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HomeMy WebLinkAbout04-05-05 Volume II INDEX TO WITNESSES FOR PETITIONER DIRECT CROSS REDIRECT RECROSS Robert M. Wettstein, M.D. 5 12 18 Helen Kollas 20 22 FOR RESPONDENTS Michael B. Devlin 30 38 Renee Kreamer 45 59 87 89 Judith Foster Wali 93 99 102 Philip Coolidge 103 118 Thomas E. Coolidge 130 2 INDEX TO EXHIBITS FOR PETITIONER MARKED ADMITTED Ex. No. 11 - progress notes 4 25 Ex. No. 12 - progress notes 66 136 Ex. No. 13 - progress notes 80 136 Ex. No. 14 - 11/26/03 letter 84 136 FOR RESPONDENTS Ex. No. 1 - video of Dr. Brazel 25 137 Ex. No. 2 - transcript of Dr. Brazel 25 137 Ex. No. 3 - video of Dr. Myers 26 137 Ex. No. 4 - transcript of Dr. Myers 26 137 Ex. No. 5 - medical records 27 28 Ex. No. 6 - (7 ) photographs 29 137 Ex. No. 7 - 5/3/04 letter 29 137 Ex. No. 8 - authorization 29 137 Ex. No. 9 - Tom Coolidge report 29 137 Ex. No. 10 - 3/1/05 letter 38 137 Ex. No. 11 - income tax return 130 137 Ex. No. 12 - record of checks 131 137 Ex. No. 13 - will (6/16/03) 133 137 3 1 (Whereupon, Petitioner's Exhibit Number 11 2 was marked for identification.) 3 THE COURT: This is the time and place for a 4 resumption of the hearing in the matter of Eleanor U. 5 Coolidge at No. 21-03-936 Orphans' Court. Mr. Thomas. 6 MR. THOMAS: Your Honor, Dr. Wettstein was in 7 the middle of cross examination when we had to recess on 8 Monday afternoon. It was agreed at that time that he could 9 complete his testimony by telephone, and I am ready to dial 10 him up at this time. 11 THE COURT: All right. 12 (Whereupon, a telephone call was placed to 13 Dr. Robert M. Wettstein.) 14 MR. THOMAS: Dr. Wettstein, it's Mark Thomas 15 at the courthouse in Carlisle. 16 DR. WETTSTEIN: Good morning. 17 MR. THOMAS: Good morning. We are going to 18 resume your testimony. There may be something that the 19 Court would like to advise you of before we begin your cross 20 -- or resume your cross examination since we've had a 21 recess. 22 THE COURT: Dr. Wettstein, you are still 23 under oath. 24 DR. WETTSTEIN: Yes. 25 THE COURT: Mr. Thomas. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DR. WETTSTEIN: Thank you, Your Honor. CROSS EXAMINATION (CONTINUED) BY MR. FLOWER: Q Dr. Wettstein, can you hear us? A I can hear. Can you get a little closer to the speaker phone? Q Yes. A Thank you. Because I hear a large echo. Q I'm going to turn the volume up a little bit. If you don't hear any of my questions, please let me know so that I can be clearer. A Okay. Q Now, it's been three days Slnce you've testified, and I'd like to summarize your testimony as I understand it. You interviewed Julia Coolidge-Stolz and Helen Kollas, who was identified for you by Petitioner, correct? A Yes. Q Okay. You did not interview anyone who observed or interacted with Mrs. Coolidge on the day she signed the will. Specifically, you did not interview Dr. Myers, a psychiatrist who witnessed the will, Attorney Frey, who drafted the will and witnessed it, or Renee Kreamer, the administration of Green Ridge Village who saw her every day, including the day she signed the will; is 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that correct? A Correct. Q You did not interview her treating physician, Doctor Brazel THE COURT: Could you slow down just a little bit, Mr. Flower, for the stenographer? MR. FLOWER: Yes. I'm sorry. BY MR. FLOWER: Q You did not interview her treating physician, Dr. Brazel, who knew her over a period of 18 years? A Correct. Q And you did not have an opportunity to interview her son, Philip? A Correct. Q Okay. I think you also testified that you did not have an opportunity to review the transcript of the March hearing, which included extensive testimony of Attorney Frey and Renee Kreamer? A As of the time of the preparation of my report, I did not review that transcript, but I have subsequently reviewed it. Q Okay. And I think you testified that you did not have enough information to form an opinion as to whether she had testamentary capacity on the date she signed her will, December 8, 2003? 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q You quoted Petitioner to the effect that she did not have a long standing conflict with her mother, and in doing so you did not take into account the testimony of decedent on November 17 that she did, and the testimony of Dr. Brazel that Mrs. Coolidge complained about her relationship with her daughter at almost every office visit? THE COURT: Could you slow down just, again, a little bit. You're reading your questions, and it's hard for the stenographer to go that fast. MR. FLOWER: I'm sorry. I'm not usually this fast. THE COURT: That's all right. BY MR. FLOWER: Q I'm going to start that question again. You quote Petitioner to the effect that she did not have a long standing conflict with her mother, and in doing so, did not take into account the testimony of decedent in November that she did, and the testimony of Dr. Brazel that Mrs. Coolidge complained about her relationship with her daughter at almost every office visit, and the testimony of Renee Kreamer that she did; is that correct? A No, I don't think that's correct. I did take into consideration the fact that there are discrepancies in the reports with regard to how much conflict there was 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 between Julia and her mother. Q Okay. A Maybe she's telling different people different things or it's different people's impressions about that situation. Q All right. You concluded, I think, that she had dementia, but you weren't sure exactly what type of dementia; is that right? A Yes, that's correct. Q And I think you reached a conclusion that anyone who has dementia has weakened intellect? A Of this magnitude, yes. Q I believe that you testified that as a result of her weakened intellect, she was susceptible to undue influence; is that correct? A Yes. Q But I don't believe you testified to knowledge of any facts that show that she was unfairly influenced by either side; is that correct? A Could you repeat that question, please? Q Yes. I don't believe you testified to any facts that show she was unfairly influenced by either side? A I'm still not quite sure I understand the question. I'm not a fact witness, obviously, here. Q Okay. 8 1 2 3 4 5 6 7 8 ,9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A So I'm not going to testify as to the facts. Q All right. Well, you have no knowledge of any facts that show that she was unfairly influenced by either son, do you? A Well, what I testified to is what I was told by Mrs. Kollas. For instance, that Eleanor felt that she was pressured by her son, Tom, in several areas, including financial areas. Q All right. That's only what she told you? A Yes. Q And in concluding that she had weakened intellect, did you take into account her refusal to change her will in a way that was requested by Philip with Thomas in court? A I hadn't been aware of that particular fact at the time, but I do consider that at this point, yes. Q Were you aware that she expressed a desire to change her will to exclude her daughter on the day of the hearing on November 17, 2003? A Are you asking me -- she didn't testify I'm not sure of the question. Could you repeat that, please? Q Okay. Were you aware that Mrs. Coolidge expressed a desire to change her will to exclude her daughter on the day of the hearing on November 17, 2003, and 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that she remained consistent in that desire through her first meeting with Mr. Frey and through the will signing on December 8, 2003? A Yes, I am. Q Would you have expected her mental condition to have changed materially between the date of the hearing on November 17 and 21 days later when she signed the will on December 8? A The question goes to the word materially. There may be some fluctuation in her mental condition due to anxiety and depression and the conflict of the situation, but basically the dementia wouldn't have changed substantially in that short period of time. Q Okay. Is it fair -- A So the answer would be yes and no. Q Okay. What you're saying is she might have gone up and down, depending upon any number of situations, but her underlying physical condition which impacted her mental state of mind would not have materially changed in 21 days? A The underlying dementia would not have materially changed, but as we know, she had long standing depression and anxiety, which did impair her functioning. So that could contribute to problems or make it worse. Q Okay. Or by the same token, if she was doing 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well with those issues of depression in December, she might be better than she was in November? A That's possible. Q And demented people -- people who have various types of dementia may have better days, good days and bad days, lucid intervals? A Well, that's a compound question. Q Let me break it down. I don't mean to -- I'm not trying to trick you. People with dementia may have good days and bad days. They may be clearer on some days than others? A Just like all of us. Q Okay. And isn't it true that somebody who has an impairment of dementia -- this may be the same question -- may be significantly more lucid on one day than another? A Yes. There is some fluctuation in people's cognitive functioning and deficits with dementia, as well as for those of us who don't have it. Q All right. A However, people with dementia don't recover. They're not completely recovered or well on those better days. Q Now, looking at your report on the whole, Doctor, I understand, of course, you're employed by the 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Petitioner. It seems to me that your report reviews all facts in the light most favorable to the Petitioner. Would you think that would be an unfair conclusion? A That was certainly not my intention. So I can't speak to your perception of it. Q Okay. THE COURT: Anything further, Mr. Flower? MR. FLOWER: No further questions, Your Honor. THE COURT: Mr. Frey. MR. FREY: No questions, Your Honor. THE COURT: All right. Mr. Thomas. REDIRECT EXAMINATION BY MR. THOMAS: Q Dr. Wettstein, you were asked on cross examination about whether or not you were aware of Dr. Brazel's testimony that Eleanor Coolidge complained constantly about her daughter, Julia, whenever she would visit him. Do you recall being asked that question? A I do. Q Did you review the notes of Dr. Brazel over the past 18 years? A I did. Q Anywhere in those notes covering the period of 18 years, was there any notation that Eleanor Coolidge, 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in fact, complained of her daughter? A I don't specifically recall at this point without having to go through it again. Q Do you recall seeing any notations about her complaining regarding her relationship with her son Thomas Coolidge? A To Dr. Brazel? Q Yes. A No. Q Okay. A But, again, I don't have those in my memory because there's 25 years of records. Q Okay. In response to one of the questions asked by Mr. Flower, and I don't recall specifically the question, but in your answer you said -- you made mention of but not dementia of this magnitude. What is the significance of the magnitude of Eleanor's dementia, as you can tell, from April 2003 up through December 2003? A I recall Mr. Flower's question to me was with regard to weakened intellect, and I indicated that with dementia of this magnitude, that is of at least moderate severity, that this would constitute, in my opinion, a weakened intellect, and that's because we know that she had various pathological neurological reflexes which indicate disease of the brain in different areas that she needed to 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be in a personal care home, that she had various cognitive deficits, such as memory, judgment, and orientation to time. So in looking at the totality of the psychiatric and neurological pathology, that would constitute moderate dementia. She still did know her days. She knew the names of her children. She knew that her husband had been deceased, and that her home had been sold, at least as of November of 2003. So that the dementia was not of the most severe type, but certainly was present and of moderate severity. Q Is there anything -- did you review the testimony of Eleanor Coolidge from the November 17, 2003, hearing? A Yes. Q Is there anything in her testimony as given on that day that would lead you to conclude that this woman is competent? A Competency is specific to a particular task. So what do you mean by competent? Q Well, let's use the term that we're using in this case. Is there anything in her testimony of that date that would lead you to conclude that she had testamentary capacity at that time? MR. FLOWER: Objection. That's calling for a legal conclusion. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, Mr. Thomas, do you want to define your term testamentary capacity? MR. THOMAS: Let me rephrase the question, Your Honor. THE COURT: All right. BY MR. THOMAS: Q Doctor, you reviewed the testimony of Eleanor Coolidge on November 17, 2003, correct? A Yes. Q And you were able to read and follow the questions that were posed to her and the answers that she gave? A I did. Q Was there anything in the exchange of questions and answers that would enable a forensic psychiatrist such as yourself to make a determination as to her testamentary capacity on that date? THE COURT: Again, I think that's the same question. Without defining testamentary capacity, you're asking the doctor to define it, and I don't know whether his definition is the same as the legal definition. MR. THOMAS: All right. BY MR. THOMAS: Q Doctor, would you define testamentary capacity from a forensic psychiatric and legal standpoint? 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. It's her -- I'm sorry I can't -- is there someone else talking? I can't hear. Has the Court finished the ruling? Q The Court is still sustaining the objection, and we're looking for a foundation for you to give that answer in terms of what your definition of testamentary capacity is. A It's her mental perhaps and physical ability to make decisions with regard to her property at the time of her death. Q And what factors do you take into account in order to make that determination? A I take into account any physical or mental illness which could have any bearing upon her knowledge of her property, knowledge of her decedents, and ability to make decisions regarding her property. MR. THOMAS: And at this time, Your Honor, I would like to repose the question. THE COURT: All right. You may ask the question. BY MR. THOMAS: Q Dr. Wettstein, based on your review of the testimony given by Eleanor Coolidge on November 17, was there anything in that testimony to support a finding of testamentary capacity as you have just defined it? 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A She does -- the answer is yes and no, and if I could explain my answer. Q Please do. A I answered yes in the sense that she does know that she has children and she knows -- she said that she has 2 million dollars in property. Beyond that, there isn't any explanation of her thinking or decision making or ability to reason with regard to how to distribute her property upon her death. The questions that were posed to her relate to long term memory, such as who are your children, when did your husband die, but the questions did not explore short term memory problems, judgment or ability to reason, which are also important factors in a person's ability to decide what to do with her property upon her death. Q Okay. And, Doctor, just a couple follow-up questions. If we put aside all the interviews that you conducted, and you were asked in your capacity as a forensic psychiatrist just to review the medical records, those medical records being the records from Dr. Herbert Myers, the records from Dr. Jurgensen, the records from Dr. Brazel, would you be able to reach an opinion concerning Eleanor Coolidge's capacity in terms of weakened intellect based on those medical records alone? A Yes, I would. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And what would that opinion be? A My opinion would be that -- as I testified earlier, that she did have a dementia of moderate severity as of the time of the writing of this will in December of 2003. Q Do the records indicate to a reasonable psychiatric certainty that she had suffered from a weakened intellect for some time prior to December 8, 2003? A Yes. Q And based on the medical records alone, how far back would you go to state that the weakened intellect was a factor in her life? A Well, there is no bright line here because she did not have sudden onset of dementia, which could occur in an individual following a head injury or a stroke, for instance. In her case it was a more gradual, progressive onset, but by April 2003 when Dr. Jurgensen examined her, he made that diagnosis of dementia. So there was a period of months prior to December of 2003. MR. THOMAS: Thank you, Dr. Wettstein. THE COURT: Mr. Flower. RECROSS EXAMINATION BY MR. FLOWER: Q Just so I'm clear, Dr. Wettstein, my interpretation of your review of the testimony at the 18 1 November 17, 2003, hearing was that Mrs. Coolidge did know 2 who her children were, and did have a general sense of her 3 assets; is that right? 4 A Yes. 5 MR. FLOWER: That's all I have. 6 THE COURT: Mr. Frey. 7 MR. FREY: No questions, Your Honor. 8 THE COURT: Thank you. Mr. Thomas, anything 9 further? 10 MR. THOMAS: Not for this witness, Your 11 Honor. 12 THE COURT: All right. Dr. Wettstein, thank 13 you very much for your testimony, and you are excused. 14 THE WITNESS: Thank you, Your Honor. 15 THE COURT: You're welcome. Thank you. 16 MR. THOMAS: At this time, Your Honor, I 17 would like to recall the witness Helen Kollas. 18 Whereupon, 19 HELEN KOLLAS 20 having been duly sworn, testified as follows: 21 THE COURT: Would you restate your name, 22 please? 23 THE WITNESS: Helen Kollas, K-o-l-l-a-s. 24 THE COURT: Thank you. 25 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIRECT EXAMINATION BY MR. THOMAS: Q Helen, there were two questions that I neglected or by oversight did not ask you when you were previously testifying. The first had to do with the question of whether or not you had ever had a conversation with Eleanor Coolidge about her granddaughter's college tuition payment. A Yes. Q Do you recall when that conversation would have taken place? A It was, I'd say, the winter, meaning February or March of 2002. Q And where was that conversation? Where did it take place? A At her house, as well as in my car. I used to drive Eleanor to Chambersburg. Q For her therapy sessions? A Yes. Q Okay. Would you relate to the Court the content of the conversation that you had with Eleanor at that time back in February/March of 2002? A Eleanor was -- I use the term agitated, and I was trying to figure out why she said that Tom told her she had to pay for Devyn's college tuition. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And who is Devyn? A Devyn, I'm sorry, is her granddaughter. Q Okay. A And I didn't understand that. I said, you don't have to. She said, I do. Tom said I have to. And she showed me a check for -- not a check, a stub that she had written to the college for $9,000.00. And I said, Eleanor, you don't have to do that, and she expected -- fully expected to continue to pay as long as the child was in school, and I just said, you don't have to do that, Eleanor, and she said, no, I don't. And that was the end. She was not going to pay thereafter, at least she led me to believe she wasn't going to do it anymore. She was angry with Tom as well. Q Okay. Now, did Eleanor, during the time that you spent with her -- did she ever mention to you that she had to switch her bank account? A Yes, she did. Q When would that conversation have taken place? A I would say the spring, summer of 2002. Q And where did that conversation take place? A In her house. I was always at the house. Q Okay. Would you relate to the Court the content of the conversation with Eleanor concerning the bank 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 account? A Eleanor told me that Tom made her change her bank because the bank she had refused a loan to Tom, and he was angry with that bank and wanted her to change. This is what Eleanor had told me. So she ultimately changed her bank because Tom made her. MR. THOMAS: I have no other questions, Your Honor. THE COURT: Mr. Flower. CROSS EXAMINATION BY MR. FLOWER: Q Mrs. Kollas, you drove Mrs. Coolidge to Chambersburg for her therapy, I think you indicated? A Frequently, yes. Q Okay. So you get around, and you always felt that you could visit her at Green Ridge Village if you wanted to, right? A Say that again. Q You never felt that there was any reason why you couldn't visit her at Green Ridge Village when she was there? A Yeah, there was. Q What was that reason? A Well, there were several reasons. One, it was 11 miles away, and I only know how to get there from 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back roads, so to speak. Route 11, and then onto a dirt road, but we had a very bad winter. It snowed. There was ice. It was not easy. There were times that if I were in that area or in that direction, I would stop in and see her, but it was not an easy trip for me. Q Chambersburg's a lot further than Newville though, right? A Yeah, but 81 goes directly to the hospital. Q Okay. Now, you did visit on occasion at Green Ridge Village? A I did. Q And did you ever have anybody try and stop you from visiting with Mrs. Coolidge after you had gotten there? A Well, I only went -- I parked my car and went to her room. I knew wher~ she was. Q Okay. And you didn't have to sign in or ask anybody's permission, did you? A Well, I didn't. Q You just walked right in and went right to her room? A Well, I didn't walk in the front. I walked in a door that was close to her room, and walked right in. MR. FLOWER: Okay. No further questions. THE COURT: Mr. Frey. 23 MR. THOMAS: THE COURT: MR. FLOWER: THE COURT: her being excused? MR. FREY: THE COURT: choose. Thank you. MR. THOMAS: 24 1 2 3 THE COURT: And Mr. Frey? MR. FREY: No objections, Your Honor. THE COURT: All right. Thank you. 4 Petitioner's Exhibit 11 is admitted. 5 (Whereupon, Petitioner's Exhibit No. 11 was 6 admitted into evidence.) 7 MR. THOMAS: Your Honor, I believe I moved 8 for the admission of all of the other exhibits on Monday. I 9 would move now for the -- well, it is admitted. At this 10 point I would rest with regard to our case. 11 THE COURT: All right. I think all of the 12 exhibits, Petitioner's, have been admitted at this point. 13 MR. FLOWER: Your Honor, our first two 14 witnesses are by videotape deposition, Dr. Brazel, who was 15 the treating physician, followed by Dr. Myers. 16 THE COURT: All right. Do you have a 17 transcript of Dr. Brazel's testimony? 18 MR. FLOWER: I will have to check, Your 19 Honor. I believe I do. Yes. 20 THE COURT: Why don't we have the videotape 21 itself marked as Respondents' Exhibit 1, and the transcript 22 marked as Respondents' Exhibit 2. 23 (Whereupon, Respondents' Exhibits 1 and 2 24 were marked for identification.) 25 THE COURT: First, has something been marked 25 1 as Respondents' Exhibit 1, and is that the videotape? 2 MR. FLOWER: That's the videotape, Your 3 Honor. 4 THE COURT: All right. And has the 5 transcript been marked as Respondents' Exhibit 2? 6 MR. FLOWER: Yes, Your Honor. 7 THE COURT: All right. Because we do have a 8 transcript, may the stenographer be excused from attempting 9 to take down the notes of testimony from the videotape? 10 MR. FLOWER: I have no objection, Your Honor. 11 MR. THOMAS: No objection, Your Honor. 12 THE COURT: Mr. Frey? 13 MR. FREY: No objection, Your Honor. 14 THE COURT: All right. How long is the 15 videotape? 16 MR. FLOWER: This one is half an hour, Your 17 Honor. 18 THE COURT: All right. We will let the 19 record indicate that the Court is viewing the videotape 20 deposition testimony of Dr. Brazel, which has been marked as 21 Respondents' Exhibit 1. 22 (Whereupon, Respondents' Exhibits 3 and 4 23 were marked for identification.) 24 THE COURT: We will let the record indicate 25 that the Court has completed viewing the videotape testimony 26 1 of Dr. Joseph Brazel, which has been marked in videotape 2 form as Respondents' Exhibit 1 and in transcript form as 3 Respondents' Exhibit 2. We will take a brief recess and 4 then reconvene. 5 (Whereupon, a recess was taken at 10:39 a.m.) 6 AFTER RECESS 7 (Whereupon, Respondents' Exhibit No.5 was 8 marked for identification.) 9 THE COURT: Mr. Flower. 10 MR. FLOWER: Your Honor, opposing counsel and 11 I spoke during the break, and I've marked as Exhibit Number 12 5 a packet of notes from office records from Philhaven, and 13 this includes psychiatric notes of Dr. Herbert Myers dated 14 May 19, 2003, July 14, 2003, and December 8, 2003, which was 15 the date of the signing of the will, as well as an 16 accompanying list of -- accompanying group of outpatient 17 progress notes, which include notes from Mrs. Coolidge's 18 therapist. Opposing counsel and I have agreed that this 19 should be admitted, and it is marked as our Exhibit 2D Number 5. 21 THE COURT: All right. Mr. Thomas, do you 22 have any objection to the admission of Respondents' 23 Exhibit 5? 24 MR. THOMAS: None, Your Honor. 25 THE COURT: And Mr. Frey? 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FREY: No objections, Your Honor. THE COURT: All right. Respondents' Exhibit 5 is admitted. (Whereupon, Respondents' Exhibit No. 5 was admitted into evidence.) MR. FLOWER: And, Your Honor, during the break we had the videotape deposition of Dr. Herbert Myers marked as Exhibit Number 3, and the transcript marked as Exhibit Number 4. At this time I would like to play the videotape deposition of Dr. Herbert Myers. MR. THOMAS: No objection, Your Honor. THE COURT: All right. No objection to it's being played? MR. THOMAS: Correct. THE COURT: All right. Let's see, slnce we have a transcript of this item, may the stenographer be excused from taking down the notes of testimony with regard to it? MR. FLOWER: Yes, Your Honor. MR. THOMAS: Yes, Your Honor. MR. FREY: Certainly, Your Honor. THE COURT: All right. Thank you. We will let the record indicate that the Court is viewing the videotape deposition of Dr. Herbert Myers, which has been marked as Respondents' Exhibit 3, and the transcript has 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been marked as Respondents' Exhibit 4. How long is this, Mr. Flower? MR. FLOWER: This deposition is an hour, Your Honor. THE COURT: All right. (Whereupon, Respondents' Exhibit No. 6 was marked for identification.) THE COURT: We will let the record indicate that the Court has completed viewing the videotape deposition testimony of Dr. Herbert Myers. The videotape itself has been marked as Respondents' Exhibit 3, and the transcript of the deposition has been marked as Respondents' Exhibit 4. Would this be an appropriate time to recess for lunch? MR. THOMAS: Yes, Your Honor. MR. FLOWER: I think so, Your Honor. We're running later than I expected. THE COURT: MR. FREY: THE COURT: All right. Yes, Your Honor. All right. We will recess for lunch, and resume at 1:15. (Whereupon, a lunch recess was taken at 11:56 a.m.) (Whereupon, Respondents' Exhibits 7, 8, and 9 were marked for identification.) 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Whereupon, court resumed at 1:15 p.m.) AFTER LUNCH RECESS THE COURT: Mr. Flower. MR. FLOWER: Your Honor, I would next call Renee Kreamer. Your Honor, if I may I'm sorry. Your Honor, if I may. My expert witness, Mike Devlin, has just arrived, and I don't want to inconvience Ms. Kreamer, but if I could take him first that would be better. THE COURT: All right. It's your choice. MR. FLOWER: I would call Michael Devlin. Whereupon, MICHAEL B. DEVLIN having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. FLOWER: Q Mr. Devlin, would you give your full name, please? A Michael B. Devlin. Q What is your occupation? A I'm a CPA. Q Which CPA firm do you work with? A Boyer & Ritter. Q Would you just briefly review your education? A I graduated from St. Vincent College in '72. I'm a member of the PA CPA and a CPA. 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And when did you become a Certified Public Accountant? A In '76. I'm not sure of the exact date. It was right around there. MR. FLOWER: I'm offering Mr. Devlin as an expert in accounting. Any questions on qualifications? MR. THOMAS: No questions. THE COURT: Mr. Frey? MR. FREY: No questions, Your Honor. THE COURT: All right. Thank you. And what is your business address? THE WITNESS: THE COURT: 141 West High Street. And is that in Carlisle, Cumberland County, Pennsylvania? THE WITNESS: Yes, it is. THE COURT: Thank you. DIRECT EXAMINATION BY MR. FLOWER: Q Mr. Devlin, we have marked as Respondents' Exhibit Number 9 a document -- a thick document designated report of Thomas E. Coolidge, Power of Attorney for Eleanor U. Coolidge, December 20, 2002, to March 24, 2004. I understand that you have a copy of this document as well? A That is correct. THE COURT: What is that document again, 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Flower? MR. FLOWER: It's Tom Coolidge's report as the Power of Attorney for his mother. THE COURT: I see. MR. FLOWER: In which he details every transaction that took place. BY MR. FLOWER: Q Now, Mr. Devlin, did we ask you to review these documents? A You did. Q And we asked you to determine whether there was any evidence of misuse of assets of Mrs. Coolidge? A That's correct. Q What were you able to determine? A Well, based on my review I find no evidence of any misappropriation or misuse of the assets. Q Could you summarize what the documents are that are contained in that report? A There are various bank statements from Mrs. Coolidge's financial accounts, brokerage statements for the period December 1st, 2002, through March the 31st, 2004. Q And are the nature of most of the transactions discretionary or just a matter of routine paying bills and keeping accounts? A Most are routine bills. 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q Have you had an opportunity to review the estate tax return in the estate of Eleanor U. Coolidge? A I have. Q Were you able to make a determination as to what assets will be available to earned income in the trust? A There should be approximately $1,245,000. Q And that's different from the approximately $1,450,000, which were estimated taxable assets. Is that because $205,000 of an account were distributed directly to the beneficiaries? A That is my understanding, correct. Q Okay. Now did we ask you to do a calculation to determine the likely benefit to the beneficiaries in terms of income? A You did. Q Okay. Could you tell us what you concluded? A Well, I took the estimated net investable assets of $1,240,000 and multiplied that times 4 percent to get an estimated cash income from the investable assets. That resulted in an estimated cash income of approximately $49,800. THE COURT: That's per year? 23 THE WITNESS: Per year, yes. 24 BY MR. FLOWER: 25 Q And assuming three beneficiaries, the way the 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 last will was drafted, what would be the income to each of those beneficiaries taking into account taxes? A Yeah. After tax I estimated an average tax rate of 30 percent. After tax each beneficiary, assuming there were three, would receive approximately $11,620.00. Q Per year? A Per year, correct. Q And as the will lS written now there are two beneficiaries, and under those circumstances what would each beneficiary net a year? A After tax lS applied at the 30 percent rate, each of the two beneficiaries would have received $17,430.00. Q What is the difference between those two figures? That is the additional benefit that Philip and Thomas Coolidge receive as a result of the change in the will? A Again, after tax it would be a $5,810.00 difference per year for each beneficiary. Q Mr. Devlin, did we ask you to do a calculation of the value of those two streams of income over the expected lifetimes of Thomas and Philip Coolidge? A You did. Q And what did you learn? 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I learned that the present value of Tom's -- or of Mr. Thomas Coolidge's stream payments would have been $106,969.00. Q And how about that of Thomas? A That was Tom. Philip's would have been $102,189.00. Q Now, could you just review the assumptions you made in order to make those calculations? A Well, I took out their birth dates, got their actuarial life expectancy. For Tom that would have been 34 years, for Phil that would be 31 years, and I used a discount rate or an interest rate of 4 percent. Q In-- THE COURT: Are those values differential values? In other words, is the 106,000 for Thomas Coolidge -- that's how much more he will get during his life from the probated will as opposed to the will just before that? THE WITNESS: No. That's -- no, Judge, that's the present value of the additional income, that differential of 5810. THE COURT: Oh, I see. THE WITNESS: So-- THE COURT: It is a differential? THE WITNESS: Correct. THE COURT: Okay. Mr. Flower. 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FLOWER: Q Did you also do a calculation of what that trust would be conservatively expected to grow to by the time of distribution? A Yes. Using a 3 percent growth rate -- and I split the trust, the investable assets into two individual trusts because they have different lives or different actuarial lives. At the end of Tom's actuarial life at 34 years, assuming a 3 percent compound rate, Tom's share of the trust or his family share of the trust would be $1,700,611.00. Phil's, using the same assumptions, would be $1,556,300.00. Q Now, tell me if I'm right on the math that I'm going to share with the Court. It seems to me that if you take the present values of the two streams of income of Tom and Phil individually, and you compare them to the corpus of the trust that would be created, that the percentage of that present value as related to the trust would be about 9 percent or a little less? A Well, the present value of Thomas Coolidge's income stream is $106,969.00. The value of his trust, assuming the 3 percent in 34 years, would be $1,700,611.00. That's a 6 point -- the income compared to the corpus is 6.29 percent. Q Okay. Do you have a similar calculation 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for -- A It's 6.56 percent. THE COURT: A similar calculation for whom? MR. FLOWER: For Phil. BY MR. FLOWER: Q Could you break that down for me? A Okay. In Philip Coolidge's case the present value of the $5,810.00 income stream would be $102,189.00. The value of the trust would be $1,556,300.00. The percentage would be 6.56 percent. Q Okay. And the other sibling? A Tom's would be 6.29. Q Do you by any chance have the originals of your calculations? I have copies if you don't. A I have originals, but I've actually written and made notes on them. Q Okay. I'm pausing because I don't want to duplicate this. I'm showing you the letter of March 1, 2005, and this has a correction which I did in my hand of $1,245,000.00? A Correct. Q All right. Is this the letter you drafted? A Yes. Q And I'm going to give you the packet of papers here, which I think we should probably all mark 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 collectively as Respondents' Exhibit 10. (Whereupon, Respondents' Exhibit No. 10 was marked for identification.) BY MR. FLOWER: Q This packet, which has the first page, the letter of March 1, 2005, has been marked as Respondents' Exhibit 10. Would you look through and see if these represent your worksheets for this? A Yes. Q Okay. I understand that this is your work then, Mr. Devlin? A Yes. THE COURT: Is that correct? THE WITNESS: Yes. MR. FLOWER: Cross-examine. CROSS EXAMINATION BY MR. THOMAS: Q Mr. Devlin, you have, on the page where you break down the assets from the estate and then go down through the -- what the estimated income's going to be for the trustees, at the top you have estimated assets from the estate. Where did you get the estimate? A From the estate tax return form 706. Q Okay. And how much federal tax was, paid on this estate? in fact, 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2,3 24 25 A None. Q None? A That's correct. It was none. Q Okay. Does the 7 form -- 706 include the values of gifts that would have been given by Eleanor Coolidge within the 3 years or 2 years -- I don't know what the requirement is -- of her date of death? A I do not believe it does. Q Did -- A I don't believe it does. THE COURT: I'm sorry. I just didn't hear the answer. I think there was a question, and then I think Mr. Devlin said I do not believe. THE WITNESS: It does. THE COURT: It does. All right. BY MR. THOMAS: Q It does what? A I don't believe it does include gifts. Q Did you prepare the form 706? A I did not. Q Did you inquire of either Tom Coolidge or Phil Coolidge the gifts that they had received from Eleanor Coolidge within the -- is it 2 years? A I didn't inquire about any gifts at all. Q And do you know if the form 706 that you 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relied upon was, in fact, the form 706 that was filed with the Internal Revenue Service? A I do not. Q You calculated a rate of income of 4 percent. Is that the is that 4 percent of the estimated assets, the value of them? A We took 4 percent times the estimated investable assets, the $1,245,000.00. Q Okay. A So we have an average rate of return of about 4 percent. Q Okay. And you included that average rate of return throughout your calculations? A Yes. For purposes of the estimated income calculation that was the one that was used. Q All right. Now, I see there down at the bottom the $5,810.00 equals the difference in income that Tom and Philip would each receive because of it being two beneficiaries instead of three? A Correct. Q And when you did your calculation over the actuarial tables, the figure of $5,810.00 was used for each of the 30 years? A That's correct. Q If the estimated income each year was 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 $49,000 -- or for the first year was $49,800.00, other than taxes, most of that would go to -- back into the trust, correct? A The appreciation would be in the trust, that's correct. The income would be distributed to the beneficiary. So the $49,800.00 would be distributed to the beneficiaries and would not stay in the trust. Q The $49,800.00 would be A The estimated income or the income. Q Okay. A As the case may be, would be distributed to the beneficiaries. Q All right. So the trust principle -- how does the trust principle increase in value? A Well, the assumption would be that because there's a remainder then -- or remainder interest, that the trust would be partially invested in appreciating assets because that would benefit the remainder beneficiaries. So the 3 percent is a reflection of the increase in the equity portion of the portfolio, the invested assets. Q And wouldn't that be considered income? A No. Q For purposes of the trust? A No. That's principle. That's corpus. It's basically the cash income dividends and interest that would 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be in the distributable income. THE COURT: It's very hard for the stenographer to hear. Could you just move forward and speak right into the microphone, please? Thank you. BY MR. THOMAS: Q Okay. Well, let me see if I have this right. You start off with $1,245,000.00, correct? A Correct. Q At the end of the year you have -- the first year you have estimated income of $49,800.00? A That's correct. Q Now, that income is distributed to the income beneficiary? A That's correct. Q Okay. Does the trust principle increase in value at the end of that one year as well? A Not because of the income. It would increase in our estimated calculation because of appreciation, which is not income. Q Such as stocks increasing in value? A Correct. Mutual funds, stocks, et cetera, equity investments. Q All right. So that the second year there would be a greater principle? A That's correct. 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And, therefore, the income generated by the greater principle should be greater than the income from the year before at 4 percent? A It may, in fact, be, but not necessarily. The for instance would be Microsoft didn't pay any dividends for many, many years, but the asset increased in value. So in that case the corpus -- if Microsoft was the entire corpus, the corpus would go up, but there was really no income because of that investment. So it may increase, but it's not necessarily going to increase. Likewise, it could decrease for market reasons, and the income would -- might actually stay the same. Q Did you look at the trust instrument that is involved in this particular case? A Very briefly. Q So just so I understand you here, there are two types of income that that trust has generated. One is the income that is in the form of dividends and actual cash coming into the trust; is that correct? A Correct. Q And the other type of income would be the increase in value of the assets that are in the trust, although that's not taxable income? A That's correct. Q And the reason it's not taxable income is 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because it is not realized? A It's not realized nor is it distributed. Q All right. Is there anything in the trust instrument that you read that would prevent that additional -- the income being the increase in the value of the assets from being distributed to the income beneficiaries? A I believe there was provisions for sort of health maintenance and welfare distributions, although I don't remember specifically. Q And that income, if I understand you -- that portion of the -- what do you call it if you don't call it income? A It's corpus. Q Corpus. That growth in the corpus over the period of 30 years or over -- the actuarial value that we used, that value's going to increase from 1.245 million to how much? A Well, I think I did it on each individual on the two individual trusts, but one increases to approximately a million seven, and the other to approximately a million 556, and that's taking the million 245 and splitting it for purposes of the calculation. Q So, in fact, you've had an increase of almost 200 percent over the original corpus? A That's correct. 44 1 MR. THOMAS: That's all I have, Your Honor. 2 THE COURT: All right. Let's see, 3 Mr. Frey. 4 MR. FREY: No questions, Your Honor. 5 THE COURT: All right. And, Mr. Flower, 6 anything further? 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FLOWER: No redirect. May Mr. Devlin be excused? THE COURT: You may step down. Thank you. THE WITNESS: Thank you. THE COURT: And you are excused, if there's no objection. MR. THOMAS: I have no objection, Your Honor. THE COURT: All right. MR. FLOWER: At this time I would call Renee Kreamer. Whereupon, RENEE KREAMER having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. FLOWER: Q Okay. Ms. Kreamer, would you give your full name, please? A Renee Kreamer, K-r-e-a-m-e-r. Q How are you employed? 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I'm Assisted Living Administrator at Green Ridge Village. Q What do you do -- what are your duties as the administrator? A Not only am I the administrator, I'm also a Licensed Practical Nurse. So I supervise the care of the residents and the care that my direct care staff gives to those residents. Q Are you familiar with Eleanor Coolidge? A Yes, sir. Q And do you recall about when she moved into the home? A I believe it was December of 2002. Q How often would you say you saw her? A At least daily. Q And how often would you have an opportunity to talk to her? A At least daily. Q What sort of activities did she typically engage in at the home? MR. THOMAS: I'm going to object unless he clarifies what time period he is talking about. MR. FLOWER: Okay. THE COURT: Mr. Flower. BY MR. FLOWER: 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q There was a time when Mrs. Coolidge had a reversal in her health, was there not? A Yes. Q And my records suggest that that was in early February of 2003. Is that consistent with your recollection? A Yes. Q I'm going to ask you to focus on the period of time after that. A After her decline in February? Q Yes. A Okay. Q How did that change her abilities and her appearance? A She required more assistance with her activities of daily living, such as bathing and dressing and those kinds of things, but she was still able to tell us every day what she did and did not want to do, what she did and did not want to eat, you know, what she did and did not want to wear, things like that. Q How did she make her decisions with respect to food? A She chose daily. Our residents are given a menu every day at breakfast, and they are allowed to circle on the menu what their choices are or they can hand write in 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different items, if there's something on the menu they don't like that day, and Mrs. Coolidge took care of that every day by herself. Q During this period of time, did she still engage in any other activities at the home? A On occasion. Not as frequently as she did when she first arrived. When she first arrived, she was more active in devotions and exercising, bingo, you know, card playing, things like that. She did do some of the activities after that time period, but maybe not as often, but she was very social. Mrs. Coolidge actually had three childhood friends that lived at Green Ridge Village in the assisted living unit with her. Q Do you recall their names? A Yes, I do. Q Who are they? A Evelyn Craig, Madge Line, and Marion Lefkowski. Ellen Craig, as I understand, was a neighbor of her's. Marian Lefkowski and Madge Line were schoolmates of her's. Not necessarily in the same class, but around each other. So they grew up in Carlisle together, went to the same churches and social events and those kinds of things. THE COURT: What was Marian's last name? THE WITNESS: It was Marian Lefkowski. THE COURT: Lefkowski? 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: Sure. Would you like me to spell that? THE COURT: Please. THE WITNESS: Sure. L-e-f-k-o-w-s-k-i. THE COURT: Thank you. BY MR. FLOWER: Q Did she have a good relationship with all of these three residents? A Yes. She sawall three residents at least daily. Well, I should say probably three times a day at least because she saw them at mealtime, every meal, and then in between. Evelyn Craig specifically spent a lot of time in Eleanor's room from time to time. Q How did Mrs. Coolidge get along with other residents aside from the three that you've mentioned? A She was very social with other residents. Q How did she get along with the staff there? A Many of my staff developed a very special bond with Eleanor, and likewise Eleanor and my staff. They were very close. Eleanor was very loving and gentle and kind and very soft spoken as well, and it was just very easy to get along well with her. She was very close to several of my staff. They had a very special bond. Q You may recall that there was a reference in Dr. Wettstein's report to someone telling him that 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mrs. Coolidge was irritated that her bed was sold? THE COURT: That her bed was what? MR. FLOWER: Sold. THE COURT: Stolen? MR. FLOWER: Sold. THE COURT: Sold. BY MR. FLOWER: Q That was in Dr. Wettstein's report. Do you know which bed that Dr. Wettstein was referring to? A Eleanor came with her own bed. Her bed was never sold. In fact, her bed remains at Green Ridge Village, and the gentleman that is now residing in the room that Eleanor was in is sleeping in that bed. It was donated by Tom and Phil when she passed away. Q I'll show you what's been marked as Respondents' Exhibit No.7, and I would ask you if you recognize this letter dated May 3rd, 2004? A Yes, I do. Q What is this? A This is the letter that the President and CEO of our company, Presbyterian Homes, Incorporated, would send out after a gift was received from a family member. I guess it's used for tax purposes, but I know it's an appreciation letter, a thank you letter as well. Q This is a thank you for the donation of the 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bed? A That's correct. Q I'll show you what's been marked as Respondents' Exhibit No.8. Would you tell the Court what this is? A This is a form that we used for -- we use now for authorization. As you can see, authorization to use or disclose health information. It's the new privacy act that went into effect, I believe it was the beginning of 2003. All of our residents have this form or one very similar to it. The form's been upgraded over the last few years. Q But this is required by the act which is referred to as HIPAA? A Correct. Q And is this the form that you've filled out for Mrs. Coolidge? A That's correct. Q Did she designate who she wanted to have access to her health records? A Yes. I specifically met with Mrs. Coolidge on 3/24/03, and it was just her and I in her room, as I did with every other resident in our facility at the time. I went over with her who she wanted to receive information about her health conditions or things like that. She listed, of course, herself, Tom and Beth, and Philip 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Coolidge. And I did specifically ask her at that time, was there anyone else? Because, you know, if there's a minister or family friends, you know, they have to be listed cn the form as well in order for me or my staff to speak to those people about that resident. Q We have a packet of photographs, which have been collectively marked as Respondents' Exhibit No.6. 11m going to show you the first one here, and I'd ask if you would tell the Court what this represents? A That's the main entrance to Green Ridge Village. The assisted living is actually on this end. The nursing center of the skilled nursing unit is on this side of the building. Q Now this shows a hallway? A That's a hallway going in from the porch, as I showed you over here, and where you see this gentleman in the wheelchair is actually -- was actually, excuse me, Eleanor's room. The doorway would be down here coming in off the front parking lot. Q Would you tell us what this photograph is? A Yes. That was Eleanor's room when she was at Green Ridge Village. Q And is this another shot of her room? A Yes, it is. THE COURT: And was it furnished that way? 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: Yes. THE COURT: At the time she lived there? THE WITNESS: Yes. That's exactly how the furniture and the belongings of her's were in the room when she was a resident at Green Ridge Village. BY MR. FLOWER: Q Let me show you one more photograph. Is this the same room? A Yes, it is. Q And does this look the way it did when she was there? A Yes, it is. Q I'll show you a picture of Mrs. Coolidge with one of your staff. A Urn-hum. Her name is Darlene. Darlene and Eleanor were very close. As I said, there were several of my staff that were very close to her, but Darlene and Eleanor were very close. They shared a lot of time together talking about family and friends and such. Q And this picture is Mrs. Coolidge as well? A Yes, it is. And that is her sister. Q All right. And visiting her at the home? A Yes. Her sister came to visit her. I can specifically remember at least twice she came to visit her, and actually had lunch with her while she was there in our 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 main dining room. Q I believe a witness earlier today said that there were some dirt roads leading to Green Ridge Village. Are there dirt roads leading to Green Ridge Village? A No, that is incorrect, sir. We are approximately 5 miles off of Interstate 81, and I would say approximately 3 miles off of US Route 11. You know, it's Route 11 to 233 and onto our driveway. It's actually a paved driveway, two lanes going in and out both directions. There are no dirt roads leading to Green Ridge Village, no matter which entrance you take. We actually have two. Q Now, your staff would provide all the daily needs for Mrs. Coolidge; is that right? A That's correct. Q She wouldn't have had to rely on either of her sons for her daily care or feeding or anything like that? A No, not feeding. Q She wasn't dependent on them for any particular aspect of her daily care? A Not bathing, dressing, feeding or anything like that, but they did assist with -- Tom and his wife assisted with transporting her to and from doctor's appointments. They did that routinely. I don't believe that my staff ever escorted her to a doctor's visit. Tom 54 1 and Beth always took care of that. 2 Q Did either Tom or Philip Coolidge ever try to 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 restrict mother? direct you to restrict anyone's access to their A No. Q If someone came into the home and wanted to visit, could they just have walked into her room? A Yes. At Green Ridge Village we have no visiting hours, meaning that residents in our community can receive visitors 24 hours a day, 7 days a week. After dark, usually around, you know, 9, 9:30, depending on the season, our door is locked, but there is -- for security purposes. But there is a doorbell on the outside. Our residents and family members are instructed that if ever they come and the door's not open, they should ring the doorbell, which rings directly to the nurse's station, and the nurses would go back and open the door. Q Did Mrs. Coolidge ever speak to you about any accusations of Tom's activities as her Power of Attorney? A Yes. Q Do you recall when that was approximately? Would that have been in October of '03? A I believe it was in October of '03, during a visit from Julia where Eleanor was very upset and wanted to see me, and one of the things that I recall her saying was 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that she was upset at that time with Tom because Julia told her that he bought a brand new Honda Accord, I believe it was. Anyway it was a vehicle with her money. Q Did Mrs. Coolidge ever make a decision that she did not want to have visits from any person? A Yes, she did. Q Do you recall when that decision was made? A It was in November of 2003. Q What decision did she make? A She asked that we put a sign on her door and limit her visitors, especially her daughter. What she wanted was for the visitors to report to the nurse's station, to identify themselves, and then my staff would go ask her -- you know, tell her, you know, so and so is here to see you, and allow her at that point to decide whether she wanted that visitor in, but specifically from Mrs. Coolidge, she did not want her daughter, Julia, in her room. She said she was afraid of her. Q If you know, and I only want you to answer this if you know. Was that after the guardianship petition was filed to have Mrs. Coolidge declared incompetent? A It was before the hearing, but I'm not definite on when the petition was filed. Q Okay. During this last period of her life, did Mrs. Coolidge have access to a telephone to receive 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 calls? A Yes, she did. Q And how was that managed mechanically? Did people walk the phone back to her or did she have a phone? A She actually had a phone in her room, but at one point she asked us to unplug the phone because she didn't want to receive calls from her daughter, but I know there was a few occasions when her daughter would call directly to the nurse's station, and we would -- we have what we call a companion phone. It's like a cordless phone basically. We would take that back to her room, and if she wanted to, she spoke to Julia. If she didn't, we just, you know, let Julia know that she didn't want to speak at the time. That personally did not happen for me, but that happened on the other shifts, and I know that my staff and I talked about it. Q Okay. THE COURT: When did she say she did not want to receive a call from her daughter? THE WITNESS: There was a day when her phone wasn't working. She thought her phone wasn't working, and in checking it out, actually what happened was the plug was bumped and it was unplugged. So when I plugged it back in and made it work, she actually said to me, well, just unplug it. I don't want to receive phone calls from Julia anyway. 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I don't want my phone in my room. She actually wanted to have the phone removed from her room, but if I can recall correctly, we just you know, with Tom's help, we decided to leave the phone in there and then just leave it unplugged at the time. THE COURT: And that was when? THE WITNESS: I don't remember the exact date, sir. THE COURT: THE WITNESS: What year do you think it was? Oh, it was definitely 2003. BY MR. FLOWER: Q Was it during the latter part of 2003 after her health deteriorated? A I believe so, yes. Q I'm sorry. I shouldn't have said the latter part of 2003. I mean after February of 2003 when her health deteriorated? A Yes. Q Now, you saw her and talked to her daily. So you were familiar with her demeanor and her condition generally? A Yes. Q And you were with her as a witness, I believe -- I'm sorry. That's not quite right. You saw her on November 17, which was the date of the first hearing before 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge Oler? A That's correct. Q Okay. How was she feeling that day? A Before or after the hearing? Q Either one. A She was very upset before and after the hearing. Very anxious. She, you know, obviously felt humiliated, and at one point she told us that. I don't remember if it was, you know, before we left for the hearing or after she returned from the hearing, but she was very humiliated by the whole thing. She felt that her daughter, you know, did her wrong, and she was very angry about that. Q You also saw her on December 8, 2003, which was the date she signed her will? A That's correct. Q Just in terms of her general mental alertness and condition, was there any significant change in her in those 21 days? A No, sir, there wasn't. MR. FLOWER: No further questions of Ms. Kreamer. THE COURT: Mr. Thomas. CROSS EXAMINATION BY MR. THOMAS: Q Ms. Kreamer, did you personally handle the 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 application process when Eleanor Coolidge was admitted to the Green Ridge Village? A Yes, sir. Q And was Eleanor able to sign the documents that were included in the application process? A Yes, sir. The Department of Public Welfare requires that all of our residents sign their own documents, and the only time a Power of Attorney can do that is if there is a medical reason why they can't, and then they must write a statement on the contract stating why the resident couldn't signed it, and then sign that as well. Q Does that apply to documents other than the application? A What documents would you be referring to? Q Well, like the permission to get an influenza shot? A Residents usually sign their own permission to get an influenza vaccination. Q Suppose the resident could not sign? A Then the Power of Attorney would sign. Q And would there be an explanation given as to why? A No. No, not usually on influenza vaccinations. That's different. It's not a required DPW form. That's a form that we use just to be sure that I know 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my staff or myself, whoever gave the injections, spoke with the resident and went over the list of are you allergic to any products? Are you allergic to gentamycin, those kinds of things. Q Who was identified as an emergency contact person on the admission papers? A The emergency contact list? Is that what you mean, sir? Q Yes. That's what I mean. A Tom and Philip Coolidge. Q You did not know that Eleanor had a daughter when she first entered Green Ridge Village; is that correct? A That's correct. Q And, in fact, you did not know that she had a daughter until sometime 6 months later when Julia called to announce her first visit? A I don't remember Julia calling to announce her first visit. Her first visit, I believe, was in July of '03. Julia called to announce her second visit in October of '03, but I don't specifically remember a phone call in July. Q Do you recall testifying back on March 29th of this year? A Q Yes, sir. So if I understand you correctly, when did 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you first know that she had a daughter? A In July of '03. Q Okay. Now, you testified that you were in her room on a daily basis, the room of Eleanor? A I didn't testify that I was in her room. I said I saw her daily. I may not have seen her in her specific room, but out in the dining room. I make a habit of being in the dining room at least one of the two meals a day that I'm at work. So I may have seen her there or, you know, out and about. Our residents come to the nurse station as well for their medications. So it may have been there daily, but I at least saw her daily. Q So did you hardly ever go into her room? A No. That's not what I said. I went into her room -- I went into her room, you know, at different times. There was no rhyme or reason as to why. I just -- sometimes I would go into her room and say good morning or sometimes I'd see her in the dining room and, you know, say good afternoon, whatever, or if she needed something from me, I would go into her room. Q How often did you go into the room just to talk to her? A Just to chat? Q Yes. A Or for medical reasons? You know, to assess 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Or just to have a chat with her? Q To have a chat with her. A I don't know. I don't know. You know, maybe once or twice a week I would go into her room to her? specifically visit her if I hadn't seen her in the dining room. I make a point of seeing every resident every day, if I can attempt to do that in my day. Q Okay. And did she have photographs of her family in her room? A Yes. Q And I take it there were no photographs of Julia in the room? A I don't specifically remember a photograph of Julia in her room. I can't answer that question right now. I don't remember. Q You testified back in March that you used to visit with her, and you'd sit around and talk about her family and how much she loved Tom and she loved Beth? A That's correct. At times when we talked we would talk about things like that, yes. Q Okay. But it's your testimony here that she never mentioned Julia during that entire 7 months between December and July? A That's correct. Q And you never saw any photographs of Julia in 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 her room? A I don't specifically remember a photograph of Julia in her room, no. Q On July 2nd, that would have been the day that Julia first visited with her mother, did you visit with Julia and her mother in Eleanor's room on that day? A I don't remember if it was in Eleanor's room or in the dining room. I remember a conversation with Julia and her mother in the dining room. Q Okay. And how were Julia and her mother getting along with one another when you joined in that conversation? A At that time they seemed to be okay. Q Nothing caused you any concern, right? A Not at that time, no. Q Do you recall being present for a conversation when Julia and you spoke about Julia returning the next day? A Yes, I believe that was in the dining room. Q And there was something about a 4th of July celebration? A Yes, that would have been around the time we had a 4th of July picnic with the residents. Q Do you remember that conversation with Julia and her mother Eleanor? 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I remember speaking specifically about we were going to go outside. Several of the residents wanted to go outside and actually have a picnic outside instead of in the dining room, and I remember Julia at that time saying that Eleanor had decided not to go outside. And I remember Julia at that time explaining to us that when Julia was a child her mother was stung by a bee, and that was probably why Eleanor did not want to participate in that part. Q In fact, she told you that her mother almost died as a result of the bee sting? A That's correct. Q And that had not been -- nobody at Green Ridge Village had been notified of that situation before; is that correct? A That's correct. Q And so you had someone write that down in the nurse's notes? A That's correct. Q Do you recall when Julia left on July the 2nd after visiting with her mother? A Yes, I believe I do. Q And at that time Eleanor was still, as far as you could tell, in a calm and reasonable frame of mind? A Yes. Q And I believe -- and well, you did -- you 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testified back in March that you even saw Eleanor again later on that day, and everything was fine with Eleanor? A On my way out the door Eleanor's room was in the hallway where I would enter and exit the building every day, and every day, you know, when her door was open, I would make it a habit of going down the hall and saying good-bye, you know, to the residents as they see me go by. Q And Eleanor did not give you any indication when you saw her after Julia had left that she was frightened or concerned about anything that Julia had said or done; is that right? A Not at that time, sir. Q Julia didn't say anything to you about removing her mother from Green Ridge Village, did she? A No, she didn't. (Whereupon, Petitioner's Exhibit No. 12 was marked for identification.) BY MR. THOMAS: Q I want to show you what I've just had marked as Petitioner's Exhibit Number 12. Would you look at that document and then tell me if you can identify it? A Sure. MR. FLOWER: MR. THOMAS: Do we have a copy of that? If you have the Green Ridge Village nursing records, you do. 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FLOWER: Okay. THE WITNESS: It's the nurse's notes that we use in assisted living at Green Ridge Village. BY MR. THOMAS: Q Okay. And if you take a look on July 2nd? A Yes. Q Now, if you look closely at those notes, July 2nd has what? Three entries on it? A That's correct, sir. THE COURT: This is July 2nd for what year? THE WITNESS: '03. BY MR. THOMAS: Q And that was the day of Julia's first visit, correct? A That's correct. Q Is there anything in the notes for July 2nd -- and look closely to make sure that the dates are correct? A That's correct. I know what you're going to say. Q That says that anyone was concerned or Eleanor raised any concerns about Julia removing her from the nursing home? A I believe, sir, when I wrote this note the next day I have the incorrect date on it. As you can see, my staff charted on 7/2 for the 7 to 3 shift, and on 7/2 at 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1930 in the evening. The next day when I came in my staff told me that she was very upset and she wanted to see me, and I believe I have that dated incorrectly. Q Okay. So knowing what you know about the dates and the record, is there any indication in the record at all for July 2, 2003, that Eleanor had a problem with her daughter's visit? A No, not -- there's nothing charted by me or my staff that day that she was upset. Q Okay. Now, using the correct date for when you first found out that there was a problem, what date did you find out there was a problem that Eleanor had? A I'm assuming it would have been July the 3rd. Q Okay. And that would have been when you came in that morning? A When I came in that morning. Q And what time would that have been? A I usually get in around 7:00 a.m. Q Now, there's one notation between the time that Julia would have left on July 2nd and the time that you would have come in on July the 3rd. A That's correct. Q And what is the date and time of that notation? A 7/2/2003, and the time is 1930. 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q Which is 8:30 at night? Yes. 7:30? A 8:30. THE COURT: Okay. 1930. THE WITNESS: 1930 military time. THE COURT: Is what time? THE WITNESS: 7:30. THE COURT: All right. MR. THOMAS: I'm getting confused. THE WITNESS: I had to think about it. BY MR. THOMAS: Q So there's one notation between the time that Julia leaves and the time you come in the next day? A That's correct. Q Would you read that notation into the record, please? A Sure. Resident's son, from Carlisle in parenthesis, told staff he did not want the daughter of resident to see medical records of any kind about his mother's condition. That was written by one of my nursing assistants. Q And it doesn't indicate whether Tom was there in person or whether he called by telephone? A No, it doesn't, sir. 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, let's look at the note that you wrote. That would have been the morning of July the 3rd. A Okay. Q It says in there that Eleanor wants to speak with quote the boss? A That's what she called me, the boss. Q All right. You're the boss? A I'm the boss. Q So did you go and meet with her? A Yes, I did, in her room. Q Okay. Then there's a quote that follows. After you go and meet with her, there's another quote. A Urn-hum. Q Would you read just the quote? A Just the quote? I am not going to Boston to live at Heavenly Acres. She can't take care of me. Q All right. And then there's another quote a line or two down. It starts with the word felt. A Okay. At this time the resident felt that her daughter Julia was going to try to make her leave here and go to Boston. Do you want me to read -- Q Is that the end of the quote? A Yeah. Q Okay. A Well, no. Because then it says resident 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stated she was afraid of her daughter. Q Okay. A So that would have been something she told me as well. Q Nowhere in that quote does it say that Eleanor told either you or any of the other nurses that Julia said she was going to take her out of Green Ridge Village; is that correct? A No, it doesn't specifically say that, but that's what she felt. Q But she never said it? Eleanor never said that Julia told her, correct? A Well, yes, sir, she did. It's documented that resident felt that her daughter Julia was going to take her to make her leave here, meaning Green Ridge Village, and go to Boston. She had to tell me that or I wouldn't have documented that. Q She said she felt, right? A That's correct. She said she felt. THE COURT: We're getting confused as to who she is. THE WITNESS: She is Eleanor. THE COURT: Mr. Thomas is saying there's nothing in the record that shows that Eleanor said that to the resident? 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: No. She is Eleanor. When I say she -- BY MR. THOMAS: Q Let's just back up for a minute. Your note nowhere in your note does it say that Eleanor said that Julia told Eleanor that she was going to remove her from Green Ridge Village? A It does not specifically say Eleanor stated. Is that what you're saying, sir? I'm confused by your question. Q All it says there is that Eleanor was not going to go to Boston to Heavenly Acres? A And it also says at this time resident felt that her daughter Julia was going to make her leave here and go to Boston. Q But nowhere does it say that Julia told her mother that? A Q No. I apologize. That's all right. You just had me confused. Now, when did Eleanor have you disconnect her phone? A I don't specifically remember, sir, when that was. I just know that it was -- there was a day when her phone wasn't working, and it was actually unplugged. We thought the phone was broken, but it was actually unplugged. It had gotten bumped. I don't remember exactly when that 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was. Q All right. We're talking about two different things again here. One time you're saying it was bumped and it wasn't connected, and another time you're saying that she directed you to disconnect the phone? A That's correct. It was the same day. Q All right. Just hold on for a moment. Is that correct? There's two separate incidents we're talking about? A No. It was the same day. I went into the room to check the phone to see why it wasn't working. It was unplugged. I plugged it back in and showed her that the phone was working, that it wasn't actually broken. And that's when she told me just to leave it unplugged because she didn't really need it anymore. She didn't want her daughter Julia calling her. Q And, in fact, Julia had called that very day, and that's how you all found out that the phone was disconnected? A That's correct. That's correct. Q All right. Turn to the entries that would have been dated for October the 10th. A Okay. Q The last entry on October the 10th says what? A From me? At 0900 received call from 73 THE WITNESS: 11m sorry. THE COURT: That's all right. THE WITNESS: Where do you want me to start? THE COURT: Just start again. THE WITNESS: Start again? Okay. Received Q page? A Q A Q that page? A Q A 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Who made that late entry? A I made that late entry because it was a note that was on my desk at the time that I had not included in the medical record at the time. Q There's a protocol for putting the progress notes -- A That's correct. Q in A correct. They go chronological. Q Then it's safe to assume that you never made the entry into the records until after October the 15th with regard to October the 13th, correct? A That's incorrect. I made the entry -- this piece of paper was not put into the chart until after October 15th, but this piece of paper at the time was on my desk. Q Where was the chart? A The chart would have been at the nurse's station. Q So you could have gone to the nurse's station, picked up the chart, and made the entry, correct? A That's correct, but there was some part of this note that I didn't want all of my staff to see at the time until I had some things clarified, sir. Q So you didn't follow the proper procedures, 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did you? A No. I followed the proper procedure when it comes to adding a note to the chart as in I made a late entry because it went in out of chronological order, but did I put the note in the actual notebook that the chart is in on October 13th? No, I did not. Did I write the note on October 13th? Yes, I did, at my desk, but it was a late entry into the charts, into the actual notebook. Does that make sense? Q Yeah. A Okay. Q Except for I'm wondering if you wrote it on the 13th why you would have started writing it out with late entry when there had not been any other notations put -- A I backtracked -- THE COURT: Let Mr. Thomas finish the question. THE WITNESS: Oh, I'm sorry. THE COURT: Do you want to start the question again? BY MR. THOMAS: Q The question is, if it was a late entry, meaning the date, and you wrote it on October 13th, on October the 13th it was not a late entry, was it? A No, sir, it was not. 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17. 18 19 20 21 22 23 24 25 Q But you wrote it as a late entry even though it was not a late entry? A I added the late entry when I added it to the chart. Q And conveniently there was just enough space there to write late entry at the beginning of the note? A No, sir. When I went back to the chart I rewrote the whole note entirely and added the words late entry because it was out of chronological order. Q Did someone request you to write that note and put it in the records? A No, sir. Q All right. Take a look at November 13. Do you see on there where Eleanor was going to see Dr. Brazel that day? A On October 13th? Q November 13th, 2003? A Oh, I'm sorry. Yes. Q And did her son Tom take her to see Dr. Brazel that day? A Yes, I believe he did. Q And while her son had her at Dr. Brazel's, Julia arrived at the nursing home; is that correct? A I believe so, yes. I believe she was there and I told her that she was out at a doctor's visit and she 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would -- Q Have to come back? A She would have to come back, yes. Q Okay. And it shows on there that Julia did come back later that day, correct? A That's correct. Q At what time? A 1330, which is 1:30. Q All right. And when Julia returned now is the first time that there's ever a sign on the door; is that correct? A That is correct. Q And at 1:30 when that sign was on the door, Tom was in Eleanor's room with Eleanor; isn't that correct? A I believe he was in the room with her, yes, in her room. Q All right. And Julia, her daughter, who had driven down from Massachusetts was not allowed to visit with Eleanor? A As per Eleanor's wishes, that's correct. Q Well, did Eleanor instruct you to put the sign on the door? A Yes, Eleanor did. Q And did Eleanor instruct you what to put on the sign? 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sign A I suggested to Eleanor that we put on the Eleanor said that she did not want she told me that she did not want visitors in her room, and I asked her if she would like me to put a sign on the door. I told her that we could do that, put a sign on the door, and have the visitors report to the nurse's station so that we could make her aware of when she had visitors and who those visitors were. Q So you're the one that decided what the sign would say? A That's correct. Q Suggested it to Eleanor, and all Eleanor did was say yes? A And Eleanor agreed, yes. Q When Julia did arrive, she talked to you about that sign on the door? A Yes. She came to see me and asked about the sign on the door. Q Did you go down to the room and tell Tom and his mother that Julia was here to visit her mother? A I don't remember if I went down to the room or I had just said to Julia that her mother did not wish to see her because I had already known at that point that Eleanor did not want to see her. I don't remember if I walked down to the room or not. 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q The end result was that Julia left without being able to see her mother? A That's correct. Q Then on November 17th, four days later, the sign was removed? A Yes. Yes. Q And do you know if that was before or after the hearing that the sign was removed? A That was after the hearing because I documented it at 2:30 p.m. in the afternoon, and the hearing was in the morning. THE COURT: Mr. Frey, do you want to see these exhibits being shown? MR. FREY: It's not necessary, Your Honor. Thank you. Would you mark this as MR. THOMAS: Petitioner's Exhibit Number (Whereupon, Petitioner's Exhibit No. 13 was marked for identification.) BY MR. THOMAS: Q Okay. I want to show you what I've marked as Petitioner's Exhibit 13. Can you identify that exhibit? A Yes. It's progress notes that physicians use from our record at Green Ridge Village. Q Okay. And if you look at your progress notes 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19" 20 21 22 23 24 25 that we were previously discussing, the ones where you and the nurses fill in? A Urn-hum. Q Each day that Eleanor goes to see a doctor there's a corresponding doctor's entry in the notes that you are holding in Petitioner's Exhibit 13, correct? A Most of the time, yeah. If the physicians write the progress note it should correspond, yes. Q All right. Take a look at December 18, 2002. A Yes. That's the first one. Q And that's a doctor's progress note from -- and you could look at your nurse's notes, Exhibit 13, and find out what doctor, correct? A Right. I should be able to, yes, sir. It was Dr. Brazel. Q And December 27? A That was Dr. Creeden. He is a podiatrist that comes. He comes into the facility and does the residents toenails. He also charts on this progress sheet. Q All right. So there's a corresponding entry with Dr. Creeden, the nurse's notes, and -- A Yes. Q Okay. Now, take a look at November 13, 2003. First look at the nurse's notes. A Yes. Resident seen by Dr. Brazel. 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q All right. And that's the date on which the sign was put on the door as well, correct? A That's correct. Q Okay. And so -- and you testified earlier that Tom took his mother to see Dr. Brazel on November 13, 2003? A That's correct. Q Would you read into the record the notation from Dr. Brazel for November 13, 2003? A Mother, I believe it says. His handwriting's very difficult to read, but I believe it says mother needs total care of, and I think that it says abscess because at that time she had an open area on her hip. I believe it says abscess, and then I don't know what the next word is, but then it's Tom. Q Take a look at that. I think you can decipher it. Mother needs total care of A As I said, I believe that word -- I don't know what total care of -- I don't know what that word is, but I believe the last word on that line is abscess. Well, sir, maybe you're reading it different t~an I am, but that's what I see. Q Could it be that mother needs total care of meds and business? A You may be correct. I apologize. It looked 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like A-B to me, but it may be the and. Q Okay. A That could be. Total care of meds and business, and then I guess it says son Tom. I don't know what the next line says. Q All right. A And the last line actually -- it does say ulcer there. The very last word is ulcer, I believe. Q All right. Now, I want to show you Respondents' Exhibit Number 8, which is the HIPAA authorization form? A That's correct. Q Okay. Would you take a look at Eleanor's signature on that form? A Yes. Q Has it deteriorated significantly since she entered Green Ridge Village? A Without anything to compare it to, I'm not sure, but I would say yes. I believe on her admission agreement her signature would have looked a little better than that, yes. Q Well, do you have it? Did you bring any records here with you? A No. I was not told to do so. Q Do you remember seeing Eleanor's signature 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back in December 2002 when she would have entered? A I know I was with her when she went over the agreements, the admission contract specifically. Do I remember what her signature looked like? Not really, but Q I want to show you this, and just look at it, and you let me know if that refreshes your memory of how her signature looked in December of 2002. A Sir, without anything to compare it to, I can't say I mean I'm assuming that's her signature. I know her handwriting would have been better than this in December of 2002. Q Was she even able to spell her entire last name on the March 2003 document? A If you look at the March 2003 document, I can see a C. I can see an O-L-I. I can obviously see a G. It's very small and runs together. Whether she has all the letters in there or not, I don't know. Q And I want to show you the (Whereupon, Petitioner's Exhibit No. 14 was marked for identification.) BY MR. THOMAS: Q Petitioner's Exhibit 14 consists of two pages, both dated November 26th, 2003. Can you A That's correct. Q Can you identify them? 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A At the bottom of the page is Q No. Identify the page. A Oh, I'm sorry. Identify the page. This is a letter that we use when we do a room rate increase at Green Ridge Village, and the second one is an addendum that we had to do because there was a new act in effect. Q Okay. A An addendum to our admission agreement. Q Okay. And did you request Eleanor to sign those two documents? A That's correct, I did. Q And the date is November 26, 2003? A November 26, 2003. Q Did she, in fact, sign those documents? A She made an X on both documents. Q Is that because she was unable to sign her name? A That's correct. She couldn't hold the pen in her hand that day. Her hand was very nervous, jittery. Q You testified on direct that Eleanor decided what to eat each day? A Yes, sir. Q Okay. I assume then that you were present in the room and you watched her decide what things she wanted to eat? 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Not every day, but most days, but the residents actually do a menu where they circle the items on the menu as to, you know, what their selection is. If the resident, for whatever reason, fails to do that, at breakfast time either the dietary staff or my ~ursing staff goes back to that resident and says, you know, this is what we're having. What would you like to have? Q And on more days than not you don't know whether a nurse or a dietitian or whoever selected the items on her menu, do you? A No, sir, that's not true. I know that Eleanor always chose what she did and did not want to eat. She had very specific likes and dislikes, and she told the staff daily. Never did we choose for her, never did we choose for any resident. Q But you can't testify that Eleanor, in fact, is the one that circled the items? A I can on some days, yes. Q On some? A But not a hundred percent of the time, no. Q Well, how many -- what time do they do that? A They do that at breakfast time every morning. So it's anywhere between 7:30 and 9:00 a.m. MR. THOMAS: I have no other questions, Your Honor. 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. Mr. Frey. MR. FREY: No questions, Your Honor. THE COURT: Mr. Flower. REDIRECT EXAMINATION BY MR. FLOWER: Q On that occasion on July -- either 2nd or 3rd of 2003? A Urn-hum. Q When Mrs. Coolidge was upset and thought she might be taken away? A Yes. Q Do you recall what she told you? A Yes, I do. She told me that she was afraid of her daughter, she did not want to go to Boston to live at Heavenly Acres, and that her daughter could not take care of her. Q Did Mrs. Coolidge go so far as to tell you who suggested to her that her daughter might take her away? A Yes. She told me that her that the day before when her daughter visited that she said she was taking her to Heavenly Acres in Boston. MR. FLOWER: Okay. No further questions. THE COURT: Mr. Thomas. MR. THOMAS: I have no recross on that. THE COURT: Mr. Frey. 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FREY: No questions, Your Honor. Thank you. THE COURT: You may step down. May this witness be excused? might. MR. THOMAS: MR. FLOWER: THE COURT: I have no objection, Your Honor. No objection, Your Honor. Oh, I did have a question, if I THE WITNESS: Sure. THE COURT: Ms. Eleanor Coolidge was in what area of the home? Was she in skilled care, assisted living or some other area? THE WITNESS: She was in assisted living until she had her -- the stroke. THE COURT: And the stroke was when? THE WITNESS: March. It was March of 2004, I believe, and then when she had the stroke she was in assisted living at the time we sent her out. She was admitted to the hospital. When she returned, she returned with a terminal diagnosis and returned to our skilled nursing unit, and that's where she passed away. THE COURT: And what is the difference between the assisted living units and the skilled nursing care facility? THE WITNESS: Assisted living is where the residents -- they need assistance with their care. They're 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not totally bed bound. They're mobile in one way or another, meaning by wheelchair or ambulation, and they, you know, can participate. They don't necessarily have to do all of their bathing and dressing. They have to be able to participate in that care. The skilled nursing unit is typically for people who are maybe confined to a bed, confined to a wheelchair or dying or very -- you know, very ill from whatever disease they may have. THE COURT: All right. Any other questions by counsel? Mr. Thomas? MR. THOMAS: I do based on what you said. RECROSS EXAMINATION BY MR. THOMAS: Q While Eleanor was a resident in the assisted living section, she was eligible to leave the residence to go with family for holidays and things? A Absolutely. The residents in assisted living are allowed to come and go as they please. She could have left the building at any time she wanted to. Even, you know, for a visit. You know, to go shopping. You know, to go to the movies, go wherever. Or she could have left to go home at any time she wanted. Our residents are not bound by -- in our nursing facility, residents have to have a physicians order that says can be discharged to home or 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discharged, you know, to another facility. In assisted living our residents are not bound by that. So, for instance, if I have a resident come to me and say, I'm going home today, and they have their bags packed, and I won't be back, we can't stop them from doing that. They have the right to do that. Q And you would make a notation of that in the record? A Absolutely. And I would never, you know, in good faith let that resident leave without notifying a family member or even a physician's office. I would let them know as well. Q I understand. What if they were going to be leaving say for an overnight? Would there be a notation in the record so that everyone would know? A Yes. I would hope my staff would follow-up with that if I'm not there, but, yes, we normally do document that they're going out on a pass overnight, you know, because we usually document what medications we send along and the count of those medications so when they come back we count them as well. Q What if they were going away, and it wasn't going to be overnight, it was going to be for the majority of the day, say like Christmas? A Not normally. Not normally unless -- unless 90 1 we send along -- some of our residents are, of course, on 2 narcotics, and if we would send along medications for them 3 to take, and one would be a narcotic, and, you know, they 4 were only going to be out say for Christmas, we would 5 document that just because of the narcotic count, but if 6 they were just going out for a short drive with a family 7 member, no, we don't typically document that. 8 MR. THOMAS: All right. No further 9 questions. 10 THE COURT: Mr. Flower. 11 MR. FLOWER: No questions. 12 THE COURT: Mr. Frey. 13 MR. FREY: No questions, Your Honor. 14 THE COURT: All right. You may step down. 15 Thank you. And may this witness be excused? 16 MR. THOMAS: That's fine with us, Your Honor. 17 MR. FLOWER: Yes, Your Honor. 18 THE COURT: Mr. Frey, any objection to her 19 being excused? 20 MR. FREY: No objection, Your Honor. 21 THE COURT: Thank you. You are excused. Why 22 don't we take about a 5 minute recess at this point. 23 (Whereupon, a recess was taken at 2:44 p.m.) 24 AFTER RECESS 25 THE COURT: Mr. Flower. 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FLOWER: Your Honor, the next witness is a witness that we have agreed to take by telephone. THE COURT: All right. (Whereupon, a telephone call was placed to Judith Foster Wali.) MR. FLOWER: Hello. This is Jim Flower. We're here in the courtroom. Are you ready to testify? I am ready to testify. Okay. You'll be sworn in. THE WITNESS: MR. FLOWER: THE COURT: First, Mr. Flower, whom are you calling as a witness? MR. FLOWER: Would you give your full name, please? THE WITNESS: My name is Judith Foster Wali. MR. FLOWER: W-a-l-i, right? THE WITNESS: W-a-l-i, and I practice law under my maiden name, which is simply Judith Foster. MR. FLOWER: Okay. Which would you prefer to be called? THE WITNESS: Judith Foster. MR. FLOWER: Okay. Now I think we'll be swearing you in. THE COURT: All right. Ms. Foster, would you please raise your right hand? Do you swear or affirm that the statements you give today will be the truth, the whole 92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 truth, and nothing but the truth, so help you God? THE WITNESS: Yes. THE COURT: All right. Thank you. Whereupon, JUDITH FOSTER WALl having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. FLOWER: Q If at any time you don't hear me, please let me know and I will speak up a little bit or if you don't understand the question. Would you tell us where you live? THE COURT: Well, first, again, would you state your full name, please? BY MR. FLOWER: Q I'm sorry. Before you do that, would you restate your full name for the record? A My name is -- my full legal name is Judith Foster Wali. I practice law under my maiden name, which is Judith Foster. Q Okay. Ms. Foster, what community do you live in? A I live in LaCrescenta, California, which is a suburb of Los Angeles. Q Can you spell that? A LaCrescenta is L-a-C-r-e-s-c-e-n-t-a. 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. How are you related to the Coolidge family? A I am the daughter of Eleanor Coolidge's sister Jean. Her only sister. Only sibling, in fact. Q And did you grow up knowing the Coolidge the next generation, Philip and Tom and Julia Coolidge? A Oh, I certainly did. All throughout my childhood and their's. During the summer I spent at least two weeks every summer in Carlisle, and my family visited Carlisle once a month or more throughout my childhood to visit my grandmother who lived down the street from the Coolidges, and I would spend a great deal of that time in the Coolidge home. Q And did you enjoy visiting that home? A Oh, I loved it. I loved it. It was wonderful. I really liked the atmosphere. It was a good break. They had a very nice home. The parents were very calm and peaceful, very normal. It was a Norman Rockwell type existence. Q Did you keep in touch with the family as you grew into adulthood? A I kept in touch with Eleanor. I was in touch with the others, let's see, only in the early '70s, and I would occasionally see Tom when I was in Carlisle because he's the one who stayed close to home, but I was in touch 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with Eleanor and Bud really throughout my life. THE COURT: Who is Bud? BY MR. FLOWER: Q Would you tell the Court who Bud is? A Oh, Bud is Eleanor's husband, Warren Coolidge. THE COURT: All right. Thank you. THE WITNESS: And I called him Uncle Bud. THE COURT: All right. BY MR. FLOWER: Q During say the 1990's, how often would you speak to Mrs. Coolidge? A From 19 -- late 1991 on I would speak to her every month or every other month, and we usually had quite extensive conversations that would last twenty minutes to an hour. Q And this was over the telephone? A Over the telephone. Q What did those conversations typically consist of? A News reports on her family and my birth family. What was going on in Phil's life, Tom's life, Julia's life, the lives of their children, and what was going on with my parents and my brother. Q Who usually initiated those calls? 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I'm the one who initiated the calls, and the reason for this was that I was practicing law full-time, 30 to 50 hours a week or more, and raising two boys by myself. So I was in and out. I wasn't -- you know, I wasn't usually available most of the time, but I would call Eleanor. Q Did she -- did Mrs. Coolidge tell you personal things about the family and their relationships? A Very much so. I think I was her confidante. I lived far away in suburban Los Angeles. So she could safely unload on me. Q Over this period of time, say between 1991 and before Mrs. Coolidge went into the nursing home, did she talk to you about her relationship with her daughter? A Yes. On many occasions. Q And what did she tell you? A Well, just as with all her children, she would tell me things that she liked about her daughter and things that she found very irritating or very displeasing. She was proud of Julia being very smart, but I think she was really saddened by some of Julia's attitudes and how she had chosen to spend her life. Q Can you be more specific? A Well, Julia was really brilliant. She is really brilliant. She's really smart, and she finished medical school, which it had been a lifelong dream of my 96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 grandmother, Eleanor's mother, and of Eleanor to have a female physician from our family practicing in Carlisle, and Julia is the one who went to medical school and finished, but then she never practiced medicine. And she spent her life in Massachusetts, and I guess, you know, there was such high hopes for her that she would spend her life as a female physician in the town that the family dreamed of, healing people, and so on. And she spent her life in Massachusetts basically having conflict with people and suing people. Q Did Mrs. Coolidge tell you about anyone that she understood that Julia had sued? A Well, it seemed to be a different person or a different entity every few months. Apparently things went on with the school district for a while where her child -- the school district where they lived. And this was really irritating to Aunt Eleanor because Uncle Bud was a public school teacher. I guess the only saving grace was that the litigation was in Massachusetts and not in Carlisle. Eleanor was just appalled. Q How did Mr. and Mrs. Coolidge feel about their standing in the community? A Oh, it was very important to them. Q Did Mrs. Coolidge also complain to you sometimes about Phil and about Tom? 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A She complained to me repeatedly about Phil, but not about Tom. Tom was the wonderful son who lived next door to them. They lived vicariously through watching Tom's family, and I don't think Tom ever did anything his mother objected to. Q Weren't there some complaints about availability? A Yes. She did complain that Tom traveled, and that was a recurring frequent complaint. Tom travels too much. But I don't think I ever heard complaints about Tom. Q Okay. She was occasionally upset about Phil? A Yes. Yes. Phil had marital problems, and our family strongly disapproves of divorce, and Phil is divorced and remarried. And then his second wife behaved in ways that arepublically disgraceful, and it really hurt Aunt Eleanor. Q Okay. Did you ever get the sense that your aunt, Mrs. Coolidge, felt bullied by Tom or pressured by Tom? A No. No. If anything, it would have been the other way around. Q You know that he was acting as her attorney in fact? Were you aware of that? A Yes. Q Okay. 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. But that was to be expected. He always did exactly what she wanted. Q Okay. Did she talk to you -- and I'm not sure what the answer to this is, but did she talk to you about his services as her Power of Attorney? A I think there was light conversation about it on several occasions. Q If you recall, did she express satisfaction or dissatisfaction, if either, of his services? A She was completely satisfied. Q Okay. Is there anything else you feel you should add? A Well, Tom was the obedient son who did what was expected of him in every respect. He married the hometown girl from his high school, a girl who in retrospect is very much like Nana, Eleanor's mother, real sweet, and then -- you know, Tom could do no wrong. MR. FLOWER: Okay. Cross-examine. THE COURT: Mr. Thomas. CROSS EXAMINATION BY MR. THOMAS: Q Judy. A Yes. Q Did Eleanor Coolidge ever tell you why Julia was unable to practice medicine? 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A She told me why Julia did not practice medicine, but, you know, we Eleanor told me this, you know. We went through this story many, many times. Yes, we discussed it many times. Q What was the reason that Eleanor gave you for Julia's inability to practice medicine? A Apparently Julia had been diagnosed with grand mal epilepsy. Q Okay. And so Eleanor blamed Julia because she had grand mal epilepsy? A I think that's a mischaracterization. I think Eleanor blamed Julia because she wasn't doing anything useful to service other people with her life. Q Do you know what Julia does for a living now? A Well, I don't know what she does now. During the '90s I think she was working at home on editing medical books. Q Okay. And would you agree with your mother that that's useless as far as an occupation goes? A Well, it's not the form of public service in directly helping people in need that her mother had in mind when she worked at the pharmacy to put Julia through medical school. Q When is the last time you spoke with Eleanor? A I last spoke with her very briefly -- very, 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 very briefly a few weeks before she died when she was in the nursing home. Q And was she able to communicate with you at that time? A She had severe speech problems, and the conversation consisted pretty much of apologizing that she couldn't speak more clearly, but she wanted to, but she couldn't really carryon a conversation at that point. Q She died on March the 24th. How long before that that you had this conversation with her? A I would say several weeks. Q Prior to that conversation, when is the last time you would have spoken with her? A After she went into the nursing home, we had two or three conversations. Q And how long were those conversations? A Maybe five or ten minutes. Q What area of law do you practice? A I'm an immigration lawyer. Q Did you ever ask Julia to help you to medically provide information to the government concerning one of your clients? A Not that I recall. Q A Were you doing that back in 1989? Yes, I was doing immigration law in '89. 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And you haven't spoken with Julia since 1989; isn't that correct? A No, that's not correct. In the mid '90s early to mid '90s -- it must have been around -- let me see, it would have been around '94 or '95 I asked Aunt Eleanor for Julia's phone number, and Aunt Eleanor was initially a little reluctant to give it to me, but she did give it to me, and in trying to contact Julia, I did reach Julia on one occasion, and she was rather curt, I thought, and that was a very, very, brief conversation. Q And that's the last time you spoke to her? A Yes, to the best of my recollection. MR. THOMAS: I have no further questions. THE COURT: Mr. Flower. MR. FLOWER: Ms. Foster THE COURT: I'm sorry. Mr. Frey. MR. FREY: No questions, Your Honor. THE COURT: All right. Mr. Flower. REDIRECT EXAMINATION BY MR. FLOWER: Q Ms. Foster A Yes. Q -- was there a time when you called Mrs. Coolidge to ask for Julia's phone number that she made a remark of some sort? 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Do you recall what she said? A She said that I should be careful because Julia sues just about everybody who comes up on the radar screen. MR. FLOWER: Okay. Thank you. No further questions. THE COURT: Mr. Thomas. MR. THOMAS: No recross. THE COURT: Mr. Frey. MR. FREY: No questions. THE COURT: All right. Thank you. Ms. Foster, thank you very much for your testimony, and you are excused. MR. FLOWER: THE WITNESS: MR. FLOWER: Thank you, Ms. Foster. Thank you. We call Philip Coolidge. Whereupon, PHILIP COOLIDGE having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. FLOWER: Q Mr. Coolidge, would you give your full name, please? A Philip Warren Coolidge. Q Where do you live? 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The family house was sold, and I haven't relocated yet. So I've been doing business and staying with friends and relatives trying to sort out a post-divorce situation that became final the end of January. Q In the period of November 2002 to January of 2003, how often were you in Carlisle? A Several days each week. Q And did you stay with your mother at her home during that period? A Yes. Q What's your education, Mr. Coolidge? A Bachelor's from Tufts College, a Master's degree from the London School of Economics, JD degree from Georgetown. Q You were here in Carlisle on November 17 on the occasion that we had a hearing? A That's correct. Q You're aware that your mother did have periodic problems with depression over the years? A Yes. Q What do you recall about your mother's relationship with your sister during her late adolescence and adulthood? A Julia's exactly 7 years younger than I am, which is a difficult age as you're growing up because as I 104 1 was a senior in high school, she was in fifth grade, and I 2 don't remember anything negative, strained or indifferent 3 during that period of time. 4 After that I only lived in Carlisle, I think, 5 one summer during college. So everything else was like a 6 periodic visit. And I think, you know, for most of that 7 period of time, you know, it was more or less I guess what I 8 would characterize as business as usual. 9 My mother took great pride in Julia's 10 academic success through high school. There was some 11 concern about spending too much time with the books and not 12 enough time with people, but it was pride, and a lot of 13 pride. And there was pride that she went to Bryn Mawr, and 14 as she went to Bryn Mawr and later to Hershey and got 15 married and became a doctor, there was strains that I think 16 were not perhaps A-typical of any mother and daughter. 17 And by strains I'm not trying to place guilt 18 because I know on at least one occasion I very much took 19 Julia's side of the story when both parents -- well, I 20 shouldn't say both parents. When our mother took -- how 21 should I say this, some exception to her boyfriend, and I 22 kind of said to our mother that perhaps she should let Julia 23 make that decision, and that was not her decision to make. 24 But there were strains, and they grew. And as Julia became 25 more independent and had more of a relationship with Jeff, I 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think those strains probably, you know, became worse. Q You were in Carlisle part of the time that your mother was trying to decide which nursing home to go to, were you not? A That's correct. Q Okay. Now, there's been a suggestion that you and Tom made the decision what nursing home she should go to and forced her into a nursing home. Could you describe the process of the decision making about which nursing home? A Well, it had been a discussion going back to two thousand -- July of 2001 when my dad died. And our mother was trying to determine what her choices were during that period of time, and it wasn't a focus of her's, but it was always somewhere on her mind. In the later part of October, 2002, into the very beginning of November, she had a severe depression. She blamed it on the time change. You know, I'm not a doctor, I don't know what triggered it, but something triggered it, and the nursing home went from being a casual episodic discussion to being a focale point. And we had a discussion one time I was down, and what I said to her was, you make whatever choice you want, but. don't burn the bridge until you know where you want to be. In other words, if you go to a nursing home 106 1 don't sell the house for like a year so that if you change 2 your mind you can always come back. And I said, I'll take 3 care of the cat so if you change your mind when you go to 4 the nursing home, I'll bring the cat back so you and the cat 5 can like reestablish yourself in the house. 6 So I got -- I went back to Boston, came back 7 the next weekend, and our mother was very methodical. She 8 was Phi Beta Kappa in college, and over the course of that 9 week, with the help of a neighbor, I think Mrs. Jones, who 10 had some affiliation with some nursing home at some point, 11 she had a very neat pile, all of the sales literature and 12 papers for each of either three or four nursing homes. 13 And she and our father had spent a great deal 14 of time at the Todd Home, and at one point before my dad's 15 death they had spoken about going into one of the cottages 16 there together. For whatever reason, she had excluded Todd 17 Home by the time I got there, and I don't know why. 18 THE COURT: And for the record, where is the 19 Todd Home? Is that in Carlisle? 20 THE WITNESS: Oh, it's in Carlisle, 21 Pennsylvania. 22 THE COURT: Okay. 23 THE WITNESS: I think it's on West South 24 Street. And she had been a day or so before at -- I think 25 it's called Chapel Pointe, which is on South Hanover Street. 107 1 2 3 THE COURT: Is that also in Carlisle? THE WITNESS: In Carlisle. I'm sorry. And Mrs. Jones, I believe, was the woman who took her, and she 4 didn't like that. And I don't recall her articulating why 5 she didn't like it, but she was very, very definite that 6 that was not where she wanted to go. 7 So the next on the list was Thornwald, which 8 we all knew from having grown up. We played touch football 9 in the yard and everything. That's also in Carlisle on the 10 Walnut Bottom Road, and sol called out, and somewhat to my 11 surprise found out that a high school classmate of mine was 12 actually the head administrator. Her maiden name was Anna 13 Wanner. Her married name escapes me. And so very quickly 14 we arranged an appointment and went out and got a tour, and 15 my mother seemed at first impression very much to like it, 16 and Ann's father, Dick Wanner, was there, and my mother at 17 the end of the tour, you know, spoke with him. He was quite 18 happy there. 19 And I thought there were a lot of buy signs, 20 to use kind of a sales term, and I thought, well, jeez, you 21 know, we're getting kind of lucky. Only one tour, and she's 22 in. Then we left Thornwald and went back to the car, and it 23 was a nice fall day, and there were a number of residents 24 who were walking around the campus like atmosphere of 25 Thornwald, and I made a comment that they seemed to be very 108 1 happy, and isn't it nice to live right on a park? And my 2 mother turns to me and she says, these inmates are not 3 happy. I said, okay. And at that point I knew that 4 Thornwald was not going to work. 5 So I drove her home to her house, which was 6 no more than five minutes, and I said, well, what do you 7 want to do now? And she said, well, Green Ridge. So I said 8 okay. Do you want me to call and set up an appointment, and 9 she said yes. So I called, and I don't think it was that 10 day, I think it was the next day, I took her up. 11 And my mother grew up in Carlisle and has 12 spent virtually her entire life in Carlisle, and she has in 13 many ways the prejudices of a Carlisle girl. She doesn't 14 like the Post Toasties from the Army War College and she 15 looks down at anyone who doesn't live in the Borough. So as 16 I'm driving her to Green Ridge, she proceeds to tell me that 17 Hans Uberseder, who was an old orchestra teacher at the high 18 school, once said that the only way to see Newville was ln 19 the rear view mirror on your way out. And I'm saying to 20 myself, this is the fourth one. These are all strike outs. 21 Incidentally, Green Ridge, as a prior witness 22 said, is a few miles from Newville itself. So we went 23 there, and we went in, and as she started to walk around, 24 because it's much -- it's much larger and much airier in 25 terms of the ambiance, and what I thought was dead on 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 arrival, she actually liked, and very unexpectedly she started to bump into childhood friends like Evelyn -- it wasn't Evelyn Craig, she was not there the first time, but Madge Line was there and some other people were there. And so she started to talk about which papers do I fill out, and how do I do all of this stuff. So we agreed that we would come back, and my recollection is either I think it was the next day the two of us went back, and this time Tom came along as well, and I think that time we met with someone more senior and actually talked about what the next steps were. When we left the first time I was expecting another inmate comment as we drove out, but I didn't get one. She was quite happy as we did, and that was the state of play, from my perspective, until she was released from Chambersburg Hospital. Do you want me to continue or -- Q Let me ask you, after she became established at Green Ridge, did you have -- what sense did you have as to how she felt about living there? A I don't think she ever said anything negative to me. And, in fact, there were a number of times during that period where I would quite intentionally go and have lunch with her, and she didn't have lunch with her old friends that she had grown up with. She had met two or three other new friends. And our mother was not terribly 110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 social. I mean our parents basically stayed at home. You know, I was quite surprised that mom was able to interrelate with people she had never met before, and not only carryon a conversation, but do so with some vigor. A number of the activities that she was involved in, she genuinely liked. She knew exactly, you know, when they were in terms of church services and singing. And I was also surprised -- I think it was that first Christmas of 2002, that she had gone on -- I think it was a bus tour to look at Christmas lights, and I can never remember in my life my mother going to look at Christmas lights. So I would say throughout that period, you know, she was quite happy. Q Before your mother went into the home, did she handle her own finances? A She always did. Q What sort of things did she do? A She was the chancellor of the exchequer. Every penny that went out of that house basically had her initials on it, and the money that came into the house went -- she knew exactly where it was, and our father never objected. He had no interest in doing financial type stuff at all. Q Was she interested in investments? A You know, early years I think the answer's 111 1 no. Her sister, Jean, who was Judy Foster's mother, was an 2 economics major, also Phi Beta Kappa at Dickinson, and every 3 time she would corne and visit she had a new investment, the 4 latest hot stock that my morn had to invest in. And I guess 5 after all the children had left, morn started to really get 6 into the stock market. Not by buying a lot or selling a 7 lot, but in certainly after my father died, and I think 8 for several years before that, her daily TV show was not the 9 evening news with Peter Jennings, but it was MS NBC's market 10 report that carne on right after the market closed. 11 And she knew about each company that she had 12 invested in. She knew exactly what they did, what the brand 13 names were, if they were in retail sales. I wouldn't say 14 she knew the financial aspect of it, but she knew what the 15 companies were, and she wanted to invest in good companies. 16 And as a trustee in a mutual fund industry, you know, I 17 would get reports from professional advisory firms. So we 18 would talk about that sort of thing. 19 Q Let me ask you when the topic first carne up 20 of your mother appointing somebody as her Power of Attorney? 21 A Well, I mean I guess you could say that that 22 was a topic that periodically carne up going back to when my 23 dad died, but not really in a serious way until, oh, I don't 24 know, a month or so after she was at Green Ridge. And she 25 asked me on at least two occasions, and probably more, 112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whether I would be upset if Tom were appointed Power of Attorney, and each time I told her, he's the logical person because he's right here. And for me to try to do that sort of thing at a distance would have been, you know, much more awkward. So I said, no, I have no objection at all. And so the next week when I had come back she pretended like she had never asked me the first time, and she asked me again. Q You knew that she had given her Power of Attorney to Tom in December of 2002? A Yeah. She didn't call me the day before to ask my permission, but I found out about it after that, and once again, I had no problem with it. Q Did she ever have occasion to express to you either satisfaction or dissatisfaction concerning what Tom was doing for her? A I think in his capacity as Power of Attorney there was absolutely no negative comment at all. For most of the routine business, it just never came up. In terms of the house, she was thrilled at the price Tom was able to get for the house without a broker, and in terms of the disposal of the personal property, she was thrilled with what Tom had done. Q Was it -- whose decision was it to sell the house? A No one made decisions for my mother other 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 than my mother, and when she was considering doing it, I reminded her that the reason I had taken the cat was so that if she got unhappy at Green Ridge Village she could go back, and she just looked at me, and she said, I'm not going back. This house is going to be sold. Q Was there an occasion where you made a suggestion to her about a clause in her will? A Yes. This was after the hearing In November of 2003 when she wanted to change her will for the reason it was changed, and I took Torn to one side because at that point in time I was separated from my wife and my older daughter Amanda, who is 15 living in LA, was starting to develop an interest in things I thought both my parents would rollover in their graves. She was fascinated with Buddhism and Taoism and a variety of Eastern -- you know, I just kept seeing a Hari Krishna arriving at the door some day. And kids change, and when I spoke to Bob Frey about it he said, 15 year olds grow up. And I remember saying to him, sometimes they don't. And I put on the table first with Torn, and then later with Bob, to ask my morn to be able to adjust the percentage that went to my two daughters when the time carne. Q In other words, you wondered if your mother would address the change in the will to allow you to adjust that? 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Right. Not to increase or decrease it. I mean it would be X amount of principle to go to the two daughters, and the way the will was drafted, it would be 50/50. And if one was a Hari Krishna, and one wanted to go become a medical doctor or a lawyer, I know how both my parents would feel about it. So that's why I put it on the table. Tom agreed with me. Not that he wanted to do the same thing, but his kids are older so there's lesser risk there. And my understanding from Bob Frey is my mom would have none of it. So it was not done. Q So she made that decision? A Bob 1S the one who spoke, but yes. Q All right. Can you pinpoint that -- was that around November of 2003? A The hearing was what? The 17th? So I would have spoken to Bob about it on the 18th. I don't know when he spoke to my mother. I went back to Boston to do some stuff, and on my way to pick my 10 year old up the day before Thanksgiving I called Bob, and he told me that he had spoken to my mother during that week's interval, and that she said no. He made it very clear to me this was not renegotiable. Q You were here at the -- on November 17? A Correct. Q 2003? Excuse me, that's not right. Yes, it 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is. 2003. Were you with your mother on that day? A Yes. Q What was her state of mind? A On the one hand she had very, very high anxiety. My mother was a very private person. The whole concept of appearing in a public place horrified her, scared her. She had claustrophobia that she had been treated for. On the other hand, she was a Phi Beta Kappa type student going into her final exam, and she had done her homework, and there was incredible confidence that she would pass the exam, and she wanted to take that exam and prove that she was okay. So it was a balance between not having been to court at all, not knowing what a court was like, not knowing what the process was, and not knowing, you know, how things would be done, which someone with anxiety, it's much worse, coupled with I'm going to do just fine. Q How did she react after the hearing? Were you driving back to the home in the same car with her? A Yeah. It was Tom's car. She was in the front seat because she was in a wheelchair and that was the only seat that she could really sit in, and I was in the back with Tom's daughter Devyn. Q And what did she say? A Well, from the time she got out of chambers 116 1 with the judge until I would say maybe half-way -- I think 2 we went out Route 11 to Green Ridge -- she -- it was idle 3 conversation or she would say, I tried, and she had a lot of 4 pride in having answered the questions. In her mind she had 5 answered the questions, and she had, although it was 6 difficult for her to speak certainly in a normal cadence, 7 you know, relived certain questions. 8 And Julia's attorney at the time was Jason 9 Kutulakis, and Kutulakis had far too many syllables for my 10 mom and she couldn't remember the name, but it was that guy 11 that asked me, and so she relived a couple of the questions, 12 and then all of a sudden, without any prompting, we were 13 just driving along, and she pokes her left hand up into the 14 air, and she said, she's out of my will. And I think the 15 other three of us were somewhat startled. 16 And she repeated it, and I said -- as I have 17 once or twice in years prior to that I said, well, do you 18 want me to call Bob Frey? And she said yes. And I said, 19 well, I'll have Bob come and see you, but when he asks me, 20 you know, what it's about, he's going to ask me what about 21 Joseph, Julia's son. And the hand went back up into the 22 air, and she said, he's out too. And I think that was 23 really about the extent of it. And, you know, we went to 24 Green Ridge. My recollection is we got there around 25 lunchtime, and I don't think the topic was really discussed 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 again. Q And did you, in fact, contact Mr. Frey? A I did. I don't actually remember, it may have been that afternoon or it may have been the next day. I think what I did is I made kind of a perfunctory phone call the first time, and then I spoke to Tom about the other will change, and I probably called him back. But I would have left for Boston, I think, maybe the day after that or something. So once I left, I didn't talk to Bob at all. At most, it would have been twice. MR. FLOWER: Cross-examine. THE COURT: Mr. Thomas. CROSS EXAMINATION BY MR. THOMAS: Q Mr. Coolidge, are you currently employed? A I do consulting work until some litigation I'm involved in is over and I also make a decision whether to live in LA close to my children or relocate here on the east coast. Q And what kind of consulting work do you do? A The stuff I love to do is in product design from mutual funds, which is my area of expertise. I'm a corporate and securities lawyer. So I've done some general 24 corporate and securities work. I am doing legal work, not 25 litigation -- I don't go to court for a living like you. I 118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 write documents for an art gallery in California, and I have done some expert witness type stuff for an attorney in Chicago. I have also had a lot of contacts in the mutual fund industry, both in this country and in Europe, and I've done some, I guess what I would characterize general business consulting for a financial printing company that I've known for over twenty years, as well as for a legal headhunter in Boston. Q Are you self-employed? A Consultants are, yeah. I mean I don't work for a company per say. Q How long have you been self-employed as a consultant? A Well, that's an interesting question because myoId company was called Signature Financial Group, which technically still exists, but it's basically being wound up, and there are a lot of fights between the venture capital investors on one side and myself and other people in the management on the other side. So I mean technically I'm still the president of that company, but I wouldn't say I'm an employee of the company. I don't get paid anything. So there was kind of a gradual evolution from, oh, I don't know, call it December 2001 to April of 2002, and then after that it has been kind 119 1 of this, you know, floating craps game, if you will, kind of 2 thing where I do some work for it, but I don't get paid fo~ 3 it, but I own stock in it. 4 Q What was your gross income for 2004? 5 MR. FLOWER: Objection. Relevance, Your 6 Honor. He asked him his gross income. 7 MR. THOMAS: Your Honor, the will that has 8 been probated makes specific reference to Julia's financial 9 well being as a result of what she's getting from her 10 father's trust, and I think it's relevant to distinguish the 11 financial well being between each of the parties. 12 MR. FLOWER: The cases on the issue of 13 substantial benefit talk about percentages of estates that 14 go to individuals, but they never get into the income or 15 other means of the individuals who are beneficiaries. 16 THE COURT: Mr. Thomas, what are you trying 17 to show with the answer? 18 MR. THOMAS: Well, I'm trying to establish 19 what his income is so that the Court will know if it's 20 different from the income of Julia because of what the will 21 says. The will says that Julia is provided for sufficiently 22 and intimates that that's why she's giving the monies to her 23 sons. 24 THE COURT: Mr. Frey, do you have a position 25 on the objection? 120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FREY: I don't see its relevance, Your Honor. THE COURT: The objection is sustained. BY MR. THOMAS: Q You indicated that you were waiting until some litigation was over before you found a place to live. What litigation was that? MR. FLOWER: Again, I object on relevance, Your Honor. THE COURT: Well, I think it came up in his testimony. So I can't very well limit that area just to your direct examination. BY MR. THOMAS: Q Do you need me to repeat the question? A No, no. It's more complicated than what you think, but the litigation started with two lawsuits by the joint venture investors in myoId company, which were designed basically to freeze me and force me out because I had a controlling block of stock. The second chapter was my wife filed for divorce. In fact, we are now divorced. It doesn't prevent her from going to court, but we're divorced. I filed for personal bankruptcy as a way of dealing with the first two lawsuits. The bankruptcy is ongoing. The divorce decree is final, but there are motions pending in Cambridge, 121 1 Massachusetts to modify the decree. 2 What makes it difficult in terms of where I 3 live, which is the context of which you raised it, is both 4 personal in terms of what the visitation rights will be with 5 my children, because it makes no sense to go to Los Angeles 6 if I can't see my kids. Well, I think it's kind of 7 irrelevant for me to go. On the other hand 8 In addition to that, until the litigation 9 with myoId company is over, and because that company has 10 incredible intellectual property by way of both confidential 11 information, service marks, it also got the first patent on 12 computer software. Not that we ever made any money out of 13 it, but that went the whole way to the US'Supreme Court and 14 has opened up a floodgate of software. 15 If I were to get a job, a full-time job, it 16 would open up whoever my employer would be for a lawsuit by 17 the same venture capital people that by virtue of that 18 employment I was utilizing the confidential information and 19 proprietary knowledge of myoId company. So my guess is 20 if -- 21 In myoId role as a CEO I would never have 22 hired me because you don't hire lawsuits. So until those 23 original two lawsuits are dealt with as part of the 24 bankruptcy, it would be very hard for me to take a typical 25 job. So it's a combination of all that. 122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Were you aware of the fact that Julia had filed the petition for appointment of an emergency guardian with regard to your mom before November 17th? A Yes. Q How long before November 17th were you aware of it? A My brother would have called me either the day it was filed or perhaps the day after it was filed. I was In Los Angeles at the time, and I specifically flew back to be here to try to support my mom at that hearing. Q Did you have any discussions with your mother about the reasons why Julia filed the petition? A I got into -- I did not speak to my mother by phone at all. I arrived in Carlisle the day before the hearing, and I went to Green Ridge and met with my mother alone. Tom would not have come. That's the way I did it. And I was concerned about two things. One was how she was dealing with it emotionally, and secondly whether she actually understood legally what the motion was all about, and -- but I didn't want to dwell on it because I kind of thought it was a subject she would not want to dwell on. And in her kind of slow paced way, I got the impression very quickly that she felt she understood, and I kind of felt that she understood generally speaking what it was about. Q All right. So what was the understanding 123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that she had that she expressed to you? A I don't remember the exact words. I understand that that's what you're trying to get at. I just don't remember, but basically that her competency to make decisions for herself was going to be judged by a court. Q Any discussion as to why Julia wanted to have that done? A At that point in time I don't believe so. In fact, at no point in time do I believe so. Q Did you ever read the petition? A I'm sure I did at the time, but it's been a while. Q Julia was not seeking to have herself appointed as the guardian in that petition, was she? A That's clearly my recollection. Q That she was not? A That's right. Q Did you contact Julia to say, Julia, this is really upsetting our mom, why don't we all get together and see if we can get this worked out without going to court? A The answer's no. Q Okay. A Much earlier in 2003 when I was made aware of, I think it was the July visit, I don't remember exactly what point in time, but it was somewhere in the latter part 124 1 of the summer, if I recall correctly, it became apparent 2 that this would either head for litigation or it would end 3 up between attorneys. 4 At that point in time I was already involved 5 In numerous pieces of litigation, and I had been involved in 6 a number of corporate pieces of litigation in the 1990's, 7 and I had developed my own personal way of dealing with 8 this, which was not to put myself in a position where I 9 could be misquoted. 10 So when it became apparent to me that this 11 would end up at least at lawyer to lawyer, if not in court, 12 I wanted to deal with Julia or, quote, the other side, if 13 you will, through an attorney. And I didn't want to open 14 myself up to direct conversations. And that had nothing to 15 do specifically with Julia. That's just the way I dealt 16 with litigation, period, at that level. 17 Q Okay. Were you a close family? 18 A I wouldn't say as close as a lot of families, 19 no. I think I was fairly close with both my mother and my 20 father, but distance being what distance was and ages being 21 what ages were, you know, we didn't really socialize very 22 much. 23 Q When you were traveling to court for the 24 hearing on the guardianship, who was present in the car? 25 A It would have been Torn and myself, and I 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 can't remember if his daughter was there or not. Q And your mother, Eleanor, also? A Oh, yeah. I'm sorry. Q And you were all in the car talking about this guardianship hearing that you were about to go to, correct? A I don't recall the conversation, and I think one of the reasons for that is we didn't talk about that, and at least on my part, I would have tried to make an effort to try to relax my mother and get her mind away from the anxiety that I knew full well would hit her. Q I thought you had testified on direct that your mom was suffering from anxiety because of this, but at the same time she was saying how she was going to do this? A That was mostly the day before, but she said it, I know, at Green Ridge that morning, but you asked me in the car on the way, and the way Tom's car is, mom, once again, sat in the front seat, Tom was the driver, and I sat in the back seat. That's a very awkward way to have a conversation. Q You were not present when your mother actually testified, correct? A That's correct. 24 Q But you are -- after the hearing is over, you 25 are in the car with her traveling back to Green Ridge? 126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's correct. Q And it is while you were in the car with her that she made the statement that Julia is out of the will? A That's correct. Q Did I understand you correctly then that you then explained to your mother that Julia's out of the will and then Joseph was out of the ill? A No, I didn't explain that. She said, she is out of my will. My response was, do you want me to call Bob Frey and have Bob talk to you? She said yes. At that point I said, Bob will ask me when I call him, what about Joseph? And at that point she said, he's out of the will. He's out too or something. He's out too. Q Did you explain to her at that time that she could remove Julia from the will without removing Joseph? A My view -- it was kind of implicit in when I said -- no, I didn't. I viewed that as Bob Frey's role, not mine. Q Even though you're her son, you didn't feel that was your role? A Over the years I've tried not to voluntarily practice law inside the family. If somebody asked me a question, I'll answer it. And I'm not a Pennsylvania lawyer and I'm not a decedent's estate's lawyer. And if there had been a personal family reason, not a legal reason, but a 127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 personal reason, I would have raised it. I was just trying to figure out what I was to tell Bob, from her perspective, and what not to tell Bob. Q Did you -- I assume that based on what you told me you said you never attempted to dissuade your mother from writing Julia out of the will? A I never persuaded, dissuaded or discussed, that's correct. Q Well, you volunteered to call Bob Frey? A I view that as an administrative exercise, which I've done, as I said, on other occasions for her. MR. THOMAS: I have no further questions. THE COURT: Okay. Mr. Frey. MR. FREY: No questions, Your Honor. THE COURT: Mr. Flower. MR. FLOWER: No redirect. THE COURT: All right. BY THE COURT: Q Just a little housekeeping, if I might. What is your date of birth? A Me? Q Yes. A Oh, I'm sorry. September the 2nd, 1951. Q And do you know your brother Tom's date of birth? 128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A July 8th, 1954. And your sister Julia's? September the 2nd, 1958. Q And your mother's? A No, I don't. Q And I wasn't quite sure I got your address. What state are you living in? A Well, right now I usually stay with Tom or I travel and stay with friends until I -- 1111 either settle In Pennsylvania or California. I haven't decided. MR. FLOWER: Your Honor, I have Mrs. Coolidge's date of birth. It's August 13, 1928. THE COURT: Does that sound correct? THE WITNESS: It sounds correct. THE COURT: Somehow I need a witness to say it or a stipulation by counsel. MR. THOMAS: I would stipulate to that, Your Honor. THE COURT: And Mr. Frey. MR. FREY: I have no objection. I think Mrs. Coolidge's date of birth was testified to much earlier in this proceeding. THE COURT: MR. FREY: THE COURT: It may have been. On Monday. It may have been. 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY THE COURT: Q And presently you would say your address is basically the same as your brother's? A Well, I have a mailing address. Q All right. What is that? A 950 Walnut Bottom Road, Box Number 15243, Carlisle, 17013. THE COURT: All right. Very good. You may step down. Thank you. THE WITNESS: Thank you. MR. FLOWER: One final witness, Your Honor. THE COURT: All right. We'll continue on until 4:30. Actually until 4:15 because I have a wedding to perform at that time. MR. FLOWER: Okay. I would call Thomas Coolidge. Whereupon, THOMAS E. COOLIDGE having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. FLOWER: Q Mr. Coolidge, would you give your full name, please? A Thomas, E for Edward, Coolidge. (Whereupon, Respondents' Exhibit No. 11 was 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 marked for identification.) BY MR. FLOWER: Q I'll show you what's been marked as Respondents' Exhibit Number 11. This is the copy of the estate tax return which Mr. Devlin testified from, and I'll ask you if this is, in fact, a true and correct copy of the estate tax return filed in your mother's estate? A Yes, I believe it is. THE COURT: And for the record, what lS your address? THE WITNESS: 265 Moore1and, and that's spelled M-o-o-r-e-l-a-n-d, Avenue, Carlisle, Pennsylvania, Cumberland County. THE COURT: Thank you. (Whereupon, Respondents' Exhibit No. 12 was marked for identification.) BY MR. FLOWER: Q I'm going to show you what's been marked as Exhibit 12, Respondents' Exhibit 12. It's a document of several pages. Would you describe for the Court what that is? A Yes. This is an Excel spreadsheet that I created that itemizes, I believe, all of the checks I wrote in my service as my mother's Power of Attorney. Q We had earlier introduced Respondents' 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit Number 9. Would you identify this, and tell the Court what that is? A Yes. This is a document that I put together to try to provide in one place source documentation in terms of statements from various different financial institutions and investment brokerage firms where my mother had accounts that would document in the spreadsheet. Q So these few pages are consistent with what's in there, and it's a way to just look at that and to see grouped by different payees what checks you wrote? A That is correct. THE COURT: Before I forget, what is your occupation? THE WITNESS: I'm an executive with a company headquartered in the United Kingdom with an office here in the Carlisle area. The company is called Advantica, and it is spelled A-D as in David-Vas in Victor-A-N-T-I-C-A. THE COURT: And that company does what? THE WITNESS: Well, it's a company of about 600 people, and we provide engineering consultancy and computer software to utilities around the world. THE COURT: And your position is what? What do you do in that job? THE WITNESS: I am executive vice president responsible for much of our operations in the United States 132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and for all of our software operations around the world. THE COURT: Okay. Mr. Flower. (Whereupon, Respondents' Exhibit No. 13 was marked for identification.) BY MR. FLOWER: Q I'll show you what we've marked as Respondents' Exhibit 13, and ask you if this is a copy of your mother's will which was dated June 16, 2003? A Yes. MR. FLOWER: Your Honor, we're supplying this because we weren't sure if there was a signed copy, and it's been located, and we wanted to make sure that the record is complete on it with respect to Mr. Frey's testimony. BY MR. FLOWER: Q Let me refer you, Mr. Coolidge, to your services as Power of Attorney. First let me ask you, before you were appointed, did your mother, in fact, pay all of her bills? A All of them, yes. Q For how long had she been doing that? A Seemingly forever. Certainly all of my knowledge from living at home in my high school years on she was always the family bill payer. Q Let's consider the period of time after her second hospitalization at the Chambersburg Hospital on July 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22nd until she moved to Green Ridge Village at the end of November 2002. Did she arrange and pay for her own health care during that period? A Yes, she did. Q Did she arrange for and pay for upkeep on her house and property? A Yes. She was very picky about the family home, and she arranged for its care and used a variety -- a landscape firm and other folks to make sure that it was kept the way she liked it. Q Was she at that time handling her own investments? A Yes, she was. Q Did she arrange for and pay for any companion care? A Yes, she did. She -- after my father's death in July of 2001, she struggled to find her footing. They had been married for 50 years. She experienced great loneliness. I was unable to meet her expectations for filling that void, and she found others unable to fill it as well. And she tried to -- through the County, the Department of Aging, she became aware of a variety of companies who provided what I would call companion care, professionals who would come and spend some time in the home accompanying her on errands if she wanted to go on errands 134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and the like, and yes, I think in February or so of 2002, around that time, I believe, she would have begun to secure the services of a companion care company in that regard. Q How did you and your mother -- during the periods of your services as attorney in fact for your mother, how did you set things up for you to take care of her affairs? A Well, she was very, very orderly, and she has a filing system that was extensive and complete and kept very exact records for all of the bills she would pay, and so from the time I became Power of Attorney, she effectively trained me. I became Power of Attorney on December 20th, and in the early days and weeks of that, usually once a week because I usually would collect the bills over the weekend when I visited and we would go through them one by one, she would tell me what the account was, if I had any questions about it, and, you know, when to pay it because she wanted -- I typically only pay bills once a week or occasionally once every couple weeks if I'm traveling. She likes to pay bills the same day they come in, you know she would want the bill paid. So we would spend time and go through them one by one, and that continued, you know, until we had gone full cycle in great detail, and thereafter she occasionally would ask questions, but unless there were a change, it became pretty routine. , 135 1 THE COURT: Mr. Flower, at this point I need 2 to adjourn for the day. You may step down, Mr. Coolidge. 3 Did counsel wish to move the admission of various exhibits 4 before we do adjourn? 5 MR. FLOWER: Yes, Your Honor. We would like 6 to move the admission of all of our exhibits 1 through 13. 7 MR. THOMAS: I have no objection, Your Honor. 8 THE COURT: I think there's 14 exhibits. 9 MR. THOMAS: Well, I would -- I believe we 10 moved the admission of most of them, but I would remove to 11 have all exhibits, 1 through 14, admitted into evidence. 12 THE COURT: Well, I don't want to admit them 13 twice then the record is confused in the transcript. 14 Mr. Flower, do you have any objection to the admission of 15 Petitioner's Exhibits 12, 13, and 14? 16 MR. FLOWER: No, Your Honor. 17 THE COURT: All right. Petitioner's Exhibits 18 12, 13, and 14 are admitted. 19 (Whereupon, Petitioner's Exhibits 12, 13, and 20 14 were admitted into evidence.) 21 THE COURT: And I will note for the record 22 that Petitioner's Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 23 were admitted at the proceeding on February 28, 2005. And, 24 Mr. Frey, did you have any objection? 25 MR. FREY: No objection, Your Honor. 136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 4,9,10,7,8,6,11,12, and 13 are admitted. 18 (Whereupon, Respondents' Exhibits 1, 2, 3, 4, 19 6, 7, 8, 9, 10, 11, 12, and 13 were admitted into evidence.) 20 THE COURT: And we'll enter this order: 21 AND NOW, this 3rd day of March, 2005, the 22 hearing in the above-captioned matter not having yet been 23 completed, the record shall remain open, and counsel are 24 requested to contact the Court's secretary for purposes of 25 scheduling an additional period of hearing. THE COURT: All right. Then those exhibits, namely Petitioner's Exhibits 12, 13, and 14 are admitted. Petitioner's Exhibit 11 had been previously admitted on today's date. All right. Mr. Flower. MR. FLOWER: Yes, Your Honor. THE COURT: You're moving for the admission of Respondents' Exhibits 1, 2, 3, 4, 9, 10, 7, 8, 6, 11, 12 and 13, I believe. MR. FLOWER: I hope that that's -- I know I did some of them out of order so that's confusing, but 11m intending to seek the admission of 1 through 13. THE COURT: All right. Mr. Thomas. MR. THOMAS: No objection, Your Honor. THE COURT: Mr. Frey. MR. FREY: No objection, Your Honor. THE COURT: Respondent's Exhibits 1, 2, 3, 137 1 It is noted that at the time of adjournment 2 on today's date, at the hearing today Petitioner's Exhibits 3 11, 12, 13, and 14 had been identified and admitted, and 4 Respondents' Exhibits 1, 2, 5, 3, 4, 9, 10, 7, 8, 6, 11, 12 5 and 13 had been identified and admitted. No other exhibits 6 were identified or admitted on today's date. 7 (End of order.) 8 THE COURT: Court is adjourned. 9 (Whereupon, the proceedings adjourned at 4:15 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 138 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. ~ne~ Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. (vi 2J c.-~ :s II 7 d i>S- Date 139