 21-B-936. And this depesitien is being held at
8 the Cedar Haven Nursing Home, 590 Seuth Fifth Avenue,
9 Lebanen, Pennsylvania, 17064, en September 21st, 2004.
10 My name is Kelly Boyd from the firm of
11 Legal-Eze Video Services located at 409 Malones Road,
12 Ashland, Pennsylvania, and I am the video specialist.
13 The court reporter is Kathy Boyer from Lebanon Valley
14 Reporting Service located at 150 Sherri Drive, Lebanon,
15 Pennsylvania 17042. We're going on record at 4:13 p.m.,
16 and Counsel, I'll ask for your appearances for the
17 record.
18 MR. FLOWER: First of all, for the record I
19 think the correct Case Number is No. 21-03-936. I'm
20 James Flower representing the Respondents in this matter
21 MR. THOMAS: I would agree with that, and I
22 am Mark Thomas representing the Petitioners in this
23 matter.
24 VIDEOTAPE OPERATOR: Court reporter will now
25 swear in the Deponent.
4
DR. MYERS: I prefer te affirm. Thank you.
2 {HERBERT HYERS was affirmed.)
3 DIRECT EXAMINATION
4 ON QUALIFICATIONS
5 BY MR. FLOWER:
6 Q. Dr. Myers, would you give your full name, please?
A. Yes, it's Herbert E. Hyers.
8 Q. And how de you spell Hyers?
9 A. M-y-e-r-s.
10 Q. What de you de for a living?
11 A. I work as a psychiatrist, particularly in the area
12 ef geriatrics.
13 Q. Where is your primary office?
14 A. I work for Philhaven, although I'm en the read in
15 nursing homes doing most ef my work, se I have ne office
16 other than that at Philhaven.
17 Q. Where did you attend medical school?
18 A. I went to Temple University to medical school.
19 Q. And what year did you graduate?
20 A. I graduated in 1970.
21 Q. Did you have any residency er ether specialized
22 training after that?
23 A. Yes, I had a residency in family practice and was
24 board certified in family practice, and then subsequentl,
25 did a residency in psychiatry at Hershey Hedical Center,
5
1 and I'm also now boarded in psychiatry.
2 Q. When did you complete that residency, sir?
3 A. The residency in psychiatry?
4 Q. Yes.
5 A. Was completed in 1992.
6 Q. And how long have you been board certified in
7 psychiatry?
8 A. It would be 1992 I finished the residency. I was
9 beard certified in '93, so it would be about 11 years.
10 Q. And have you continuously been beard certified
11 since then?
12 A. Yes, in beth family practice and psychiatry.
13 Q. Hew long have you been with Philhaven?
14 A. I've been with Philhaven new for about five and a
15 half years.
16 Q. You indicated that you focus your practice en
17 geriatric psychiatry?
18 A. That's correct.
19 Q. Hew long have you focused en geriatric psychiatry?
20 A. Since I've been at Philhaven primarily, although
21 prier to that I had worked at Wernersville State Hospital
22 for six years, and half of that time was also in
23 geriatrics at the state hospital.
24 Q. So to save me a little bit ef arithmetic, how len(
25 have you been focusing on geriatrics?
1 A. About nine and a half years -- no, I'm sorry.
2 Yeah, about nine and a half years.
3 Q. Now, am I correct then that's simply been a focus
4 of your practice? There's no particular certification?
5 A. That's correct.
6 MR. FLOWER: Cross-Examination on
7 qualifications.
8 HR. THOMAS: I have none.
9 DIRECT EXAMINATION
10 BY HR. FLOWER:
11 Q. Dr. Myers, does Philhaven have some sort of
12 arrangement with Green Ridge Village to provide services
13 to patients there?
14 A. Yes, psychiatric consultation services.
15 Q. Do you in fact have a relationship with a number
16 of nursing homes?
17 A. Yes.
18 Q. How many nursing homes do you service?
19 A. Currently about 18.
20 Q. And was there a time when you met with Eleanor U.
21 Coolidge and she became a patient of yours?
22 A. Yes, there was.
23 Q. Can you tell us when you first had a
24 patient/client relationship?
25 A. The first time she was seen in consultation by
7
1 Philhaven my colleague who was covering me saw her. Tha
2 was in March, actually March 24th of 2003. I
3 subsequently saw her for the first time in follow-up on
4 May 19th, 2003.
5 Q. Approximately how many times do you think you met
6 with Mrs. Coolidge?
7 A. I personally met with her a total of three times.
8 Q. And could you give us those dates, please?
9 A. May 19th, 2003, July 14th, 2003, and December 8th
10 2003.
11 Q. Would you tell us what the purpose was of your
12 meeting with her on those three occasions taking them on
13 at a time, please?
14 A. The first two would have been basically the same
15 as follow-up for treatment of her history of major
16 depression as well as anxiety disorder, and there was
17 also a provisional diagnosis of dementia.
18 Q. When you say provisional, what do you mean?
19 A. That diagnosis was unclear as to whether there wa~
20 a primary dementia or whether she had some cognitive
21 difficulties related to her depression and anxiety and
22 also possibly some of the medications she was receiving.
23 Q. After you saw her in May, what kind of medication~
24 did you prescribe?
25 A. At that time she was taking Prozac for depression.
1 She was using Ambien to sleep, and she was also
2 prescribed Xanax as needed for anxiety which she had not
3 used, so we discontinued that on that date. She was als~
4 taking another medication called Hydroxyzine or a generi~
5 form of Vistaril for anxiety. And at that date I also
6 reduced the dose of that since her anxiety was doing
7 well, and I was also concerned that some of the side
8 effects of that medication could have been affecting her
9 ability, her cognitive abilities.
10 Q. Was there anything else remarkable about that
11 visit in May?
12 A. No. Actually, as I recall and by the records, sh~
13 was doing fairly well then except for some anxiety.
14 Q. I believe you said the next time you personally
15 met with Mrs. Coolidge was in July. Was that
16 July 14th, 2003?
17 A. That's correct.
18 Q. Okay. Now, I've shared the notes that your office
19 or that were provided to me with opposing Counsel, and
20 I'll refer you to that note of July 14, 2003.
21 A. Yes.
22 Q. Is there any reference to Mrs. Coolidge's daughter
23 in that note?
24 A. Yes, there was.
25 Q. And what was that reference?
9
1 A. She said she had a problem with her daughter whick
2 had been making her feel more anxious, upset.
3 Q. Did she tell you anything more in detail about
4 that or is that all that you recall?
5 A. That's all that I recall other than as I recall
6 she indicated there had been some ongoing difficulties in
7 their relationship, but I don't recall what the details
8 of that were. I did not note the details in my note.
9 Q. In between -- and what treatment did you prescribe
10 after that visit, what medication I should say?
11 A. Because she was having some difficulty with her
12 appetite I reduced the dose of Prozac and started her on
13 an antidepressant Remeron which would actually help her
14 appetite. She was also at that point on Aricept to see
15 if that would help her cognitive abilities. I believe
16 that must have been started by another physician because
17 we did not begin that medication, and we left that
18 medication alone even though that was also potentially
19 one that could decrease her appetite.
20 Q. Was there anything else remarkable about that
21 visit with Mrs. Coolidge?
22 A. No, I don't think so. She was continuing during
23 this time to be seen by a therapist who we had referred
24 her to for therapy, one of our Philhaven therapists, and
25 she was actually by her notes doing fairly well.
10
1 Q. When you say therapist, there are a number of
2 different kinds of therapists. Could you be more
3 specific?
4 A. Yes, she's a psychiatric social worker.
5 Q. Did you see -- when I ask you whether you saw
6 Mrs. Coolidge, did you typically visit with her in her
7 room or in a consulting room or what?
8 A. Usually in her room.
9 Q. And did you see her again before December 8th,
2003?
11 A. No, I did not.
12 Q. Did someone contact you to see if you could meet
13 with her on December 8, 2003?
14 A. Yes, her attorney asked me if I would meet with
15 her to be a witness to a Will that she wanted to revise.
16 Q. Ail right. So the purpose of this meeting was to
17 witness the Will as opposed to a therapeutic visit, is
18 that correct?
19 A. Yes, and to also assess her capacity to make a
20 change in her Will that she was mentally capable to do
21 that.
22 Q. Where did you meet Robert Frey at that -- on that
23 occasion?
24 A. I met her -- I met him at the nursing home.
25 Q. So he was not with Hrs. Coolidge before you met
11
1 with him?
2 A. No.
3 Q. And you went with him to your patient's room?
4 A. That's correct.
5 Q. Ail right.
6 A. And I indicated to him that I wanted to speak with
7 her first before we did the witnessing of the Will.
8 Q. Just so we're quite clear, where in that building
9 did you meet with Mr. Frey?
10 A. As I recall, I met him somewhere in the lobby neaz
11 the entrance, and then we went together to the room.
12 That's my recollection.
13 Q. Was there anyone else in Mrs. Coolidge's room
14 other than she and you and Mr. Frey during this process?
15 A. Not that I recall, no.
16 Q. Would you review for us what you discussed with
17 Mrs. Coolidge before witnessing the Will?
18 A. Yes, I basically went through a mental status
19 examination asking her where she was, what the date was,
20 and she seemed able to -- she was fully oriented at that
21 time.
22 Q. Well, is there a particular name for the
23 examination that you went through?
24 A. Mental status examination.
25 Q. Okay. I'm going to ask you to slow down as you go
12
1 through this.
2 A. Okay.
3 Q. And as best you can recall each of the questions
4 you asked her and hew she responded, and ef course you
5 may refer to your notes. And first I'll ask you is it
6 accurate that your basic recollection of a number ef the
7 events in her room is included in your note of
8 December 8, 2003?
9 R. Yes, that's correct.
10 Q. Okay. If you just review what you discussed with
11 her?
12 A. I asked her if she was aware of her own name,
13 which she was, se that would indicate te me that she was
14 oriented te her person. I asked her where she was livin~
15 at that time, and she was fully oriented te the place
16 where she was. And then I asked her the time erientatio]
17 which would have been the month, the date and the year,
18 and she apparently answered all ef these questions
19 correctly.
20 Q. Were there any other questions you asked her te
21 determine her mental state?
22 A. I asked her about, you knew, what she wanted te dc
23 in regards te changing her Will, and she mentioned that
24 she wanted te change it te net include her daughter in
25 the Will. I asked a bit about that and apparently was
13
1 something that she had made up her mind to do some time
2 before and still said she consistently wanted to do that
3 because ef difficulties in their relationship. The only
4 ether thing that I remember her saying was that I asked
5 her if she really wanted to de that, and she said she
6 did, that she felt her daughter would get what she
7 deserved from her father's Will, and that she did net
8 want te include her in her Will.
9 We also -- I also asked her about her mood. She
10 said her mood was good. Another test we do in mental
11 status testing to test concentration is ask people to
12 spell backwards. So I had her spell the word world
13 forwards and backwards which she at times had difficulty
14 doing, but did well on that at that time.
15 Q. So just to clarify that point, there were times
16 when you asked her to do that before this day when she
17 had difficulty?
18 A. I hadn't asked her to do that before, but my
19 associate who saw her in March had asked her to do that,
20 and by his notes she was unable to do that task at that
21 time.
22 Q. But on this particular day she could do it?
23 A. She could do it.
24 Q. What else did you observe about her condition at
25 that time?
14
1 A. It was clear to me from when I had seen her
2 previously that she had declined physically. She had
3 more difficulty expressing herself, finding the words,
although she was actually able to do it when she wasn't
5 rushed. She -- I'd also asked her what the new year was
6 going to be since it was drawing close to New Year, and
she knew that. That was also part of the time
8 orientation. My notes indicated that I at that time did
9 not sense anything that would be psychotic which would
10 affect her judgment in regards to the situation.
i1 Q. Were you able to make any judgment with respect to
12 her insight and her personal judgment?
13 A. My note indicates that at that time I thought her
14 insight and her judgment seemed to be intact.
15 Q. Did you observe any apparent cognitive deficits?
16 A. I did not on that day. At least I did not have
17 any recorded in my note that I saw.
18 Q. Preliminarily did you discuss with her if she kne~
19 why you were there?
20 A. Before?
21 Q. Yes.
22 A. She knew that I was there te witness her Will.
23 Q. You asked her that, and how did she respond?
24 A. That was fine. It was no problem with that that
25 -- as I recall.
15
1 Q. Did you ask her whose idea it was to change her
2 Will?
3 A. I don't recall if I specifically asked her that
4 question or not.
5 Q. Do you recall if anyone asked her either you or
6 Mr. Frey whether she had been influenced by anybody else{
7 A. I don't recall if that question was asked.
8 Q. How was her speech at that time?
9 A. Her speech was -- she had speech impairment, but
10 was able to communicate. It took her longer than I
11 remembered her on previous visits to express herself.
12 Q. Did you feel you understood what she said to you?
13 A. Yes.
14 Q. Do you feel she understood what you said to her?
15 A. I had no reason to doubt that.
16 Q. Was she alert or confused during the course of
17 this process?
18 A. She seemed very alert.
19 Q. When you were there, did you observe Hr. Frey
20 reading any portion ef the Will to her?
21 A. Yes, he reviewed the Will with her.
22 Q. Did you observe him giving the Will te her to
23 read?
24 A. I don't recall whether she was given it to read or
25 not.
16
1 Q. We only want you to tell us what you recall. If
2 you don't recall, that's fine.
3 A. Yes, I don't recall that.
4 Q. Was she able to sign the Will?
5 A. Yes, with some difficulty, again, just because of
6 her motor difficulties she was having.
7 Q. Were you sufficiently ~atisfied with her mental
8 state that you felt that it was appropriate for you to
9 witness the Will?
10 A. Yes, I was.
11 Q. Is the mini -- is the mental state exam that you
12 gave a standard sort of examination?
13 A. It's a standard sort of examination. I did not
14 use the full battery of the mini-mental, but much of what
15 I asked her is included in the mini-mental state
16 examination.
17 Q. Did you leave the room with Mr. Frey?
18 A. Yes, I did, as I recall.
19 Q. You have in your notes under Interventions and
20 Treatment Plan a note at No. 5. Would you read that for
21 US?
22 A. "Seems very capable of making decisions in her ow~
23 interest without apparent cognitive deficits today."
24 Q. What did you base that conclusion on?
25 A. The fact that she was able to respond to my
17
1 questions when doing the mental status examination.
2 MR. FLOWER: That's all I have on Direct.
3 CROSS-EXAMINATION
BY MR. THOMAS:
5 Q. Okay. Dr. Myers, did you ever do a psychiatric
6 examination of Eleanor Coolidge?
7 A. Now, when you say a psychiatric examination,
8 that's what I would say that we did on December the 8th
9 when I saw her.
10 Q. Okay. Well, let's start with the initial
11 evaluation. That is the one that was done by your
12 colleague?
13 A. That's correct.
14 Q. And your colleague is whom?
15 A. Dr. -- this one was done by Dr. Michael Carvel.
16 Q. And I assume that Dr. Michael Carvet is the one
17 who would have indicated that in the past Eleanor
18 Coolidge was unable to spell the word world backwards?
19 A. That's correct.
20 Q. Could you show me in that initial evaluation where
21 that is stated?
22 A. Yes, that would be on the fourth page of the
23 evaluation under Mental Status Examination. It's a page
24 that the top has Delusions, Hallucinations. Be the page
25 right before the eno that you've picked up.
18
1 Q. I'm afraid I don't have that one. Could I see it
2 A. Yes, you may, and it's down here in this part.
3 MR. FLOWER: Could I see it too before you
4 question him?
5 BY MR. THOMAS:
Q. And what is the significance of her inability to
7 spell the world backwards?
8 A. That's primarily a test of ability to concentrate
9 It often indicates a dementia or delirium or possibly
10 confusion related to drugs. It can also be seen in
11 something like severe depression because a person's
12 inability to concentrate when they are depressed.
13 Q. Okay. Now, when Dr. Carrel completed this initial
14 evaluation under Section 9, Diagnoses, he puts in there
15 Dementia NOS, and then in parens, provisional, end
16 patens. State -- would you state again what that means?
17 A. Dementia NOS is -- the NOS stands for not
18 otherwise specified. That is an indication of possible
19 cognitive deficits or dementia, but the cause cannot
20 clearly be stated such as a stroke or Alzheimer's
21 disease.
22 Q. Did you or Dr. Carvel take any procedures to try
23 and confirm that provisional diagnosis?
24 A. We did not at that time. When I saw her in May,
25 because of some cognitive difficulties then, for example,
19
1 she at that time when I saw her in Hay theught the menth
2 was September, I had done -- I had erdered a Vitamin B12
3 and a thyreid test to be sure there was net medical
preblems underlying the dementia. And alse, we were
5 adjusting her medications in case the medication was
6 centributing to this problems.
7 Q. Now, if we look at your report dated Hay 19th,
8 there's seme mentien in there about a neurelogical
9 censult?
10 A. Yes.
11 Q. Did you have the benefit of reviewing a
12 neurelegical censult that had been written by
13 Dr. Jurgensen?
14 A. Yes, I did.
15 Q. And do you have that in your recerds?
16 A. I de not have that in my records. That was in th~
11 nursing home recerd.
18 HR. THOHAS: Okay. I'd like te have this
19 marked as Petitioner's Exhibit No. 1.
20 (Petitiener's Exhibit Ne. 1 was
marked fer identification.)
21 BY MR. THOMAS:
22 Q. I want te shew yeu what I marked as Petitiener's
23 Exhibit Ne. 1 and ask yeu if that is the censult that ye~
24 referred te in yeur Hay 19th meeting with Eleaner
25 Ceelidge, ether than the highlighted part?
2O
1 A. TO the best of my memory this would be very
2 similar to what I would have reviewed.
3 Q. You want to take a minute to read that now becau~
4 I want to ask you some questions.
5 A. Okay.
6 Q. Okay. New, doesn't that report indicate that
7 based en history Eleanor Coolidge had been suffering
8 serious deterioration and cognitive and intellectual
9 functioning for at least eno year prior to the date ef
10 that report?
1] A. It would indicate that to me.
12 Q. And again, the date ef that report is what?
13 A. April 30th, 2003.
14 Q. Okay. In addition, it reports that she gradually
15 had become nonambulatery?
16 A. Yes.
17 Q. New, Dr. Jurgensen made a diagnosis that she was
18 suffering from degenerative brain disease; is that true?
19 A. That's correct.
20 Q. And basically comes right out and says she is
21 demented?
22 A. That's correct.
23 Q. Did that have any impact en your notes which
24 continue te indicate dementia NOS provisional?
25 A. Yes, although the main difference was, if you
21
1 recall in Dr. Carvel's note, he made that as a
2 provisional diagnosis, and in my consult of May 19th I
3 moved it dementia NOS to primary diagnosis. The 294.8
4 code that's listed under diagnosis is the dementia NOS
5 code, so that was moved to a primary diagnosis.
6 Q. Ail right. So as of May 19th of 2003 you would
agree, in fact, you changed your primary diagnosis to
8 dementia?
9 A. Yes, with continuing the other secondary
10 diagnoses.
11 Q. And the secondary diagnosis was?
12 A. Anxiety disorder and major depression recurrent.
13 Q. Were there any tests conducted to diagnose the
14 cause of Eleanor Coolidge's dementia?
15 A. We had done, as I mentioned, a thyroid and the
16 Vitamin B12 levels. She did have a CT scan of the brain
17 Now, I note -- I noted that in my May 19th note that she
18 had had a brain CT scan. I did not order that. I assum
19 that must have been ordered either by her primary
20 physician or Dr. Jurgensen which showed atrophy of her
21 brain.
22 Q. What is the significance of atrophy of her brain?
23 A. That's hard to say what the significance of that
24 is because in most people her age you will see some
25 atrophy. It's a very nonspecific finding because you'll
22
1 find atrophy in people that are normal, but you can also
2 see it in people who are demented. So that by itself is
3 not a very helpful finding.
4 Q. Did you make an attempt to find out where the
5 atrophy in her brain was located?
6 A. At that time I did not or at least I do not recall
7 doing that.
8 Q. Did you ever?
9 A. No.
10 Q. That would have helped you to determine the cause
11 of -- either eliminate or determine the cause of her
12 dementia, would it not?
13 A. Again, the scans are very nonspecific, and a lot
14 of the diagnosis of dementia really still remains
15 clinical based on mental status testing and how a person
16 responds to, you know, elimination of medications that
17 might be making it worse which was one of the changes I
18 made in May because I was concerned that medications may
19 have been contributing to her cognitive decline.
20 Q. Okay. Dr. Carvel's initial evaluation also
21 indicates that she was a "vague historian" and also that
22 she was a more "limited" historian than he would have
23 expected. What does that mean to you?
24 A. I wasn't there to do that examination. To me it
25 would mean that she had difficulty giving him some of the
23
1 specifics that he was asking for.
2 Q. Did you ever discuss with him the reason he made
3 that statement?
4 A. No, I didn't.
5 Q. Did you find yourself that when you discussed
6 things with her that she was, to use his terminology, a
7 vague historian or a limited historian?
8 A. I did not. At least to the best of my memory I
9 did not, and in my notes I don't indicate that I found
10 her to be a vague historian.
11 Q. Did you ever request that she undergo a full
12 mental status examination so that you could further
13 diagnose her condition?
14 A. Actually, since her mental state as far as her
15 depression, anxiety improved and along with that,
16 particularly in the later notes, seemed to have improved
17 we did not pursue any further evaluation.
18 Q. Okay. You indicate that her mental state in term~
19 of the depression and the anxiety improved. There's
20 nothing in your records that indicate that her cognitive
21 abilities improved, is there?
22 A. There would only be in the last note of December
23 when we did that mental status examination.
24 Q. Okay. Other than that?
25 A. And also in April, you know, she was oriented to
24
1 the month; whereas, when I saw her in May, she was not
2 oriented to the month. So there would have been some
3 changes. There seemed to be some changing of her
4 cognitive status from visit to visit which, again, was
5 what made me concerned that there were other things
6 contributing to this.
7 When you see fluctuations like that, that's not
8 typical of something like Alzheimer's disease. When you
9 see fluctuations, you want to be sure there's not
10 something else going on that's contributing to that. Fox
11 example, medications is a common cause.
12 Q. Okay. And did you ever determine if there was
13 something else that was causing the fluctuations?
14 A. We did not, and we did not pursue it since she was
15 actually fairly stable after that point.
16 Q. I'm looking at your May 19th, 2003 note. I had
17 difficulty reading Ne. 5 under the Interventions
18 Treatment Plan. What does that say?
19 A. "Continue individual therapy for now, but if
20 decline progresses, may not benefit much longer." That
21 would have been may net benefit much longer from
22 individual therapy.
23 Q. Okay. And what is the purpose ef the individual
24 therapy?
25 A. Te help her work en some ef the stressors that she
25
1 experiences in her life. She had ongoing feelings of
2 anxiety and depression. We discussed those with the
3 therapist.
4 Q. I saw somewhere in one of your notes that one of
5 the things that upset her was her inability to remember
the date and the time and that that upset her. Do you
7 recall that?
8 A. I don't recall that.
9 Q. It's probably on your July.
10 A. I would have te review which note that was.
11 O. July 14. Just above where it says Interventions
12 Treatment Plan, the last two lines.
13 A. The July 14th note.
14 Q. Yes.
15 A. The note -- that sentence says, "had problems wit}
16 her daughter recently which upset her. Appetite has been
17 reduced. Weight was down to 90 pounds."
18 Q. Okay. You'll have to excuse my inability te read
19 your writing.
20 A. Or my penmanship.
21 Q. Okay. Ail right. Well, let's back up a little
22 bit. So as of Hay 19, 2003 it's fair te say that she is
23 suffering from some form of dementia; is that true?
24 A. Yes because there seemed to be some continuing
25 deficits in her cognitive abilities.
26
1 Q. Okay. And then moving onto July 14th. I assume
2 you had no contact with her other than these three dates,
3 is that correct?
4 A. That's correct.
5 Q. Now, in your July --
6 A. Excuse me, other than I would review the therapist
notes periodically.
8 Q. Okay.
9 A. But no persenal centact.
10 Q. July 14th, 2003, you indicate that she was
11 eriented te the menth. I would assume that yeu alse
12 checked te see whether she was eriented to the day and
13 the year?
14 A. I would assume at that point she was not at least
15 oriented to the date.
16 Q. Okay. How about to the year?
17 A. I couldn't say whether I asked that or not.
18 Q. Okay. She also indicated in that according to
19 your notes that she did not know how old she was?
20 A. That's correct.
21 Q. What's the significance of her inability to tell
22 you how old she is?
23 A. That would, again, indicate to me that she has a
24 cognitive deficit probably to the dementia.
25 Q. Again, I'm going to ask you to interpret your
27
1 writing for me. Right after she said that her husband
2 was 75 years old when he died, it starts off with "Had a
3 good marriage."
4 A. Marriage.
5 Q. What follows that?
6 A. No psychotic --
7 MR. FLOWER: Excuse me, which date please?
8 MR. THOMAS: That's the July 14th.
9 THE WITNESS: It says, "Had a good marriage.
10 No psychotic target symptoms."
11 BY MR. THOMAS:
12 Q. And as of July 14th in your treatment intervention
13 notes you indicate, again, in No. 5 that she is to
continue therapy?
15 A. Yes.
16 Q. Is that individual therapy?
17 A. Individual therapy with the clinical social
18 worker.
19 Q. Okay. Let's move up to December the 8th, 2003.
20 At that time you had not seen Eleanor Coolidge for
21 approximately five months, is that correct?
22 A. That's correct.
23 Q. And during that five-month period the social
24 worker had determined te discontinue individual therapy,
25 is that correct?
28
1 A. That's correct. I believe that was discontinued
2 on September 17th, 2003.
3 Q. And it states there because it was of no benefit
4 to her?
5 A. That's right. It also states because of some
6 cognitive decline that she was not clear that she could
7 continue to benefit.
8 Q. Okay. So that is -- that indicates that during
9 the time that she was in the Green Ridge Village Nursing
10 Home between July of 2003 and the September date of that
11 note that Eleanor Coolidge's cognitive abilities
12 declined; is that correct?
13 A. That was the therapist's interpretation.
14 Q. And from Dr. Jurgensen's report of April 30th,
15 2002 the family history is that for an entire year prior
16 to that she had suffered serious deterioration in her
17 cognitive abilities, correct?
18 A. That's what his note says.
19 Q. May 19, 2003, the first time you saw her your
20 notes indicate she was not oriented to time, correct?
21 A. That's correct.
22 Q. And July 14th, 2003 she did not know how old she
23 was?
24 A. That's correct.
25 Q. And if I understand your testimony correctly, on
29
1 December the 8th your testimony is that she was fully
2 oriented to person, place and time?
3 A. Yes, I remember being surprised at how well she
4 did at that time.
5 Q. Ail right. And you gave her a mini-mental status
6 examination?
7 A. No, I did a mental status examination. I didn't
8 do the official mini-mental state examination.
9 Q. It takes all of ten minutes to give someone the
10 official mini-mental status examination, correct?
11 A. That's correct.
12 Q. And that had you given her that test would have
13 provided you with a much more detailed information from
14 which to conclude her mental capacity at that time, would
15 it not have?
16 A. Not much more detailed. It would have provided a
17 few additional factors, but not a lot more than this.
18 Q. The mini-mental status examination, isn't that
19 something recognized in the psychiatric field as an
20 appropriate test to determine --
21 A. Yes.
22 Q. -- capacity?
23 A. Yes. Not to determine capacity. To determine
24 cognitive ability.
25 Q. Okay. Which cognitive ability relates to the
3O
1 capacity to understand?
2 A. It may to a certain extent depending how
3 cognitively impaired somebody is.
4 Q. And if I understand you correctly, you chose not
5 to give that mini-mental status examination?
6 A. I chose not to do that at this time, yes.
7 Q. And in fact, from looking at your notes there are
8 -- although there are five parts to the mental --
9 mini-mental status examination, you basically only
10 covered one or two of those sections; is that correct?
11 A. That would be correct.
12 Q. One was to determine --
13 A. Orientation.
14 Q. -- orientation. And the other her ability to
15 calculate?
16 A. Her concentration ability, ability to calculate.
17 Q. You didn't give her any memory tests.
18 A. I did not other than I indicated that her memory
19 recent and remote seemed intact, so I obviously asked her
20 some questions about memory. I don't recall what those
21 were.
22 Q. So you couldn't identify now what you meant by
23 recent and remote with specifics?
24 A. No, I can't right now, that's correct.
25 Q. And you did not give her any of the language
31
1 portion of the mini-mental status examination either, is
2 that correct?
3 A. No, I did not.
4 Q. How long were you in the room with her attorney
5 and her for the execution of this Will?
6 A. As I recall, it would have been 15 to 20 minutes
7 Q. Okay. And during that 15 to 20 minutes you would
8 have, one, done your version of the mental status
9 examination. How long would that have taken?
10 A. I would estimate five to eight minutes.
11 Q. Okay. Then there would have been some discussion
12 with Eleanor about why you were there?
13 A. Yes.
14 Q. Okay. And did Mr. Frey participate in that
15 discussion or was that just between you and Eleanor?
16 A. My part was just between Eleanor and myself. Then
17 he took over when it came to witnessing the Will and
18 explaining that to her.
19 Q. Ail right. And how long did that take?
20 A. Probably wasn't five, ten minutes I would guess,
21 wasn't long.
22 Q. All right. Then at some point Mr. Frey would hav
23 reviewed the contents ef the Will with Eleanor in your
24 presence?
25 A. Yes.
32
1 Q. Did he review the entire contents of the Will with
2 her in your presence?
3 A. I don't recall whether he read the whole Will or
4 not.
5 Q. Did Eleanor ask any questions about the contents
6 ef the Will?
7 A. She as I recall did net ask many questions. She
8 indicated she wanted to sign it.
9 Q. And I believe you indicated that she had
10 difficulty signing the Will, is that correct, physically?
11 A. Physically, yes.
12 Q. Ail right. Was there any indication while you
13 were present in the reem er any discussion concerning
14 what Eleanor's understanding was ef the value or size of
15 her estate?
16 A. I don't recall that.
17 Q. Does that mean there was ne discussion ef that
18 factor?
19 A. I would not recall there being any discussion ef
20 the size er value ef this estate.
21 Q. Was there any discussion in your presence with
22 Eleanor that in fact by signing this Will she was, and
23 I'm talking about December the 8th new, that she was in
24 fact disinheriting her daughter?
25 A. Yes.
33
1 Q. Do you recall what the reason was that she gave
2 for disinheriting her daughter?
3 A. As I said earlier, the main thing that I recall is
4 that there were difficulties in her relationship. I do
5 not recall the specifics of that.
6 Q. I believe on Direct Examination you testified that
7 the reasons had more to do with she would be receiving a
8 fair share from her father's estate?
9 A. I don't think I would have used the word fair
10 share, t think she would have -- what she would get from
11 her father's was enough; that she was net wanting her te
12 be part of her Will.
13 Q. De your notes indicate when her Attorney,
14 Mr. Frey, would have contacted you about witnessing the
15 Will?
16 A. No, they don't.
17 Q. Do you have any independent recollection as te he~
18 far in advance of this particular day that he contacted
19 you?
20 A. I don't recall when he contacted me. No, I don't.
21 Q. Would you have made an agreement te travel to
22 Green Ridge Village en that particular day if it was net
23 one of your regularly scheduled visits?
24 A. I likely would net have. As a matter ef fact, I
25 think when we talked I asked him te try te make it ena
34
1 day that I would be there because of its distance from
2 where I live and work usually.
3 Q. Would you have any records in your office that
4 would indicate when Mr. Frey contacted you about
5 scheduling this meeting?
6 A. I don't think I would.
7 Q. In the time that Eleanor Coolidge was at the Green
8 Ridge Village Nursing Home did you ever get a copy of her
9 medical history from any of her previous treating
10 physicians?
11 A. No, I didn't other than reviewing what was in her
12 record at the Village when I would see her.
13 Q. So your -- the records that you would have had for
14 your benefit would have been only what Green Ridge
15 Village had already?
16 A. That's correct.
17 MR. THOMAS: No further questions.
18 REDIRECT EXAMINATION
19 BY MR. FLOWER:
20 Q. Dr. Myers, we both asked you some questions that
21 relate to your medical opinion on various things. Have
22 you expressed all of your opinions to a reasonable degree
23 of medical certainty?
24 A. Yes.
25 Q. Now, let me ask you, any other opinions I ask you
35
1 from here on in, and there will be a few, will you
2 express all these tea reasonable degree ef medical
3 certainty?
4 A. I will try.
5 Q. What's dementia?
6 A. Dementia is cognitive impairment. It's a general
7 term that can mean different types of cognitive
8 impairment, and there are different types of dementia.
9 Q. Are there some people who have some dementia who
10 will understand what a Will is?
11 A. Yes.
12 Q. And some people who can remember who their
13 children are?
14 A. Yes.
15 Q. And some who generally know what their assets
16 might consist of?
17 A. Yes.
18 Q. When someone has dementia, can they have
19 fluctuating degrees of mental capacity?
20 A. Yes.
21 Q. ~nd it appears based upon your records and your
22 testimony on Cross-Examination that Mrs. Coolidge had
23 some fluctuation?
24 A. She certainly seemed to, yes.
25 Q. And in December she seemed to have greater mental
36
1 capacity than she did on the earlier two dates that you
2 saw her?
3 A. It appears to be that way. I was, as I mentioned,
4 surprised.
5 Q. When you saw her in Hay, and I'm trying te
6 remember exactly what opposing Counsel asked you, but is
it accurate that you said that en that occasion, er maybe
8 it was July, you'll have to correct me, that you had sem(
9 concern that her medications may have contributed te her
10 cognitive decline?
11 A. Yes, that was in May.
12 Q. Okay. And did you in fact adjust medications at
13 that time?
14 A. Yes.
15 Q. Now, what was the adjustment that you made?
16 A. A reduction in the dose of her Vistaril. I think
17 as I recall she was on 25 milligrams, and we reduced it
18 to 10 to minimize, as I said in my note, lethargy,
19 anticholinergic adverse effects which is a side effect
20 that can impair cognition and many medications have.
21 Q. What result were you hoping to achieve by making
22 that adjustment?
23 A. That she would have less difficulty with being
24 drowsy and that she would also be clearer mentally.
25 Q. Now, there's one of your answers that I need to
37
clarify. Opposing Counsel asked you if you recalled
2 whether there was any discussion of Mrs. Coolidge's
assets in December, and I'm trying to understand whether
4 your answer indicated that there was no discussion or
5 whether you're simply indicating you don't recall whether
6 or not there was a discussion?
7 A. I do not recall whether or not there was a
8 discussion.
9 MR. FLOWER: That's all I have.
10 RECROSS EX~AHINATION
11 BY HR. THOMAS:
12 Q. Is there anything in your recerds that would
13 establish that any alteration yeu made in her medicatien
14 helped her cegnitive abilities?
15 A. The erie pessibility is that she was placed en
16 Aricept which is a medication that's used in peeple that
17 have -- particularly it's appreved for Alzheimer's
18 disease, although it's used in other types ef dementia as
19 well.
20 The other pessibility was that we did change --
21 make changes in her antidepressants. And certainly it
22 seems that her mood had improved and remained fairly geec
23 as well as less anxiety during the period despite her
24 physical decline, and that we had changed her -- reduced
25 the dose ef her Prozac and put her en Remeren which is
38
1 another antidepressant. Those would be the two major
2 factors that could make some difference.
3 Q. All right. But if I understand you correctly,
4 you're not testifying with any degree of medical --
5 reasonable medical certainty that those changes in the
6 medication improved her cognitive abilities?
7 A. The reason I would not say that is because the
8 difference that I saw between my first two visits and thc
9 last one was much greater than we usually see from those
10 medications.
11 Q. Okay. And you've indicated several times now thai
12 you were quite frankly surprised at her cognitive
13 abilities on December the 8th, 2003. Why do you say that
14 you were surprised?
15 A. Because she was able to answer questions then thal
16 she hadn't been able to answer previously.
17 Q. And is there anything in the records that
18 indicates that there were other times during her stay at
19 Green Ridge Village when she was able to answer those
20 types of questions?
21 A. Not that I recall.
22 HR. THOMAS: No further questions.
23 MR. FLOWER: Is there anything in the records
24 that you see that establishes that there were not other
25 times when she could have answered those questions?
39
1 THE WITNESS: No.
2 MR. FLOWER: No further questions.
3 VIDEOTAPE OPERATOR: This concludes the
4 deposition of Herbert Myers, M.D. The time is now 5:03
5 p.m. as indicated on the screen.
6 (Proceedings concluded.)
7 ***
8 I hereby certify that the proceedings are
9 contained fully and accurately in the notes taken by me
10 on the hearing ef the above cause, and that this copy is
11 a correct transcript ef the same.
~athy J. ~he~y/
14 uourt SteSog~apher
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