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TRANSCRIPT
1 STATE OF ILLINOIS) ) S S .
2 COUNTY OF COO K )
3 THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
4 COUNTY DEPARTMENT - PROBATE DIVISION
5
6 IN THE MATTER OF 09 P 4585
7 THE ESTATE OF
8 MARY SYKES,
9 a disabled person.
10 REPORT OF PROCEEDINGS
11 BE IT REMEMBERED, that the
12 above-entitled cause, came on for a Hearing,
13 before the Honorable JUDGE JANE STUART,
14 Judge of said Court, on the 18th day of
15 March, 2011, 2:00 p.m., at the Richard J.
16 Daley Center, Room 1804, Chicago, Illinois.
17
18
19
20
21
22
PRESENT: MS. CYNTHIA FARENGA, ESQ. MR. ADAM STERN, ESQ. GUARDIAN AD LITEMSi
MR. PETER SCHMIEDEL, ESQ. appeared on behalf of the Guardian;
MS. GLORIA JEAN SYKES, Pro Se Respondent.
CHRIS MULLEN, OFFICIAL COURT REPORTER 23 69 WEST WASHINGTON STREET, SUITE 900
CHICAGO, ILLINOIS 60602 24 C.S.R. LICENSE #084004646
1
1
2
3 WITNESS:
4 JOEL BRODSKY
5
6
7
By Mr. Schmiedel
By Ms. Sykes
8 DR. JEFFREY SHAW
9 By Mr. Schmiedel
10 By Ms. Sykes
11
12 EXHIBIT NUMBER
13 No. 3
14 No. 4 No. 5
15 No. 6 No. 7
16 No. 8 No. 9
17
18
19
I N D E X
DX
21, 64
77
MARKED FOR I.D.
78 83 84 85 86 87 88
20 REPORTER'S CERTIFICATE: PAGE 163
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2
CX
28, 64
98
ADMITTED INTO EVD.
86 92
86
1 THE COURT: In Re: Sykes, 09 P 4585.
2 Good afternoon. I am Judge Jane Stuart.
3 This is Room 1804. I apologize to all of
4 you.
5 I feel I must explain why I have
6 these sunglasses on. I'm having an allergic
7 reaction to something I was using that has
8 made my eyes turn red. So it is much better
9 if I have the sunglasses on to protect and
10 to lessen the reaction.
11 Having said that, let me call Sykes.
12 May I have the attorneys, please, and
13
14
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24
Ms. Sykes.
MR. STERN: Adam Stern, S-T-E-R-N, one
of the two guardian ad litems.
MS. FARENGA: Cynthia Farenga,
F-A-R-E-N-G-A, guardian ad litem for Mary
Sykes.
MR. SCHMIEDEL: Peter Schmiedel,
S-C-H-M-I-E-D-E-L, on behalf of the Guardian
of the Estate and Guardian of the Person for
her mother Mary Sykes.
MS. SYKES: And Gloria Jean Sykes, pro
se. I am the daughter, the youngest
3
1 daughter, of Mary Jean Sykes.
2 THE COURT: I'm glad you said pro se
3 because I saw someone at your table. I was
4 going to ask you if that was going to be
5 counsel, but you have answered my question.
6 There are several matters before the
7 Court. Let me ask the guardian ad litem, do
8 you have a copy of the last Order we had
9 that set the Order for today?
10 MR. SCHMIEDEL: There is two Orders. I
11 saw them. I recall yours.
12 MS. SYKES: Your Honor, I did not
13 receive an Order from October 2nd.
THE COURT: October 2nd?
Excuse me. March 2nd. As I
14
15
16
17
18
19
20
21
MS. SYKES:
faxed you -
THE COURT: There was nothing on March
2nd.
MS.
MR.
MS.
SYKES: Yes, there
SCHMIEDEL:
SYKES: I
Judge,
thought
was.
there was.
22 THE COURT: The 3rd you could come but
23 it was heard on the 2nd.
24 MS. SYKES: I got it on my I-Phone and I
4
1 read it wrong. I did e-mail you. I never
2 received the Order.
3
4
THE COURT:
MS. SYKES:
I never got an e-mail.
I faxed you an e-mail and,
5 in fact, I faxed Mr. Schmiedel also that we
6 all knew that as of August
7 THE COURT:
8 into the record
9
10
11
MS. SYKES:
THE COURT:
MS. SYKES:
12 Order.
13 THE COURT:
I got that and I read that
Okay
on the 2nd.
but I never received an
Let's see what it says. I
14 don't think it says anything.
15 MR. SCHMIEDEL: The rule to show cause,
16 that was set for today and --
17 THE COURT: I have it here in my hand.
18 Now that we have this wonderful system, this
19
20
21
22
23
was
one,
for
entered.
please.
MR. STERN:
THE COURT:
Ms. Sykes.
You know what? Print another
Which one is that, Judge?
This is March 2nd. This is
This matter coming on to be
24 heard on an emergency Motion to hold Gloria
5
1 Sykes in direct criminal contempt and for
2 rule to show cause to be issued against
3 Gloria Sykes, and due notice having been
4 given, Gloria Sykes having sent the Court an
5 Affidavit and Response to the Motion to hold
6 her in contempt, and Gloria Sykes having
7 also filed a request to continue this matter
8 to March 18, today at 2: 30, and Gloria Sykes
9 having failed to appear on March 2, 2011, it
10 is hereby ordered that, one, rule to show
11 cause why Gloria Sykes should not be held in
12 contempt due to allegations she lied under
13 oath on February 15, 2011, where this Court
14 shall issue a rule to show cause, return and
15 set for Hearing on March 18th, today, at
16 2:30. Subpoena of Joel Brodsky continued to
17 3-18-11 at 2: 30.
18
19
20
MR. SCHMIEDEL: She was personally
served with that Order
MS. SYKES: Judge,
21 witness
on 3-6-11.
as God is my
22 THE COURT: Excuse me. I am going to
23 give you a chance. I always give you a
24 chance and I always read into the record
6
1 anything put before me.
2
3
4
5
6
7
8
9
10
I think it is important that the
records have all of that knowledge. Can you
read this Affidavit? He has handed you a
copy.
MS.
before.
THE
MS.
THE
SYKES:
COURT:
SYKES:
COURT:
I have never seen this
I did give you one now.
Yes, your Honor.
I have an Affidavit from a
11 special process server saying that he served
12 a Summons and a copy of Complaint on one
13 named defendant Gloria Sykes 3-6-11, and
14 this one says it was served at 1100 West
15 Lake in Roselle on 3-6-11 at 12:15, and it
16 has a copy of the Order that I have just
17 read into the record.
18 Now you have just seen this. I am
19 willing to give you a few moments to think
20 about what you want to say in response right
21 now. Just simply raise a question about
22 this Order.
23 I am willing to give you a few
24 moments if you want to make a statement
7
1 about this Order and about the Affidavit of
2 the special process server. And if you want
3 to go back to your table and look at
4 anything, I will give you leave to do so.
5 MS. SYKES: I'm prepared to respond,
6 your Honor.
7 THE COURT: Excuse me. Excuse me.
8 Excuse me. So you have made an attempt to
9 do this today and you are the one who had
10 this served; is that correct?
11
12 one
MR. SCHMIEDEL: Yes, Judge.
that had it served.
I am the
13 THE COURT: Now, Ms. Sykes, and this
14 will be on the Order of March 2nd and the
15 Affidavit of the special process server.
16 MS. SYKES: On 3-6-11 at 2:15 I was just
17 finishing up bowling with my mother. I was
18 visiting that day. We were bowling that day
19 and my cousin was supervising the visit.
20 At no time did anybody walk up to me
21 and say Gloria, are you Gloria Sykes, at the
22 bowling alley, and I am serving you. I have
23 never seen this before in my life other than
24 today.
8
1 THE COURT: I don't think you would see
2 the Affidavit. I am going to at this time
3 tell you the Affidavit would have been
4 filled out after the service by the special
5 process server.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Do we have the special process
server here in Court?
MR. SCHMIEDEL: I don't. I do have a
letter from the special process server. I
can make a copy.
THE COURT: Let me get a copy, ask you
to get a copy of that Affidavit for me. I
need 3 copies, 4 copies.
MR. SCHMIEDEL: We were also, if you may
15th before this Court recall, on
and we set
February
this matter for Hearing on the
issue of whether or not there was a showing
to be made that Mary Sykes lacked the
capacity in October of 2008 to execute the
20 apportionment agreement.
21 In fact, in the transcript Ms. Sykes
22 even asked whether or not she was able to
23 bring in Dr. Patel to testify on that issue
24 today, and so it was set for a Hearing. We
9
1 are prepared to go forward on that portion
2 of the Hearing. We have a doctor here that
3 is going to testify with respect to his
4 opinion that she lacked the capacity to do
5 that.
MS. SYKES: On the 8th in 2008?
MR. SCHMIEDEL: That is correct.
6
7
8
9
THE COURT: I will tell you there were
many filings that I have received. I just,
10 for the record, want to state one more time
11 to all parties, the focus of this Court is
12 Mary Sykes. And there is a very large
13 period at the end of that.
14 This Court's only desire is to
15 protect the interests of Mary Sykes. I have
16 the original.
MR. STERN:
THE COURT:
Do you need a copy, Judge?
No. I have the original and
17
18
19 I'm very afraid that with all of this
20 give her a chance.
21 Let the record reflect that
22 Ms. Sykes has retired to her counsel table
23 and there is a lady at the table and a
24 gentleman has stood up and left.
10
1 MR. STERN: It is Kathy Bakkan who is a
2 relative.
3 THE COURT: She has presented herself as
4 being pro se and so let it be. She can
5
6
speak to whoever she wants to. That is the
reason for the pause. Your back --
7 MS. SYKES: I am so sorry, your Honor.
8 May we please call my cousin Debbie who was
9 supervising because this is a complete lie.
10 This did not happen, and if that Debbie who
11 is not here today will testify that she took
12 Mom and she met my sister and everybody went
13 out on a different exit and I stayed there
14
15
16
17
18
19
20
21
22
23
to continue bowling for about another 20
minutes because we didn't finish.
complete lie.
This is a
THE COURT: Let me read this into the
record, if I may. What Ms. Sykes is holding
up is a letter, a copy of which has been
made at my direction, under the letterhead
of Gunther Polak, P-O-L-A-K, who has an
address on North Clark Street here in
Chicago. It's dated March 7th. It is
24 addressed to Mr. Schmiedel at Fischel,
11
1 F-I-S-C-H-E-L, and Kahn, K-A-H-N.
2 It references this case. Dear
3 Mr. Schmiedel, the above-captioned matter
4 was re-assigned to this office for the
5 purpose of serving the defendant this Order.
6 Arrangements were made with the family to
7 assist.
8
9
We arrived at the Roselle, Illinois,
location at 1:25 p.m. However, when we
10 contacted your client, we were told that we
11 needed to wait for the Defendant. In the
12 meantime we had located her vehicle in the
13
14
15
parking lot containing her dog.
At 2:15 p.m. she left the bowling
alley and personal service was made. We
16 immediately notified your client of the
17 service and we are submitting our
18 documentation of service as well as our
19 statement of services for the same. Very
20 truly yours, et cetera.
21
22
MS.
MR.
SYKES: Your Honor
SCHMIEDEL: If we have to put her
23 under oath again, put her under oath, have
24 her say she did not receive a copy of that
12
1 Order on that date.
2
3
4
5
6
7
8
9
10
MS. SYKES: Please, may I make a
statement?
this
not
THE COURT: No, no, no.
MS. SYKES: I will make it under oath.
THE COURT: Just stop.
is about Mary Sykes.
I
All
keep on saying
of this is
for the interest of Mary Sykes.
MR. SCHMIEDEL: Judge
MS. FARENGA: We will move forward.
11 THE COURT: That is my other frustration
12 is that because of all of this back and
13 forth, we have not accomplished one thing
14 that I can see for Mary Sykes, and I don't
15
16
17
18
19
20
21
22
know how many days you have been before me.
It is twice. We spent one entire day and I
don't know on that day that we accomplished
one thing for Mary Sykes.
MR. SCHMIEDEL: Judge, it is very
frustrating because what we are trying to
accomplish for Mary Sykes is to have her
interest in these funds protected. That is
23 why we are here.
24 We believe that she has the right to
13
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2
3
4
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8
9
10
the funds at issue. We have been frustrated
in that attempt to get information with
respect to that because Ms. Sykes has
refused to cooperate. She has refused to
answer any
THE COURT: You
MR. SCHMIEDEL:
are saying Sykes
Gloria Sykes. Gloria
Sykes has refused to tell us where the money
is in face of not one, two, three
THE COURT: I'm familiar with the
11 background. Mr. Brodsky wants to step
12 forward and identify himself.
13 MR. BRODSKY: For the record, I'm Joel
14
15
16
Brodsky. I'm here under subpoena regarding
an e-mail that I received.
THE COURT: Which is one of the reasons
17 we continued this matter to today.
18 MR. BRODSKY: Right. If I could give my
19 testimony regarding my receipt of that
20 e-mail and then I can be done here.
21 In addition, I did file a Motion
22 regarding statements
23
24
THE COURT:
MR. BRODSKY:
-- and --
-- that is just strictly
14
1 up to you. I think that
2 THE COURT: -- it would be part of the
3 file, sir.
4
5
6
MS. FARENGA:
THE COURT:
MS. FARENGA:
May I make a suggestion?
Let me hear your suggestion.
My suggestion is that we
7 move forward with the two witnesses who are
8 scheduled, Dr. Shaw and Mr. Brodsky, and if
9 Gloria Sykes wants to challenge the service,
10 which certainly there is a prima facie case
11 that she has been served, she can subpoena
12 the process server for another date.
13 For the record, Mr. Stern and I both
14 received copies of the corresponding --
IS e-mail corresponding from Debbie Hoddel, the
16 cousin that Ms. Sykes made reference to that
17 supervises the visits, and contrary to
18 Gloria Sykes' statements I have no reason to
19 believe that Debbie Hoddel would agree that
20 Gloria had not been served.
21 THE COURT: She is not here.
22 here; is she?
23
24
MR.
MR.
STERN: No.
SCHMIEDEL: Judge
15
She is not
1
2
3
4
5
MS. SYKES:
Honor, and r'm
THE COURT:
MS. SYKES:
and Debbie are
Your Honor, I object, your
sorry but
On what basis?
My cousin Kathy who is here,
very close. r asked Debbie
6 to be here today because r knew Ms. Farenga
7 was going to misrepresent the acts.
8 In fact, your Honor, that is why I
9 filed my Notice here to find Mr. Schmiedel
10 in criminal content of Court because of the
11 ongoing ambush and lies that these
12 individuals have told the Court whereby, and
13 it is all documented here, your Honor.
14 In fact, for them to bring up a
15 doctor that my mother never saw in 2008 and
16 to go against the fact that my mother in
17 2008 had attorneys representing her during
18 this, that that my mother's best interest
19 was looked out, that there is an Appellate
20 Court decision on this who gets the money
21 from Justice Gordon, your Honor, that they
22 have
23 THE COURT: Is there an Appellate Court
24 decision that reviews the --
16
1
2
3
4
5
6
7
8
9
10
11
MR. SCHMIEDEL: No.
MR. STERN: No. It was prior to that.
THE COURT: Excuse me?
MR. STERN: It was prior to the
apportionment agreement. It was prior to
lumberman's lawsuit, but it was prior to the
settlement. It was issues that were raised
on Appeal between injunctive belief --
THE COURT: but does not speak to
the apportionment.
MR. STERN: No, it does not.
12 MS. SYKES: It spoke to the entire
13 lawsuit, your Honor, that I was the insured
14 and that there was a portion of the time --
IS I do have a copy.
16 THE COURT: We went through this before.
17 MS. SYKES: Right, and the fact that
18 they have this, they did not present this
19 information, and let me please read, and
20 everyone has a copy of this Affidavit. They
21 all had it. I had trouble getting it
22 because Mr. Brodsky refused to turn my files
23
24
over. It says
THE COURT: Excuse me. I don't know
17
1 what you are talking about.
2 MS. SYKES: 2006.
3 THE COURT: Just one minute. I think
4 that the last issue before the Court was
5 whether testimony could proceed.
6 MR. SCHMIEDEL: Judge, this is why
7 nothing gets accomplished because Ms. Sykes
8 gets all these side issues and side strikes,
9 and the main issue with respect to how do we
10 go about trying to get our arms around some
11 funds and money that may be Mary Sykes in
12 order for her to be able to provide for her
13 ongoing care in the future.
14
15
That is the only reason we are here.
I wish I didn't have to be here, Judge. I
16 wish we could have had cooperation. I wish
17 we would have had an agreement.
18 THE COURT: In a perfect world,
19 Mr. Schmiedel, we will one day talk about
20 that.
21 MS. SYKES: The Court has no
22 j uri s d i c t ion --
23
24
THE COURT:
MR. BRODSKY:
Excuse me. Excuse me.
Your Honor, I wish that
18
1 Mr. Ditkowsky never sent me that e-mail but
2 he did. So can I please
3
4
5
6 was
THE COURT: Excuse me.
MR. BRODSKY: So can I
THE COURT: We did have
subpoenaed for February
a witness who
-- March 2nd,
7 because you appeared on that day pursuant to
8 the subpoena, and it was held and continued
9 to today's date at this time.
10 I believe that Mr. Brodsky's
11 testimony as to a particular e-mail is going
12 to be brief and pointed.
13 MR. BRODSKY: Yes.
14
15
16
MR. SCHMIEDEL:
testimony --
And so the doctor's
THE COURT: I will accommodate
17 Mr. Brodsky by allowing him to give his
18 testimony on the limited issue of the e-mail
19 that was circulated that was put before the
20 Court, I believe, on an emergency basis on
21
22
23
March 2nd.
MR. STERN:
THE COURT:
Correct.
From the e-mail that I
24 received from you on that date, March 2nd,
19
1
2
3
4
5
6
7
8
in which you told me you couldn't come on
the 3rd because of the confusion of the
date.
You referenced, as I remember, the
filing that had been made by Mr. Schmiedel
and some e-mail. So I am going to allow
Mr. Brodsky to testify as to -- and to be
asked as to this e-mail. I believe that is
9 the singular purpose here today.
10
11
12
13
MR. STERN: That's correct.
MS.
MR.
FARENGA: Yes.
SCHMIEDEL: Yes.
THE COURT: You will have an opportunity
14 to ask him questions, but let me make sure
15 you understand, the only issue that he is
16 going to testify on, the only issue is the
17 e-mail.
18 MS. FARENGA: Yes.
19 MS. SYKES: Yes.
20 THE COURT: It is an e-mail which was
21 received by him within a day or two of, I
22 believe, the February 15th Hearing.
23 MR. SCHMIEDEL: The next day.
24 THE COURT: All right. Having said
20
1
2
3
that
MR. BRODSKY:
everything?
Should I be sworn and
4 THE COURT: Yes, you are going to be
5 sworn and I think I'm going to leave my
6 Court reporter over here.
7
8
MR. BRODSKY: I would be happy to stand.
THE COURT: You can arrange yourself as
9 you see fit.
10
11
(witness duly sworn.)
JOEL BRODSKY
12 called as a witness herein, having been duly
13 sworn, was examined and testified as
14
15
16
17
18
19
20
21
22
follows:
the
Q
DIRECT EXAMINATION
BY MR. SCHMIEDEL:
State your first and last name for
record.
A Joel Brodsky, B-R-O-D-S-K-Y.
Q And what do you do for a living?
A
Q
I'm an attorney.
For how long have you been an
23 attorney?
24 A 29 years.
21
1
2
3
4
5
6
in
Q
A
Q
A
The
Q
And do you know Gloria Sykes?
Yes, I do.
Who is Gloria Sykes.
Former client, and I represented her
Estate of Mary Sykes.
Did you ever have occasion in the
7 representation of Ms. Sykes, Gloria Sykes,
8 while you were her attorney or since you
9 have withdrawn as her attorney, to receive
10 e-mails from her?
11 A Many, many e-mails from her over the
12 entire representation and even after.
13 Q Are you also familiar with what her
14 e-mail address is?
15
16
A
Q
Yes, I am.
Have you responded to her e-mails
17 from time to time?
18
19
A
Q
Many times.
Do you know Kenneth Ditkowsky,
20 D-I-T-K-O-W-S-K-Y, I believe.
21
22
23
A
Q
A
Yes, I do.
And who is Kenneth Ditkowsky?
He is an attorney who purports to
24 represent the friends and family of Mary
22
1 Sykes and also, in fact, represents as a
2 kind of shadow attorney for Gloria Sykes
3 even during my representation and after.
4 Q And turning your attention to
5 February 16th of 2011, did you have occasion
6 to receive an e-mail from Mr. Ditkowsky?
A Yes, I did. 7
8
9
(Exhibit No. 1 marked for
identification.
10 BY MR. SCHMIEDEL:
11 Q Showing you what I am handing to
12 Gloria Sykes as well, showing you what I
13 have marked as Exhibit No.1 for
14 identification, do you understand -- or
15 excuse me. Do you recognize what that is?
16 A Yes, I do.
17 Q This is the e-mail I received from
18 Ken Ditkowsky at about 11:00 a.m. on
19 February 16, 2011.
20 It contains an entire what I would
21 call e-mail strings, which means I was sent
22 an e-mail or copied, I should say, on an
23 e-mail which contained a number of e-mails
24 which were sent to him; if you understand
23
1 what I am saying.
2
3
Q Was
from Gloria
one of those e-mails
Sykes?
sent to him
4 A Yes. There was an e-mail in the
5 string sent to him by Gloria Sykes February
6 16, 2011, at about 9:23 a.m.
7 BY MR. SCHMIEDEL:
8 Q And looking at -- through Exhibit
9 No.1, is it in the same condition today as
10 it was when you received it?
11
12
A
Q
Yes, it is.
Did you change or alter it in any
13 way, manner, shape, or form?
14 A No, I did not. Do you want the
15 e-mail address?
16
17
(Exhibit No. 2 marked for
identification.
18 BY MR. SCHMIEDEL:
19 Q Showing you what I have marked as
20 Exhibit No.2, you admit it is from Gloria
21 Sykes as well. Do you recognize what
22 Exhibit No.2 is?
23
24
A
Q
Yes.
What is it?
24
1 A It is the e-mail header that is
2 imbedded in every e-mail message sent
3 through the Internet.
4 Q What did you do to -- did you create
5 Exhibit No.2?
6 A When I went to Outlook on the e-mail
7 program which I use, Outlook, when you get
8 e-mails you can go to the properties section
9 and then the header. That traces the route
10 of e-mails through the Internet. It is
11 imbedded there.
12
13 That's
You copy it
what I did.
and print it out.
This is a printout of
14 the header for the e-mail that's Exhibit
15 No.1.
16 Q And the e-mail address that you
17 recognize as Gloria Sykes, what is that?
18 A It is GLOAMI@MSN. com, C-O-M.
19 Q And directing your attention to
20 Exhibit No.1, does that e-mail address
21 appear on Exhibi t No.1?
22 A Yes, it does. That is the e-mail
23 address that I have always received and sent
24 e-mails to Gloria Sykes at.
25
1 Q Does the e-mail of Kenneth Ditkowsky
2 appear on Exhibit No. I?
A Yes, it does. 3
4
5
Q And is that are you familiar with
that particular e-mail?
6 A Yes, I am. It is Ken Ditkowsky,
7 [email protected]. That is
8 the e-mail address that I have always sent
9 and received e-mails from Ken Ditkowsky at.
10 Q In response to receiving this e-mail
11 from Mr. Ditkowsky on February 16, 2011, did
12 you e-mail him back?
13
14
15
16
A I sent him an e-mail, yes.
Q Did that e-mail -- to what
did you send the e-mail?
A I sent it to the
address
17 [email protected] address
18 and I asked him in the e-mail I sent him, I
19 basically said why did you send this to me?
20 Q Did that e-mail, did you ever
21 receive any notification that the e-mail
22 that you sent to him on February 16, 2011,
23 bounced back or didn't go through?
24 A No. If you send an e-mail to an
26
1 incorrect address, after a few days or weeks
2 at times, if it gets rejected by the e-mail
3 server it will come back as undelivered. I
4 never received anything back as undelivered
5 from Ken Ditkowsky.
6
7
8
9
Q Again, Exhibit No.1, do you also
have Exhibit No.
Blackberry?
A Yes. I
1 memorialized on your
saved it on my Blackberry
10 and also saved it on my e-mail system in my
11 office.
12 Q And a portion of the e-mail from
13 Gloria Sykes on Exhibit No.1 to
14 Mr. Ditkowsky, that restates her testimony
15 and indicates that on February 15th she lied
16 under oath.
17 Is that contained in that e-mail
18 that you recei ved on February 16th?
19 A Yes, it was.
20
21
22
23
24
MR. SCHMIEDEL: I have nothing else,
Judge.
THE COURT:
MS. SYKES:
Any questions?
Yes, I do.
CROSS-EXAMINATION
27
1 BY MS. SYKES:
2 Q Mr. Brodsky, when did, just so we
3 have an understanding here and on the
4 record, at what point, at what time did you
5 receive this e-mail?
6
7
8
A
11:00
Q
Approximately 11:00, at little after
in the morning on February 16, 2011.
Are you familiar with the fact that
9 if, in fact, you had received this e-mail,
10 it would say in the heading to Joel Brodsky,
11 I mean, you have presented this which could
12 be attached to any e-mails
13 MR. SCHMIEDEL: I don't know what this
14 is, Judge.
15 THE COURT: No, no. Let me explain what
16 that is. They're saying that you are
17 holding up a piece of paper. Those of us in
18 the room can see a piece of paper.
19 Anyone reading the record wouldn't
20 know what this is. So you need to define
21 this.
22 BY MS. SYKES:
23 Q Mr. Brodsky, would you please read
24 on the e-mail that you submitted to the
28
1 Court
2
3
4
5
6
7
8
THE COURT: Is that Exhibit number --
MR. SCHMIEDEL: It is Exhibit No.1 that
she has in her
MR STERN:
MS. SYKES:
No.1.
BY MS. SYKES:
hand.
The
It doesn't say Exhibit
9 Q Would you please read the heading?
10 A Joel Brodsky from Ken Ditkowsky,
11 sent February 16, 2011, 11: 04 and to Gloria
12 Sykes, cc: Kathy Bakkan, regarding the
13 subject of a retainer agreement.
14 Q Mr. Brodsky was very clever when
15 reading this, but isn't that Joel Brodsky on
16 top of your heading? Isn't that your
17
18
heading?
A No. That is generated by the e-mail
19 system that says that I was one of the
20
21
recipients of the e-mail.
MS. SYKES: Your Honor, I would like to
22 hold this up to you. I would like Joel --
23 MR. BRODSKY: That is not a question.
24 THE COURT: You are a witness. I
29
don't 1
2
3
4
5
6
7
8
MR. SCHMIEDEL: There is no question.
MS. SYKES: Are you representing
Mr. Brodsky?
MR. SCHMIEDEL: No. I am representing
Mary Sykes.
THE COURT: Excuse me. He has an
absolute right to object when a question is
9 improper. He thinks
10 What is your objection?
11 MR. SCHMIEDEL: That is not a question.
12 She is making a statement.
13 BY MS. SYKES:
14 Q Here's my question to you. Do you
15 see anywhere --
16 THE COURT:
17 question.
18
19
MS. SYKES:
BY MS. SYKES:
Withdrawn. That is not a
Yes.
20 Q Do you see anywhere on this e-mail
21 that says to Joel Brodsky, directly to Joel
22 Brodsky?
23 A Yes. At the top of it, it says Joel
24 Brodsky.
30
1
2
3
4
5
Q I do not see where it says
MR. SCHMIEDEL: Objection
BY MS. SYKES:
Q -- to Joel Brodsky
THE COURT: Excuse me. Let her make her
6 point, and then the document stands for
7 itself.
8 BY MS. SYKES:
9 Q Is there anywhere in this document
10 that says to Joel Brodsky?
11 A Yes. At the very top it says Joel
12
13
14
15
16
17
18
A. Brodsky.
THE COURT: Make your argument later.
BY MS.
Q
did you
A
Q
SYKES:
Number two, when you received it,
call me and verify this e-mail?
Did I call you? I did not call you.
Did you call me or talk to me about
19 verifying this e-mail and you knew that I
20
21
22
actually wrote it?
A I did not call you.
Q Did you know -- you do realize that
23 in e-mails
24 THE COURT: No, no. That is not a
31
1 question.
2 BY MS. SYKES:
3 Q Can you change an e-mail that you
4 get from somebody else?
5 A If you -- you can clip it and paste
6 it. It is possible. It is possible, I
7 mean, it is possible.
8 Q So as a former attorney, do you not
9 have an obligation to call your client and
10 verify that this was something that they
11 actually sent, and if it was something they
12 sent, what they meant by that?
13
14
15
16
17
18
19
20
21
22
23
24
A Well, no, because the way this
e-mail is structured, the e-mail from Ken
Ditkowsky to me and e-mailed from you to Ken
Ditkowsky is in a continuous string.
So, therefore, it wasn't clipped and
pasted. This is originally what happened.
The further e-mails down have a little line
that you can see. Those may have been
because they' are below this line for
clipping and pasting and altering.
It may have been or may not have
been. I don't know. But the one from you
32
1 to Ken, from you to Ken Ditkowsky and from
2 Ken Ditkowsky to me, is a continuous screen
3 and, therefore, unaltered.
4 Q Again, what was submitted to me, can
5 you read on the bottom of my e-mail what it
6 says?
7
8
9
10
11
12
13
THE COURT: What page is that?
MR. SCHMIEDEL: Exhibit No.1, page 2.
THE WITNESS: Bonme Productions, Inc.
(phonetic) . Then it gives the phone
numbers. Remember, a person
can't stand up to a person in
That keeps on coming.
in the wrong
the right.
14 Then there is a box. Is that what
15 you wanted me to read, who is in the box?
16 BY MS. SYKES:
17
18
Q
A
What is in the box, please?
Confidential. This communication
19 and attachment are intended for the person
20 addressed and may contain confidential or
21 privileged material.
22 Do not copy, forward, disclose,
23 save, or use as information. Any such use
24 is prohibited. If you not the intended
33
1 recipient, please advise and destroy this
2 i mm e d i ate 1 y .
3 Q Were you the intended recipient for
4 my e-mail to Mr. Ditkowsky?
Mr.
A I didn't send the
Ditkowsky sent me his
e-mail.
e-mail.
5
6
7 Q Let me rephrase the question.
8 Were you the recipient of my e-mail
9 that I sent to Mr. Ditkowsky? Yes or no,
10 please.
11 A I assume so because Mr. Ditkowsky
12 sent it to me.
13 Q And what proof -- Mr. Ditkowsky is
14 not here to testify. I do not
15 MR. SCHMIEDEL: Move to strike.
16 THE COURT: Move to strike.
17
18
19
MR. SCHMIEDEL: That is not a question.
THE COURT: I will allow it to stand.
Continue. Continue.
20 BY MS. SYKES:
21 Q I'm trying to locate -- there is a
22 rule in the Code of Professional Conduct
23 that specifically says that if you as a
24 former--
34
1
2
3
4
5
6
7
8
MS. SYKES: I was not prepared to do
this today, your Honor.
THE COURT: Take your time. I'm not
rushing you. Do
look through it?
MS. SYKES:
sorry.
THE COURT:
you want to sit down and
Would you mind? I am so
I would rather have it done
9 right than not at all. I know Mr. Brodsky.
10 I will speak to him.
11 THE WITNESS: I know what she is going
12 to say. I will help her with the rule.
13 THE COURT: No, no, no.
14
15
Ready?
MS. SYKES: Thank you.
16 BY MS. SYKES:
17
18
19
20
21
22
23
Q Are
Conflict of
you familiar with Rule 1.9,
Interest of Former Clients?
A Ye s.
MS. SYKES:
THE COURT:
MS. SYKES:
May I read it to him?
Yes.
(A), a lawyer who has
formerly represented a client in a matter
24 shall not, therefore to, use information
35
1 relating to the representation to the
2 disadvantage of the former client.
3 BY MS. SYKES:
4
5
6
7
8
9
Q
A
Q
right
Are you familiar with that?
Yes.
Do you feel that what
now is to the if, in
you are doing
fact, that is
what I wrote, if, in fact, I said any of
those words or that is a complete e-mail, do
10 you feel that the information in here would
11 be a disadvantage to me as your former
12 client?
13 A Under the Rules of Professional
14 Conduct, 3.3, where I have been informed
15 that a former client has lied to the Court,
16 I am under an affirmative obligation to
17 inform the Court of that.
18 So while it may be disadvantageous
19 to you because you lied to the Court, I have
20 a Court duty under Rule 3.3 to report it to
21 the Court. So there is two different rules.
22 I have to obey Rule 3.3 to inform the Court
23 that you lied to it.
24 Q But does it say let me back up a
36
1 second.
2 Mr. Brodsky, let me ask this again.
3 Did mister -- did you receive a confirmation
4 that Mr. Ken Ditkowsky read or opened the
5 e-mail?
6
7
8
9
10
11
12
13
A Which e-mail, the one that you have
right now?
Q Exhibit No.1.
confirmation that Mr.
Do you have any
Ditkowsky actually
received or opened that e-mail?
A Yes. Exhibit No.2 shows that he
That is opened
in the
it and then sent
e-mail header.
it to me.
I learned --
14 Q You had mentioned before,
15 Mr. Brodsky, that you received many e-mails
16 from me, many e-mails from Mr. Ditkowsky; is
17 that correct?
18 AYe s .
19 Q So we are to believe that the
20 stand-alone document is specific to that
21
22
e-mail?
A Yes. It is dated. You can see when
23 you look at the end of this document, it
24 shows that it was sent at February 16, 2011,
37
1 at -- that is the one that you received.
2 At the top of it, I am on February
3 16, 2011, and it has the information on it,
4 the same information.
5 9:20 at the time he sent it, that is
6 Pacific Standard Time because the e-mail
7
8
server is
P.S.T. at
Pacific Standard Time.
the end. Pacific time
It says
9 : 04.
9 Pacific Standard Time is 11:04 a.m. Central
10 Standard Time.
11 So this header was e-mailed, sent,
12 at the exact same second as Exhibit No.1.
13 So this header is from the same e-mail
14 Q Can you say with certainty that this
15 was the exact e-mail and not some other
16 e-mail that Mr. Ditkowsky would have sent
17 you?
18 A Exhibit No.2 is the header from
19 Exhibit No.1, without question.
20
21
22
Q How we substantiate that,
Mr. Brodsky, again, when you have
the past that you have received a
said in
lot of
23 e-mails from me and Mr. Ditkowsky, let me
24 I am not done, and the fact that it is very
38
1
2
3
4
5
6
7
8
9
specific here that it says to Gloria Jean
Sykes from Kathy -- and copied Kathy Bakkan
from Kenneth Ditkowsky.
THE COURT: Spell Bakkan.
MS. SYKES:
THE COURT:
MS. SYKES:
Courtroom today.
THE WITNESS:
B-A-K-K-A-N.
Thank you.
And Ms. Bakkan is in the
I took this e-mail, this
10 header, Exhibit No.2 from this, from it
11 is imbedded in the e-mail of Exhibit No.1.
12 So I took that by going to -- you
13 can go to Outlook. Go to open e-mail. Go
14 to the properties box. You click on the
15 properties box and there is the header.
16 You can either copy or print, and I
17 printed the header that was contained within
18 this e-mail, and that header is Exhibit
19 No.2. So Exhibit No.2 did come from
20 Exhibit No.1.
21 BY MS. SYKES:
22 Q Mr. Brodsky, are you aware that it
23 is universal that, in fact, an e-mail goes
24 through, and it is on anything, on every
39
1 single e-mail, if you are blind bcc:, the
2 e-mail comes directly to you. It says in
3 the header to Joel Brodsky from Kenneth
4 Ditkowsky.
5 It doesn't give the whole chain
6 which means this is I want to ask you
7
8
9
again.
change.
obtained
A
Blind bcc: do not give the whole
Is there another way that you
this e-mail, Mr. Brodsky?
This e-mail was received by me. I 10
11
12
13
14
15
16
will show you my Blackberry where I got it.
Q Is there another way you received
it. Blind cc: do not show up in e-mails?
MS. FARENGA: Motion to strike.
THE COURT: On what basis, ma'am.
MS. FARENGA: It is not a question.
17 Ms. Sykes is testifying.
18 BY MS. SYKES:
19
20
Q If --
THE COURT: I'm ruling. That would be
21 improper. What is your question?
22 BY MS. SYKES:
23 Q The question is if we called in
24 right now, your server, and I knew about
40
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
this and I had your server come here
the people meaning the experts here,
today,
would
they tell you that blind cc:' s would show
up?
MR. SCHMIEDEL:
understand.
Objection. I don't
THE COURT:
MS. SYKES:
What is the question
The question is
THE COURT: -- the objection?
MR. SCHMIEDEL: To the form of the
question.
THE COURT: What is the objection to the
form of the question?
MR. SCHMIEDEL: Objection to the form of
the question. It is asking Mr. Brodsky to
assume what someone else would testify to.
THE COURT: Sustained. Ask your next
18 question.
19 BY MS. SYKES:
20
21
22
23
Rule
Q Mr. Brodsky, are you familiar with
117, scope of representation?
A Yes.
Q Number two, a lawyer who knows his
24 client has in the course of his
41
1 representation, perpetrated a fraud upon a
2 person or tribunal, shall promptly call the
3 client to rectify the same, and if the
4 client refuses to do so, is unable to do so,
5 the lawyer then shall reveal the fraud.
6 And by no means am I admitting to
7 any such fraud to the affected person or
8 tribunal, except when the text is protected
9 as privileged communication.
10 Did you ever contact me to rectify
11 this or to verify it?
12 A Rule 1.G was revoked January 1,
13 2011, so it doesn't exist anymore.
14 MS. SYKES: Your Honor, the ARDC that is
15
16
17
18
19
20
21
22
investigating this right now will refute
that.
MR. BRODSKY: It has now been
incorporated in Rule 2.3 in the new Rules of
Professional Conduct which were adopted by
the Supreme Court effective January 1, 2011.
So Rule 2.1 (g) no longer exists.
They're not relevant to this case as the
23 e-mail in question took place on February
24 2011, and we're operating under the New
42
1 Rules of Professional Conduct
2 BY MS. SYKES:
3 Q Mr. Brodsky, was this e-mail ever
4
5
6
7
verified that it is authentic?
A Oh, yes.
Q Who verified it?
A I did. I received the e-mail.
8 got it on my Blackberry.
9 THE COORT: He is answering the
10 question. I am going to let his answer
11 continue--
I
12 THE WITNESS: I pulled the e-mail up.
13 THE COORT: Then you can think of how
14 you want to formulate your question.
15 THE WITNESS: I can pull the e-mail off
16 my e-mail system. I then looked at the
17 header, and through the header I verified,
18 in fact, that the e-mail that was sent to me
19 by Kenneth Ditkowsky and that it was a
20 part of that e-mail was the e-mail that was
21 attached to it from Mr. Ditkowsky.
22 BY MS. SYKES:
23 Q Mr. Brodsky, do you know for a fact
24 that I wrote that e-mail?
43
That you wrote that e-mail? 1
2
A
Q Yes. Do you know for a fact that I
3 wrote that e-mail?
4
5 Mr.
A I had been informed
Ditkowsky admitted that
that
he received
6 e-mail from you. Whether or not you
7 actually sat at the typewriter and typed
8 that out, I can't say.
that
9 Q Who informed you that Mr. Ditkowsky
10 received that e-mail from me?
11 THE WITNESS: Judge--
12 BY MS. SYKES:
13 Q Who informed you that Mr. Ditkowsky
14
15
received that e-mail from me?
A Lia Black with the ARDC said that
16 Mr. Ditkowsky admitted in his sworn
statement that
Q Is Ms.
MS. SYKES:
Honor?
he received that
Lia Black here?
e-mail.
Is that now hearsay, your
17
18
19
20
21 MR. SCHMIEDEL: He answered the
22 question.
23 MS. SYKES: Is that now hearsay that he
24 somehow got this information from Lia Black?
44
1 THE COURT: You asked him how he got it.
2 He gave you the information. Now that is a
3 fair comment. That is not asking him and
that is
MS.
all I am taking it for.
SYKES: So do I have a right
bring Ms. Black here and discuss
THE COURT: Isn't it Lee?
MR. BRODSKY: Ms. Lia.
this
then to
4
5
6
7
8
9 MS. SYKES: Let me ask you another
10 question here.
11 BY MS. SYKES:
12 Q Exhibit No.1, does it say in this
13 e-mail whether or not I wrote it?
14 THE COURT: Now you're moving into --
15 THE WITNESS: It came from your e-mail
16 address. That is all I know.
17 MS. SYKES: But that does not mean that
18 I wrote it.
19 THE COURT: I will sustain that
20 objection, asked and answered. And that is
21 which means you stop. Find another
22 question.
23 BY MS. SYKES:
24 Q My next question, Mr. Brodsky, is
45
1
2
3
you
Mr.
don't like me very much;
Brodsky.
THE COURT: Sustained.
4 BY MS. SYKES:
do you,
5 Q Mr. Brodsky, are you upset that I
6 filed an ARDC complaint against you?
7 A I have no knowledge that you filed
8 an ARDC complaint against me. I never
9 received anything from the ARDC from you.
10 Q Mr. Brodsky, are you standing before
11 the Court right now and telling me you never
12 received an ARDC complaint against me?
13 A Against who?
14 Q Against from me against you. Yet
15 I submitted a letter from your attorney at
16 the ARDC responding to a complaint.
17 A That was I responded to a complaint
18 by Ken Ditkowsky. I never received anything
19 from you, anything from the ARDC about a
20 complaint by you, ever.
21
22
23
24
MS. SYKES: Your
say that Mr. Brodsky
his complaint --
MR. SCHMIEDEL:
Honor, I would like to
again is lying, that
Objection.
46
MS. SYKES:
THE COURT:
With that said -
Do you have another
1
2
3 question? What is your next question for
4 Mr. Brodsky?
5 BY MS. SYKES:
6 Q When did you present this to
7 Mr. Schmedel (phonetic), how and after you
8 received--
9 A I don't know a Mr. Schmedel. I know
10 a Mr. Schmiedel.
THE COURT: Counsel, please. 11
12 THE WITNESS: During my representation
13 of Mrs. Sykes, she would constantly --
THE COURT: No.
MS. SYKES: Objection.
MR. BRODSKY: - - names of people.
MS. SYKES: Objection.
THE COURT: Sustained. Stop.
MR. BRODSKY: - - and I think it is
habit.
THE COURT: Stop, please, ma'am. I
didn't mean for a second. Stop.
THE WITNESS: I think that people
14
15
16
17
18
19
20
21
22
23
24 THE COURT: You stop. Stop. Stop,
47
a bad
1 please. If you are referring to
2 Mr. Schmiedel, I also have problems with
3 names. Ask your question.
4 BY MS. SYKES:
5 Q Mr. Brodsky, at what point did you
6 send this directly to the opposing counsel?
7
8
MR. SCHMIEDEL: Objection, relevance.
MS. SYKES: The relevance is, your
9 Honor, that I believe that Mr. Brodsky was
10 looking for something in the testimony of
11 August 15th from Mr. Schmiedel. I'm sorry,
12 Mr. Schmiedel.
THE COURT: August 15th?
MS. SYKES: I am sorry.
THE COURT: February 15th?
MS. SYKES: February 15th. I have it in
13
14
15
16
17 the transcript. Mr. Schmiedel admitted that
18 he was going to find me in contempt of
19 Court.
THE COURT: He can't find you in 20
21
22
contempt of Court. I can.
MS. SYKES: He was going to do something
23 to find me in contempt of Court and
24 Mr. Brodsky stood right next to him in
48
1 Court. It is all in the transcript, and
2 with all due respect, your Honor --
3 THE COURT: I'm going to stop you.
4 Number one, it is not a question, and number
5 two, I want to make something clear.
6 As I remember Mr. Schmiedel's
7 statement, he was looking at his statements.
8 At that time, in his opinion, there was
9 enough to find you in contempt of Court.
10 This document was something separate
11 from that and was not before the Court on
12 that date.
13
14
15
MR. BRODS KY: And wasn't generated until
February 16th, the next day.
THE COURT: No question pending.
16 BY MS. SYKES:
17 Q Again, you never contacted me;
18 correct?
19 MS. FARENGA: Objection, asked and
20 answered.
21
22
23
24
THE COURT: Sustained.
BY MS. SYKES:
Q When did you write the
your Honorable Judge Stewart?
49
letter to
1 A I think it was March 18, 2006, after
2 consulting with my lawyer and with the ARDC
3 at its hot line.
4
5
6
Q Are you a standing attorney in this
case?
A Am I a standing attorney? I don't
7 know what that means.
8 Q When did you --
9 MR. SCHMIEDEL: Objection as to
10 relevance.
11 THE COURT: I am going to allow this
12 line of inquiry. When did you --
13 THE WITNESS: November 9,2010, I
14 believe.
15
16
17
18
19
20
21
MS. SYKES:
THE COURT:
THE WITNESS:
BY MS. SYKES:
November 29th.
9 .
9 .
Q Is it not true that you have had
correspondence with Ms. Farenga,
Mr. Schmiedel, and Mr. Stern, that you have
22 been turning over other documents from my
23 file after you --
24 MR. SCHMIEDEL: Objection.
50
1 THE COURT: And I am going to sustain
2 it. I indicated to you that this Hearing is
3 only as to the matter that was before the
4 Court of March 2nd which related to a
5 certain e-mail.
6 BY MS. SYKES:
7
8
9
Q Is this e-mail not considered -- you
are an attorney, Mr. Brodsky. Is this
10
e-mail not considered ex parte if you are
not a party to a case and you send it out
11 somebody?
12 A No.
13 Q So in other words, and just verify
to
14 this, is that you can, without including me
15 even though I am pro se, you have no right
16 to include me in any correspondence so I am
17 aware of such correspondence.
18
19
20
21
22
A
Q
doesn't
I don't understand the question.
In other words --
THE COURT: I sustained. The Court
understand the question.
THE WITNESS: Are you referring
23 BY MS. SYKES:
24 Q I am a party to this case; is that
51
1 correct, Mr. Brodsky?
2 A You certainly have an Appearance in
3
4
5
this case. I am not a party.
THE COURT: You're not a party.
MS. SYKES: I am an interested person in
6 this case.
7 BY MS. SYKES:
8
9
10
11
12
13
14
15
16
17
18
19
20
Q
A
Q
Am I pro se in this case?
Yes.
Is it not inherent that I have any
right to receive information or have rights
to any kind of argument or to protest or to
actually challenge?
MR. SCHMIEDEL: Relevance.
MR. STERN: Objection, relevance.
MS. FARENGA:
THE COURT:
attorneys at the
question -- I am
THE WITNESS:
Objection, relevance.
I don't understand three
same time. I believe the
not going to do that.
I don't understand the
21 question.
THE COURT: You had an objection, 22
23 Mr. Brodsky, but you cannot object.
24 our witness.
52
You are
1 THE WITNESS: I said I don't understand
2 the question, Judge.
3 THE COURT: What is your objection?
4 MR. SCHMIEDEL: As to the relevance.
5 THE COURT: Relevance to?
6 MR. SCHMIEDEL: Her asking the question
7 in terms of what his understanding is as to
8 what he is supposed to do with respect to --
9 THE COURT: Sustained.
10 MS. SYKES: The -- have the --
11
12
THE COURT:
understanding.
This is about his
13 MS. SYKES: The relevance, too, your
14 Honor. It is called ambiguous that I
15
16 have
THE COURT: No, ma'am.
already sustained the
17 your next question
18 BY MS. SYKES:
No, ma'am.
objection.
I
Ask
19 Q Mr. Brodsky, again, I ask at any
20 point in time did you verify this e-mail?
21 MS. FARENGA: Objection, asked and
22 answered.
23 THE COURT: Sustained.
24 BY MS. SYKES:
53
1
2
3
Q So you have agreed with
that you have not verified this
I wrote the e-mail, that what is
the Court
e-mail, that
in the
4 e-mail is everything, if I did write it, all
5 my words and phrases.
6 MS. FARENGA: Obj ect ion.
7 MR. SCHMIEDEL: Objection.
8 THE COURT: What is that?
9 MS. FARENGA: Objection as to form and
10 objection because of her completely
11 misstating the testimony of the witness.
12 MS. SYKES: Objection to that
13 THE COURT: That isn't the way that
14 goes. Do you have some response that you
15 want to make to the objection that it is
16 proper form?
17 Can you show that it is not a
18 misstatement of the testimony of the
19
20
21
22
23
24
witness? That
MS. SYKES:
question is directed to you
I was listening and I'm
misunderstanding. I am sorry, your Honor.
THE COURT: Let me make it easy. I am
going to agree as to the form of the
question as a multitude of thinking and
54
1 wrapped up various questions altogether to
2 seek one answer, and that is improper.
3
4 that.
I will sustain the objection as to
As to it is being a misstatement of
5 the testimony, I think that is true as well.
6 I will sustain the objection as to that.
7 Ask your next question.
8 BY MS. SYKES:
9 Q Mr. Brodsky, in the e-mail that I
10 had allegedly written and that you received
11 allegedly sent by Mr. Ditkowsky that was
12 allegedly verified by somebody at the ARDC.
13 Does it say in there what I lied about?
14 MR. SCHMIEDEL: Are you referring to
15 Exhibit No.1, Mr. Brodsky?
16 MS. SYKES: Exhibit No.1.
17 THE WITNESS: You say you lied in your
18 testimony that you gave the day before on
19 February 15, 2011.
20 MS. SYKES: That was not my question,
21 Mr. Brods ky.
22 BY MS. SYKES:
23
24
Q
A
Does it say what I lied about?
You said your testimony the day
55
1 before was a lie, that they were going to
2 get you for perjury and put you in jail for
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
6 months.
Q Is that what it says, Mr. Brodsky?
A They bullied me into lying because
they would have frozen the small amount of
the money I had, including the money in the
account that was loaned to me, which is most
of it.
Yes, I am borrowing money. Ken, I
am scared they will get me for perjury and I
am in jail for 6 months or more. That is
what is in the e-mail
Q Do you understand the context of
that e-mail?
A Yes. I was here when you testified
the day before when
Q That is not my question.
A -- you said you didn't know where
the money was.
MR. SCHMIEDEL: Objection, your Honor
THE COURT: Excuse me. Excuse me. I
think that is a fair interpretation. If you
24 don't like the answer, ask another question.
56
1 BY MS. SYKES:
2
3
4
Q
answer?
The question was --
THE WITNESS: May I finish my
I was there in Court the day before
5 when you testified that you had no idea
6 where the money from the Sumatra account is,
7 that you didn't know what happened to the
8 check, that you took it out.
9 You didn't know who had it or where
10 it was, and that you lied when you made
11 those statements. That is what this e-mail
12
13
said.
to.
This is what the e-mail is referring
14 BY MS. SYKES:
15 Q Mr. Brodsky, I have the transcript.
16 Would you please go through the transcript
17 and show me where I said --
18
19
20
21
22
23
24
THE COURT: No.
BY MS. SYKES:
Q -- that I took the money out and I
didn't know where it was, where I put it
THE COURT: Nobody said you never said.
I must interject here. That is simply too
much time, again, on something that does not
57
affect my ward. 1
2
3
4
5
6
7
8
9
MS. FARENGA: Your Honor --
THE COURT:
have the money
what you said.
itself.
You did say that you did not
under your control? That is
The record stands for
Arguing the transcript with
Mr. Brodsky is not going to change the
record. Do you have another question to
10 ask?
11
12
13
14
MS. SYKES:
THE COURT:
MS. SYKES:
THE COURT:
Yes, I do.
As to the e-mail?
As to the e-mail.
Without argument. What is
15 your next question?
16 BY MS. SYKES:
17 Q Mr. Brodsky, do you know exactly
18 what I was thinking, if, in fact, I wrote
19 this e-mail?
20 A What you're thinking is a mystery to
21
22
most people.
THE COURT: No, please. I will have
23 this stricken from the record and the
24 question.
58
1
2
3
(Whereupon, the last
question and answer are
stricken from the record.
4 THE WITNESS: What you were thinking,
5 yes. You knew you had lied. You had been
6
7
8
9
10
11
12
13
caught in a lie, an obvious lie, and you
were worried about being sentenced for
perjury.
BY MS. SYKES:
Q And that
conversation that
you know of the
I had with Mr. Ditkowsky
before, or anybody, before I wrote it?
A It was obvious from reading the
14 E-mail.
15 Q Mister.
16
17
18
19
THE COURT: Mr.
BY MS. SYKES:
Q .•• did you
MR. SCHMIEDEL:
20 to another e-mail.
Brodsky.
write this e-mail to me?
Objection. She is going
21 THE COURT: I don't know what e-mail she
22 is talking about.
23 BY MS. SYKES:
24 Q Mr. Brodsky, did I have any concerns
59
1 or should I have had any concerns that my
2 life and my livelihood have been threatened
3 by the opposing counsel?
4 A No.
5 Q I should have never had any
6 concerns?
7
8
9
A
Q
A
10 savings.
That your livelihood or your life?
Yes.
Certainly not your life. Your
11 Q Mr. Brodsky, the answer was yes or
12 no, please. Did I ever have any concerns
13 THE COURT: That wasn't your question.
14 It was should I have. That was your
15 question. Should I have any concerns and,
16 the question has been answered.
17 Ask your next question. The answer
18 was no.
19 THE WITNESS: As to her life, no.
20 BY MS. SYKES:
21 Q Did you write an e-mail to me or
22 many e-mails to me, telling me that if I
23 don't do what you tell me to do, that
24 they're going to leave me penniless,
60
1 homeless, and living under a bridge and
2 pushing a shopping cart?
3
4
5
6
THE COURT: That was in the e-mail of
February 16?
MS. SYKES: I'm sorry. Just
THE COURT: This was limited to
7 the limitations.
8
9
MR. SCHMIEDEL:
THE COURT: The
Beyond the scope.
e-mail of February
10 It is beyond the scope. I am going to
I set
16.
11 sustain the objection that I'm sure I can
12 get at this time from anyone of the
13 attorneys except for you.
14 MR. SCHMIEDEL: Beyond the scope.
15 THE COURT: Sustained. Ask your next
16 question.
17
18
MS. SYKES:
THE COURT:
Your Honor --
Ask your next question.
19 This is about another e-mail.
20
21
22
23
MS.
certain
this.
SYKES: Your Honor, I am 100 percent
as to what I meant when I wrote
You, by word by word, that you can
stand before this Honorable Court and tell
24 them that you knew exactly what I was
61
1 feeling, exactly what I meant when I wrote
2 this e-mail.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
THE WITNESS: It is clear from anybody
that reads the e-mail,
You knew you had lied.
you were worried.
You knew you had
been caught and you were worried about going
to jail for perjury.
MS. SYKES: Your Honor, objection to
that answer. I forgot the word. Never
mind, Judge.
BY MS. SYKES:
Q Mr. Brodsky, Mr. Schmiedel,
that Mr. Brodsky is standing before
please,
this
Court right now and is telling this Court
that he knows exactly what
THE COURT: Ma I am, I want you to stop
one second. I want you to think about this.
I am sitting here. I am hearing all of
this. I am the determiner of facts.
I am the one that decides what
21 weight is put on what evidence, and
22 testimony is evidence. Whatever he says
23 does not become a truth just because you
24 said it.
62
1 If that were so then you wouldn't
2 no one would have -- we wouldn't have two
3
4
5
sides in Court.
MS. SYKES:
THE COURT:
We wouldn't need it.
I apologize, your Honor
Part of the process is you
6 ask the questions, I listen to the answers,
7 and then I consider, and then I reach a
8 decision.
9 Do you have anything now that you
10 want to ask Mr. Brodsky?
11 MS. SYKES: At this point, no, but your
12 Honor, is it possible that I could be put
13 under oath regarding this e-mail and my
14 cousin Kathy can ask me questions?
15 THE COURT: No.
16 MS. SYKES: Can I ask myself questions?
17 THE COURT: No. Just give a statement
18 and I would like you to sit down and say
19 what this statement would be.
20
21
22
23
24
MR. SCHMIEDEL: The other lawyers
probably have two questions.
THE COURT:
counting. This
MS. SYKES:
Four questions. We are
is it for you; right?
Depending on what he is
63
1 asking.
2
3
4
5
6
7
8
9
THE COURT: Re-Direct?
MR. SCHMIEDEL: Correct.
RE-DIRECT EXAMINATION
BY MR. SCHMIEDEL:
Q Mr. Brodsky, did you alter in
way the contents of this e-mail that
Exhibit No.1?
A No.
any
is
10 Q Referring to -- I will show you here
11 where I am pointing out, do you see, you
12 asked the question do you recall being
13 asked the question on Cross-Examination,
14 does it say anything in the e-mail as to
15 what I lied about?
16 A Yes.
17 Q Pointing to this particular
18 paragraph that begins with Peter, can you
19 read that into the record?
20 A Peter asked me at least 20 times
21 where the money is, and then I lied when the
22 Court said I had no right to take the 5th.
23 MR. SCHMIEDEL: Nothing further.
24 THE COURT: Question?
64
1 RECROSS-EXAMINATION
2 BY MS. SYKES:
3 Q You were just asked whether or not
4 you altered this. Do you know whether or
5 not Mr. Ditkowsky may have altered it?
6 A Looking at the e-mail and the header
7 and the way it is laid out, I have a lot
8 experience with e-mails in cases, I can tell
9 you that the way this e-mail lays out, to
10 the best of my knowledge and experience,
11 this e-mail from Mr. Ditkowsky to me and
12 then the subsequent e-mail from you to
13 Mr. Ditkowsky do not appear to be altered at
14 all because it is one clean line.
15 Where, if you look at the ones
16 subsequent to that which mayor may not have
17 been altered, there is this line where it
18 could have been a clip and paste.
19 But on top of that, that is very
20 clean. That is an indication that it was
21 not altered or moved in any way, shape, or
22
23
form.
Q Mr. Brodsky, do you know that when I
24 send you an e-mail and then you go to
65
1 forward it or to respond, that at that point
2 that anyone can take what is on the body of
3 that e-mail and alter it?
4 MR. SCHMIEDEL: Objection, beyond the
5
6
scope.
THE COURT:
7 BY MS. SYKES:
Sustained.
8 Q Mr. Brodsky, do you know --
9 MS. SYKES: Your Honor, Mr. Ditkowsky is
10 not present. Is that --
II MR. SCHMIEDEL: Objection, beyond the
12 scope.
13 THE COURT: Right now you are limited to
14 the questions that reflect directly on
15 Mr. Schmiedel' s questions on Re-Direct.
16
17
18
19
MS. SYKES:
THE COURT:
questions.
MS. SYKES:
It says here
On Re-Direct he asked three
It says here that Peter
20 asked me 20 times where the money is and
21 that--
22
23
24
THE COURT:
BY MS. SYKES:
Q -- lied
That was --
66
THE COURT: -- Brodsky.
BY MS. SYKES:
1
2
3 Q I had no right to take the 5th.
4 Does it say specifically or do you know
5 specifically, because I said here 20 times,
6 at least 20 times, do you know specifically
7 that I lied about something relevant to a
8 Sumatra account?
9 A Yes, because I was in Court when you
10 testified, and the testimony was about a
11 Sumatra account and the money from the
12 $270,000 on the Sumatra account.
13
14
15
That is what you testified about the
day before. That is the only money you
testified about. When the e-mail -- when
16 your e-mail says Peter asked me at least 20
17 times where the money is, the only money you
18 testified to was the Sumatra account money.
19 MS. SYKES: Again, I wasn't prepared for
20 this.
21 BY MS. SYKES:
22 Q At any point in time do you recall
23 that Mr. Schmiedel asked me if I had any
24 accounts?
67
1
2
3
4
THE COURT: Excuse me.
MR. SCHMIEDEL: Objection to beyond the
scope.
THE COURT: Sustained.
5 MS. SYKES: Mr. Brodsky just said that
6 all they asked about was the sumatra
7 account. He just testified to that, that
8 all I was asked about was the Sumatra
9
10
account.
THE COURT: Read back the question that
11 I just sustained the objection to.
12 (Record read.
13
14
15
THE COURT: Sustained. The question was
any accounts. The statement was about the
Sumatra accounts. I think that the
16 statement on Re-Direct was about the Sumatra
17 account.
18 MR. SCHMIEDEL: The question on
19 Re-Direct was where the money is, where the
20 money is, not what accounts you have the
21 money in. We are talking about the Sumatra
22 account.
23 THE COURT: Only to the Sumatra account.
24 That was the only account that was mentioned
68
1 in the Hearing.
2 MR. SCHMIEDEL: Oh, no. It was the
3 money -- what was mentioned in the
4 Hearing
5 THE COURT: I didn't ask you that.
6 MR. SCHMIEDEL: Oh, okay.
7
8
9
THE COURT: In your answer to
Mr. Schmiedel's question on Re-Direct,
referenced only the Sumatra account.
you
10 THE WITNESS: The money from the Sumatra
11 account. The $270,000.
12 THE COURT: I am going to stand by
13 the -- by my sustaining the objection from
14 counsel. If you have another question based
15 on the three questions
16
17
18
19
MS. SYKES: Your Honor
THE COURT: -- asked on Re-Direct,
will have you ask it now.
MS. SYKES: Mr. Schmiedel asked the
I
20 question about the Sumatra account in his
21
22
23
24
on,
THE COURT:
ma ' am. As k
MS. SYKES:
I have already ruled.
your next
I asked.
responded that he recalls
question.
Mr. Brods ky
that
69
Move
1 MR. SCHMIEDEL: He already --
2 THE COURT: You already moved. Move on.
3 Ask your next question of Mr. Brodsky based
4 on the three questions asked during
5 Re-Direct.
6
7
8
9
10
BY MS.
Q
April
A
SYKES:
Was every question asked at the
15th about the Sumatra account?
Let me answer that one. It was
THE COURT: April 15th?
11 MS. SYKES: February 15.
12 THE WITNESS: The Hearing was entirely
13 about the money that carne from the Sumatra
14 account and what happened to that money and
15 where it was now.
16 That was what the whole hearing was
17 about, the money that was in the Sumatra
18 account and what happened and where it is
19
20
21
22
23
now. Where it was moved to.
now. Who had control over it.
about that $270,000.
BY MS. SYKES:
Who had it
It was all
Q And you can say that with authority
24 that there was no other question asked about
70
1 anything else but the Sumatra account on
2 April 15th.
3 MR. SCHMIEDEL: Objection. That is the
4 same question you already sustained the
objection to. 5
6 THE COURT: It is beyond the scope of
7 Re-Direct. The Re-Direct was very narrow.
8 MS. SYKES: Well, your Honor --
9 THE COURT: The whole purpose of this is
10 that when a witness is called, they first
11
12
13
ask questions.
based.
Those questions can be broad
As you possibly know that on
14 Cross-Examination, your Cross-Examination
15 has to be limited to the areas opened in the
16 Direct questioning. Then when there is
17 Re-Direct, that can only be within the scope
18 of the things that carne up on the
19
20
Cross-Examination.
So each time it gets smaller.
21 area that can be inquired into becomes
The
22 smaller, not larger. There were only three
23 questions on Re-Direct.
24 If you don't have another question
71
1 that has to do with the three questions and
2 answers on Re-Direct, then I am going to
3 excuse Mr. Brodsky unless you have something
4 you wanted to ask Mr. Brodsky.
5 MR. SCHMIEDEL: Nothing else.
6 MS. SYKES: I just have one last
7
8
9
10
question.
THE COURT: All right.
BY MS. SYKES:
Q Regarding this e-mail that I
11 consider unverified, do you see here that I
12 talked about money in an account that was
13 loaned to me and that I am borrowing money?
14
15
MR. SCHMIEDEL:
scope.
Objection, beyond the
16 THE COURT: It was joined what was
17 quoted on Re-Direct; is that correct?
18 MR. S CH M lED E L : Correct. The only
19 thing, the only point I made on my Re-Direct
20 was she asked him a question as to whether
21 or not the e-mail contained anything about
22 what she lied about.
23 I re-directed his attention to
24 another part of that e-mail that reflects
72
1 that she lied about knowing where the money
2 wa s .
3
4
5
THE COURT: And it was on a specific
area. So this is again beyond the scope.
am going to sustain the objection.
6 BY MS. SYKES:
7
8
Q Anywhere
statement where
in this
I said I
question or any
lied, does it say
9 Sumatra?
10
11
A Schmiedel asked me
from the Sumatra account.
if I paid you
I didn't.
12 Q I said Peter asked me at least 20
13 times where the money is.
14
15
THE COURT: It began with Peter -
THE WITNESS: That line does not have
16 the word Sumatra in it.
17
18
19
MS. SYKES:
THE COURT:
MS. SYKES:
Thank you very much.
Thank you very much.
Your Honor
I
20 MR. SCHMIEDEL: I move for the admission
21 of Exhibit No. 1 and No.2.
22 THE COURT: So admitted.
23 (Whereupon, Exhibit No.1
24 and No.2 admitted into
73
1
2
3
4
5
MS. SYKES:
not know about
THE COURT:
MS. SYKES:
evidence.)
Your Honor, because I did
this today --
But you did.
I did not know. I was not
6 served, your Honor, and if this gentleman
7 was here in Court today, I would sequester
8 him that
THE WITNESS: I'm excused?
THE COURT: Mr. Brodsky, you are
excused.
9
10
11
12 THE WITNESS: Good luck to you, your
13 Honor.
14 MS SYKES: I would go under oath and
15 tell you that I was not served, that nobody
16 carne up tome.
17 THE COURT: Excuse me.
18 MS. FARENGA: Your Honor, this matter
19 has already been addressed. As the guardian
20 ad litem, I don't have to be quite as
21 patient as the Court does.
22
23 to the
This is a pro
same standards
se
as
party. She
an attorney.
is held
It is
24 clear for days and days that she is given a
74
1 great more deal of latitude than attorneys
2 do.
3 We have Dr. Shaw here today. It is
4 imperative that his testimony be taken
5 because at the Court's suggestion, Ms. Sykes
6 has not been required to disclose the
7 location of the Sumatra assets until the
8 Guardian established that Mary Sykes may
9 have some claim on those assets.
10 So we have hopefully remaining
11 approximately $270,000 towards which Mary
12 has claimed, the location of which we do not
13
14
15
16
17
18
19
20
21
22
know, but by numerous Court Orders Gloria
Sykes to release that, and the Court asks
that Mary Sykes is entitled to some of that
money.
don't
The guardian has
know the financial
Dr. Shaw here. I
arrangement, but I
am sure that Dr. Shaw is here at some
expense to Mary Sykes, and this is one of
the times when Mary's interests need to be
taken care of.
23 MS. SYKES: Yes, your Honor. Excuse me,
24 your Honor. I have an Order here from
75
1 Lumbermans. I have an Appellate Court
2 decision from Lumberman. I have knowledge
3 that Mary Sykes had three attorneys and
4 she
5
6
7
THE COURT:
what Dr. Shaw
will have Dr.
Ma'am,
is going
Shaw come
you don't even know
to tell the Court.
forward. We can
8 take his testimony and then it can be used
9 in the future.
10 There were several items that
11 your mother's money, what little there is,
12 is being used to pay this gentleman to come
13 to Court, and I am going to hear his
14 testimony so he need not come back again.
15
16
MS. SYKES:
THE COURT:
Can I ask him questions?
Sure. If you won't mind
17 standing, Dr. Shaw.
18 (witness duly sworn.)
19 DR. JEFFREY SHAW
20 a witness herein, having been duly sworn to
21 tell the truth under oath, was examined and
22 t est i fie d as f 0110 w s :
23 THE COURT: Sit down wherever you want
24 to. Sir, I appreciate you coming.
76
I
1 MS. SYKES: Are there any people that we
2 had moved to exclude the witnesses?
3
4 in
THE COURT: Are there
this Courtroom who are
any of the parties
potentially going
5 to be called as witnesses as to the contents
6 about the abilities of Mary Sykes at the
7 period 2008 as witnesses? Then I ask that
8 you leave, please.
9 MS. SYKES: Mr. Evans will be a witness.
10 THE COURT: Then I'm going to say to
11 you, you have to leave.
12 And I'm going to ask that you limit
13 this. I would like to have this done no
14
15
16
17
18
19
20
later than 4:45. I have to let the clerk
go. I have to let the Court reporter go.
would prefer, though, that your information
is going to be available to the Court.
Mr. Schmiedel, you may proceed.
DIRECT EXAMINATION
BY MR. SCHMIEDEL:
21 Q Doctor, could you please state your
22 full name and spell your last name for the
23 record.
24 A My name is Dr. Jeffrey Shaw,
77
I
1 S-H-A-W.
2
3
4
5
6
7
8
9
Q
A
Dr. Shaw, what do you do?
I am a board certified psychiatrist.
Q Would you please
(Exhibit No.3 marked for
identification. )
MR. SCHMIEDEL: Let the record reflect
that I am giving the counsel copies of his
C.V., marked as Exhibit No.3.
10 BY MR. SCHMIEDEL:
11 Q Can you tell the Court briefly,
12 Dr. Shaw, about your education background.
13 A Yes. I graduated from medical
14 school in Northern Ireland in 1982;
15 subsequently came to the United States where
16 I started work here at Northwestern in
17 psychiatry; subsequently carried into
18 geriatric psychiatry.
19 Q Are you also a -- when you say
20 geriatric psychiatrist, can you briefly
21 describe for the record what geriatric
22 psychiatry means.
23 A Geriatric psychiatry is a
24 subspecialty of psychiatry.
78
1
2
3
Q How long have you been board
certified in geriatric psychiatry?
A Since 1995.
4 Q Were you ever re-certified?
5 A Yes. Re-certified in I believe it
6 was 2006.
7 Q Do you currently have a practice?
8 A Yes, I do.
9
10
Q
A
Where is your practice located?
Northwestern Memorial.
11 Q And you also work out of another
12 hospital?
13 A That's correct. Lutheran General
14 Hospital in Park Ridge.
15 Q Would you tell me what percentage of
16 your clients that are patients that you
17 currently treat are geriatric?
18 A Approximately 60 percent.
19 Q How long has it been where 60
20 percent of your time has your clients been
21 geriatric?
22 A Approximately 15 years.
23 Q Generally do you have a population
24 where you deal with people that suffer from
79
1 dementia?
2
3
4
5
6
7
8
9
10
11
12
A
Q
That's correct.
What's dementia?
A Dementia is a medical condition
where the person suffers a debilitating
illness that results in the loss of their
cognitive function and also affects medical
patterns.
Q And is dementia a progressive
disease?
A
Q
Yes.
What does it mean to be a
13 progressive disease?
14 A A progressive disease simply implies
15 that the illness starts in the early stages
16 and ultimately progresses to the losses, and
17 the losses become much more pronounced.
18 Q Have you ever been qualified as an
19 expert to testify in guardianship matters?
20
21
A
Q
22 times?
23
24
A
Q
Yes.
Can you tell us about how many
Approximately 100, 150, if not more.
Have you ever been called upon to
80
1 give an opinion in this case with results to
2 the onset of dementia and whether or not a
3
4
5
6
7
8
9
person is able to competently tend to either
their personal or financial affairs in a
given period of time?
A Yes. Many times.
Q And could you tell the Court
approximately how many times?
A I have testified approximately 100
10 times, but I have had many evaluations,
11 perhaps several.
12 Q In forming opinions in cases, do
13 psychiatrists in your field typically rely
14 upon doctors' notes and neuropsychological
15 reports.
16
17
A
Q
That is correct, yes.
And that is something that is
18 generally accepted in the psychiatric
19 community that is appropriate to rely upon
20
21
in forming opinions?
A Correct.
22 Q And in forming opinions specifically
23 about the onset of dementia and whether or
24 not a person in a given point in time is
81
1 able to make and communicate responsible
2 decisions either about their person or their
3 estate.
A Correct. 4
5
6
MR. SCHMIEDEL: Judge, at this point in
Shaw testify time I would move to have Dr.
7 as an expert in the area of dementia and
8 geriatric psychiatry.
9 THE COURT: Will you -- are there any
10 obj ect ions?
11 MS. SYKES:
12 testimony?
13
14
15
16
17
THE COURT:
psychiatry.
MS. SYKES:
to do that.
THE COURT:
18 your Motion.
You are going to give
As an expert in geriatric
I am very happy he is going
Then I will allow and grant
19 MR. SCHMIEDEL: I will ask him to
20 identify if you would, Doctor, Exhibit No.3
21 for the Court.
22 THE WITNESS: Yes. This is my current
23 C. V.
24 MR. SCHMIEDEL: Judge, I move for
82
1 admission of the C.V. And provide it to the
2
3
4
5
Court.
THE COURT: Objection?
you have any objections to
Objection?
the --
Do
MR. SCHMIEDEL: To the admission of the
6 C. V.
7
8
9
THE COURT: It is in. Next question.
(Whereupon, Exhibit No.3
admitted into evidence.
10 BY MR. SCHMIEDEL:
11
12
Q I am going to show you what I have
marked as let me ask the preliminary
13 questions.
14 Do you know, have you ever heard the
15 name Mary Sykes?
16 A Yes, I have.
17
18
19
20
21
22
23
24
Q In what context?
A I have reviewed medical documents
pertaining to Ms. Mary Sykes.
Q And I am --
MR. SCHMIEDEL: Judge, the record should
reflect that I am handing what I have marked
as Exhibit No.4 to Gloria Sykes.
(Exhibit No.4 marked for
83
1 identification.
2 THE COURT: All right.
3 MR. SCHMIEDEL: I'm going to ask you a
4 series of questions, Dr. Shaw, showing you
5 what I have marked as Exhibit No.4, showing
6 you the documents, and go through those
7 pages just to refresh your memory about
8 those documents.
9
10
11
12
13
14
A
Q
A
Q
A
Okay.
Do you recognize them?
Yes, I do.
What are they?
This is a document that I previously
reviewed. It is the medical records of
15 Dr. Patel referring to Ms. Mary Sykes.
16 Q And did you review those records and
17 are there entries in that record that you
18 relied upon in forming your opinions here
19
20
21
22
today?
A Yes.
(Exhibit No.5 marked for
identification.
23 MS. SCHMIEDEL: Handing Ms. Sykes what I
24 have marked as No.5, and I show to
84
1 Dr. Shaw --
2
3
4
5
6
7
is?
THE COURT: Please.
MR. SCHMIEDEL: -- Exhibit No.5.
Dr. Shaw, do you recognize what that
A
Q
Yes, I do.
What is it?
8 A This, again, is a document that I
9 reviewed pertaining to Ms. Mary Sykes.
10 Q What is it specifically?
11 A It is specifically the results of
12 the neuropsychological testing that was
13 performed in August of 2009.
14 Q On Mary Sykes?
15
16
A
Q
Correct.
And who is the neuropsychologist who
17 performed the testing?
18 A The neuropsychologist, it looks like
19 it was a doctor Toby Motyoka, M-O-T-Y-O-K-A.
20 Q Is the result of neuropsychological
21 testing the kind of documents that geriatric
22 psychiatrists relied upon in forming an
23 opinion?
24 A Yes.
85
1 (Whereupon, Exhibit No.6
2 marked for identification.
3 BY MR. SCHMIEDEL:
4 Q Also showing the record, I am giving
5 Ms. Sykes Exhibit No.6, which is a CCP-211
6 report of Dr. Ander in this case, do you
7 recognize this particular exhibit?
8 A Yes, I do.
9 Q And what is it?
10 A This is a completed CCP-211 document
11 that is completed by Dr. Ander in response
12 to an evaluation he performed on October 31,
13 200 9 .
14 Q All right, and is this a document
15 that you relied upon in formulating your
16 opinions here today?
17 A Yes.
MR. SCHMIEDEL: I move for admission
Exhibit No.6 which is CCP-211.
(Whereupon, Exhibit No.
entered into evidence.)
(Whereupon, Exhibit No.
6
7
of 18
19
20
21
22
23. marked for identification.
24 BY MR. SCHMIEDEL:
86
1 Q Showing you what I am going to be
2 giving Ms. Sykes, Exhibit No.7, which is a
3 CCP-211 report of Dr. Rabin. If you would
4 take a look at that document.
5 A I did.
6 THE COURT: Can you spell the name?
7 MR. SCHMIEDEL: Sure. R-A-B-I-N.
8 BY MR. SCHMIEDEL:
9
10
11
12
13
14
Q
A
Q
Do you recognize this document?
I do.
Is this a document that you reviewed
in preparation
today?
for your testimony here
A Yes.
15 Q Is this a document that you relied
16 upon to give your opinions here today?
17
18
19
A Yes.
(Exhibit No.8 marked for
identification. )
20 MR. SCHMIEDEL: And I am going to mark
21 this as Exhibit No.8, and I am going to
22 give a copy of those records to
23 Let the record reflect I am giving a
24 copy of these to Ms. Sykes.
87
1 THE COORT: So noted.
2 BY MR. SCHMIEDEL:
3 Q Showing you what is marked as
4 Exhibit No.8, Doctor, do you recognize
5 generally what those exhibits are or that
6 exhibit is without going through the entire
7
8
exhibit?
A Yes, I do. This is the continuing
9 medical records pertaining to Ms. Mary
10 Sykes.
11 Q Did you review these records in
12 preparation for your testimony here today?
A Yes, I did.
MR. SCHMI EDEL:
this as Exhibit No.
record reflect that
Ms. Sykes.
And I will finally mark
9 and I will let the
I'm giving a copy to
13
14
15
16
17
18
19
THE COORT: So noted.
(Exhibit No.9 marked for
20 identification.
21 BY MR. SCHMIEDEL:
22 Q Showing you what I have marked as
23 Exhibi t No.9, Dr. Shaw, do you recogni ze
24 what it is?
88
Yes, I do.
What is it?
1
2
3
A
Q
A It is a document entitled settlement
4 apportion agreement. That was a document
5 that was completed on October 16, 2008.
6 Q This is the document that you were
7 asked to render an opinion about with
8 respect to whether or not Ms. Sykes was
9 competent to execute on that particular
10 date; is that right?
11 A That is right.
12 Q And do you have an opinion to a
13 reasonable degree of medical certainty with
14 respect to whether or not she, in fact, had
15 the capacity to do that, to execute that
16 document on that day?
17 A Yes, I do.
18 Q What is that opinion based upon?
19 A My opinion, based on a reasonable
20 degree of psychiatric certainty, is based
21 upon my experience and review of the records
22 from the other doctors, that she lacked the
23 capacity to complete those legal documents.
24 Q And is there anything of
89
1 significance on the first page of this, the
2 entry on the first page of this particular
3 exhibit, that assisted you in reaching your
4 opinion today?
5 A Yes. In the entry dated 6-18-2007,
6 Dr. Patel makes a reference as to concerns
7
8
9
10
11
12
13
14
15
16
17
18
19
20
that were discussed about Ms. Sykes' memory.
Q And did he provide a diagnosis?
A Yes. What Dr. Patel does is
diagnose her suffering from a cognitive
disorder which would be dementia, and
started medication for that.
Q And did he also perform a
mini-mental status exam?
A Yes, he did.
Q What is a mini-mental status exam?
A A mini-mental status exam is
rudimentary test where the recipient
test is asked a number of questions.
A perfect score would be 30
a very
of the
out of
21 30, and her cognitive tests showing what has
22 previously been a lower score.
23 Q What was her score on that day?
24 A 23 out of 30.
90
1
2
3
MR. SCHMIEDEL. Judge, at
move for admission of records
Exhibit No.4, which has been
this time I
for No.4.
identified by
4 the doctor as something he particularly
relied upon. 5
6
7
8
9
THE COURT:
of Dr. Patel.
No.4 is the medical records
MS. SYKES: Exhibit No.4.
recollection it was
adjudication date. 10
11
MR. STERN: My
relied upon on the
MR. SCHMIEDEL. Yes, that is accurate.
12 That was it.
13 THE COURT: So are you asking that this
14 comes in as the basis of opinions being
15 expressed by this witness?
16 MR. SCHMIEDEL: Yes.
17
18
19
20
21
22
23
24
THE COURT: Any obj ection, rna' am?
Ms. Sykes? Any objection to the second.
CCP-211 done by Dr. Rabin?
MS SYKES: Rabin. That is what I am
looking
MR.
Judge.
for right now.
SCHMIEDEL: I
MS. SYKES.
gave her a copy,
Exhibit No.4.
is what I was looking for. Thank you.
91
That
No
1
2
3
4
5
6
7
8
9
10
objection.
THE COURT:
BY MR SCHMIEDEL:
Comes in.
(Exhibit No.4 entered into
evidence.
Q You haven't actually
is that
seen or
correct? examined Mary Sykes;
A
Q
Correct.
Is that necessary for you to
formulate an opinion? Are you a forensic
11 psychiatrist?
12 A No. Geriatric.
13 Q Do you need to actually see a person
14 at this point in time to be able to render
15 an opinion to a reasonable degree of medical
16 certainty about the person's capacity to
17 function at a given point in time?
18 A I believe I can render an opinion
19 based upon a review of the documents.
20 Q Is there anything in this document
21 that assisted you with respect to Exhibit
22 No.4, Dr. Shaw? I s there anything
23 significant in Exhibit No.4 dated January
24 28, 2008, that assisted you in reaching your
92
1 conclusions in this case?
2
3
4
5
6
7
8
9
A Yes. There are two things. The
most significant one would be under the
section entitled Objective. It states she
gets mixed up with instructions easily.
Under the section entitled
Assessment, she gets lost.
his staff was worried about
walking the four blocks home
Dr. Rabin writes
the patient
and wanted to
10 call for medical transportation.
11 Q Under the last entry on September 4,
12 2008, was there anything significant in that
13 which assisted you in reaching your opinion?
14 A Yes. Under the section entitled
15 social history, it states that she is very
16 forgetful.
17
18
Q
A
And it is dated September 4, 2008?
Yes. It is also under the section
19 entitled assessment under the number three
20 section that mentions dementia.
21 Q Let me go back a minute to the exam
22 that took place in June of 2007 where she
23 scored 23 out of 30. What does that mean?
24 And October 15, 2008, is it your opinion --
93
1
2
3
4
5
6
7
8
A It supports the evidence that
Mrs. Sykes did indeed have dementia.
Q The fact that she was not oriented
to the year,
country, is
significant
A Yes.
the month, the day, or the
it your opinion that Mary had a
indication of dementia?
had increased
The evidence of the
from the last stage
dementia
into a
9 much more severe stage.
10 MR. SCHMIEDEL: All right, if the Court
11 wishes to catch up, I'm on October 27, 2008.
12 This is one, two, three, four pages long.
13 BY MR. SCHMIEDEL:
14
15
16
17
18
Q Is there any
particular document
making your opinion
A It is based
from that standpoint
significance on that
which assists you in
today?
on several things. Just
it's based on my
19 experience as a geriatric psychiatrist; more
20 specifically based on my opinion after
21 reviewing the medical records pertaining to
22 Ms. Sykes. Yes. There are several things.
23 Q Let's take them one at a time. If
24 you would take a look, I believe it's number
94
1 four, and those are the records from
2 Dr. Patel; is that correct?
3 A That's correct. It states mother is
4 very forgetful and there is also
5 documentation that Mrs. Sykes is on a
6 medicine called Exelon, which is a form of
7 treatment for dementia, which means the
8 patient is markedly forgetful.
9 Q January 26, 2005, is there anything
10 significant about that document that
11 assisted you in your opinion?
12 A Under the heading subjective there
13 is confirmation of the diagnosis of
14 dementia. It references Exelon. It says
15 patient is not sure of the year, the month,
16 the date; however, she knew the president's
name? 17
18
19
20
21
Q Did she know that she was in
Chicago?
A She knew she was
office and the location.
in the doctor's
She lives in
22 Chicago, but does not know the country.
23 MR. SCHMIEDEL: Judge, may I have a
24 second?
95
1 THE COURT: Yes, you may.
2 BY MR. SCHMIEDEL:
3
4
Q
A
Exhibit No.5.
That was the report of the
5 neuropsychological test on August 10, 2009.
6 Q And is there anything in there that
7 helped you in forming your opinion?
8 A The whole document, which is a
9 summary of the issues.
10
11
12
13
14
15
Q Looking at Exhibit No.6, that is a
CCP-211 report of Dr. Ander?
A Correct.
Q Did this assist you in reaching your
opinions in this case?
A Yes. It helped me in reaching an
16 opinion, that she was incapable of making
17 personal and financial decisions.
18 Q Showing you what has been previously
19 marked as No.7, did that assist you in
20 reaching your opinions in this case?
21
22
23
24
A
Q
No.9.
A
Yes.
Dr. Shaw, we went through Exhibit
You reviewed that.
Yes.
96
1 Q There was an apportion agreement
2 that was purportedly executed by Mary Sykes
3 on October 16, 2008?
4 A Right.
5 Q On October 15, 2008, that Mary Sykes
6 had dementia?
7
8
A
Q
Correct.
Did Mary Sykes have the legal
9 capacity to understand this particular
10 document and execute it accordingly.
11 A It is my opinion that she lacked the
12 capacity to do so.
13 Q You say it is based upon your
14 foregoing testimony and documents that we
15 just went over, and your experience as a
16 psychiatrist; correct?
A Correct.
Q You haven't actually seen or met
Mary Sykes; right?
A Correct.
17
18
19
20
21
22
23
24
Q Is it necessary for you to actually
see a person at this point and time to
render an opinion to a
medical certainly about
97
reasonable degree
her ability to
of
1 function at a given point in time?
2 A I believe I can render the opinion
3
4
5
6
7
8
9
10
11
12
13
14
via support of the documents.
MR. SCHMIEDEL: That's all for now.
MS. SYKES:
THE COURT:
witness.
May I approach, Judge?
You may approach the
Q
A
Q
A
Q
CROSS-EXAMINATION
BY MS. SYKES:
Hi, Dr. Shaw.
Fine.
How are you today?
Have you ever met my mother?
No.
You never met my mother. Okay. I
15 don't probably have these in order because
16 i'm pro se and I am a little nervous here,
17 but in January 2008 have you ever met
18 Dr. Patel
19
20
21
A
Q
A
No.
-- my mother's physician?
No.
22 Q Do you have any reason to believe
23 that Dr. Patel is not a good physician,
24 geriatric physician?
98
A No. 1
2
3
Q You stated
forensic geriatric
that you're not a
psychiatrist; right?
4 You're not forensic?
5 A That is correct.
6 Q So you have no reason to believe
7 that Dr. Patel is incompetent or doesn't
8 know what he is doing.
9 A That is correct.
10 Q Do you believe then, from all the
11 medical reports that you have read about
12 from Dr. Patel, that he is a competent
13 doctor?
14 A I have no reason to deny his
15 competence.
16 Q I don't have a copy of this. I
17 would like to put into it might be in
18 there. Was January 2008 in yours.
19 THE COURT: Yes.
20 BY MS. SYKES:
21 Q I would like to refer you to June
22
23
2008?
MR. SCHMIEDEL: Can you refer to the
24 Exhibit number that I gave you?
99
1
2
3
MS. SYKES:
No.4? Okay.
BY MS. SYKES:
I got it here, Exhibit
4 Q You were reading his notes up front,
5 but if let me back up a question. I'm
6 sorry, please. Dementia can be caused by a
7 lot of things; is this not correct?
8 A Correct.
9 Q Would you please list to the Court
10 what dementia can be caused by?
11
12
A It
conditions.
can be caused by many different
It can be caused by
13 degenerative conditions such as Alzheimer's
14 disease. It can be caused by vascular
15 problems such as strokes.
16 It could be caused by certain
17 poisonings such as heavy metal poisoning.
18 There are a legion of causes. There are far
19
20
too many causes
you. There must
21 more causes.
for me to be
be perhaps
able to tell
100, if perhaps
22 Q Do certain medications cause
23 dementia or short-term memory loss?
24 A Well, since they are not the same
100
1 thing, medications do not cause dementia.
2 Certain medications can cause temporary
3 memory loss.
4
5
6
7
Q Can dementia be
short-term memory loss
by medication?
A Short terms
confused with a
that would be caused
the term short-term
8 memory loss really refers to symptoms, not
9 conditions. So I do not believe that the
10 condition of dementia can be misdiagnosed as
11 a short-terms memory loss. They are
12 separate issues.
13 Q But if someone said to you can
14 depression cause memory loss or what can
15 appear to be dementia?
16
17
18
19
20
21
22
23
24
A Depression does not cause dementia.
There is a form of depression called
psuedo-dementia, but that is not to be
confused with dementia itself.
Q Are you familiar with Dr. Wong
(phonetic) ?
A No.
Q He is the foremost known geriatric,
forensic geriatric psychologist known
101
1 throughout the world for his studies in
2 undue influence and cause of dementia and
3 the look of dementia.
4 THE COURT: What is the question?
5 BY MS. SYKES:
6 Q The question is this, are you
7 absolutely certain that depression,
8 medications, isolation, undue influence,
9 drugging, that there is no other reason why
10 an individual may have a memory loss that
11 may appear to be a dementia?
12 A I am absolutely certain that the
13 things you enumerated do not cause dementia.
14 Q On January 2008, there is a doctor's
15
16
17
18
19
20
21
22
23
report that refers
believing that Dr.
to page one here, page 4,
Patel is a good doctor.
Do you see anything here where he
writes his assessment
A I'm sorry. I
the document.
Q That would be
THE COURT: Does
exhibit for
dementia?
would have
on page
the witness
to review
exhibit
have the
24 BY MS. SYKES:
102
1 Q You testified that because here on
2 6-18-07
3 THE COURT: You have one question
4 already. Can you show somewhere on this
5 page where Dr. Patel says there is dementia.
6 That is the question that was pending.
7 Until he answers that, you cannot
8 answer another question.
9
10
11
12
THE WITNESS: I'm
sure what the question is.
BY MS. SYKES:
Q The question is is
sorry. I'm not
there anywhere
13 this report that the doctor in his
14 assessment, Dr. Patel, have dementia?
15 A What I am -- to answer your
16 question, what I am looking at is January
17 20, 2008, there is reference to behaviors
on
18 that are consistent with the condition that
19 he diagnosed in June of the prior year.
20 Q Again, the question is yes or no,
21 please, sir Doctor, is there anyplace
22 under assessment where Dr. Patel says mother
23 has dementia, mild, serious, anything that
24 we should be concerned of as a family?
103
1
2
3
4
MS. FARENGA:
answered.
MS. SYKES:
THE COURT:
Objection, asked and
He didn't answer.
I don't think he did answer.
5 THE WITNESS: On that particular
6 occasion he does not use the word dementia.
7
8
9
10
11
12
13
14
MS. SYKES: Thank you very much.
BY MS. SYKES:
Q Did you know that in 2008 and 2007
that my mother had a serious hearing loss?
A There is reference in the chart to
this
THE COURT: Let him finish his answer.
THE WITNESS: I am sorry. Yes. I did
15 note that in the medical records.
16 BY MS. SYKES:
17 Q Can serious hearing loss, if a
18 person cannot hear, would that, if she
19 doesn't really hear, and of course as we
20 know with a lot of people, do people that
21 cannot hear, do they often over-compensate
22 by thinking that they're hearing what the
23 question is?
24 A I don't know.
104
1 Q So you don't know that if this
2 individual that cannot hear, particular if
3 you're geriatric, right, if they don't hear,
4 that they may try to over-compensate by
5 answering a question that they think they
6 heard?
7
8
9
10
11
12
13
A When I say I don't know, I don't
know specifically what you're asking me. If
what you're asking me is if someone is hard
of hearing, that they will be extra-vigilent
in trying to answer the question, then I
agree with that.
Q So individuals who, particularly
14 seniors or anybody, as being a geriatric
15 physician, do you find that they will
16 over-compensate or try not to let anyone
17 know that they really can't hear you.
18 And so they answer a question that
19 may not be exactly what you asked them.
20
21
22
23
MS. FARENGA: Objection, compound form
of the question.
THE COURT: Wait. Wait. Don't just do
that. I believe she is giving examples of
24 what she means by over-compensating.
105
1 So I am going to overrule the
2 objection. You may answer.
3 THE WITNESS: If someone has impaired
4 hearing, it is certainly possible that on
5 occasion they would give an answer that does
6 not truly reflect the question asked of
7 them; that is correct
8 MS. SYKES: Thank you very much.
9 BY MS. SYKES:
10 Q On September 4, 2008, there is -- do
11 you see anyplace in the same Exhibit No.4,
12 does Dr. Patel say in his assessment where
13 he brings up dementia?
14 A Yes. Under assessment three, he
15 continues to diagnose Ms. Sykes as having
16 dementia.
17 Q Does dementia across the board mean
18 that you're functionally incompetent?
19 A Dementia is a medical term that
20 denotes a medical illness. As part of the
21 medical illness, there are many times where
22 people do display behaviors where they are
23 incompetent.
24 Q Displaying the behavior or appearing
106
1 as incompetent, does that necessarily mean
2 that a person is incompetent?
3 A Well, specifically to answer your
4 question, one of the concerns raised by
5 Dr. Patel and his staff was that your mother
6 would not find her way home in January.
7 In fact, they were so concerned
8 they tried to arrange for transportation.
9 This would be an example of someone getting
10 lost as a result of having the dementia.
11 Q How do you know through his notes
12 that that actually happened or what the
13 entire situation was that day? Let me back
14 up.
15 Do you feel that if this was your
16 patient and she was truly lost and couldn't
17 come home, that you would do more than just
18 get her home?
19 MR. SCHMIEDEL: Form of the question,
20 that you would do more for the patient than
21 say I am going to find a way home.
22 Objection to the form of the question.
23 I think she is asking him two
24 questions in one, whether or not Dr. Patel
107
1
2
3
4
5
6
7
8
9
10
11
12
13
acted properly in arranging or not arranging
what he would do under the circumstances.
THE COURT:
objection. You
MS. SYKES:
THE COURT:
I will sustain the
can only ask one question.
Thank you. I'm sorry.
That doesn't mean either one
of the questions that have been ruled would
be
was
ruled necessarily
an objection, an
Again, just
inappropriate unless it
appropriate objection.
saying that the form of
the question,
difference?
do you understand the
MS. SYKES: Yes, I do. Thank you, your
14 Honor.
15 BY MS. SYKES:
16 Q It was your reading of the medical
17 records on a specific date that you know?
18 Dr. Pat el was v e r y con c ern e d . I'm
19 not sure of the word you used. Seriously
20
21
concerned that my mother didn't
home. Correct.
know her way
22 If a doctor is seriously concerned
23 that somebody is lost or cannot find their
24 way home, what would you recommend doing?
108
1 A I think reading from the notes on
2 January 20, 2008, Dr. Patel behaved in a
3 manner that you would expect him to behave
4 or any physician to reasonably behave.
5 He was acting on the knowledge that
6 on June 2007 there was a report that she got
7 lost on the way to his office, and this is
8 January 2008.
9 He presumably and very -- expressed
10 concerned based on the knowledge that your
11 mother was forgetful and had a way of
12 get tin g los t .
13 Q Do you know for a fact that even
14 though it is in his notes, that at any point
15 Dr. Patel didn't call me and discuss it.
16 Never. In fact my mother, if when he wrote
17 being lost, that he was actually lost.
18 MR. SCHMIEDEL: Objection to the form of
19 the question.
20 THE COURT: I'm going to sustain that.
21 BY MS. SYKES:
22 Q So you were just judging that by
23 what you read. You understand the entire
24 situation that day; is that correct?
109
1
2
3
4
5
can
he
A
Q
be
kept
A
That is not correct.
So in other words, that statement
just a miscellaneous statement that
in his notes for any other reason.
If I could refer to a note to answer
6 your question of what Dr. Patel wrote in
7 June of 2007, not only was Dr. Patel
8 concerned about your mother getting lost,
9 but he wrote daughter had called. Patient
10 has got lost several times on the same
11
12
route. Also forgets frequently.
And on that occasion he diagnosed
13 her with dementia.
14 That pre-dates January 2008 when in
15 his documentation he expresses his concerns
16 that your mother would get lost in the cold
17 weather.
18
19
20
Q
A
Q
Which daughter called?
It does; not say.
So it could have been do you know
21 that my mother has two daughters?
22
23
A
Q
Yes.
I am one of the daughters that my
24 mother lived with in 2007, and my sister
110
1 Carolyn.
2 A Yes.
3 Q Now could it have been that somebody
4 that my sister may have called for some
5 reason. So we don't know who called.
6
7
8
9
10
11
12
13
A That is correct.
Q And if it wasn't me where I lived
with my mother, even cared for her then,
thereby I believe Dr. Patel was there; is
that correct?
MR. SCHMIEDEL: Objection to the form of
the question.
THE COURT: I don't believe I could tell
14 you what you could do if Dr. Patel could do.
15 I think that is beyond the area of a
16 competent doctor and I am going to deny the
objection.
MS. SYKES: Let's move on.
BY MS. SYKES:
17
18
19
20
21
22
Q Is it normal that if somebody goes
to a doctor every month, isn't
dependent on the medical need?
it very much
Okay, again,
23 would you look to the next page for October
24 27th?
111
1 Do you see were it says the daughter
2 left note stating the patient is depressed
3 and bored when she is alone and tired?
Correct. 4
5
6
A
Q
A
Do we know what daughter that is?
No.
7 Q Does the Exelon patch have any side
8 effects?
9
10
A
Q
Yes.
And could the side effects be
11 depression, memory loss, upset stomach,
12 dizziness, diarrhea?
13 A I have never seen Exelon cause
14 depression and it could. Exelon, I have
15 seen it cause problems with the GI system;
16 that is correct.
17
18
19
Q
right?
A
You are not a forensic geriatric;
There really is no specialty of
20 forensic geriatric psychiatry.
21
22
23
24
Q Let's move
you please look at
Yes.
on to January '09.
the assessment?
Would
A
Q It says -- would you read No.3?
112
1 A No.3 says patient still has some
2 degree of dementia.
3
4
5
Q And how do you read this? What does
that mean?
A I read three things; that there is a
6 condition present, the condition dementia.
7 I also read the word still, which implies
8 that the dementia had been there previously,
9 and I last read that the doctor did not
10 quantify what he means by some degree.
11
12
13
14
15
16
17
18
Q
the top
A
Can you read down, can you read at
where it says per daughter?
Yes. It says per daughter. Ever
since her hearing was checked and she
received a hearing aide, her dementia seems
to have improved.
Q What does that say to you? Does
that suggest to you that Dr. Patel believed
19 by having a better hearing aide, that there
20 was -- whatever was going on was being
21 corrected?
22 MS. FARENGA: Objection that it asks for
23 Dr. Shaw to --
24 THE COURT: Let's see if he can answer.
113
1 I don't know if he will be able to answer.
2 I don't know what practice he is in the
medical profession. 3
4
5
6
THE WITNESS: He, to that particular
sentence is the
daughter. What
first. Two,
follows that
worried per
is simply a
7 documentation of what Dr. Patel was told by
8 the daughter in question.
9 BY MS. SYKES:
10 Q Okay, so all along the way, what we
11 are hearing is that a daughter had said
12 certain things. So then Dr. Patel is just
13 recording that.
14 A No, that is not what I said. I said
15 on this specific occasion, Dr. Patel is
16 simply recording the information given to
17
18
him.
Q So what you're saying to me when I
19 say daughter has sent note with multiple
20 matters named, writing da da da, daughter
21 has said she is depressed and all this.
22 That means that in those particular
23 cases he is just not putting down notes, but
24 in this particular case he is just writing a
114
1 no t e
2 MR. SCHMIEDEL: Objection, Judge. I
3 don't know that there is a question in
4 there.
5 THE COURT: I think there is a question
6 in there. I think that the witness
7
8
9
10
understands the question.
THE WITNESS: Yes, your Honor.
THE COURT: You can answer it.
MR. SCHMIEDEL: I will withdraw the
11 obj ection.
12 THE COURT: Thank you.
13 THE WITNESS: Yes, your Honor. I'm not
14 sure that I specifically reviewed the
15 information that you are referring to with
16 the list of questions, but if the documents
17 that I have reviewed, the doctor on multiple
18 occasions does make reference that Ms. Sykes
19 does have at least one daughter.
20 Rarely does he identify at all.
21 At least one he names, I believe yourself,
22 and her other daughter. Any particular
23 documents that you have asked me to comment
24 on on January 26, 2009, the exact daughter,
115
1 the identity of the daughter is not revealed
2 and it is clear from the contents of
3 Dr. Patel, Dr. Patel is writing down the
4 history of what he was told.
5 There is no evidence as far as I
6 can read it that he agrees or disagrees with
7 the statement of the daughter on that
8 occasion.
9 BY MS. SYKES:
10 Q So you're testifying on this
11 particular case on January 26th, he doesn't
12 agree or disagree. But on other times when
13 Dr. Patel has said the daughter said this,
14 so the daughter said that, that that means
15 he does agree.
16
17
18
19
see
A
Q
No, I did not say that.
Thank you. On the bottom you will
a note handwritten.
A Yes.
20 Q Would you please, if you can, read
21 it? It is difficult to read. It looks like
22 it is dated April 3, 2009. It is difficult
23 to read. I believe it says Gloria.
24 I called and asked about the Exelon
116
1
2
3
patch,
to
per daughter.
I'm sorry. I
Memory is worse. Goes
can't read that. Goes
to something. Doesn't know why she was
4 here. Let's assume Exelon 4.6 milligram
5 patch. I am Gloria, so I only know what he
is testifying to.
MR. SCHMIEDEL: Objection.
6
7
8
9
THE COURT: I would agree.
BY MS. SYKES:
10 Q with that said --
II THE COURT: With that not said, what is
12 your question?
13 BY MS. SYKES:
14 Q Do you read anywhere in time here
15 that Dr. Patel took Mary Sykes off the
16 Exelon patch?
17 A Well, under subjective what it
18 states is I am not sure what they referred
19 to, but they have taken her off the Exelon
20 patch about a month ago.
21 That is in January 27, 2009, and
22 on April 3, 2009, the reference to a
23 telephone call, and there is documentation
24 that the Exelon patch is being asked for.
117
1 So someone had discontinued it prior
2 to January. Then I believe that you had
3 called requesting that it be resumed
4 Q But you can't be for sure that you
5 understand these notes.
6 A No. I do understand what these
7 notes are about.
8 Q So you can tell by him writing these
9 notes that he called.
10
11
12
A I believe I know what Dr. Patel was
trying to express by writing that note.
Q Would you please go to May and read
13 the subjective notes?
14 A Stated patient was brought here
15 primarily at my request for an evaluation as
16 the daughter Carolyn Tork had requested me
17 to fill out a form that I would say the
18 patient was totally or partially unable of
19 making personal or financial decisions.
20 Carolyn was brought today and the
21 patient was brought to the office and by the
22 other daughter Gloria and insisted on being
23 present in the room, and it was okay with
24 the mother.
118
1 Regarding hypertension, the
2 patient denied any chest pains or
3 palpitations but was getting short of breath
with exertion. The patient disagreed with
that.
PNG.
There was no other person in there or
4
5
6
7
8
Q
A
Who was the patient in the case?
Ms. Mary Sykes.
9 Q And the doctor says the patient
10 disagreed to this. So he found her very
11 competent to agree or disagree; correct?
12 A What it refers to, the patient
13 disagrees to being short of breath upon
14 exertion. He still listened to her.
15 Q Do you know that if he did or didn't
16 sign that CCP-211?
17 A I don't know.
Q Okay, go to 18
19
20
MS. SYKES: For the record, they have
omitted quite a few of the documents. Now I
21 don't have copies of these, your Honor. So
22 I would like to submit them and somehow get
23
24
a copy for myself.
MR. SCHMIEDEL: Can I see what he is
119
1 MS. SYKES: Could you please wait a
2 minute. I can put it all into evidence.
3 I'm sorry.
4
5
6
7
8
9
THE COURT: Let counsel see them before
you attempt to do that.
MS. SYKES: I object. Put it
MR. SCHMIEDEL: Objection on the
grounds it has nothing to do with my
opinion. It has nothing to do with the
10 doctor's opinion in this case.
11
12 Patel.
It is a letter from common to Dr.
You are asking him to fill out a
13 CCP-211.
14
15
16
17
18
THE COURT: That is correct.
MS. SYKES: Yes. It shows that my
sister was going after Dr. Patel.
THE COURT: No, no. I
understand. This is about
don't think you
what this doctor
19 used to base his opinion.
20 MS. SYKES: I didn't see these.
21 THE COURT: They will not have any
22 bearing if these doctors rely on medical
23 notes of other medical professionals.
24 MS. SYKES: They also rely on history
120
1
2
3
4
and other evidence to show --
THE COURT:
MS. SYKES:
THE COURT:
He did not.
Well, it says right here.
It was just stated that he
5 looked at the entire package.
6 I would instruct you that may be
7 improper, but I would direct you looking at
8 the report from May 8, 2008, to look down at
9 the very bottom at the paragraph, name plan,
10 and I don't know if that has anything to do
11 with what you're talking about.
12 MS. S Y K E S : No.
13 THE COURT: And if he has to see it, but
14 the reason that she came is clear here. It
15 is clear who brought her. It is clear who
16 asked for the examination, and that is what
17 the doctor has relied on. This.
18 He has made that absolutely clear.
19 When I say this, the entire record as was
20 put forth by Mr. Schmiedel in his
21 examination. He did not have that letter
22 and that letter is not written by an
23
24
attorney. It is
MR. SCHMI EDEL: No.
121
1
2
3
4
THE COURT: or by the Doctor.
MR. SCHMIEDEL: No.
THE COURT: It is not
psychiatrist. So this is
written by a newer
not part of the
5 medical record that this psychiatrist has
6 said he last used to formulate his opinion.
7 MR. SCHMIEDEL: Right. They have
8 omitted in their Exhibit No.4, the medical
9 report of June 5th, and I would like it
10 noted.
11 THE COURT: Now that's something else.
12 Did you see the medical report of June 5th?
13 MR. SCHMIEDEL: He has reviewed the
14 entire record but
15 MS. SYKES: You omitted it in your
16 exhibit here.
17
18
19
MR. SCHMIEDEL: May I have one second?
THE COURT: Sure.
MR. STERN: Your Honor, June of what
20 year?
21
22
23
24
MS. SYKES: Or the --
MR. SCHMIEDEL: I don't have any problem
with her showing the document to him.
THE COURT: Good. Give him a chance to
122
1
2
3
read it. Then you can ask a question.
THE WITNESS: Thank you.
THE COURT: And this is your exhibit.
4 Let's call it your exhibit.
5
6
7
MS. SYKES:
THE COURT:
any objection?
It says on there P.A.5.
Is that all right? Is there
It would make it quite
8 different from anything else in the record
9
10
of this case. Do I have a copy of that?
MR. SCHMIEDEL: I am familiar with it.
11 I have seen it before.
12
13
14
15
16
17
THE
ask
THE
MS.
point?
THE
COURT:
WITNESS:
SYKES:
COURT:
Because I was going to
Okay.
Would you read from at this
Which point? Is there any
18 way you can identify this?
19 MS. SYKES: It is the lower part of the
20 assessment.
21 THE COURT: Is this a whole sentence
22 you're going to be reading?
23
24
THE WITNESS:
THE COURT:
Yes.
All right. Can counsel be
123
1 shown where this
2
3
MS.
MR.
SYKES: At
SCHMIEDEL:
this point.
Is that the part where
4 ask the patient about wanting the record?
5 MS. SYKES: I want him to read the
6
7
8
9
10
11
12
13
paragraph before, a line
leads into it. So it is
understandable.
up before, so
it is more
it
can
THE COURT: So show him where to start.
MS. SYKES: At this point.
MR. SCHMIEDEL: I have an extra copy.
THE COURT: So at this point.
start with the sentence before
So you
the
I
14 patient was explained, is that were you want
15 him to start?
16 THE WITNESS: Start with the patient was
17 explained.
18 THE COURT: Yes.
19
20 was
THE WITNESS: Patient was
the letter they wanted to
explained this
see if she
21 is -- and then there is several words
22 crossed out and corrected. It looks like
23 incompetent.
24 They wanted to see if she was
124
1 incompetent with handling her financial
2 affairs. Ms. Sykes told me in a clear tone
3 she did not want any records or forms filled
4 out and sent to her daughters or her
5 daughter's attorney.
6 At this point Ms. Sykes was
7 extremely sad and said both her daughters
8 were feuding over her Estate. When I
9 handed the records over to Ms. Sykes
10 personally, I told her these records were
11 for herself and her attorney and suggested
12 that she talk to her attorney entirely by
13 herself.
14 MS. SYKES: You missed some that he made
15 sense out of it.
16
17
THE COURT:
THE WITNESS:
Read it word for word.
I told her the records
18 were for herself and told her to talk to her
19 attorney entirely by herself in the
20 beginning, and then allow family members in
21 the room.
22 What I noticed with Ms. Sykes, she
23 does talk rationally and she does make sense
24 when she was talking about any topic.
125
1 However, she has greater recall about
2 anything mentioned to her in the past.
3 As I am dictating the note, I saw
4 the daughter open the envelope and go
5 through the records and started disputing
6 with my manager and wanted me to amend the
7 record for which I refused.
8 Total time spent with her was 30
9 minutes. We would continue to see the
10 patient for her medical needs as necessary.
11 BY MS. SYKES:
12
13
14
15
16
17
18
19
20
Q Dr. Patel said that my mother, that
he talked to her and she talked logical.
MR. SCHMIEDEL: Objection to word
logical.
BY MS. SYKES:
Q He makes sense about what she was
talking about and she talks rationally.
Does that show a sign of somebody that is
functionally incompetent?
21 A I really cannot interpret what
22 Dr. Patel was eluding to. That is why he
23 put the word in, got. I'm not sure what she
24 meant which with that because she makes
126
1 sense out of anything.
2 What I have noted with Ms. Sykes is
3 that she does talk rationally and does make
sense. 4
5
6
THE COURT:
MS. SYKES:
What is the question?
Thank you, counsel.
7 BY MS. SYKES:
8 Q Do you find that Dr. Patel felt that
9 my mother was functionally incompetent by
10 this?
11 A I do not know. There was not enough
12 information for me to render an opinion as
13 to what he would say as to her competency.
14 He simply states that on occasion
15 she does appear to talk rationally and there
16 are times when she does make sense. So in
17 other words you can read other medical
18 reports and make a complete diagnosis that
19 my mother is seriously dementia and not able
20 to do anything, and other reports it says
21 just because she has dementia and memory
22 loss, but you cannot come to any conclusion
23 with this, even though
24 A That is correct.
127
1
2
Q And this again was not put into -
MR. STERN: Objection to statements.
3 Ask that it be stricken.
4 MS. SYKES: P.A.
5
6
7
8
9
10
11
12
THE COURT:
question?
MR. STERN:
It was
There
made a statement.
what is the
is no question.
THE COURT: What is the statement?
She
the
all
MS. SYKES: I put -- I
court reporter because
down. This is her job.
am going to ask
she takes this
13 MR. STERN: She was mumbling to herself,
14 not you. Again, this is not a question, not
15 put into the record.
16
17
18
19
20
21
22
MS. SYKES: I was just noting
THE COURT: I don't know that she had
finished. I
objection at
am not going to sustain your
this time, but do make sure you
ask a question.
MS. SYKES: Yes, your Honor.
BY MS. SYKES:
23 Q They also admitted, which I put down
24 as P.A.6 from Dr. Patel.
128
1 MR. SCHMIEDEL: He testified he sawall
2 of Dr. Patel's records.
THE COURT: This is argument. I will 3
4
5
allow you to make that
MR. SCHMIEDEL: If
argument in a moment.
I can see what it
6 says.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
MS. SYKES: Can you make a copy here?
am sorry.
THE COURT: Make sure counsel has
copies. Make three or four.
MS. SYKES: For time purposes, can I
skip this and then come back to this?
THE COURT: Sure. Then I'm going to
follow-up with the last report.
BY MS. SYKES:
Q You have a report here that is
Exhibit No.7 from Doctor
Rabin.
I guess it is
A
Q
A
Yes.
You have a copy of that?
Yes, I do.
22 Q Would you please turn to the back
23 side. First, do you know for a fact that
24 Dr. Rabin saw my mother on June 30, '09?
129
I
1
2
3
4
5
6
7
8
9
10
11
12
A That is what he documented.
Q Do
signatures
evaluations
based?
you see under names and
of other persons who performed
upon which this report was
A Yes.
Q Do you see Carolyn Thorp, Ph.D.
MR. SCHMIEDEL: Judge--
THE COURT: Let that be.
BY MS. SYKES:
Q
A
Do you see Carolyn Thorp, Ph.D.
I see Carolyn Thorp and then a line
13 through it.
14
15
16
Q Then you see Toby Motycka?
THE COURT: M-O-T-Y-C-K-A.
THE WITNESS: Yes, I do.
17 BY MS. SYKES:
18 Q Can we now refer to -- this is June
19 30, okay, and it says here names and
20 signatures of other persons who performed
21 evaluations upon which this report is based;
22 is that true?
23 A Yes.
24 Q Would you please read the date on
130
1
2
3
that report?
A I am sorry. Exhibit No.7?
Q Yes. Please read the date on that
4 report.
5 A I'm sorry. I don't I apologize.
6 Q Please read the signatures of the
7 person who performed the evaluations?
8 A What are you asking me to read?
9 Q Now I'm asking -- do you see where
10 it says you have Carolyn Thorp has been
11 crossed off, and then you have Dr. Motycka.
12 Would you please tell us the date on
13 this report?
14
15
16
A I am not sure in that specific
section.
Q I'm sorry, Doctor. This report.
17 A So on the front page the date is
18 6-30-2009.
19
20
21
22
23
24
Q So it is to be assumed that on
6-30-09 is when Dr. Rabin saw my mother?
A That's correct, yes.
Q Can we turn to Exhibit No.5,
please. Dr. Rabin's report, would you
please read the date of the test?
131
1
2
3
4
A
Q
A
Exhibit No.5 was actually
The date of the test.
The test was performed not by
Dr. Rabin but by Dr. Motycka. Dr. Motycka
5 had performed the test on August 10, 2009.
6 Q Can you rationalize how on June
7 30
8 THE COURT:
9 No.5?
10
11
MS. SYKES:
MR. STERN:
Where are you in Exhibit
I am asking him the date.
The first page, top on the
12 left, about three quarters of the way down.
13
14
15
16
17
18
19
20
THE
MR.
on top.
MS.
THE
MS.
date.
THE
COURT:
STERN:
SYKES:
COURT:
SYKES:
WITNESS:
Give me a second, please.
It says neuropsychological
Top of the page. Too much?
I got it.
I asked him to write the
There are two dates.
21 There is the date on Exhibit No.7 which is
22 June 30, 2009. The date on Exhibit No.5 is
23 August 10, 2009.
24 BY MS. SYKES:
132
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Q
how Dr.
Can you,
Rabin on
Doctor, can you understand
June 30th can refer to a
report done on August 10th and using it as
his basis?
A
that.
Q
I am not sure how he could have done
Thank you very much. With that
said, could you please read down at the
bottom, Dr. Motycka, where it says several
statements. Can you read that?
MR. SCHMIEDEL: What page?
MS. SYKES: On the first page of Exhibit
No.5.
THE WITNESS: First page it says several
suggestions were made about confusion. She
was asked what she did for fun at home.
She says she goes for walks around
the block or plays baseball with her family.
19 Her daughter Carolyn didn't know what she
20 was referring to. She says she cooks, pays
21 her own bills, washes windows inside and
22
23
out, mows the lawn, grocery shopping. None
of this is true. What does that say to you,
24 Doctor?
133
1 A It would indicate that in
2 Dr. Motycka' s opinion that the information
3
4
5
that your mother had given to her was not to
be relied upon as being factually correct.
Q And he said it wasn't true was
6 because Dr. Carolyn didn't know what I was
7 referring to.
8
9
A No.
information
10 he may have
He
is
simply says that the
not true. I am not sure
11 Q Let me read this again, please.
what
12 Several statements made were suggested of
13 confusion.
14
15
THE COURT:
MS. SYKES:
What was your question?
My question is did he rely
16 on the information from my sister
17 MS. FARENGA: Objection.
18 BY MS. SYKES:
19
20
21
22
23
24
Q -- to comes up with saying none of
this is true?
MS. FARENGA:
saying --
THE COURT:
The doctor who is
So it has been asked and
answered. Ask another question.
134
1 BY MS. SYKES:
2 Q Do you know for a fact that my
3 mother didn't do that on that date?
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
A
Q
No, I don't.
In other words, we don't know if
that is true or not; correct? Did you go
back to page would you say that the
doctor was basing a lot of what his other
decisions are is that none of this was true
that my mother said.
on.
the
says
I don't.
You have no idea. Thank you.
A
Q
A I have no idea what he based that
Q Would you please
fax here it says page
5 or 6 at the top?
read on page -- on
6 of 7, which it
A What do you wish me to read?
Q On 5-6 would you go down to where it
reads for gastric reasoning.
A I'm sorry. I apologize. You will
22 have to show me again.
23 Q I'm sorry. Towards the bottom of
24 the page. 5th paragraph or the 2nd
135
1 paragraph or the 5th paragraph down.
2 A Her abstract reasoning concept
3 information and decision-making ability
4 suggests dementia of the Alzheimer's type.
5 However, there are no medical
6 records at the time of testing and this
7 diagnosis should be considered a working
8 diagnosis until her doctor can consider
9 treatments of dementia or cognitive
10 impairment.
11 Q Does this mean that it is a
12 working what does a working diagnosis
13 mean?
14 A There should be two pieces of
15 information. The first and most significant
16 that he states that even though dementia is
17 present, he is not sure that it is the
18 Alzheimer's type.
19 He indicates there may be other
20 causes that were present at that time.
21 Q If there were other causes, it says
22 he had no medical records.
23
24
A
Q
Correct.
Does he say that this is a working
136
1 diagnosis?
2 A He said that the definition or the
3 denotation is that it was Alzheimer's type
4
5
6
7
8
was a working diagnosis and
Q Well
MR. SCHMIEDEL: Let him finish his
answer.
THE WITNESS: What I read from this is
9 the working diagnosis was that dementia was
10 Alzheimer's, not that the dementia itself
11 was a working diagnosis.
12 BY MS. SYKES:
13
14
15
Q
A
That is just your interpretation.
No. I read the context of what he
is referring to. There is no medical
16 records. So he cannot be certain that the
17 dementia he found on examination was due to
18
19
Alzheimer's disease.
medical cause.
It must be some other
20 Q Does he also say there, consider a
21 working diagnosis until her physician, which
22 I would assume is Dr. Patel, can consider
23 any treatable causes of dementia or
24 cognitive impairment?
137
1
2
A
Q
That is what it says.
So in other words, this particular
3 doctor who was a non-medical doctor believes
4 that there could be treatable causes of
5 dementia or cognitive impairment.
6 Is that what he is stating, that
7 they can be treatable?
8
9
10
11
12
13
A
Q
MS.
No. I read that very differently.
Until that physician
FARENGA: Objection.
THE COURT:
what the witness
THE WITNESS:
Excuse me. We want to know
thinks; not what you think.
The context being is he
14 diagnosed your mother with dementia. I
15 think it clearly states that he says that
16 her deficits are most suggestive of dementia
17 of the Alzheimer's type.
18 What is in the question, it is those
19 last three lines, isn't whether she has
20 dementia or not but rather is her dementia
21 of the Alzheimer's type.
22 He then makes reference that
23 there is no medical records. So conceivably
24 there could be other causes for the dementia
138
1 that he diagnosed.
2 BY MS. SYKES:
3 Q Doctor, so you are telling me, I
4 just want this clear, that he specifically
5 says that her physician can consider any
6 treatable causes of dementia.
7
8
9
10
11
12
13
14
15
16
17
18
19
He must say treatable causes of
Alzheimer's. He says treatable causes of
dementia or cognitive impairment.
So it is your testimony today that
even though you can't read this doctor's
mind, it is your testimony that he is not
talking about treatable causes of dementia
or cognitive impairment?
MR. SCHMIEDEL: Objection, asked and
answered. That is the question he just
answered.
THE COURT: And I
going to sustain that
would agree.
objection.
I am
20 BY MS. SYKES:
21
22
Q We are going to go back to --
MS. SYKES: We have copies, your Honor.
23 Did you get a copy of P.A.6?
24 THE COURT: I have that.
139
1 BY MS. SYKES:
2
3
4
5
6
7
8
9
Q
A
Q
A
Q
A
Q
A
There is a letter from Dr. Patel
Correct.
-- dated June 15, 2009; correct?
Correct.
Addressed to Dear Ms. Thorp.
Yes.
Would you please read paragraph one?
As per our conversation with you
10 today about your mother, Mary Sykes, here
11 are my thoughts.
12 When I talked to Ms. Sykes and asked
13 her any questions, she answers them
14 rationally; although a few moments later she
15 would have forgotten the question and the
16 discussion.
17 Q Right now just paragraph one,
18 please.
19 THE COURT: This is paragraph one.
20 BY MS. SYKES:
21 Q Does this appear as if Dr. Patel,
22 who you agreed would be a respectable
23 doctor, believes that his patient is
24 functionally incompetent?
140
1
2
3
4
5
6
MS. FARENGA: Objection to the witness
answering that question without being able
to read the entire document.
MS. SYKES: He already agreed he read
the entire document.
THE COURT: You asked him to -- ask him
7 read the first paragraph.
8 THE WITNESS: What I asked in terms of
9 reference, he doesn't make any reference as
10 to whether your mother is competent or not.
11 He states when he has spoken to her
12 on occasion, but immediately displays severe
13 problems and the severity noted by the fact
14 that a few moments later your mother would
15 forget the question or what the discussion
16 was.
17 BY MS. SYKES:
18 Q Is it your testimony that having
19 memory loss or not remembering something
20 means that somebody is functioning
21 incompetent, even though they understand
22 initially what is going on?
23 A They are completely separate issues.
24 Competency is a legal term. All I can
141
1 attest to is whether someone has the
2 capacity to make a decision.
3 If I read simply the portion what
4 you told me to read, what I conclude is that
5 when your mother was asked a question, she
6 gave a rational response but she also
7 displayed severe or short-term memory.
8 Q You're saying that, again, just to
9 remind me, that there is no medication that
10 can cause this.
11 A That is not what I testified to.
12 What I testified to is there is no
13 medication that causes dementia. There are
14 medications that on occasion can cause brief
15 and transient problems with memory recall.
16 Q So here she has short-term memory
17 loss, and so perhaps it could be from the
18 medication. It could be other reasons for
19 it.
20
21
A
Q
That is
Go down
not Dr. Patel
and read. He talks about
22 power of attorney for health care, which we
23 will challenge on that later, but will you
24 read in her current state.
142
1 A In her current state I was unable to
2 equivocally state whether she was competent
3 or not to make financial and health
4 care-related decisions.
5 Q What does that say?
6 A Well, it says what he wrote is that
7 he is not able to say with any degree of
8 certainty whether she is or is not obtaining
9 the capacity to make her own decisions.
10 Q If a doctor feels strongly that his
11 patient is incompetent or functionally
12 incompetent, is it not the oath of a
13
14
15
16
physician to
it further?
A No.
physician.
17 no harm.
18
19
Q But
incompetent,
recommend care or to look into
It is not the oath of the
The oath of a physician is to do
if mother was functionally
then wouldn't it be responsible
20 for Dr. Patel at this time who was my
21 mother's primary physician to sign that
22 CCP-211 that my sister was trying to have
23
24
him sign?
A No.
143
Q It is not? 1
2
3
A No. With Dr. Patel, medically and
ethically would be required to do if he does
4 not feel that he is able to complete a form
5 for whatever reason. Then it is really his
6 responsibility to refer your mother for an
7
8
9
evaluation.
I believe
the last line. I
that is what he does
think that further
10 evaluation for competency level, but it
on
11 would leave the expertise to somebody else.
12 He was recommending that he himself
13 did render an opinion, but he referred her
14 to someone else that he felt was more
15 competent to do so.
16 Q So in other words, what you're
17 saying, and please clarify for me because I
18 am pro se and --
19 THE COURT: held under oath to the
20 same standards as anybody else.
21 BY MS. SYKES:
22 Q And as that person's long-term
23 physician that knows the patient, who has
24 seen her for X amount of years, that his
144
1
2
diagnosis should be ignored.
A I don't see anywhere on this
3 document or in any of the documents that I
4 reviewed that anybody was suggesting that
5 his opinion or diagnosis be ignored. I have
6 not have seen that.
7 Q But it is your opinion after reading
8 all of his papers that we have in front,
9 even though I see nowhere in any of these
10 documents or medical reports, it is your
11 opinion that my mother is functionally
12 incompetent.
13 MR. SCHMIEDEL: Objection to what she
14 sees or doesn't see in the medical reports.
15 THE COURT: I will sustain that. We
16 want to know what the witness sees.
17 BY MS. SYKES:
18 Q Sir, you have stood before this
19 Court under oath and testified that after
20 reading all of Dr. Patel's medical records,
21 that you can unequivocally stand here and
22 say my mother is functionally incompetent,
23 even though at no point and not in one of
24 these medical reports does my mother's
145
1 long-term doctor say she is functionally
2 incompetent.
3 A What I can testify to and have
4 testified to is I believe your mother
5 totally lacks the capacity to make financial
6 and personal decisions.
7 Upon review of the
8 documentations is my conclusion is Dr. Patel
9 did not dismiss your mother as being
10 unimportant, but recommended that she be
11 formally tested.
12 Q And what is a formal test?
13 A A formal test would be seeing
14 someone that has some degree of expertise in
15 rendering opinions as to someone else's
16 capacity.
17 Q And isn't a formal test for a
18 person's competency, because you're taking
19 away a person's right to life here, isn't a
20 formal test a three, four, five-hour
21 MS. FARENGA: Obj ect ion.
22 BY MS. SYKES:
23 Q six-hour
24 MS. FARENGA: Objection.
146
1 THE COURT: Wait.
2 BY MS. SYKES:
3 Q -- examination?
4 THE COURT: Repeat the question, if you
5 will, Ms. Court reporter.
6 (Record read.
7
8
9
THE COURT: Rephrase the question
BY MS. SYKES:
Q Is there not a formal examination
10 that is done at universities and
11 psychological evaluations of an individual
12 that they have to do many tests, including
13 blood tests to see -- blood tests.
14 They have to do psychological tests.
15 They have to do neurological tests to see if
16 there has been a stroke, perhaps.
17 So is it your testimony right here
18 that somebody can, you or any other doctor,
19 can sit down with somebody for 30 minutes,
20 40 minutes, and determine their medical
21 capacity?
22 A What is clear upon reviewing the
23 records is that your mother had four tests
24 performed. She had three mini-mental status
147
1 exams. The scores ranged from 23 down to a
2 score of 9, and Dr. Rabin's report, your
3 mother scored 9 out of 30, which would
4 indicate severe dementia.
5 There are more elaborate tests,
6 and I believe your mother had that performed
7 on August 10, 2009. She had four
8 neurological tests performed. I suspect
9 that this testing did last in the range of
10 three to four hours, and at the end he
11 recommends guardianship due to your mother's
12 t est s .
13
14
15
Q Is this not an incomplete working
diagnosis?
A It is not in question, the
16 diagnosis. What is in question was did your
17 mother suffer from Alzheimer's dementia or
18 some other kind.
19 Q And there is some other kinds of
20 dementia; is that correct?
21
22
23
24
A
MS.
MR.
Yes.
FARENGA: Objection.
SCHMIEDEL: Objection.
THE COURT: Sustained.
148
1 BY MS. SYKES:
2 Q Let's go to Dr. Ander's report,
3 Exhibit No.6. Did any of these reports,
4 again, did you know in my mother's file in
5 Exhibit No.8, again it is omitted, that my
6 mother is hypoglycemic?
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
A
Q
A
Q
I don't recall reading that.
Could that report have been omitted?
I have no idea.
Is that report that my mother was
hypoglycemic and cause memory loss?
A Hypoglycemia can cause acute
in one's surrounding.
is cause dementia.
What it does
changes
not do
Q Again, if
surroundings,
dementia?
can
she has problems with her
that be confused with
can
A At that moment in time, perhaps.
Q You cannot comment; correct?
A I
cause
just did comment.
a brief period of
Hypoglycemia
confusion, but
22 it cannot cause a two to three-year history
23 of well-documented dementia.
24 Q Does dementia mean that everyone
149
1 that has dementia that is progressive, does
2 everyone that has dementia mean that they're
3 functionally incompetent.
4
5
6
A I never used the words functionally
incompetent. It's not a medical term.
But if I can comment on that, if you
7 mean functionally incompetent, you mean
8 lacking capacity. Not everyone with
9
10
dementia lacks capacity.
individuals.
It varies on
11 Q So we are already aware of the fact
12 that in Dr. Motycka' s report that mother is
13 talking about doing all these things,
14 playing baseball and doing her cooking and
15 paying her own bills was influenced by
16 Carolyn saying she is quote-unquote,
17 doesn't -- does not know what she is
18 referring to.
19 MR. SCHMIEDEL: Objection to that,
20 Judge. There is no evidence that he was
21 influenced by Carolyn.
22 MS. SYKES: He specifically asked her --
23 MR. SCHMIEDEL: Hold on. It was asked
24 and answered previously.
150
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
THE COURT:
I have given you
25 after 5:00.
MS. SYKES:
We have done this
great latitude.
already.
It is now
Okay, I am done with my
questioning as much as I can, your Honor.
would like to bring two more witnesses up
here.
THE COURT: Not today.
MS. SYKES: So it is continued?
THE COURT: Not today.
MS. FARENGA: Your Honor, Doctor
excused?
MS. SYKES: My last question.
BY MS. SYKES:
is
Q So with uncertainty, no matter
16 what
THE COURT: With uncertainty?
I
17
18
19
20
MS. SYKES: With certainty you know that
on.
MR. SCHMIEDEL: ... October 15, 2008.
21 BY MS. SYKES:
22 Q You know that on October 15, 2008,
23 that my mother was so severely dementia,
24 that she did not know what she was signing.
151
1 A On that date your mother could not
2 understand what she was signing.
3 Q Were you aware that my mother was
4 represented by two attorneys?
5 MR. SCHMIEDEL: Objection.
6
7
8
THE WITNESS: No.
MR. SCHMIEDEL: I have nothing, Judge.
THE COURT: Thank you very much. Thank
9 you for staying so late. I'm sorry that we
10 kept you.
11 MR. SCHMIEDEL: Judge, I appreciate you
12 taking the time to do this.
13
14
THE COURT: Thanks. I have a question
for you. I asked for your accounting from
15 your clients.
16 MR. SCHMIEDEL: Judge, and we are 90
17 percent there. We have been tracking it
18 dow n . We h a v e a Co u r t d ate Mar c h 29 t h .
19
20
THE COURT: Good.
MR. SCHMIEDEL: So we will have it by
21 then.
22 THE COURT: Make sure when you do have
23 it, it is circulated and that all parties
24 get it at 2:00 clock on the 29th.
152
1
2
3
4
5
6
7
8
9
MR. SCHMIEDEL: We will get it to them
in advance on the 28th, but we will get it
to them in advance.
MS. SYKES: Your Honor, I would like
also my Motion to be heard that I
THE COURT: What Motion?
MS. SYKES: I presented to find him in
criminal contempt.
THE COURT: I am going to deny your
Motion to find him in criminal contempt.
is an attorney. He is making a
He 10
11
12
13
recommendation as part of argument.
know how you can find that to be
I don't
14 contemptuous.
15 MS. SYKES: That he has been withholding
16 documents and lying to the Court and I can
17
18
prove that.
THE COURT: Lying to the Court? He is
19 not a witness here. He is an attorney. You
20 may disagree in the interpretation of what
21 is happening here, and I looked over what
22 you filed. I don't think that it is
23 appropriate.
24 Remember that what we have here is
153
1 an opportunity for all sides to put forth
2 their information. I also have two GALs,
3 and if there was something that was as
4 egregious as you had described it, then I
5 believe my guardian ad litems would be bound
6 by their oaths as officers of the Court to
7 point that out to me, even though it be
8 against someone who is also an attorney.
9 Ma' am, no, I do not find any of his
10 behavior to at this point reach such a level
11 and I am going to deny your Motion at this
12 time.
13 MS. SYKES: Your Honor, just so I have
14 it on record, please.
15 THE COURT:
16 record.
17 MS. SYKES:
18 record, please.
19
20
21
THE COURT:
filed something
ma'am. It is a
You already have it on
I would like to put on the
No, ma'am. You have already
that becomes your record,
written record that you have
22 filed and presented.
23 MS. SYKES: I would like to put out some
24 of the subpoenas. Are we going to continue
154
1 matter of the rule to show cause at the next
2 date and I think we had a Motion to find
3 Ms. Sykes -- no. That is the rule to show
4 cause.
5
6
7
MR. SCHMIEDEL:
criminal contempt.
That is a part of the
THE COURT: We have taken Dr. Shaw's
8 testimony only for use later, should there
9 be an argument as to the apportionment
10 agreement vis a vis competency or
11 incompetency of the ward, my ward, the
12 ability of the ward to actively have
13 participated in signing this negotiation
14 MR. SCHMIEDEL: You had raised an issue
15 as to whether or not she was competent on
16 that date. There is a preliminary inquiry
17 whether we should be able to hold Ms. Sykes
18 in contempt on the issue --
19 THE COURT: I did always say if she was
20 competent, if she was able to make
21 decisions, that -- and she willingly gave it
22 away, then there would be no interest.
23 MS. SYKES: Your Honor, am I being clear
24 here? So in other words, none of my Motion
156
1 is going to be allowed in Court regarding
2 the Lumberman's, the higher Court's ruling,
3 or none of that?
4 THE COURT:
5 that.
6
7
MS. SYKES:
THE COURT:
8 in contempt.
9 MS. SYKES:
10 Motion now?
11 MR. STERN:
I have not even considered
But you denied me my Motion.
I am not going to find him
Do I have to write another
I think she is trying to say
12 if she compounded her answers with her
13 Motion to hold him in contempt, it was a
14 combined document.
15
16
THE COURT: A combined document is
always a bad thing. Can you tell me what
17 the Motion is?
18
19
20
21
22
23
24
MS.
there.
THE
MS.
THE
MS.
SYKES:
COURT:
SYKES:
COURT:
SYKES:
I provided that within
You argued that.
What?
You argued that.
I argued that my mother had
no rights. That she had three attorneys
157
1 working for her at the time, and --
THE COURT: I do not 2
3 MS. SYKES: -- there is another case and
4 there is an Affidavit and a lot of other
5 statements.
6 THE COURT: That you can take up later.
7 You can use that in your argument. When it
8 comes to the question of whether your
9 mother, the now ward of the Court, was able
10 to actively and effectively participate in
11 the negotiation that resulted in the
12 appropriation agreement, you could raise
13 that then.
You reserve this right to put that 14
15 before me. What you have filed is not going
16 to be thrown away.
17 MS. SYKES: I should still rewrite
18 something for this Court and everybody so we
19 can
THE COURT: That is up to you, ma'am. I
can't tell you how to --
20
21
22 MS. SYKES: I would also like to put out
23 some subpoenas for witnesses.
24 THE COURT: You're welcome to do so.
158
MS. SYKES: Your Honor, also I didn't 1
2
3
4
5
6
receive any -- I didn't know what he was
going -- the doctor was going to testify to.
So I was not able to prepare for this.
And I know in most Courts of Law
I should be given a 14-day notice. I did
7 not know he was testifying.
8 THE COURT: You did a very effective
Cross-Examination. 9
10 MS. SYKES: On one, but I didn't know it
11 was him and I didn't have any background or
12 other things that I would have brought or
13 somebody else, because Dr. Patel basically
14 said look at the reports, and I didn't
15 subpoena him because I had his reports.
16 MS. FARENGA: Your Honor, Ms. Sykes is
17 held to the same standard. She can propound
18 discovery. Then she would know things.
19 THE COURT: And further, this is being
20 continued. This isn't finalized.
21
22
23
24
MS. SYKES: Excuse me.
THE COURT: That whole issue is being
continued. We took in one bit of
information. I assume there is something
159
1
2
3
4
5
else. I don't know.
Maybe this is all you're going to
show me. If you have something else to
bring, bring it and I will consider that.
MS. SYKES: I don't know if I am
6 going -- how to bring subpoenas to Court.
7 I thought subpoenas had to come to
8 the Court, your Honor.
9 MR. STERN: Either in the Clerk's office
10 or an attorney.
MS. SYKES: Since I'm pro se --11
12 MR. STERN: I don't think she could do
13 them herself through the Clerk's office.
14 She can
an
to
THE COURT: And if she can and she
attorney, I would ask one of you as
facilitate this as much as you can.
needs
GAL
15
16
17
18
19
MR. STERN:
is clear for
Of course, Judge. Just so
it the record, I believe also
20 the guardian's accounting is due next Court
21 date. You mentioned power of attorney.
22 MR. SCHMIEDEL: One of the powers of
23 attorney goes back further, your Honor.
24 THE COURT: Why are you guys standing
160
1 up? You got tired of sitting?
2 MR. STERN: Just for the record, it is
3 going, I believe the appropriation
4 assessment was briefed. So that is going to
5 be up as well on the 29th Court date.
6 MS. SYKES: Three, we are dealing with
7 this, your Honor. Did we push --
8 MR. STERN: I need to write a Motion on
9 that, too, and bring in witnesses. We are
10 going to have witnesses.
11 We need to set that out a little
12 further and do another all day.
13 THE COURT: This is really going to cost
14 Ms. Sykes; isn't it?
15 MR. STERN: Same story the last couple
16 of years.
17 MR. SCHMIEDEL: It is all because we
18 want a simple answer to a simple question.
19 Where is the money?
20
21
22
MS. SYKES:
THE COURT:
jurisdiction.
You don't have jurisdiction.
He will never have
I am the one that has
23 jurisdiction. Thank you very much.
24 MS. FARENGA: We can include in the
161
1 Order a provision that the prior Order
2 prohibiting access by Ms. Sykes to any
3 accounts consisting of Sumatra money are in
4 effect.
5 The prior Order concerning the
6 Sumatra funds remains in effect.
7 THE COURT: Yes, thank you. Or the
8 funds that were seized initially. That is
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
true. Thank you very much.
(Whereupon, the foregoing
proceedings were recessed
for the day; to be continued
on March 29, 2011, at a time
uncertain.)
162
1 CERTIFICATE PAGE
2 STATE OF ILLINOIS
3 SS: COUNTY OF COO K
4
5
6 I, CHRIS MULLEN, an Official
7 Shorthand Reporter for the Cir~uit Court of
8 Cook County, Illinois, do hereby certify
9 that I reported in shorthand the proceedings
10 had on the hearing in the above-entitled
11 cause; that I, thereafter, caused the
12 foregoing to be transcribed into
13 typewriting, which I hereby certify to be a
14 true and accurate transcript of the
15 proceedings.
16
17
18
19
20
21
22
23
24
~(!S;C; ;CPK SHORTHAN~ REPORTER
C.S.R. No. 004646 CIRCUIT COURT OF COOK COUNTY COUNTY DEPARTMENT PROBATE DIVISION
Dated this ;?;~day of
/lJw~ 2011.
163