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APRIL 14, 2015

THE CLERK: In the matter of WP2013-0400, In Re:

Estate of Joyce Willner. Attorneys please identify

yourselves for the record.

MR. MELISH: Attorney H. Jefferson Melish for the

Estate and for Joyce Willner and for Michael Willner;

Michael is seated to my left.

MS. MULREADY: Good morning; Anne Mulready from the

Rhode Island Disability Law Center. We are the

appellant/intervenor on behalf of Joyce Willner.

MR. BARNES: Alan Barnes; I represent the appellees,

Kurt Willner and Yaffa Willner.

MR. CONNELLY: R. J. Connelly, III; I'm co-counsel

to Alan Barnes for the appellees, Yaffa and Kurt Willner.

THE COURT: Good morning, all. We have had an

opportunity to have a brief conference before commencing

this morning, and I understand that there are a couple of

evidentiary matters as well as some other preliminary

matters that should be addressed before we begin with the

testimony in this nonjury matter that's on appeal from

the South Kingstown Probate Court.

As I have it, we have two evidentiary matters being

the intervenor's objection to certain medical records,

those being of Dr. Khurshid regarding his recent DMAT and

Roberts Health Center progress notes from March 2 through

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March 26, 2014, the objections being as to relevance, is

that correct, Ms. Mulready?

MS. MULREADY: That's correct, Your Honor.

THE COURT: Would you like to expound?

MS. MULREADY: With respect to Dr. Khurshid's

affidavit, it is on a Decision-Making Assessment Tool

which is a statutory form used in guardianship

proceedings. It's a prerequisite to filing a petition

for guardianship. It's required to perfect the petition.

In this case, the parties have agreed that Joyce Willner

needs a permanent guardian that's within our joint

undisputed statement of facts, so we do not feel for that

reason that the statement of Dr. Khurshid is relevant.

Generally as well, when DMATs are filed in Probate Court

proceedings when there is a contest about a guardianship,

it is not considered evidence if the case is actually

contested.

THE COURT: Thank you.

Mr. Barnes, Mr. Connelly, any response?

MR. BARNES: Yes, Your Honor; thank you. These

records were provided pursuant to 9-19-27. I filed the

green card with the Court as far as the return for

certified mail.

I did file an objection to this. Under the rules,

she has the ability if she would like to depose or

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examine the party that signed the affidavits. Also,

Your Honor, under Rhode Island General Laws 33-15-5, it

specifically states in a hearing for the appointment of a

guardian, "Any professional whose training and experience

aid in the assessment of decision making ability and who

has so assessed the respondent may be permitted to

provide expert testimony regarding the decision making

assessment of the respondent."

Additionally, Your Honor, under the Griggs case, the

Court needs to examine all relevant circumstances to

determine what is in the best needs of the person, in

this case, Joyce Willner. Mr. Michael Willner has taken

an appeal regarding the denial of a home health care plan

that he had. This Court would need to examine all

relevant circumstances in order to determine if the home

health care plan that he proposed is actually viable. In

other words, has there been a change of circumstances in

Ms. Willner's condition since the original DMATs were

filed approximately 14 months ago.

Additionally, we need to see if we're able to meet

the unique needs of Mrs. Willner as far as her being able

to participate in this hearing, as far as her being able

to participate in the divorce action that had been filed

and subsequently dismissed, and her ability to express

her wishes regarding her husband and her son and

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daughter.

THE COURT: Well, I think had this matter been

proceeding in front of a jury, it certainly would create

a different set of circumstances for the Court to

consider, but in light of this being just before this

Court, I certainly can sort out what is relevant and what

is not relevant. So over the intervenor's objection, I'm

going to permit that evidence to come in and the Court

will weigh it accordingly. So for that reason, the

motion or the objection is overruled with respect to

Dr. Khurshid's DMAT.

Now, with respect to Roberts Health Center record...

MS. MULREADY: Yes, Your Honor. Those records were

mailed out to us on April 4 and I believe I received them

on April 7, so under Rhode Island General Laws 9-19-27,

we have ten days to object. So we filed an objection

last Thursday on the 10th because that was the earliest

we knew we would be able to be in front of Your Honor. I

don't really have an objection to the documents coming in

per se. I read 9-19-27 as requiring me to file an

objection if I object to any portion of the statements

therein, so -- and in my objection I was really objecting

to a statement made in a progress note dated March 2,

2014 and through March 26, 2014, and it was really, I

believe a characterization of my visit with the ward,

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Joyce Willner, and I just disputed the nursing facility

personnel's ability to characterize what my -- the

purpose of my visit was. So I just wanted to be able to

make that objection.

THE COURT: These are included in Exhibit 38?

MS. MULREADY: No, Your Honor, I believe they were

filed later than that.

MR. BARNES: They're filed as a proposed exhibit of

the appellees, and in particular, Your Honor, it's the

proposed Exhibit A.

THE COURT: And your response, Mr. Barnes?

MR. BARNES: Your Honor, the parties have proposed a

set of joint exhibits that include the Roberts health

care records. These additional records were obtained in

order to bring the Court up to date as far as the

recording. I did not have these records in advance

because they weren't prepared until the month of March.

And in the usual course of business, they were provided

to Ms. Mulready and Mr. Melish ten days prior to my

utilizing those records based on the fact I would not use

them, Your Honor, until tomorrow, but I believe those

additional records are necessary in order for the Court

to have a complete copy of the Roberts Health Center

records that were agreed to as a joint exhibit.

THE COURT: These records are certainly lengthier

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than just a sole characterization of a visit that -- I'm

assuming the female referred to herein is you,

Ms. Mulready?

MS. MULREADY: That's correct, Your Honor, I believe

it is.

THE COURT: Well, there's certainly potentially

relevant material throughout this exhibit and this

March 21 note of which you complain, is that correct?

MS. MULREADY: No, I believe it is the -- yes,

that's correct, referring to a March 19 visit,

Your Honor. Your Honor, I don't object to the document

coming in, I read the statute to require me to make any

objection to the contents within the document, and that

was the purpose of my filing an objection.

THE COURT: I understand. And your objection is

overruled.

MS. MULREADY: Thank you.

THE COURT: Mr. Melish?

MR. MELISH: Your Honor, in regard to that, may I

just request that that additional part of the Roberts

record be under seal just for your review rather than in

the general Court file.

THE COURT: In accordance with the previous

stipulation that the Roberts Health Center record will be

sealed, the Exhibit A that's proposed by the appellees

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will also be included in that sealed record.

Now, we also have, as I understand it, an objection

for later this afternoon, but it makes sense to address

it now with respect to Dr. Rosenzweig's expected

testimony. Mr. Barnes, I understand you have an

objection to that?

MR. BARNES: Yes, Your Honor.

THE COURT: Go ahead.

MR. BARNES: Michael was deposed in my office,

Your Honor. He was specifically asked if he had

consulted with, retained, or spoken with any expert

witness to be expected to be called in this matter.

THE COURT: Please, when was that deposition taken?

MR. BARNES: Your Honor, it's proposed Exhibit M.

THE COURT: February 20, 2014?

MR. BARNES: That sounds right, Your Honor. We also

propounded a set of interrogatories upon Michael Willner,

and in the answers to interrogatories he indicated that

he had not retained an expert witness at this time.

Subsequent to that, Your Honor, he has not filed an

amended answer to his interrogatories. I was not made

aware of the fact that Dr. Rosenzweig was an expert

witness being called until after discovery had closed,

thereby precluding my ability to examine the doctor or

conduct any additional research in order to overcome any

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evidence that the doctor may want to produce to this

Court.

THE COURT: Mr. Melish?

MR. MELISH: Your Honor, we had requested that there

be -- Dr. Rosenzweig be able to serve as a witness or as

a rebuttal witness, and based on whether or not the

Khurshid motion comes into evidence, you indicated that

you would consider that.

THE COURT: But you're offering him or expecting to

offer him today, but the evidence isn't in yet to know

what rebuttal testimony is necessary, so it seems as

though this is kind of an end run of what we talked about

at the last proceeding in which I denied the motion to

allow Dr. Rosenzweig to have access to Ms. Willner.

MR. MELISH: Well, subsequent to that conference

with the Court, we got --

THE COURT: That wasn't a conference, that was here

in Court.

MR. MELISH: Thank you for reminding me. Subsequent

to that, we got videos that were purportedly of Joyce

Willner changing her testimony from all of the other

videos. And I believe the Disability Law Center thought

it was important for the doctor to be able to review this

new evidence that was being presented to us and also to

rebut anything from Dr. Khurshid. And the Disability Law

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Center then engaged Dr. Rosenzweig. He was not

available, to our knowledge, earlier on, and Michael

Willner did not have funds to even consider hiring him.

So there's nothing consistent with Michael's testimony at

the deposition on February 20.

THE COURT: But this is a sandbag, naming an expert

on the eve of trial and expecting that individual to

testify today goes wholly against the Court's scheduling

order and the rules of discovery. When we met on this

matter back in perhaps November or December, and this

Court put a very strict deadline in place at your

request, Mr. Melish, because you wanted a trial as soon

as possible because, in your words, this woman should be

able to go home, so this Court put into effect a

scheduling order that had sanctions language in it. And,

frankly, I don't always put that language in scheduling

orders, but knowing that this needed to go forward as

soon as possible, I needed to ensure that everybody was

complying with discovery and that failure to comply

would, as permitted under Rule 37 of the Rules of Civil

Procedure, the offending party would be barred from

introducing such testimony or evidence that does not

comport with the scheduling order.

Now, in open Court when we talked about

Dr. Rosenzweig having access to Mrs. Willner, we

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specifically talked about the fact that you're seeking to

have an expert now without having named that individual,

well outside of the discovery deadlines, and now to sit

here again today and to hear that he's being offered as

an expert, not as a rebuttal witness because there's no

testimony in yet, but he's expected to come and testify

at 2:00 today. And the appellees have had no opportunity

whatsoever to discover what it is that he's going to

testify to, and you want him to be able to assess a

video, the same thing that the Court could do. I'm

deeply offended by this effort. It goes wholly against

the scheduling order and the previous discussions here in

open Court about Dr. Rosenzweig's participation in this

case.

Ms. Mulready, do you have anything to put on the

record?

MS. MULREADY: No, Your Honor, other than, as we

mentioned when we were here before in open Court, that

Dr. Rosenzweig hadn't been retained at the time, that --

THE COURT: But there is a reason why experts need

to be disclosed on time, and so that discovery may close.

MS. MULREADY: I understand that, Your Honor. Thank

you.

THE COURT: Mr. Barnes, anything to add?

MR. BARNES: No, Your Honor.

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THE COURT: Dr. Rosenzweig will not be permitted to

testify in this matter.

And, finally, now we have the appellee's motion to

dismiss for lack of jurisdiction. I have had the

opportunity to review the motion that was handed to me

possibly 20 minutes ago. Mr. Melish, Ms. Mulready, have

you had the opportunity to review this motion as well?

I know it was just handed to both of you this morning.

MR. MELISH: Yes, I received it this morning,

probably about 8:30 via e-mail, and then I was handed a

copy about 9:15 this morning. I think the argument that

is made is form over substance. Clearly the parties at

interest are Joyce Willner and her son Michael. I've

always entered and always argued that I'm representing

the Estate of Joyce Willner, thereby representing both

the ward and the guardian because they have the same

interests from the beginning. They both argue that Joyce

wants to go home, that Joyce wants her son to be her

guardian, and that Joyce is well enough to be in the less

restrictive environment than a nursing home. She does

not need to be institutionalized, and from the beginning

throughout my petition since June of 2013, I have argued

to be the Estate attorney, the Board attorney, and the

guardian attorney.

THE COURT: Ms. Mulready?

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MS. MULREADY: Yes, Your Honor. I think that the

appellee's argument is basically a real party in interest

argument in terms of jurisdiction, and as Mr. Melish has

explained, I do not believe there is confusion, in fact,

regarding who the real parties in interest are. And in

two cases, Calenda v. Allstate Insurance Company,

518 A.2d 624, and in Esquire Swimming Pool Products,

Inc., v. Pittman, 332 A.2d 128, the Rhode Island Supreme

Court has counseled against raising real parties in

interest arguments late in the proceeding when there is

no opportunity to resolve them. However, in this case,

as I mentioned, I do not believe there is really any

factual confusion about who the parties are in this

matter. Thank you, Your Honor.

THE COURT: Mr. Barnes?

MR. BARNES: Thank you, Your Honor. Your Honor,

this is more than just semantics or trying to figure out

who the party is, Your Honor. What this is is this is a

statutory requirement pursuant to Rhode Island General

Laws 33-23-1. It sets forth a strict two-step process

for taking an appeal. The first step of this process is

for the appellant to file a notice of appeal with the

Probate Court in this case. Michael Willner as guardian,

specifically, as guardian, filed the notice of appeal

with the Probate Court.

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The appellant also needs to file the appeal with the

Superior Court, and in this particular case, the appeal

docketed in this Court was specifically by the Estate of

Joyce Willner. There was no mention of the Estate of

Joyce Willner by her guardian. A totally separate

nonentity filed the claim of appeal with this Court. The

statute --

THE COURT: Mr. Barnes, I'm a little concerned. You

continue to state in your papers that the Estate is a

nonentity?

MR. BARNES: Yes.

THE COURT: Isn't it correct, and I thought I read

in the joint statement of undisputed facts that

Mr. Michael Willner was appointed as the guardian of the

person as well as the Estate, permanently, correct?

MR. BARNES: Correct, Your Honor.

THE COURT: So why is there an argument that the

Estate doesn't exist?

MR. BARNES: Michael Willner did not docket the

appeal with the Superior Court. The proper party under

the rules has to be the same person that filed the appeal

in the lower Court, in this case, to give it a blanket

action. The Estate of Joyce Willner does not tell anyone

who the person is taking the appeal. It's a nonentity.

The rules are clear that it has to be a person that takes

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the appeal. The rules are also clear that a guardian can

take an appeal in their own name or in the name of the

person that they're the guardian of. In this case,

neither have. Mr. Melish filed an appeal in this Court

specifically as the Estate of Joyce Willner, not as

Michael Willner, Guardian of the Estate of Joyce Willner.

Michael Willner is the appropriate party to docket the

appeal here, or Joyce Willner herself. I consider it a

nonentity. The Estate of Joyce Willner, while that is

who docketed an appeal here, calls into question who

exactly the appellant is. Is it Kurt Willner, her

husband? Is he the one hereto that docketed the appeal

based on the Estate? We can't make those kinds of

decisions at this level. It's clear that whoever filed

the appeal in the Probate Court needs to be the same

person or entity that files it in this Court. Clearly in

the Probate Court it was Michael Willner, Guardian, and

in this Court it's the Estate of Joyce Willner, not

Michael Willner, Guardian. Michael Willner, Guardian, is

only one party to this action. Joyce Willner is another

party, Kurt is another party, and Yaffa Willner is

another party. These parties could not have just taken

the appeal stating, the Estate of Joyce Willner, because

the Court would have no idea who the Estate of Joyce

Willner is, who is here in representative capacity saying

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that the Court, the lower Court, committed some type of

error and is a de novo request in this Court for a new

trial.

THE COURT: And although jurisdiction in any Court

can be raised at any time, isn't it a little late in the

game to be raising this?

MR. BARNES: Your Honor, under the Estate of Griggs

case, I think the Court said that the question of lack of

jurisdiction can be raised at any time by motion and

should be determined at the earliest stage of the

proceeding as possible. Today was the earliest stage of

the proceeding that it was possible.

THE COURT: How is that? How is that?

MR. BARNES: The pleadings were filed last week by

the parties. I did additional research this weekend,

Your Honor, and determined that there was a

jurisdictional problem.

THE COURT: So because you didn't get around to it,

that's why this is the earliest possible time it could

ever have been raised?

MR. BARNES: Well, Your Honor, this Court has us on

a very, very tight schedule as far as this trial. I've

prepared all the documents required by this Court, filed

them all on time. This here, Your Honor, is one thing

that I researched this weekend. It wasn't that I didn't

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get around to it. I've been diligently working on this

case every day for the last, probably, six weeks,

Your Honor. Today is the first day I'm able to present

this motion to the Court. And I'm allowed to do so under

the Griggs case. I apologize that it's a Monday morning

filing, so to speak, but --

THE COURT: The day of trial.

MR. BARNES: The day of trial, Your Honor.

THE COURT: Any response, Mr. Melish, Ms. Mulready?

MR. MELISH: This probate appeal was filed around

August 1, the amended appeal was filed August 20. This

matter has been heard, it's been heard on a partial

motion for summary judgment. This matter has been before

the Court many times. The Court has ruled on certain

issues. We've all been working diligently on this, we're

ready to try the case. And I think the motion is a very

weak -- it's an effort to try to block the trial to keep

the status quo and to keep Joyce in the nursing home, and

I think the Court should reject it. I don't believe

there is a legal basis for it.

The documents filing the appeal on behalf of the

Estate and on behalf of the guardian for the ward's

benefit, I mean, it's been very clear that, and it's been

clear for two years, that Joyce Willner and her son

Michael have been on the same side trying to ensure that

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she get her -- that she have a voice in this matter, and

that she be able to live outside of a nursing home in a

less restrictive environment, and she needs to be heard,

and I think this motion is not a strong motion. I think

they're trying to split hairs when the real parties in

interest obviously are Joyce Willner and Michael Willner.

And Michael was appointed guardian of the person and the

Estate, as the Court mentioned.

And the cases, there are many cases that list the

Estate of so and so as the heading of the Estate, of the

case, and just because that's the heading does not mean

that there aren't real parties in interest who are

involved, clearly the ward and the guardian, and now the

daughter and the husband, they're all parties in

interest. They've been --

THE COURT: And we're all here and ready to go.

MR. MELISH: They're all here and ready to go, and

I'd ask you to deny the motion to dismiss.

THE COURT: I will take the motion under advisement

and we will begin the trial. Mr. Melish?

MR. MELISH: Your Honor, I would like to move all of

the joint exhibits that have been marked for

identification, I'd like them all to be marked as full

exhibits.

THE COURT: Well, the purpose is for joint exhibits

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to be done jointly, so I assume there's an agreement to

that?

MR. BARNES: Yes, there is, Your Honor.

THE COURT: So Joint Exhibits 1 through 38 will be

marked in full by agreement, noting, of course, that

Exhibit 38 is the records of the Roberts Health Center,

that by agreement of the parties and with the concurrence

of the Court, those will be placed under seal as they do

pertain to protected health records.

MR. MELISH: Your Honor, I also had an amended list

of appellant's proposed exhibits. There were 14 exhibits

proposed, and some of those exhibits are already in the

record, or could be in the record, or have been proposed

by the other side. Items 1, 2 and 3 and 5 were all

admitted under Rule 36 by the appellees.

THE COURT: Is that correct, Mr. Barnes?

MR. BARNES: No, Your Honor.

THE COURT: There was a request for admissions in

this case?

MR. MELISH: There was.

THE COURT: Is there an objection to the appellant's

proposed Exhibit 1?

MR. BARNES: I apologize, Your Honor, there was a

request for admissions, that those were true and accurate

copies of those documents, and we did admit that.

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THE COURT: Okay. Is there an objection to

Exhibits 1, 2, 3, and 5?

MR. BARNES: There is, Your Honor.

THE COURT: And what's the basis of that?

MR. BARNES: Dr. Rosenzweig's DMAT was proposed in

2012, Exhibit 2 was also prepared in 2012. Clearly those

exhibits were prepared regarding the initial appointment

of a guardian. Since then there's been a change in

circumstances regarding Mrs. Willner.

THE COURT: But more importantly, there's certainly,

in the list of undisputed facts, there is a discussion

about what was determined and that everybody agrees that

back then she needed a permanent guardian, and today she

needs a permanent guardian, correct?

MR. MELISH: Correct.

THE COURT: So what's the relevance, Mr. Melish, of

Exhibits 1 and 2?

MR. MELISH: Your Honor, they're part of the

certified record. I think the Court certainly can

indicate and give whatever weight the Court wants to

give, but it is part of the certified record. In fact,

Exhibits 1 through 8 in my proposed list are all part of

the certified record, and that goes into evidence and the

Court can give it whatever weight the Court decides to.

But on that basis, I would ask that 1 through 8 all go in

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as full exhibits.

THE COURT: And any objection to that? What is the

objection, Mr. Barnes?

MR. BARNES: Your Honor, as Mrs. Mulready pointed

out when I was asking the Court to entertain

Dr. Khurshid's affidavit and DMAT, her position was that

the DMATs are not evidence, they're only filed in order

to initiate a guardianship; however, I believe that they

are evidence, Your Honor. And if they are evidence, they

need to come in through 9-19-27 or by the direct

testimony of the person who proposed those exhibits.

THE COURT: Actually, since they were part of the

certified record, and Rhode Island General Laws 33-23-1

does provide that the record of proceedings in the

Probate Court including certified documents and the

transcripts from the probate proceedings may be

introduced in the Superior Court without further

authentication, so if it was introduced then, it can be

included here and the Court will determine the weight

according to each of these exhibits.

But over the appellee's objection, Exhibits 1

through 8 as having been previously made part of this

certified record in this case, those will be admitted in

full without the need for further authentication.

(EXHIBITS SO MARKED)

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THE COURT: Anything else, Mr. Melish, or can we

begin the testimony?

MR. MELISH: Your Honor, Exhibit Number 13 -- or let

me go to 11 first. I want to discuss 11 and 13.

Exhibit 11, the 2004 power of attorney to Michael

Willner, that document is also on the appellee's list of

proposed exhibits, letter zero. And based on the

agreement of the parties that they both want that

document to go in, I would ask that that be marked as a

full exhibit.

THE COURT: It does appear to be the same document.

Mr. Barnes, is that, in fact, the same document?

MR. BARNES: It is, Your Honor. I will stipulate

that that may be marked as a full exhibit.

THE COURT: 11 may be marked in full.

(EXHIBIT SO MARKED)

MR. MELISH: Then 13, Your Honor, the 12/11/06 Last

Will and Testament of Joyce C. Willner. The appellees

admitted in the response to request for admissions that

document, so I would ask that 13 become a full exhibit.

THE COURT: Well, what's the relevance of that

document?

MR. MELISH: It's prior to our, or at about the same

time of her diagnosis with dementia, and it just

indicates her love for her husband and her daughter and

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her son and the grandchildren. And that's the last

document. It just indicates her wishes at that time, so

I think it has that relevance.

THE COURT: Mr. Barnes?

MR. BARNES: I'm going to object, Your Honor, as to

relevance, and the fact that the document has not been

authenticated.

THE COURT: Well, actually, that's why -- that was

part of the request for admissions?

MR. MELISH: It was.

THE COURT: So you attest that it's a true and

accurate copy of what it purports to be?

MR. BARNES: Yes, Your Honor. But Mr. Melish has

made no representation that is the existing Last Will and

Testament of Mrs. Joyce Willner, and Mrs. Willner is

still alive, so, I can't see the relevance regarding her

last appeal for her.

THE COURT: Well, he just stated it's to show her

mind back in 2006.

MR. BARNES: Those are not issues on appeal,

Your Honor.

THE COURT: Mr. Melish, why don't we get the

testimony underway, and then the Court will make a

determination as the exhibit comes in, potentially comes

in, and is sought to be used as to whether or not it is,

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in fact, relevant to this proceeding.

Anything else, or can we get underway?

MR. MELISH: We can get underway. I'd like to call

Marshall Feldman, please.

MARSHALL FELDMAN, being duly sworn, testifies as follows:

THE CLERK: Please state and spell your first and

last names for the record.

THE WITNESS: Marshall Feldman, F-e-l-d-m-a-n.

THE COURT: You may be seated.

DIRECT EXAMINATION BY MR. MELISH:

Q May I call you Marshall?

A Yes.

Q Marshall, would you just tell us where you live, and what

you do?

A I live at 5 Tomahawk Trail in Wakefield, Rhode Island,

and I'm a professor at the University of Rhode Island.

Q And where -- what's your address?

A 5 Tomahawk Trail.

Q And what's the address of the Willner home?

A I believe it's 21. It's two doors down from me.

Q And when did you buy your house?

A In 1999.

Q Okay. And with whom do you live?

A Karla Steele.

Q And tell us how you met the Willners.

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A Um, somebody told my wife, Karla, that --

MR. BARNES: Objection, Your Honor.

THE COURT: Sustained.

A My wife told me --

THE COURT: Sir, stick with what you know, okay?

A What I know, okay. One day my wife told me that --

MR. BARNES: Objection, Your Honor.

THE COURT: You can't testify as to what somebody

else told you.

A Okay. We went over their house and knocked on the door

and said, we know somebody in common, we want to meet

you.

Q Was that in 1999?

A It was around then, yes.

Q Okay. And tell us how the relationship developed and

what the relationship was between you and your neighbors.

MR. BARNES: Objection.

THE COURT: Overruled; you may answer.

A Well, it developed over time. We were actually living at

the time in the Oaks in our old house, and we were first

renting out the house we had bought, and then we

remodeled and we moved into it shortly before the

remodeling began, and sold the other house, and we became

very close friends with the Willners, the entire family.

My mother passed away -- this is relevant to my own

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feelings about it -- my mother passed away in 2000 and we

just met the Willners shortly before, and I made a

personal commitment myself to treat the Willners, Kurt

and Joyce, as I would my parents. And that was partly

because I really liked Kurt and Joyce from the times we

had been with them, and partly also, to honor my mother's

memory. And I believe in the ensuing years I shared that

with both Yaffa and Michael. I know I shared it with

Michael, and both of them at different times agreed that

we did treat them like family. We would go out to movies

with them, we would celebrate holidays with them. I on

some occasions would go to synagogue with Kurt and Joyce,

we would have family celebrations, birthdays, and so on,

together at our house or theirs. We celebrated Yaffa's

birthday party, her 65th birthday, we hosted 30 people or

something like that. And so we had essentially about as

close a familial type of relationship with them as you

would have with neighbors.

Q And going forward to about 2006, when did you become

aware that Joyce was having some memory problems?

A It was around that. We would -- one of the things we

would do is during the wintertime we would get a set of

DVDs and we would typically spend Sunday evenings

together watching one episode of the DVD series. And so

we were visiting pretty much at least once a week with

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them. And at some point during one of those visits, I

believe, somebody, I don't remember who, told us that --

MR. BARNES: Objection, Your Honor.

THE COURT: Sustained.

A Okay. We were told --

MR. BARNES: Objection, Your Honor.

THE COURT: Sir, what happened at this particular

time in 2006? What happened?

THE WITNESS: Somebody told me she was diagnosed --

THE COURT: I'm not interested in what somebody told

you. Did you observe anything?

THE WITNESS: No, I did not observe any specific

things of memory loss. Joyce was often sleepier than she

had been, and then over time, I did, yes, start to

observe things where she would not remember.

THE COURT: Okay. Mr. Melish, your next question.

Q Now, between 2006 and 2012, did you continue this pattern

of visiting weekly?

A Yes, as far as I recall, yes.

Q And were there other people living in the house during

that six-year period?

MR. BARNES: Objection as to form.

A With --

THE COURT: Hold on, sir; if there's an objection

you do need to let me rule on it.

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And your basis as to form?

MR. BARNES: Mr. Melish has not set forth a basis as

to whose house we're talking about.

THE COURT: Mr. Melish, I had the same question.

Whose house are you referring to?

MR. MELISH: I'm referring to Kurt and Joyce's

house.

THE COURT: Rephrase your question, then.

MR. MELISH: I will; I'm sorry.

Q Marshall, being next-door neighbors, or very close to

next-door neighbors, were you aware of who lived in the

Willner house at all times?

MR. BARNES: Objection, Your Honor.

THE COURT: Overruled; I'll allow that.

A Well, I wouldn't say at all times, but I was often aware

of who was living there.

Q After 2006 was there any change of who was living in the

house, or who was visiting the house?

MR. BARNES: Objection, Your Honor, as to form.

THE COURT: Overruled; I will allow it. Sir, the

question is simply whether or not there was any change.

A Yes.

Q And what change did you observe?

A Michael was coming up approximately two weeks per month

and staying there.

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Q And were there any other people staying at the house or

helping at the house?

THE COURT: This is in the same 2006/2012 time

frame?

MR. MELISH: Yes.

A There were various aides coming up, coming there and

staying there. I don't know if they were staying

overnight or not.

Q And was Yaffa visiting also?

A Yaffa would visit pretty much once a week, and just come

up on Sundays and go back to Boston, typically, Sunday

night, sometimes Monday morning.

Q And now, in terms -- you mentioned earlier that the

Jewish holidays you would celebrate together. Could you

just elaborate a little bit on that?

A Sure. The major Jewish holidays being the holy days in

the fall and Passover in the spring, the high holidays in

the fall, we would typically do things like have a

Rosh Hashanah dinner together sometimes. Kurt and Joyce

stopped going to synagogue, I don't remember when, but

when they were still going we would sit together at

services for the high holidays. We would typically break

the fast for Yom Kippur together after that holiday; you

fast for 25 hours that day. For Passover we would

typically have a Seder together, and then for the lesser

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holidays, mainly Chanukah, we would get together, light

candles or something, and have a dinner, typically.

Those were the main ones, were the Jewish holidays that

we would celebrate together.

Q And if I can ask you about Passover in 2012, do you

recall that celebration or that --

A Yes, I do.

Q -- get-together?

A Yes, I do.

Q Can you describe it?

A Yeah. It was at the Willners' home. Michael had come up

from Virginia, and we were there. I don't remember if

our son Austin was there or not. Yes, I think. I'm not

sure. And it was a -- Yaffa and Michael had prepared

most of the dinner, we had prepared some things and

brought them over. Commonly, before, when Michael hadn't

joined for the Seder and Yaffa was working, we would

typically, I think most of the Seders we would host, but

this was a little bit of an exception in terms of the

two, many of them were there, it was a great time, we all

commented about what a good time we had, including Joyce.

Q And subsequent to that Passover Joyce became ill with the

flu?

A Correct.

Q And can you tell us what you know about that

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hospitalization?

MR. BARNES: Objection, Your Honor; calls for

speculation and expert witness testimony.

THE COURT: Overruled, I'll allow it. Sir, to the

extent that you know of her illness at that time.

A Right. Karla and I went away the next day after the

Seder to Provincetown, and when we came back, we spoke

with, I guess, Kurt and learned that Joyce was in the

hospital. We went to visit and we would visit every day

or every other day, thereabouts. We learned that the --

I was told --

MR. BARNES: Objection, Your Honor.

THE COURT: Sustained.

THE WITNESS: All right.

THE COURT: Next question.

Q You visited every day?

A Every day.

Q And were you able to interact with Joyce?

A Yes.

Q And which part of the hospital was she in?

A Well, when we went every day initially -- Your Honor, I

don't know how to answer this, because she wasn't in the

room with me. I heard that --

THE COURT: The question is, where was she in the

hospital.

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THE WITNESS: At that time, she was in the ICU.

THE COURT: Thank you.

THE WITNESS: But that's hearsay, right?

THE COURT: No, that's the answer to the question is

where was she.

A And then subsequently when she was in an area of the

hospital that I believe is Hospice, she was in the room

and that's where I was able to interact with her.

Q So you were able to visit with her when she was in

Hospice at the hospital?

A Correct.

Q And what did you observe?

A I observed that she was sleeping a lot. I observed that

when she was awake she was -- I asked her if she had any

pain and she said no.

MR. BARNES: Objection.

THE COURT: Sir, you need to stay away from what

other people told you, so if you can convey what you

observed without talking about what the discussions

were --

A Okay. I observed no signs of pain. She seemed

comfortable.

MR. BARNES: Objection, Your Honor.

THE COURT: I will allow that.

A I observed no moans, no cries, no complaints. I heard no

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complaints. I was able to talk with her as I would

normally. She didn't have full realization of what had

happened, and so as far as her condition, when she seemed

to be -- I mean, she was very weak, it seemed to me, but

she was recovering from the episode of --

MR. BARNES: Objection, Your Honor; he's drawing

medical conclusions based on his observations.

THE COURT: Sustained. Next question.

Q Could you tell if Joyce recognized you?

A She did.

Q And did she communicate with you?

A Yes, she did.

Q So you could communicate back and forth?

A Yes.

Q And if you recall, how long was she in Hospice at the

hospital?

A I would say two weeks, three weeks, something like that.

Q And at some point she left Hospice?

A Correct.

Q And then where did she go?

A The next time I saw her was at Roberts Health Center in

North Kingstown.

Q Can you give us a time frame?

A That was around early May 2012.

Q Okay. And when she got to Roberts was she in a Hospice

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unit or was she in just a regular unit?

A As far as I could tell, it is a regular unit.

Q And how often did you visit with her when she was at

Roberts?

A It changed as she got better. When she was still very,

very sick, we would go in -- that May I would probably

visit her a few times a week. It eventually became once

or twice a week, or sometimes, depending on what we were

doing, maybe every other week. If we were out of town,

we weren't there, but it would be a couple of times a

week, typically, or weekly, depending upon when we're

talking about.

Q When you visited, was your wife with you, or did you go

separately?

A Sometimes together and sometimes separately.

Q But your wife visited also?

A Yes, she did. She actually visited more than I did.

Q And did Joyce know who you were?

A Of course, yes.

Q And did you have conversations with her?

A Yes.

Q And can you describe some of the conversations that you

had with her?

MR. BARNES: Objection, Your Honor.

THE COURT: Basis?

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MR. BARNES: It's hearsay, Your Honor, if he's going

to actually testify as to what Joyce said to him.

THE COURT: Well, not all things that are told to

someone constitutes hearsay, it's whether or not it's

being offered to prove the truth of the matter asserted.

So he's been asked for a description of what they talked

about, not as to whether or not what she said during

those discussions was truthful, so, overruled. I will

allow it, sir. You may describe for the Court the

discussions that you had with Mrs. Willner at Roberts.

A Okay. They touched on all matters that we had, you know,

in common. We talked about her childhood. She would

tell us stories and so on, that kind of thing. I gather,

from the purposes of this hearing, the most important

thing was, she would say -- I never would bring up with

her the subject of her --

MR. BARNES: Objection, Your Honor.

THE COURT: Okay, sir, okay. Now I'm going to stop

you. Next question, please.

Q But she was able to talk about long-term memory items?

A Yes.

Q And did she have any difficulty with short-term memory

issues?

A Yes.

MR. BARNES: Objection, Your Honor.

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THE COURT: Basis?

MR. BARNES: Calls for an expert opinion as to

whether she had short-term memory issues.

THE COURT: Sustained.

Q Now, you continued to visit for what period of time?

A I continued to visit until September 2013.

Q And why did you stop visiting in September of 2013?

A I was told that --

MR. BARNES: Objection, Your Honor.

THE COURT: Sustained. Next question.

Q Did you get any information from any source saying that

you were not allowed to visit with her anymore?

MR. BARNES: Objection, Your Honor.

THE COURT: I will allow it.

A Yes.

Q And who gave you that you information?

A I only know his first name, he wouldn't give me his

second. His name is Scott, he worked for Roberts.

Q Is that a staff member from the Roberts Health?

A Yes.

Q You have not been able to visit since then, is that

correct?

A Correct.

Q I'd like to go back to 2013 and the Passover observance.

Did you have an observance at your home?

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A Yes, we did.

Q And can you describe that observance?

A Yes. It was in my home, Michael came and brought Joyce.

Joyce was there, and my brother and his husband came, and

I think my son Austin was also up from -- he lives in

New York, he was up, too.

MR. BARNES: Your Honor, I'm going to have to object

to this continued line of questioning. This is clearly

based on the issues that were appealed from Probate

Court. The issues that were appealed have to do with

Mr. Melish representing certain -- Michael Willner's

removal of guardian, Michael Willner's request for home

health care, have nothing to do with practices or visits

over the years.

THE COURT: Where are we going?

MR. MELISH: This shows a different way that

guardians are treating Joyce where Michael, when he was

the guardian, would take his mother out to visit friends

or to go to restaurants and to do things and not just be

institutionalized, and after September of 2013, the

substitute or successor guardian forbade those friends of

Joyce from visiting with her, they prevented any efforts

to take her out, Michael was not allowed to take her out.

THE COURT: Overruled, I'll allow it. Go ahead.

Q So Joyce came to your home?

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A Yes, and as is --

THE COURT: Hold on, there's not a question yet.

Go ahead, Mr. Melish.

Q And did she participate in the -- and this was a Seder?

A Yes, she did.

Q And how did she participate?

A We typically, when I run a Seder we pass the readings

around. She would read from it, she lit the candles, she

ate, obviously. She participated like everyone else. So

that was pretty much standard.

Q And her mobility, how could she move around?

A She got around fine. I don't remember if she used her

walker the whole time or not. She had a walker, but I

don't remember if she used it. She got around fine.

MR. MELISH: I would like to approach with exhibits,

the photo exhibits. This would be 9a through g.

THE COURT: You may approach.

MR. MELISH: Before I approach, may I just ask one

other question?

THE COURT: You may.

Q These photos indicate activity at your home. There are

also some photographs at Gregg's Restaurant?

MR. BARNES: Objection, Your Honor.

THE COURT: Mr. Melish, let's stay away from the

leading questions.

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MR. BARNES: Your Honor, I will stipulate that she's

been to Gregg's Restaurant and been to their home several

times.

THE COURT: I will allow Mr. Melish to introduce

these. Go ahead.

Q Marshall, I'm going to show you what are marked 9d, e, f,

and g, and ask you to review those and identify them if

you can.

A Okay.

MR. BARNES: I'm going to object, Your Honor. I do

not have Exhibits 9d, e, f, and g. I have Exhibit A9.

THE COURT: You don't have the additional a through

g?

MR. BARNES: (Perusing documents) I withdraw my

objection, Your Honor.

Q Can you describe those photos, please?

MR. BARNES: Objection, Your Honor; lack of

foundation.

THE COURT: Ask just a couple more foundational

questions, Mr. Melish. Sustained.

Q Marshall, were you present when those pictures were

taken?

A Yes.

Q Do you know who took the pictures?

A Yes.

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Q Did you take any of the pictures?

A Yes.

Q So you're familiar with each and every one of those

pictures?

A Yes, I am.

Q Can you just tell us who the parties are in each picture?

A Yes.

THE COURT: Are we going back to 9d, e, f and g, or

all of them?

MR. MELISH: Just those four at the moment.

A A9d is, left to right, Michael, Joyce, and Joyce's

grandson, Jack. This is at the Passover Seder in 2013.

Q And the next photo?

A And I took that one. The next photo is A9e, and the back

row is, to the left is my brother Gary and his husband

Bob, the bottom row is my wife Karla, Joyce is in the

middle, and I'm on the right. And Michael took that.

Q And the next picture?

A A9f was at a graduation party for Joyce's grandson Jack.

That was in my home. That was later in the spring of

2013. That's Joyce on the left and that's Jack on the

right.

MR. BARNES: Your Honor, I'm going to have to object

to the relevance of this testimony and these photos.

THE COURT: Overruled, I'll allow it.

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A A9g is the same graduation party. That's Joyce on the

left, and her granddaughter Madeline on the right.

MR. MELISH: I would move those four exhibits as

full exhibits, please.

THE COURT: They may be marked in full.

(EXHIBITS SO MARKED)

MR. MELISH: May I retrieve them?

THE COURT: You may.

(WITNESS HANDING EXHIBITS TO COUNSEL)

Q Marshall, did you go to Gregg's Restaurant with Joyce at

any time?

A Yes.

Q And when did you go to Gregg's Restaurant with her?

A I believe it was either late 2012 or in the winter of

2013. It was shortly after Michael was appointed

guardian, and --

MR. BARNES: Objection, Your Honor. Move to strike,

nonresponsive, as to Michael Willner being the guardian.

THE COURT: Well, he's putting it into perspective

time-wise, but I'm going to cut off the answer now, so

it's overruled. Now we will proceed with another

question.

MR. MELISH: May I approach to show him

Exhibits A9a, b, and c?

THE COURT: You may.

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Q I'm going to ask you to review those three pictures. Can

you describe who's in a?

A Yes; 9a is a picture of my -- my wife Karla and Joyce.

Q And b?

A Photo b is me, Michael taking the place of my wife, and

Joyce.

Q And c?

A And that's just Joyce.

Q And those all were taken on one occasion?

A Yes.

Q And you were present either taking the picture or being

photographed?

A Correct.

Q And at that time Michael was the guardian of his mother?

A Correct.

Q And she was living at the Roberts Health Center at that

time?

A Correct.

MR. MELISH: May I have these marked as full

exhibits, please.

THE COURT: They may be marked in full.

MR. MELISH: May I retrieve them?

THE COURT: You may.

(EXHIBITS SO MARKED)

Q Marshall, how do you celebrate Passover in 2014?

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A Well, that starts tonight, but I'm here.

Q So Passover is starting tonight?

A Right.

Q When is the Seder?

A Typically the Seder would be tonight and tomorrow night.

We're not having Seder this year.

MR. MELISH: I have no further questions.

THE COURT: Thank you.

MS. MULREADY: No questions, Your Honor.

THE COURT: Thank you, Ms. Mulready.

Mr. Barnes, Mr. Connelly?

CROSS-EXAMINATION BY MR. BARNES:

Q Good morning. You testified that in 2006 you were

visiting Joyce approximately one time per week, correct?

A Yes.

Q And from the period of 2006 to the period of 2012, did

you notice any changes in Joyce's ability to remember

things short term?

A Yes.

Q And did you notice any change in her ability to remember

things long term?

A No.

Q And when you say that you observed her having trouble

remembering things short term, could you give me an

example of that?

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A The easiest ones for me to remember are the ones that

would happen in Roberts when I would ask her, did you

have lunch, what did you have, and she did not remember.

Q Approximately when was that?

A This was in 2012 when she was in Roberts, the

(inaudible).

THE COURT: Keep your voice up.

A The short-term memory that she was in Roberts that she

did not remember what she had for lunch that day,

those --

THE COURT: Would have been subsequent to 2012?

THE WITNESS: Correct.

Q And when was the last time, if you remember, that you had

a visit with Joyce at Roberts Health Center?

A I believe it was September 9, 2013.

Q And why haven't you visited her since September 9, 2013?

A I thought I already answered that.

THE COURT: You can answer that again.

A Because I was told I'm not allowed to visit her anymore.

Q Were you given a reason?

A Yes. Oh, yes, Yaffa told them she didn't want me

visiting anymore. That was the reason I was given.

Q Do you know why?

A No.

Q Did anyone at the facility ever speak with you during,

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before, or subsequent to your visits with Joyce in a

facility being Roberts Health Center?

A Yes.

Q And what were the nature of those conversations?

A Most --

Q Let me rephrase that for you. Did those conversations

revolve around your visiting Joyce at the facility?

A Not really. I had one conversation once.

Q And what was that conversation?

A The conversation was, who are you, and I said my name.

We just have to record everybody who visits Joyce.

Q Okay.

THE COURT: I'm sorry, sir, when was that, if you

can recall?

A That was in the summer of 2012.

Q Subsequent to that date, did anyone at Roberts Health

Center ever speak with you regarding your visits with

Joyce?

A Yes.

Q And what was the substance of that?

A Well, on one occasion this fellow, Scott, said to me --

well, it was Joyce's birthday in 2012 and we were going

to visit her, we had cakes and balloons and so on, and we

passed Scott in the hall, he was coming from her room,

and we got to her room, Joyce was there, but her roommate

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was dead and her daughter was mourning her, and I felt

very inappropriate. And so I went out and spoke to him

and said, can we do this someplace else. We shouldn't be

celebrating her birthday while a dead -- and we moved out

into the common area.

Q And was there any point in time where anyone working at

Roberts Health Center informed you that you could only

visit Joyce in the common areas?

A Yes.

Q And when was that?

A I don't recall. I remember at that time that I mentioned

that they wanted my name so they could keep a record;

that was in a common area that we were meeting. I don't

remember if they said at that point that that was only...

Q But there came a time where you were informed you could

only meet with Joyce in the common areas?

A Right.

Q So you were excluded from meeting with her in her room?

A Right.

MR. BARNES: No further questions, Your Honor.

THE COURT: Mr. Melish?

MR. MELISH: Nothing further.

THE COURT: Mr. Feldman, thank you for your

testimony this morning; you may step down.

Mr. Melish, your next witness is Michael Willner?

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MR. MELISH: That is correct.

THE COURT: Well, it seems appropriate to take our

midmorning break, then, at this point before we begin

Mr. Willner's testimony instead of getting into it for a

mere five minutes. So we will resume at 11:20.

Court will be in recess.

(BRIEF RECESS)

THE COURT: Mr. Melish?

MR. MELISH: I'd like to call Michael Willner to the

stand.

MICHAEL WILLNER, being duly sworn, testifies as follows:

THE CLERK: Please state and spell your first and

last names for the record.

THE WITNESS: Michael Willner, W-i-l-l-n-e-r.

DIRECT EXAMINATION BY MR. MELISH:

Q Michael, you're one of the appellants in this matter, is

that correct?

A Yes.

Q And you're the son of Joyce Willner?

A Yes.

Q And you were appointed guardian of her?

A Yes.

Q And you were removed on August 15 as guardian, correct?

A Yes.

Q Now, tell me, I'm going to just go through a little bit

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of your life and your mom's life. Where were you born?

A I was born in Haifa, Israel, in 1956.

Q And where was your sister born and what year was she born

in?

A She was born in Israel in 1951.

Q And what were the circumstances that your parents moved

or immigrated to Israel?

A Yes. My father went to Israel from Austria. He --

MR. BARNES: Objection, Your Honor.

THE COURT: Basis?

MR. BARNES: He doesn't have firsthand knowledge of

what was happening at that point in time based on his

date of birth.

THE COURT: Well, certainly he could have learned

about family history, which is allowed under the Rules of

Evidence.

MR. BARNES: Mr. Melish hasn't provided us with any

basis of that.

THE COURT: Sustained as to foundation.

Q Michael, how did you learn your family's history?

A From my parents.

Q And both of your parents had discussed their family

history with you?

MR. BARNES: Objection, Your Honor; hearsay.

THE COURT: Overruled; I will allow it.

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A Yes, they have.

Q So you're familiar with where your parents were born?

A Yes.

Q And you're familiar with their upraising, uprising?

A Upbringing, yes, I am.

Q And you were starting to answer about your dad?

A Yes.

Q And his --

THE COURT: Sir, it's okay, just allow your attorney

to finish asking the question, okay?

THE WITNESS: I apologize.

Q And just give us a brief history of your dad's

upbringing.

A My dad was born in Vienna, Austria. He lived in a town

just outside of Vienna for much of his childhood in

St. Polten. His father owned a couple of jewelry stores

in St. Polten. His mother had some mental problems

and --

MR. BARNES: Objection, Your Honor.

THE COURT: Okay, okay. Sir, let's move it along,

okay?

A Yes. He was not raised by his mother. She lived in

Budapest, and committed suicide.

MR. BARNES: Objection, Your Honor.

THE COURT: Mr. Melish, let's get to the focus of

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what we're here for.

Q Tell me about your mom, where was she born?

A My mother was born in Nizhni Veretski which was a small

town in Czechoslovakia, and now it's part of the Ukraine.

She was raised there, she moved to Budapest when she was

working in Budapest. The World War II broke out. She

was forced to work in a factory sewing shirts and

uniforms for the German soldiers for a couple of years,

then she was taken in a cattle train to a concentration

camp, Ravensbruck. From there she was sent to

Bergen-Belsen, also a concentration camp. There she was

taken for dead when the British Army liberated the camp.

She was sent to a rehabilitation center, and again she

was close to death. Her sister had --

MR. BARNES: Your Honor, I have to object as to the

relevance of this testimony.

THE COURT: Overruled, but let's move it along,

Mr. Melish. Next question, please.

Q Just very briefly tell us how she recovered and the role

she and her sister had together.

MR. BARNES: Objection, Your Honor.

THE COURT: What's the relevance of this,

Mr. Melish?

MR. MELISH: It's relevant because being a Holocaust

survivor is part of who Joyce is and it's part of her

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history, and to that extent, I think it's relevant and

obviously important to Joyce. It's part of who she is.

THE COURT: I have no doubt that it was a traumatic,

trying experience that has certainly shaped her, as it

would anybody over the years. Is there any objection,

Mr. Barnes, or any dispute as to Mrs. Willner being a

Holocaust survivor?

MR. BARNES: We will stipulate to that, Your Honor.

THE COURT: Okay, then, let's move along.

Q So where did your parents meet?

A They met in Israel.

Q And tell us, they got married in Israel?

A They got married in Israel. Your Honor -- yes.

MR. BARNES: Objection, Your Honor, as to the

relevance.

THE COURT: Overruled.

A They came to the United States --

Q Let me ask a question. They did emigrate from Israel to

the United States, is that correct?

A Yes.

Q When did that happen, approximately?

A 1957.

Q And do you know why they emigrated?

A There were a couple of reasons. My uncle told my

father --

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MR. BARNES: Objection.

THE COURT: Sustained.

A My father wanted to come to the United States with the

intention of working for his brother, and my sister had a

heart murmur and it was thought --

MR. BARNES: Objection as to relevance, Your Honor.

THE COURT: Overruled; I'll allow it.

A And it was thought that the -- that she would get better

treatment here in the United States, so for those two

reasons, we immigrated to the United States.

Q How old were you?

A I was one and a half years old.

Q And how old was your sister?

A Six.

Q And where did you settle?

A We first settled in Barrington, and then moved to

Providence, and then settled long term in Cranston, Rhode

Island. That's where I was -- that's where we were

raised.

Q Where did you and Yaffa go to school?

A I don't recall her elementary school, but it was in

Cranston. My elementary school was in Cranston. I went

to Park View Junior High School. We both went to

Cranston High School East. It was while I was -- when I

was wrestling -- when I went to Cranston High School East

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I wrestled there and my mother was very supportive of

that. In fact --

MR. BARNES: Objection.

THE COURT: Sir, Mr. Melish will ask you questions,

and he will be able to elicit the testimony that you're

trying to jump into, okay? So if you can just please

allow -- just answer the questions that Mr. Melish asks

without going on, okay?

THE WITNESS: Yes.

THE COURT: Thank you. Next question, please. So

the answer is you went to Cranston public schools, fair?

THE WITNESS: Yes, fair enough.

Q When did the family move to South Kingstown?

A Okay. The family bought a house in South Kingstown as a

summer home in the mid 1960s, I believe, and...

Q Finish, please.

A And then it became my family, we used it as a summer

vacation home for many years. And then my parents moved

down, moved out of Cranston and to that residence in

the '80s, '70s or in the '80s, I think.

Q And that became their primary only home?

A Yes, it did.

Q And they owned the house together?

A Yes.

Q And --

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A Initially.

Q You say initially, there was transfer of --

A Yes, in 19 --

MR. BARNES: Objection, Your Honor.

THE COURT: Time out, time out. You need to allow

Mr. Melish to finish asking the question, because the

court reporter cannot take down both of your voices at

the same time. You also need to allow me to rule upon

objections before you begin to answer.

The basis of your objection, Mr. Barnes?

MR. BARNES: Relevance, Your Honor.

THE COURT: Overruled; you may answer, sir.

A In 1993 my father and my mother as joint tenants by the

entirety transferred the ownership of the house to my

mother because we had a family issue.

MR. BARNES: Objection, Your Honor.

THE COURT: Okay. Then I'm going to stop you, sir.

Next question.

Q And were you ever told why the property was deeded to

your mother?

MR. BARNES: Objection, Your Honor.

A Yes.

THE COURT: It's just yes or no. Overruled. And

you've answered yes. Next question.

Q And from whom did you get that information?

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A I was part of the discussion with my father and my

mother, and that's how I got the information.

Q And was that a family decision?

MR. BARNES: Objection, Your Honor. Calls for

hearsay and speculation as to Mr. and Mrs. Willner's,

being Kurt and Joyce Willner's, participation in this

discussion.

THE COURT: Overruled, I will allow it. Was it a

family decision, sir?

THE WITNESS: Yes.

Q And did there come a point in time when the property was

deeded back to both husband and wife?

MR. BARNES: Objection, Your Honor, as to

foundation.

THE COURT: Overruled, I'll allow it.

A Yes, it appears it was deeded back to the two of them as

tenants by the entirety, once in 1994, then again in

2006, and again in 2006.

Q Now, your mother did a Last Will and Testament at some

point in time?

A Yes.

Q And let me just go back for a second. Back in '93 --

were there documents prepared in '93?

MR. BARNES: Your Honor, I'm going to have to object

to relevance. We're in 2014, not '93. I can't see how

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this would be relevant to --

MR. MELISH: In 1993 Joyce gave her husband the

power of attorney, which he used to deed the marital home

to himself in September of 2012, so I think that document

is relevant.

THE COURT: Overruled, I'll allow it.

A Yes.

THE COURT: Hold on, what was your last question?

MR. MELISH: I need some help.

THE COURT: Madam court reporter...

(PENDING QUESTION READ)

Q Are you aware of a document prepared in '93?

A Yes. A document prepared in 1993 was a power of

attorney, a general power of attorney granted by my

mother to my father.

Q And in 2004 was there another power of attorney executed

by your mother?

A Yes.

Q And to whom was that power of attorney given to?

A That was given to me.

THE WITNESS: May I ask the judge a question?

THE COURT: No, you may not.

Q Now, in 2006, what happened in terms of any diagnosis of

your mother in 2006?

MR. BARNES: Objection, Your Honor.

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THE COURT: Basis?

MR. BARNES: It's a leading question. It's

open-ended.

THE COURT: Well, a leading question can't be

open-ended.

MR. BARNES: Well, I object, Your Honor. Mr. Melish

is asking him to make a medical diagnosis, I believe. I

believe that's where this is going.

THE COURT: Mr. Melish?

MR. MELISH: The question from the family history

and from all of the documents that have been transpired,

I believe that she was -- Joyce was first diagnosed with

dementia in 2006. I think that's part of the record of

the case, so I'm just --

THE COURT: And are you eliciting expert testimony

from --

MR. MELISH: He is not an expert.

THE COURT: Rephrase the question accordingly, then.

Sustained as to form.

Q During the year 2006 did you become aware of any medical

assessments of your mom at that point in time?

A Yes. My mother --

MR. BARNES: Objection, Your Honor. He answered

yes. Mr. Melish did not pose another question.

THE COURT: Next question, please.

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Q And what did you learn and from whom?

A I learned that she was diagnosed --

MR. BARNES: Objection, Your Honor.

THE COURT: Overruled. This is his understanding as

to what he learned. Go ahead, sir.

A I learned that she was diagnosed with Alzheimer's.

Q And based on that, what changes to her life and to your

life ensued?

A I began to monitor -- I'm going to step back. There was

a family discussion about both my parents moving out of

the marital home.

MR. BARNES: Objection, Your Honor.

THE COURT: Basis?

MR. BARNES: Move to strike his testimony.

Mr. Melish has not laid a foundation as to the time and

place, date, people.

THE COURT: Or to the nature of the participation in

family decisions at that point in time, so, sustained.

Q Michael, in 2006, toward the end of that year, were there

any family discussions concerning this diagnosis?

A Yes, there was a family --

MR. BARNES: Objection, Your Honor.

THE COURT: Mr. Barnes. Gentlemen, we are not going

to speak over one another, and I'm not going to warn you

again. Mr. Barnes, this is just before me. I know you

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recognize that. You've been quite aggressive in

protecting the record and objecting to quite a bit of

testimony here. Let's move this along. Again, it's

before me; I know how to sort things through.

Sir, you are being asked an initial question that

just calls for a yes or no. Mr. Melish, if he deems it

appropriate, will follow that up with another question,

okay?

THE WITNESS: Yes.

THE COURT: Mr. Melish, let's try again.

Q So there was a family discussion concerning the

implications of that diagnosis, correct?

A Yes.

Q And who participated in discussing those issues?

A My mother, my father, and my sister and I.

Q And can you tell us the nature of that conversation?

A So at the same time that my mother was diagnosed with

Alzheimer's, my father also had a serious medical issue

and he became very, very ill. So we were hit with both

these medical problems, and in the family discussion the

issue came up of whether or not they should sell the

house and move to assisted living or a nursing home. And

my sister's position was that they couldn't live in the

home anymore, and that they should go to a nursing home

or assisted living, and my father and my mother wanted to

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stay in the home, and I wanted to try to -- my argument

was, well, let's see if we can work that out.

THE COURT: Okay, next question.

Q Now, what did your parents decide to do after that family

discussion?

A My parents decided to try to live in their home with

assistance, and it was made more possible by the

resolution of my father's illness, and he recovered. So

that made it -- that led to the decision that we would

try to work things out so that they could both stay in

their home.

Q What was the nature of your father's illness?

A He was taking Lithium for his bipolar disorder --

MR. BARNES: Objection, Your Honor; move to strike.

THE COURT: Mr. Melish?

MR. MELISH: I think this is part of the family

history and why they set up the care system that was in

effect for the last six years until Joyce got sick and

went to the hospital. So I think it's relevant in terms

of how they were able to stay in the home.

THE COURT: Mr. Barnes?

MR. BARNES: Your Honor, as far as medication that

Kurt Willner was taking, that's clearly irrelevant, and

to draw a conclusion that it was being taken for a

certain ailment is beyond the scope of Michael's

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expertise. That would call for an expert opinion as to

what that particular medication was used for.

THE COURT: Well, Michael Willner is not here as an

expert, so to say it's going beyond his expertise is

not --

MR. BARNES: Beyond his knowledge, Your Honor.

THE COURT: Thank you.

Mr. Melish, is it necessary to get into Kurt

Willner's medical diagnosis and/or medications?

MR. MELISH: I think it's part of the family dynamic

over time, so I think it's relevant to that extent. I

don't think it's a primary issue, but I think it's

certainly relevant to the dynamics between mother and son

and husband and daughter.

THE COURT: I'm going to overrule the objection and

allow a little leeway into this. Not much, though,

Mr. Melish. Restate your question again, Mr. Melish.

Q You indicated that your father had some medical problems

and was being treated for them, and can you elaborate

from your knowledge of his health situation?

A Yes.

THE COURT: Just so the Court is clear, this is in

2006, correct?

MR. MELISH: Correct.

THE COURT: Thank you.

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A To elaborate on my understanding I would go back to when

he was first diagnosed and what led to him going to a

doctor to be diagnosed.

THE COURT: Okay, sir, and I'm interested in what

happened in 2006, so can you stick with that, please.

A Yes. So his medication was changed, he recovered, and we

worked things out where I installed a computer and I

connected it to the television in their living room and I

set up a web cam, and I would be able to have, like, a

closed-circuit T.V. connection from Virginia to their

home, and I would communicate with my parents over the

T.V. I taught my father how to just press a couple of

buttons on the remote control, and I would communicate

with them every day for about 30 minutes to an hour over

the next several years. We hired -- my father had

purchased long-term health care insurance, so we

activated that and we hired a home care aide, one, and a

nurse. A private duty nurse would come in once a week or

twice a week, fill their medications, check on them to

make sure they were doing okay, would coordinate with the

medical professionals. We hired home care people and one

person would come in from 8 in the morning to 3 in the

afternoon, and then another person would come in at 4 to

7. I would, when I checked in over the closed-circuit

T.V. system that I put together, I could talk to the home

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care professionals as they came to do physical therapy or

to check up on my parents. And over the next --

THE COURT: Okay.

A -- four years --

THE COURT: Okay, next question, please.

Q That system that your parents, with your help and I

assume Yaffa's help, set up lasted till when?

A Okay. So that lasted till 2010, and then the long-term

health care insurance ran out, and I --

THE COURT: Okay, okay, next question.

Q And what happened in 2010 to modify the arrangement that

had been set up?

A We had a family discussion and I asked my father if the

financials were, without the long-term health care

insurance, would be able to continue paying for the home

care providers, and he said --

MR. BARNES: Objection as to what Mr. Kurt Willner

said.

THE COURT: I believe he's a party opponent;

overruled.

A And he said his finances were fine, there's nothing to

worry about, so I said, let me come up and take a look,

and --

THE COURT: This is where you have a tendency to

keep going.

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THE WITNESS: I'm trying to move things along.

THE COURT: But you also are becoming nonresponsive

to the one question that's being asked.

Next question.

It's very difficult being a lawyer in that box,

isn't it?

THE WITNESS: Yes, it is, Your Honor.

Q When you analyzed the financial situation in 2010, what

did you then recommend based on your analysis?

A My recommendation was that if they wanted to live in

their home for the rest of their lives, we would have

to -- I would have to start coming up to Rhode Island

probably two weeks every month to provide their home care

aide, and if I did that, then that would reduce their

expenditures to a point where they would likely be able

to stay in the house for the rest of their lives,

although there was a good chance that they would have to

take a reverse mortgage and use the money there

eventually. But so long as I came up and put in my part,

with all the income they were generating and with their

assets, I felt that they would be able to stay in the

house for the rest of their lives.

Q And did you, in fact, in 2010 and 2011 come two weeks

every month?

A Yes, I did.

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Q And did Yaffa come down on Sundays to be with them?

A Yes, she did.

Q And at some point in time in 2012, was there a change of

circumstances in 2012?

MR. BARNES: Objection, Your Honor.

THE COURT: Basis?

MR. BARNES: Open-ended question.

THE COURT: Well, actually, it calls for a yes or no

answer. Overruled.

A Yes.

Q What happened in April of 2012?

A My mother contracted the flu, she was taken to her

doctor, the doctor sent her to the Emergency Room, and

they admitted her to South County Hospital.

Q And what happened next at the hospital?

A She contracted pneumonia.

THE COURT: I'm sorry, can we lay the groundwork,

please, as to where Mr. Willner was at the time and what

communications he had to learn of what was transpiring up

here in Rhode Island?

MR. MELISH: Sure.

Q In April of 2012, where were you?

A I was at a Seder that my sister and I had prepared for

the family. And Marshall and Karla, the neighbors,

had -- were participating. And in that Seder, we had a

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wonderful evening and everyone had a good time. The next

morning I felt very ill, and within a day or two, Karla

contracted the flu and my mother did as well. And so my

mother was sent to the doctor and she went to the

hospital, she was admitted to the hospital, and --

THE COURT: Okay, okay.

Q So you were present this whole period of time when she

got the flu, correct?

A Yes.

Q And you were present when she contracted the pneumonia?

A I was.

Q And how was she treated for the pneumonia at South County

Hospital?

MR. BARNES: Objection, Your Honor; calls for an

expert.

THE COURT: This is what Mr. Willner's understanding

is, the nature of the treatment that she received for the

pneumonia at that time; overruled.

A The pneumonia became very serious, and she was admitted

to the Intensive Care Unit. In the Intensive Care Unit

she was hooked up to a machine called a CPAP, and it was

used to --

THE COURT: Okay, sir, now you're getting into some

kind of medical testimony that I'm not going to allow.

So she was hooked up to a machine at the ICU. Next

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question.

Q And what was going on in terms of her prognosis at that

time?

A I was told that her prognosis was very grave.

Q And from what sources did you learn that information?

A I learned that from the doctors at South County Hospital.

Q And you were present at the hospital?

A Yes.

Q And your father was present at the hospital?

A Yes.

Q And your sister was present at the hospital?

A Yes.

Q And was your mother placed in Hospice at the hospital?

A Yes.

Q And why was she placed, if you know, in Hospice at the

hospital?

A She recovered in ICU, she recovered from the pneumonia,

but the doctors said that she was still in an end-of-life

state, and she would probably be dead in a week or two,

and they said they couldn't recommend that she be placed

in Hospice, but the doctor said, if it were my mother, I

would put her in Hospice. And I received a phone call --

THE COURT: Okay, next question, please.

Q Now, was there a debate among the family members

concerning her placement in Hospice at South County

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Hospital?

A Yes.

MR. BARNES: Objection, Your Honor, as to the form

of the question.

THE COURT: Overruled.

Q And what was the debate?

A The night -- the debate revolved around the

application -- well, the admission into Hospice and the

administration of a morphine drip. The night -- while

she was still in the hospital status, they put her on a

three-milligram morphine drip.

MR. BARNES: Objection, Your Honor, that's beyond --

THE COURT: Sir, if you can just stick to the nature

of what the debate was. So it concerned whether or not

she should receive a morphine drip, is that fair?

THE WITNESS: Yes. And where there was concern

about her being in Hospice or in the hospital status,

regular hospital status versus inpatient Hospice, that

was a debate, and the morphine drip was a debate.

THE COURT: Next question.

Q What were you advocating for your mother and why?

A Okay. I was advocating that she should only be receiving

the morphine on an as-needed basis, and the reason was

when they put her on a three-millimeter drip before she

was admitted to Hospice, several hours later they said,

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oh, we have to take her --

MR. BARNES: Objection, Your Honor; calls for

hearsay evidence.

THE COURT: Sustained. Next question.

Q So what were you advocating in terms of the morphine

drip?

A I was advocating that the morphine drip almost killed

her, and, therefore, she should not be on the morphine

drip, she should only receive it on an as-needed basis.

Q And what was your father's and sister's position?

A They insisted that she stay on a morphine drip.

Q What subsequently happened, was she taken off of the

morphine drip?

A Initially she was taken off of the morphine drip and

transferred into Hospice, and then she was put back on

the morphine drip when she was placed in Hospice.

Q And once she was in Hospice still on the morphine drip,

what were you advocating on her behalf?

A I was advocating that they take her off the morphine drip

immediately because it looked to me like she was about to

die.

Q And did the hospital change their position and take her

off of the morphine drip?

A They did.

Q And how did your mother do once she was off the morphine

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drip?

MR. BARNES: Objection, Your Honor.

THE COURT: Sir, what were your observations as to

how your mother reacted to being off the morphine drip?

THE WITNESS: She became extremely lucid, as lucid

as I had seen her over the last six years, and at that

time I asked her --

THE COURT: Okay, sir, thank you.

Q And did your mom recover?

A Yes.

MR. BARNES: Objection, Your Honor, to the form of

the question.

THE COURT: Sustained as to form.

Q When did your mother go out of Hospice care at the

hospital?

A After they had removed the morphine drip and stopped

giving her morphine on a comfort basis as opposed to an

as-needed basis, she recovered so completely that they

not only discharged her from Hospice, but they discharged

her from the hospital as well.

Q And where was she discharged to?

A She was discharged to Roberts Health Center.

Q And did everybody agree that that was a good place for

her to be at that time?

MR. BARNES: Objection as to form, Your Honor.

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THE COURT: Sustained.

Q Did the family discuss where she should go from the

hospital?

A Yes.

Q And did you and your sister and your father and your

mother all have input into that decision?

A Yes.

Q And was there consensus in May of 2012 as to where she

should be placed?

A Yes.

Q And what was that consensus?

A The consensus was that rather than moving her back to the

house, she should go to the Roberts Health Center for

rehabilitation, and then once she recovered adequately,

she would come back to the house.

Q An what was the rehabilitation program in May of 2012 at

Roberts Health Center, as you understand it?

A As I understand it, they would do -- they had certain

exercises that they would have my mother do to strengthen

her legs and strengthen her arms and her body, and she

would participate in that, in those exercises during the

day.

Q And was there any discussion individually at Roberts as

to whether she should be placed in Hospice care or not?

MR. BARNES: Objection as to form, Your Honor.

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THE COURT: Sustained.

Q In May of 2012 was there family discussion concerning her

treatment?

A Yes.

Q And was there family discussion about whether Hospice

should be involved with her care or treatment?

A Yes.

THE COURT: Is this at Roberts Health Center?

MR. MELISH: At Roberts Health Center in May of

2012.

A Yes.

Q And what was your position and your mother's position at

that time?

A Our position was that there was no reason to put her in

Hospice, she was recovering, she was taking the physical

therapy, she was -- it was working, she was taking more

steps each day. And I felt that she should continue on

with the physical therapy, and if anything happened, I

wanted the -- that she would be taken care of medically

as opposed to being in a Hospice status. She had just

been discharged from Hospice, there was no reason to put

her in Hospice, in my opinion, and she was doing very

well, and there was no reason to put her in Hospice, and

we wanted the physical therapy to continue. And I said,

if you take her off, I mean, if you put her into Hospice,

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they're going to stop the physical therapy because

they're going to say it's a waste of time.

Q What was your sister's and your father's position in

terms of Hospice care in May of 2012 at Roberts?

A They insisted that she go into Hospice.

Q And what happened, did Hospice evaluate her again?

A The doctor agreed to put her in Hospice, and they stopped

the physical therapy. And so I said, well, give me the

exercises, I'll do the physical therapy with her. And so

every day I would go in and I would do the physical

therapy that they weren't doing for her anymore. Then --

THE COURT: Okay.

Q What happened next, and when?

A Then it was my understanding that she was taken off of

Hospice because she didn't qualify, but they did not put

her back on physical therapy, so I continued to do the

physical therapy.

Q And this continued -- there was debate among family

members during the summer of 2012, is that fair to say?

A Yes.

MR. BARNES: Objection, Your Honor, as to form.

THE COURT: As to form. Mr. Melish, why don't you

rephrase that. You started with a different question, so

I'm not sure what "this" you're talking about.

Q I'd like to move to the time frame of the summer of 2012.

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Your mother is at Roberts Health Care, she's no longer in

Hospice, and what was your mother articulating to you in

terms of what she wanted?

A My mother said that she felt good, she wanted to go back

home. I agreed with her, and we had discussions, I had

discussions with my father and my sister about bringing

my mother back home.

Q And what was their position during the summer of 2012?

A Their position was that she was never going to come back

home, that she was going to stay in Roberts for the rest

of her life.

Q And what happened in September of 2012 concerning the

placement of your mom?

A As a consequence of numerous discussions I had with my

father about going to a mediation where he and my sister

and I --

MR. BARNES: Objection.

THE COURT: Okay, sir, you're not going to get

involved in settlement discussions at any point in time.

Next question, please.

Q In September, tell me what you did in September when

there was no effort to discuss matters anymore.

MR. BARNES: Objection, Your Honor; leading

question.

THE COURT: Overruled. He's just focusing on the

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time frame. What did you do in September 2012, sir?

A In September I filed for a petition of temporary

guardianship and permanent guardianship.

Q And you did that in South Kingstown Probate Court?

A Yes.

Q And you retained counsel to do that?

A Yes.

Q And why did you feel it was necessary to do that?

A Because my attempt to convince my father to meet with his

lawyer and my mother's lawyers --

MR. BARNES: Objection, Your Honor.

THE COURT: The question is why, sir, did you feel

it important to file this petition.

A Because my efforts at trying to resolve the issue through

mediation was unsuccessful.

Q And what happened in Probate Court in September of 2012?

A I was appointed temporary guardian.

Q And Dr. Rosenzweig was involved in doing the DMAT for

your mother, is that correct?

A Yes.

Q And after the appointment of you as temporary guardian,

did Dr. Rosenzweig remain involved and do a second DMAT?

A Yes.

Q And did the Court per statute appoint a guardian

ad litem?

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A Yes.

Q And a guardian ad litem investigated the matter and spoke

with Joyce and spoke with witnesses?

A Yes.

Q The guardian ad litem rendered a report to the Probate

Court?

A Yes.

Q And was there an evidentiary hearing at the end of

November of 2012 concerning your petition for permanent

guardianship?

MR. BARNES: Objection as to the form of the

question, Your Honor.

THE COURT: This is all preliminary material;

overruled.

A Yes.

Q Was there a time in September prior to the Probate

Court's involvement where there was a change in the deed

to the property?

A Yes.

Q And what did you learn happened?

MR. BARNES: Objection, Your Honor, as to the form.

THE COURT: Overruled; you may answer, sir.

A I learned that my father had used his 1993 power of

attorney to transfer my mother's interest in the marital

home, my mother and his interest as tenants by the

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entirety in the marital home to himself.

Q Had you made your father and your father's attorney at

the time aware of the 2004 power of attorney to you?

A Yes, I had.

Q Now, after you were appointed guardian, what did you do?

How did you exercise your responsibilities as a guardian?

A I called my father and said, I have been ordered to put

together a home care plan to present to the judge for

approval, and I need your cooperation to put this plan

together and figure out who's going to be doing what and

when and where the money is going to be coming from to

afford to make sure that mom could live at home and have

adequate supervision so that you, Dad, don't have to be

responsible for her care.

Q And in January of 2013 did you have further discussions

with your father?

A Yes, I called him and he said, your mother doesn't want

to come here, she wants to --

MR. BARNES: Objection.

THE COURT: Overruled.

A Wants to stay in the nursing home, and I said -- and I

disagreed with him and I said, Okay, Dad, let's go both

talk to Mom when she's lucid and you tell her why you

think she should stay in the nursing home, and I will

tell her that if she wants to live at home, here's what

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we can do to effectuate her wishes, and we'll see what

Mom says.

Q And did you and your father have that meeting with your

mother?

A Yes, we did.

Q And can you describe that meeting, who said what, and --

MR. BARNES: Objection as to the form of the

question.

THE COURT: Sustained.

MR. BARNES: Also calls for hearsay response.

THE COURT: Well, depends what was said and by whom,

but sustained as to form.

Q Did you have a meeting at Roberts Health Center with your

father and your mother in late December or early January?

A Yes.

THE COURT: Let's make the record clear. In what

year, sir?

THE WITNESS: It was late December 2012 or early

January 2013.

THE COURT: Thank you.

Q And what did you say in your mother's presence to your

father?

A I explained to my mother that the reason she was in the

nursing home was because my father was exercising his

health care power of attorney to keep her in the nursing

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home, and I explained to my mother that he wasn't allowed

to do that because he knew she didn't want to be there,

and his health care power of attorney didn't allow him to

do that. And then my father explained to my mother that

he thought it was safest for her to stay in the nursing

home, and he couldn't guarantee her safety if she came

back to live in the house. And then I explained to my

mom that -- oh, and he also said that he was too old to

take care of her, and I explained to my mom, I said, but

what we could do is we'll put a home care plan in place

so that you'll have 24/7 supervision, none of that

supervision will be provided by dad. I'll come up, I'll

come up to Rhode Island every other week, and with the

other resources and possibly reverse mortgage on the

house, we'll be able to pay for you to have 24/7 care,

and you could live back at the home.

Q And what did your mother say?

MR. BARNES: Objection, Your Honor.

THE COURT: Basis?

MR. BARNES: Hearsay.

THE COURT: Mr. Melish?

MR. MELISH: This whole case is about Joyce and

Joyce being heard. I think it's important that Joyce

have a voice, and I think it's appropriate for him to

testify as to what his mom said, and Kurt can give his

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version of this meeting if he disagrees.

THE COURT: Is it under some kind of hearsay

exception that you're asking the Court to consider it?

MR. MELISH: We're not doing it for the truth of the

matter, Your Honor, we're just doing it to describe what

was said and who said things.

THE COURT: Mr. Barnes?

MR. BARNES: It would appear, Your Honor, that he's

trying to get around the exception, the hearsay rule, by

saying it's not the truth of the matter asserted, just

that it was asserted. It's clear that Mrs. Willner is

under a full guardianship at this point in time, and it

was clear that Michael Willner, it's clear that he has an

interest in the outcome of this matter. He should not be

able to testify as to what Joyce Willner said, whether

it's doing it for the truth of the matter asserted or

otherwise.

THE COURT: Aren't you seeking to elicit some

testimony as to what Mrs. Willner's then existing state

of mind was, her mental condition was, or as to her

desires, her plan, her motive?

MR. MELISH: Her ability when she's lucid to

participate is key, it's important, and she has

participated, she did participate in this meeting, and so

I think that's extremely relevant and goes to the heart

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of this case.

THE COURT: Well, I think a lot of what Mrs. Willner

said, and you may have to parse this out based on each

question and the context in which the question and the

statement is made, but this particular statement appears

to the Court to be non-hearsay as being an exception

under the -- I'm sorry, it is hearsay but it's permitted

under 803-3, to resolving her mental, emotional, or

physical, and in this particular instance, I think it

goes toward her intent and her plan that she, through

this particular statement, will be conveying. So under

803-3, I will permit this statement.

So what is it, sir, that your mother said in

response to the positions laid out by both you and your

father?

THE WITNESS: She said she wanted to live at home,

she wanted to go home.

Q And did you and your father then reach an agreement after

that meeting?

MR. BARNES: Objection, Your Honor.

THE COURT: Overruled.

A Yes, I went back to --

MR. BARNES: Objection, Your Honor. Yes or no.

THE COURT: Yes or no, sir?

A Yes.

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THE COURT: Apparently we'll be doing this all day.

Q What is the agreement that you and your father reached

after that meeting?

MR. BARNES: Objection, Your Honor; goes to

settlement negotiations.

THE COURT: Overruled.

A I went back to the house with my dad and we sat down and

I showed him a plan that I put together and I reviewed it

with him, and he said that it looked fine. And I asked

him to sign it, and he signed it, and then we

discussed --

THE COURT: Okay. The financials. You discussed

the agreement and he signed it. Next.

Q And that was the January 3, 2013 agreement that was

presented to the Probate Court?

A Yes.

MR. BARNES: Objection, Your Honor. I just reviewed

that that agreement was submitted to the Probate Court

regarding appeal to this Court.

THE COURT: Is this particular document an exhibit?

MR. MELISH: It is not but it's part of the

certified record. It was attached, both this agreement

that was signed by both Kurt Willner and Michael Willner

along with a financial agreement, were all attached to a

motion to do the health care plan in January, January 3

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of 2013, so it is part of the certified record.

MR. BARNES: Your Honor, the order on appeal is the

result of the request for the approval of the health care

plan dated January 9, 2013. This is Number 17 of the

joint exhibit of the parties. That is the home health

care plan that was denied by the Court that is on appeal

here. There are no other home health care plans that

were presented to the Court at that point in time that

led to the Court's denial of Mrs. Willner's health care

plan.

THE COURT: Mr. Melish?

MR. MELISH: Your Honor, in January there was an

agreement that was presented but Kurt Willner changed his

mind and he went and hired a different attorney and then

repudiated that agreement.

THE COURT: Okay. Overruled, you may continue your

inquiry.

A Then we discussed how the financial arrangement would be

between my mother and my father, and I said, you know, we

would split the income. We would, you know, split the

assets, and when he went to spend his portion of the

money, he could do whatever he wanted with it. If I

wanted to spend any of my mom's money, I would first

check with him to explain to him what I was going to

spend it on, and if he approved it, fine, and if he

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didn't approve it, we would go to a mediator to discuss

it. And he signed that agreement as well.

Q Now, subsequent to those agreements, he changed his mind,

correct?

A Yes.

Q And what did his position become in February of 2013?

A It seemed to revert back to the same position prior to

entering into those agreements. He said that he was not

going to let my mom come back home, and he was going to

have me removed as guardian.

Q Then you had -- what did you do next after he told you

that?

A I spoke to my attorney, and we had to respond to my

father's objections to the implementation of the home

health care plan.

Q And then did there come a point in time when you redid

the plan?

A Yes.

Q And can you describe the plan that you developed at that

time?

THE COURT: What was the time frame, please?

Q This would be in April of 2013.

A Yes. Between January and April 2013, I had a home care

agency send -- a managing nurse came out to Marshall and

Karla's home, met with my mom and me, and reviewed,

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looked at the house, and created a home care plan. Then

I modified the plan that I had originally drafted to take

care of every single hour of every day to say who would

be doing what to make sure that my mother had 24/7 care

without my father being responsible for any of it, and

submitted that as an attachment to a motion to implement,

authorize implementation of the plan. The plan consisted

of two parts, two options. Option A was my mother coming

back to the marital home, Option B was my mother coming

to live with Marshall and Karla, and the discussion that

came around that was that --

THE COURT: Okay, I'm going to stop you there. Next

question.

Q Now, why did you come up with a Plan B if your mother

wanted to live in the marital domicile?

A Because I felt that there was going to be a lot of back

and forth with my father about getting my mom back into

the house, and I hoped that it would be successful, but

while all that back and forth was happening, I wanted to

satisfy her wish of moving back into the community.

Marshall and Karla had offered to let her live with them,

and my mom loves Marshall and Karla, loves their house,

and said that if she could --

MR. BARNES: Objection.

THE COURT: Sustained. Next question, please.

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Q And tell me why you think Marshall, Karla and Marshall's

house would be an appropriate place for your mom to live

if she can't live in her own home?

A It's just two doors down from her marital home and has

the same view of the lake, which my mother loves. She

loves Marshall and Karla. She's been at their home many

times. She feels very comfortable there. She feels it's

a home environment, and she felt that that was -- she

felt that that was much better than staying in the

nursing home.

MR. BARNES: Objection; move to strike the last part

of his answer, Your Honor.

THE COURT: As to moving out of the nursing home?

MR. BARNES: Yes.

THE COURT: That may be stricken, but the rest may

stay.

Q Now, when you were guardian from September of 2012

through August of 2013, did you take your mother to visit

Karla and Marshall's home?

A Yes.

Q And how many times did you do that?

A Around 20 or more.

Q And she was able to get there and to spend time in their

home?

A Yes.

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Q And you asked her if she approved of the idea of living

there?

A Yes.

Q And she does want to live there if she can't live at

home, is that fair to say?

MR. BARNES: Objection, Your Honor.

THE COURT: Sustained.

Q You and your mom have discussed her wishes on many

occasions, have you not?

A Yes.

Q Has she changed or wavered from her desire to go home

since she's been at Roberts, to your knowledge?

A She's never wavered when she is lucid and is explained --

you have to explain everything to her from scratch every

time you ask her what her wishes are, because her memory

is so bad that she doesn't remember what her wishes are

or what her options are. So in order to elicit her

wishes, I explained my father's argument and my sister's

argument as to why they believe she should be in a

nursing home, and then I would explain to her what her

options are with regard to living at Marshall and

Karla's, or living at her home. And then when she hears,

you know, it all over again, then she gives me what I

believe are her true wishes.

Q So it's fair to say you do try to make sure when you talk

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to her that she hears both sides of this family dispute?

A Yes.

Q Now, you have taken some videos of your mom to give her

voice in this matter, is that true?

A Yes.

Q And we have, for identification purposes, five different

videos, is that correct?

A Five or six.

Q And you would like those to be full exhibits, is that

correct?

THE COURT: Well, I don't care what he likes; what

does the evidence permit?

Q You would like the opportunity to show those to the

Court, is that correct?

THE COURT: Why don't we lay a better foundation for

this, Mr. Melish.

Q Can you tell us why you took videos of your mom?

A Initially I took videos of my mom in the hospital to show

that she did not want to be in Hospice, that she was

lucid, and that she could make an informed -- make her

wishes known. Then I took videos of her in the nursing

home to show that at times she could come off as being

totally groggy and not lucid whatsoever, normally in the

morning, then it would show that in the afternoon she

becomes a little bit more lucid, and then in the evening,

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that is when she is almost most often the most lucid.

And then I took videos to show that when she is informed

of all the issues relevant to a decision to live at home

or with Marshall and Karla, that her wishes to --

MR. BARNES: Objection, Your Honor.

THE COURT: Your basis, Mr. Barnes?

MR. BARNES: Hearsay as to what Joyce wants, as to

what she said.

THE COURT: Well, I just asked for a foundation of

those exhibits that you're seeking to have come in, such

as who created them, when they were created, so if we can

get back to that foundation element. Sustained for the

time being.

Q You personally took videos of your mom, correct?

A Yes.

Q And on June 24 of 2013 you took two videos of your mom at

the nursing home, is that correct?

A Yes.

Q And those have been marked, those two videos have been

marked for identification purposes as A10a and 10A, B, is

that correct?

A Yes.

Q And then on September 6 of 2012 you took a video of your

mother at the nursing home?

A Yes.

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Q And on June 30 of 2013 you took a video of your mother at

home, is that correct? I'm sorry, at the nursing home,

is that correct?

A Yes.

Q And on June 21, 2013 you took a video of your mother

again at the nursing home?

A Yes.

MR. MELISH: Your Honor, I would like permission to

have my client show the videos.

THE COURT: How long are each of these, Mr. Melish,

approximately?

MR. MELISH: I believe one or two may be just a

minute or two, and some are maybe five minutes.

THE COURT: Well, we are coming right upon your

lunch break. Rather than heat it up and then shut it

down, we'll take our lunch break now and we'll resume

promptly at 2:00 starting with the videos that have been

identified as exhibits in this matter for identification.

Sir, you may step down. Watch your step on the way

down. Again, we will resume promptly at 2 p.m.

Court will be in recess.

(COURT ADJOURNED AT 12:28 P.M.)

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONSWASHINGTON, SC. SUPERIOR COURT

IN RE: THE ESTATE OFJOYCE C. WILLNER WP2013-0400

HEARD BEFORE THE HONORABLE ASSOCIATE JUSTICEKRISTIN E. RODGERSON APRIL 14, 2014MORNING SESSION ONLY

APPEARANCES:

FOR THE APPELLANT: H. Jefferson Melish, Esquire- and -

Anne Mulready, Esquire

FOR THE APPELLEES: Alan Barnes, Esquire

GERALDINE M. MEENAN, RPRCOURT REPORTER - SUPERIOR COURT

C E R T I F I C A T I O N

I, Geraldine M. Meenan, hereby certify that thesucceeding pages, 1 through 89, are a true and accuratetranscript of my stenographic notes taken on April 14,2014.

____________________________Geraldine M. Meenan, RPRCourt Reporter

I N D E X

WITNESS PAGE

Marshall FeldmanDirect examination by Mr. Melish................. 23Cross-examination by Mr. Barnes.................. 42

Michael WillnerDirect examination by Mr. Melish................. 46

E X H I B I T S

NO. I.D. FULL

1 Rosenzweig 9/21/12 DMAT 202 Rosenzweig 10/29/12 DMAT 203 Bauerle GAL Report 204 Rosenzweig Deposition 11/26/12 205 Home Health Care Plan 1/3/13 206 Notification of Recipient Choice 207 Michael Willner Entry of Appearance 208 Objection to Entry of Appearance 209a-c Photographs 419e-g Photographs 4010a-e Videos11 2004 Power of Attorney to Michael

Willner 21

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

WASHINGTON, Sc. SUPERIOR COURT

IN RE:

ESTATE OF JOYCE WILLNER ) NO: WP -2013 -0400

HEARD BEFORE THE HONORABLE KRISTEN RODGERS DATE: APRIL 14, 2014

APPEARANCES:

FOR THE APPELLEE: H. JEFFERSON MELISH, ESQUIRE

FOR THE KURT WILLNER AND YAFFA WILLNER:

RHODE ISLAND DISABILITY LAW CENTER:

ALAN BARNES, ESQUIRE -AND-

R.J. CONNELLY, ESQUIRE

ANNE MULREADY, ESQUIRE

DONNA E. DUMONT REGISTERED PROFESSIONAL REPORTER

INDEX

PAGE NO.

MICHAEL WILLNER CONTINUED DIRECT EXAMINATION BY MR. MELISH 1 CROSS-EXAMINATION BY MR. BARNES

EXHIBITS

EXHIBIT NO. PAGE NO.

MR THE APPELLEES•

10A VIDEOTAPED STATEMENTS THROUGH OF JOYCE WILLNER 10E

EXHIBITS:

I

DOCUMENT FILM WITH PROBATE COURT REQUESTING CHANGE OF NOTICE REQUIREMENTS TO JOYCE WILLNER

K POSTING ON THE /65 SAVEJOYCE.COM WEB PAGE

N E-MAIL TO COLTEEN PENDERGAST /42 FROM MICHAEL WILLNER

Q ADVANCED DIRECTIVES FOR /43 JOYCE WILLNER'S CARE

/4

/16

CERTIFICA,TION

1, Donna E. Dumont, RPR, hereby

certify that the succeeding pages, 1 through 65

inclusive, are a true and accurate transcript

of my stenographic notes.

E. D Court Reporter

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APRIL 14, 2014

1:58 P.M.

THE CLERK: WP-2013-0400, in re: Estate of Joyce

Willner.

Attorneys please identify themselves.

MR. MELISH: H. Jefferson Melish for the estate of

Joyce Willner and Mr. Michael Willner.

MS. MULREADY: Anne Mulready for the Rhode Island

Disability Law Center.

MR. BARNES: Alan Barnes on behalf of Kurt Willner

and Yaffa Willner.

MR. CONNELLY: R.J. Connelly, III on behalf of Kurt

and Yaffa Willner.

THE COURT: Mr. Michael Willner, you may re-take the

. stand please.

MICHAEL MILLNER (Previously sworn)

CONTINUED DIRECT EXAMINATION BY MR. MELISH

THE CTEBK: Just to remind you, sir, you're still

under oath.

THE COURT: You can be seated. Go ahead, Mr.

Melish.

Before we broke for lunch you were testifying about five

different videos you took; and you indicated that you

were the person who took the videos and on dates and the

place where you took them; is that correct?

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A Yes.

MR. MELISH: Your Honor, I'd like permission for him

now to show those videos.

THE COURT: You may. Oh, you're the technician too.

Wearing multiple hats.

MR. MELISH: I'm a lug at it.

THE COURT: Go right ahead, sir.

MR. MELISH: This would be 10A, the June 24th, 2013

video.

THE WITNESS: Now I thought I was going to be

showing the Court's CD -- DVD. No?

THE COURT: The clerk has the original. Mr. Melish,

you can retrieve that.

MR. MELISH: Thank you, your Honor.

(VIDEO PLAYED IN OPEN COURT AT 2:01 P.M. THROUGH

2:09 P.M.)

MR. MELISH: The next video is on the same day I

believe, and it's B, 10B.

Michael, that video that you just showed, that was not in

the nursing home? I need to stand corrected. Where was

your mother when that video was taken?

A At Marshall and Karla's house.

Q And you drove her there?

A Yes.

Q Now would you show us 10B.

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A Yes.

(VIDEO PLAYED IN OPEN COURT AT 2:10 P.M. THROUGH

2:15 P.M.)

MR. MELISH: I'm returning 10B. I am now getting

100.

(VIDEO PLAYED IN OPEN COURT AT 2:16 P.M. THROUGH

2:21 P.M.)

MR. MELISH: I am returning 10C; and now I have 10D.

(VIDEO PLAYED IN OPEN COURT AT 2:22 P.M. THROUGH 2:28

P.M.)

MR. MELISH: I am returning 10D to the clerk; and

the clerk is giving me 10E.

(VIDEO PLAYED IN OPEN COURT AT 2:30 P.M. THROUGH

2:31 P.M.)

MR. MELISH: I'm returning 10E to the clerk.

THE COURT: Mr. Willner, you can re-take the stand,

please.

MR. MELISH: I'd like to move as full exhibits 10A

through E.

MR. BARNES: I'm going to object to that, your

Honor.

THE COURT: Based on?

MR. BARNES: The videos that Mr. Willner just played

were predicated upon false statements, the statement he

continued to make to his mother that, "Kurt won't let you

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live here, won't leave you -- Kurt and Yaffa are fighting

to keep you here. The judge won't let you leave." The

record's based on the joint order, the Court order of

Michael Willner to prepare a home health care plan, and

Joyce Willner would remain in the nursing home until he

completed the plan, not until Kurt or Yaffa completed the

plan. It was his whole responsibility as the guardian.

He's lying to his mother, saying it's some other reason

other than that his failure to --

THE COURT: Mr. Barnes, you have requested the Court

take an in-camera interview with Mrs. Willner; and as we

discussed, the Court is willing to do that, and we are

awaiting the appropriate time to be able to determine

when she would be in a most lucid state in order to

appropriately participate in that in-camera discussion.

The issues that you're raising now, certainly you can

address these with Mr. Willner on cross-examination. And

perhaps when it comes time for the Court to undertake

that in-camera discussion, then the factual predicate

would be framed a little differently.

Any other objections?

MR. BARNES: No, your Honor.

THE COURT: Overrule the appellee's objection, then

Exhibits iGA through E will be marked in full.

(WHEREUPON, THE EXHIBITS WERE RECEIVED IN EVIDENCE)

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MR. MELISH: Thank you, your Honor.

Q Now, during the winter and spring of 2013, you continued

to be actively involved in the South Kingstown Probate

Court; is that correct?

A Yes.

Q And what steps did you take during that period, end of

the winter and into the spring of 2013?

MR. BARNES: Objection as to the form of the

question, your Honor.

THE COURT: Overruled. You may answer, sir.

A I -- I attempted to abide by the Court's order to enter

into mediation with Kurt and met with my lawyer and tried

to coordinate a meeting with Mr. Connelly and Kurt to

meet to see if we can work out, you know, the remaining

. issues. Kurt did not show up to that meeting. Mr.

Connelly --

THE COURT: Okay, was there anything else that you

did generally in that time frame?

THE WITNESS: Yes, I entered my appearance pro se, I

filed a motion to implement the home health care plan,

filed a motion to disqualify Laura Krohn; and I, you

know, tried to have my motions heard in Probate Court.

Q Now, you scheduled a meeting with your father and the

attorneys; is that correct?

A Yes. Yes, that's correct.

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Q And you went to that meeting?

A Yes.

Q And your father didn't come to the meeting?

A Yes, he did not come to the meeting.

Q He did send his attorney to that meeting?

A Yes.

Q And that did not lead to any resolution; is that fair to

say?

A Yes.

Q Now why did you file the pro se motion?

A I couldn't afford to pay for my lawyer. ,

Q And you filed pleadings yourself; is that correct?

A Yes.

Q There came a point in time when Mr. Homonoff, your

. attorney, did withdraw from the case?

A Yes. And we entered into a limited representation

agreement.

Q Very briefly, just tell us what that was.

A That was that I would be able to show him my motions, he

could give me his opinions, and he could help me with

procedural issues.

Q And he did that for a while?

A Yes.

Q And did there come a time when he decided to withdraw?

A He withdrew when I entered my appearance. We did that at

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the same time generally.

2 Q Now, were there proceedings in Family Court during the

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spring of 2013?

4 A Yes.

5 Q And can you describe for the Court the proceedings that

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took place during the spring of 2013?

7 A A complaint was filed in Family Court and --

8 Q I want to keep --

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MR. BARNES: I'm going file an objection to that.

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THE COURT: Mr. Melish, there was an objection that

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was raised.

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MR. BARNES: I have been provided no documentation

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from Mr. Melish as to any actions in the Family Court in

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the spring of 2013.

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MR. MELISH: Your Honor, there were no actions in

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the spring of 2013 in Family Court.

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THE COURT: Well, he just testified there was a

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complaint that was filed in Family Court. Did I just

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mishear that testimony?

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MR. MELISH: I think he's mistaken as to the

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timeframe.

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THE COURT: Overruled. Continue, Mr. Melish.

23 Q I'm focusing on the spring, not the summer.

24 A I had a discussion with Mr. Homonoff, the difficulty I

25 was having in convincing Kurt to allow her to come back

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to the house; and, you know, we had a discussion about,

you know, what we could do to try to convince him to let

her come home. And there was a discussion of how she had

threatened to divorce him in the past and that forced

him --

MR. BARNES: Objection, your Honor. Assumes facts

not in evidence.

THE COURT: Sustained. Next question, Mr. Melish.

Q In Probate Court were there proceedings in May and June?

A Yes.

Q And can you just very briefly tell us what the

proceedings were in May and June?

MR. BARNES: Objection, your Honor.

TEE COURT: Basis?

MR. BARNES: Timeframe.

THE COURT: He just said May and June.

MR. BARNES: We're not -- which year?

THE COURT: I'm pretty sure we're talking 2013.

Overruled.

A Yes, the Probate Court struck my appearance and said I

could not represent myself pro se. i retained -- my

mother and I retained you to represent us in Probate

Court; and again we sought the approval of motions to

implement the home health care plan and for access to my

mother's income and assets so that she could, you know,

1 pay -- pay her legal fees so that we could continue to

2 assert her legal rights.

3 Q And there were rulings in July -- on July 16th, 2013 and

4 July 25th, 2013; correct?

5 A Yes.

6 Q And what were those rulings?

7 A Those rulings were that the Court said that I could not

8 have access to my mother's financial assets and that you

9 would not be allowed to represent the estate or my mother

10 but that you could represent me.

11 Q And was there a ruling on your home care plan?

12 A The home care plan was denied. The motion to authorize

13 implementation of the plan was denied.

14 Q And then steps were taken to file an appeal of those

15 . decisions; correct?

16 A Yes.

17 THE COURT: Mr. Melish, we don't have to go over

18 everything that's included in the undisputed statement of

i 1 19 facts. If there's something in between that needs to be 1 1

20 addressed, certainly you need to do that; but you can

21 certainly cut this back a little bit I think.

22 MR. MELISH: Thank you.

23 Q August 15th, what happened on August 15th, 2013?

24 A There was a hearing in Probate Court. I learned of that,

25 you gave me a call as I was driving to Rhode Island that

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1 morning and you told me that there was going to be a

2 hearing. And I was still five or six hours away; and I

3 said I would not make that -- I would not be able to make

4 it to the hearing.

5 Q Did you receive any kind of written notice of that

6 hearing?

7 A Not before I was -- not before you told me of it.

8 Q And after the hearing -- well, were you represented by

9 counsel at the hearing?

10 A Telephonically.

11 Q And was your mother provided any notice of the hearing?

12 A Not that I know of.

13 Q And after the judge made a ruling, there were steps taken

14 to amend the appeal; correct?

15 A Yes.

16 Q And so the original appeal was amended and the combined

17 amended appeal brought to this Court; is that correct?

18 A Yes.

19 Q And the appeal was on behalf of whom?

20 A The appeal was on behalf of me, my mother, and the

21 estate.

22 Q Now, after you were removed on August 15th, who was

23 appointed successor guardian?

24 A Yaffa.

25 Q And was that -- was there any kind of evidentiary

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hearing?

A No.

Q Subsequent to her appointment, what happened in

September?

A She went to the nursing home --

THE COURT: Sorry, "she" being Yaffa?

THE WITNESS: Yaffa. Yaffa.

THE COURT: Thank you.

A Yaffa went to the nursing home, told them that I would

not be allowed to visit with my mother in her room and I

was not allowed to take her out for any rides or to take

her out of the nursing home at all.

Also, the medical -- she changed my mother's medical

directives so that if she had any respiratory problems

. she could not go to the hospital. I had changed that

previous so that she could go to the hospital. She told

the nursing home to prohibit my mother from having visits

from Marshall and Karla.

Q Based on that decision of the subsequent guardian, who is

now able to visit your mother?

A I think everyone -- I think anyone can visit my mother

other than Marshall and Karla. And T can visit her, but

only in the common area.

Q And you're not allowed to take her to -- take her from

the facility?

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Correct, I'm not allowed to take her out.

And that's been the status since September, middle of

September; correct?

Yes.

Now, from September to today, have you continued to visit

with your mother?

Yes.

Can you describe your visits with your mother during that

period, how often?

So I visited with my mother since that time -- since

September to now, 30, 40 times. I generally go after

6 o'clock when she's lucid. I bring a deck of cards;

because when we start playing cards, that kind of seems

to activate her mind. And we have very normal

. conversations. I tell her about her grandchildren arid,

you know, my life. And we've talked about -- we've

talked about my efforts to try to get her to be able to

leave the nursing home and come home, and just -- then

just, as I say, general conversations and playing cards.

And when was the last time you visited with her?

Last night.

And last night you didn't discuss the court case with

her; did you?

No.

And over the last couple of months have you noticed any

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change in her ability or her behavior?

A No.

Q Are you of the opinion she still wants to go home?

A Yes.

Q And are you of the opinion she wants you to be the

guardian?

A Yes.

Q Are you of the opinion that she wants me to be her

attorney?

A Yes.

Q And is she very happy that the Disability Law Center's

representing her interest?

A Yes.

MR. MELISH: I have nothing further, Judge.

THE COURT: Thank you.

CROSS-EXAMINATICEF BY MR. BARNES

MR. BARNES: Your Honor, if I could please see the

undisputed Exhibit No. 8.

(DOCUMENT HANDED TO MR. BARNES)

Q Mr. Willner, in 2002 you petitioned the South Kingstown

Probate Court to become your mother's guardian; correct?

A No.

Q I'm sorry, in 2012?

A Yes.

Q Yes, okay. And were you appointed her guardian?

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A Yes.

Q Were you appointed her temporary guardian prior to that?

A Yes.

Q Okay. In the appointment for temporary guardian, did

your attorney file a request in Probate Court to change

or modify the notice requirements to your mother?

A I don't recall.

MR. BARNES: Your Honor, if I could see proposed

Exhibit I.

(DOCUMENT HANDED TO MR. BARNES)

MR. BARNES: May I approach, your Honor?

THE COURT: You may.

Q Mr. Willner, what I have here is proposed Exhibit I from

the appellees. Could you please take a look at that

. document?

(BRIEF PAUSE)

A Okay.

Q Was that prepared by your attorney?

A Yes.

MR. BARNES: Okay.

Q And Exhibit I, does it request that the Probate Court

change the notice requirements to your mother regarding

the temporary guardianship petition?'

MR. MELISH: Objection.

THE COURT: Basis?

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MR. MELISH: Document speaks for itself; and it only

deals with the preliminary beginning of the case. It

doesn't waive the notice requirement forever. It's just

a mechanism that the statute permits when there's a

filling of a guardianship petition.

THE COURT: I'm going to overrule the objection and

allow this line of testimony. Certainly, Mr. Melish, if

there's something on redirect examination you'd like to

bring up, you are permitted to do that.

Do you need the question read back to you?

THE WITNESS: Yes.

(PREVIOUS QUESTION READ BACK BY COURT REPORTER)

A It says it is the petitioner's position that a hearing of

. this nature take place immediately due to the current

situation.

And that was filed by your attorney with the Probate

Court?

A Yes. It says that it is appropriate in the instant

matter.

THE COURT: Okay, thank you.

MR. BARNES: Your Honor, this is I believe part of

the probate record; and it's been identified by Mr.

Willner as being prepared by his attorney. I would ask

that it be marked as full.

16

THE COURT: May be marked in full.

(WHEREUPON, THE EXHIBIT WAS RECEIVED IN EVIDENCE)

Q Mr. Willner, based on what is now full Exhibit I, is it your belief that there are circumstances where the notice requirements regarding your mother could be changed?

MR. MELISH: Objection. The statute is clear when it can be changed; and the statute is limited to the prior, if there is an emergency to go below the normal 14-day period.

THE COURT: Well, I'd like Mr. Willner's undeistanding as to that and not counsel's.

A It's my understanding based on Exhibit I that in that matter notice could be waived for that particular emergency.

Q Okay. What I have is Joint Exhibit 8. If you could please take a look at that.

(DOCUMENT HANDED TO THE WITNESS) THE WITNESS: Is there anything in particular? You

want me to read the whole thing?

Q Are you familiar with that document?

A Yes, I am.

Q And does that document make reference to your appointment as guardian of Joyce Willner?

A Yes, it does.

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Q And does that document make any reference to your ability

to remove Joyce Willner from the nursing home?

A Yes.

Q And in particular what does it state?

A It states that either Michael Willner or Kurt Willner may

be permitted to take Joyce Willner from the facility

where she presently resides as long as it's approved by

said facility for a brief period of time.

Q It doesn't -- strike that. There was no requirement in

that order that Kurt Willner make any approval of your

visiting with your mother or removing her?

A No -- yes. Yes, there is no requirement.

MR. BARNES: Thank you.

Q And does that particular order make reference to any type

of home health care plan?

A Yes.

Q And what does it state regarding a home health care plan?

A "Joyce C. Willner's residency shall remain status quo

until Michael Willner submits a proposed plan for her

care to be approved by this Court."

Q And that would be the Probate Court?

A Yes.

Q Okay. And did you submit a proposed plan to the Probate

Court?

A Yes.

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Q Was it approved?

A No.

MR. BARNES: Okay. I'm returning Joint Exhibit 8. Q Now, Mr. Willner, we saw several videos of you speaking

with your mother, some at the nursing home and some at

the neighbors' home I believe; correct?

A Yes.

Q And in those videos, and in particular the video that was marked 10B, taken on June 24th, 2013, that's the one I'm referencing, you stated in that video to your mother,

"Kurt won't -- Kurt will not let you come back to the house." Do you recall that?

A Yes.

Q Weren't you under a Court order that she could not be returned to the house until you submitted a home health

care plan to be approved by the Court?

A My mother wanted me to take her to the house then. I

could not take her to the house then, I was not allowed

to. My father would not let me bring my mother to the

house.

MR. BARNES: Move to strike as nonresponsive, your Honor.

THE COURT: Mr. Willner, you do have to answer the

question that this attorney's asking you. Certainly if there is a further need to explain your answer, then Mr.

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Melish, if he deems it appropriate, will have the

opportunity during redirect examination to elicit that

testimony. Okay?

THE WITNESS: Yes.

THE COURT: Again, just stick with the one question;

and it most likely will be a question that calls for a

FiyesIf or "no" answer.

Q In the video I've referenced, 10E, did you state to your

mother, "Kurt will not let you come back to the house"?

A Yes.

Q You prepared another video. It's marked as I believe A

10C. You stated to your mother, "Dad doesn't want you

home"; is that true?

A Yes.

Q , Was there a home health care plan in place at that time?

A No.

Q Did your mother need 24-hour supervision at that time?

A Yes.

Q Was your father able to provide 24-hour supervision at

that time?

A No. You mean himself?

MR. BARNES: If your mother were brought home.

THE COURT: Sorry?

THE WITNESS: I'm asking him to clarify the

question.

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THE COURT: Sir, you already answered the question.

THE WITNESS: I thought that maybe I answered too

quickly.

THE COURT: You're not permitted to ask questions.

Again, if there is any problem Mr. Melish sees in a

question, he can pose an objection. You may proceed, Mr.

Barnes.

MR. BARNES: Thank you, your Honor.

Q I'm still referring to A 10C. You stated to your mother,

"Dad and Yaffa are fighting to keep you here," making

reference to the nursing home; is that true?

A Yes.

• If your mother were to be brought home at that point in

time without 24-hour care being put in place, would she

be safe?

A No.

Q Did you let your mother know that during this video?

A No.

Q So you didn't tell her, you can't come home because you

won't be safe?

A I did not tell her that.

Q You told her its because dad and Yaffa don't want you

home?

A That's what I told her.

Q There was another video, A 10D, you told your mother that

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Mr. Melish would like to get involved in order to help

her go home or to the home of the neighbors; correct?

A Yes.

Q Were you under Court order on June 30th, 2013, the day

you took that video, that your mother could only go home

if there was an approved health care plan in place?

A I think my answer --

MR. BARNES: I could obtain the order from the clerk

if you need to look at it again.

A No, I just think a yes or no answer.

THE COURT: Excuse me, Mr. Barnes, why don't you

retrieve that exhibit, Joint Exhibit 8.

MR. BARNES: Thank you.

(DOCUMENT HANDED TO THE WITNESS)

Q . I'm making reference to what's listed as paragraph 5 Mr.

Willner.

A "Joyce C. Willner's residency shall remain status quo

until Michael Willner submits a proposed plan for her

care to be approved by this Court."

Q And was an appeal taken from this order?

A Yes -- no. No, it wasn't.

Q Okay. So up until August 15th of 2013, when you were

removed as guardian, you were still under this order;

correct?

A Yes.

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Q So when you told your mother that Mr. Melish wanted to

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get involved and help her get out of that nursing home,

3 what you really meant is that he was going to help you

4 prepare a home health care plan; isn't that true?

5 A No.

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Q How was he going to help her get out of that nursing home

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if you're under a Court order that has not been appealed?

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A He is going to help her get out of that nursing home

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because there is a -- somehow Kurt through his lawyer,

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Mr. Connelly, was trying to convince the Probate Court to

11 overrule its own ruling, and, therefore, I needed --

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MR. BARNES: Objection, your Honor.

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THE WITNESS: I'm answering his question, your

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Honor.

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THE COURT: He is answering your question. Keep

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going, sir.

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A And I tried to represent myself, the Court didn't let me.

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I hired -- I wanted to hire Jeff Melish to represent me

19 and my mother; and that's what I meant when I spoke to my

20 mother to say Jeff Melish is going to try to help you get

21 out of the nursing home so that you could live at home.

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Q But that was under your control; wasn't it? You had the

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Court order that said you had to put forward a home

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health care plan to be approved by Probate Court; isn't

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that true?

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A No, its not true that it was under my control.

Q So someone else could have prepared this home health care

plan?

A That was not your question, someone else.

THE COURT: Hold on please. Your question please,

Mr. Barnes.

Q Whose responsibility was it to prepare the home health

care plan?

A I don't know. I had to have -- I had to get a home

health care plan. It was my responsibility to have it

done.

MR. BARNES: Thank you.

THE COURT: And the Court's obligation, Probate

Court that is, to approve it. Next question.

Q . You also stated to your mother during that video,

"Attorney Melish is going to help you get out of the

nursing home"; is that true? Is that what you stated to

her?

A I don't know. If so, I should have said he was going to

try.

Q Okay. You didn't inform your mother though that the

reason she was still there was that you had failed to put

forward a home health care plan to be approved by the

Probate Court?

A I did not tell her that, no.

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1 Q You had a video you played, A 10E. This is a videotape

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evidently that started with your mother in the bathroom;

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correct?

4 A Yes.

5 Q So you were videotaping her while she was in the

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restroom?

7 A She was in that room, yes.

8 Q And you stated to your mother, "The judge will not let me

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take you home"; correct?

10 A Words to that effect.

11 Q Okay. But that wasn't the truth, was it; because you had

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not submitted a home health care plan at that point in

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time that had been approved by the Court?

14 A No, it was true. It was true because I could not take my

15 . mother home on that day because my father wouldn't let me

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bring my mother home to visit with him in his -- in their

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house; and, therefore, it was true what I told her.

18 Q You didn't explain that to her on the video, though, did

19 you? You said, I quote, "The judge will not let me take

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you home."

21 A She asked -- if you're quoting it, then that's what I

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said.

23 Q You didn't say anything about your father on that video;

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did you?

25 A I don't recall.

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Q Mr. Barnes, we have just two minutes before we take our

mid-afternoon break.

MR. BARNES: Thank you, your Honor.

Q Mr. Willner, I believe you made representation that you

had a power of attorney for finances over your mother?

A Okay.

Q And that was in 2000 I believe?

A I was granted a power of attorney by my mother in 2004,

yes.

Q Okay, so from 2004 until your removal on August 15th of

2013, did you make an inquiry with any banks, mutual fund

companies, or other financial institutions as to your

mother's assets?

A No.

Q . Were you ever provided with a Court order from the

Probate Court of South Kingstown authorizing you to

investigate your mother's assets?

A I believe so.

Q Did you do that?

A Yes.

Q As a result of that investigation, did you file a

statutorily required inventory with the South Kingstown

Probate Court?

A No.

THE COURT: Mr. Barnes, perhaps this is an opportune

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time to take our mid-afternoon break.

MR. BARNES: Thank you, your Honor.

THE COURT: Mr. Willner, you may step down. Please

watch your step. We will resume at 3:25.

(RECESS)

THE COURT: Mr. Willner, once again, will you take

the stand.

(WHEREUPON, THE WITNESS COMPLIES WITH REQUEST)

MR. MELISH: Your Honor, before we begin, one of the

witnesses who is not a party to this matter is now in the

courtroom; and I would ask that she be sequestered.

THE COURT: Are you seeking a sequestration order

for the entire duration of the trial?

MR. MELISH: I am.

THE COURT: Any objection to that, Mr. Barnes?

MR. BARNES: No, your Honor.

THE COURT: And I do note that there is an

individual in the courtroom, I'm assuming that would be

you, ma'am; but this does apply to all other witnesses

that are expected to testify in this matter. And the

attorneys are responsible for advising those individuals

who are expected to testify that during the course of

their examination there is no communication with other

witnesses about the nature of their testimony. The

purpose of this sequestration order is to prevent you

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from conforming your testimony to other statements that

have been made by other witnesses. So with that, ma'am,

you may take a seat outside; and certainly the sheriff

will retrieve you when it's appropriate.

(WITNESS LEAVES THE COURTROOM)

MR. MELISH: Thank you, your Honor.

THE COURT: You're welcome. Go ahead, Mr. Barnes.

Q Mr. Willner, I have a couple of more questions for you on

the videos that we saw, and in particular the video that

you took of your mother while she was in the restroom.

How long were you in the restroom with her before you

started taking that video?

A I don't recall.

Q That video appears to start while you're in the middle of

. a sentence. Did you edit that video?

A No.

Q Is there more to that video that we don't have?

A No.

Q How many additional videos did you take of your mother

since you've been guardian?

A I don't know.

Q How about since you were removed as guardian?

A I don't know.

Q You have no idea at all?

A Several, many.

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Q Okay. Were .you ever informed that you should not be

taking videos of your mother at the nursing home?

A I don't think the word "should" was used.

Q Were you ever told not to take videos of your mother at

the nursing home?

A Yes.

Q Who told you that?

A Mimi Logee (phonetic).

Q Is that the Director of Nurses?

A Yes.

Q And did you continue taking videos after she told you not

to?

A Yes.

Q Okay. And do you ever coach your mother prior to

starting the video?

THE WITNESS: Define "coach."

MR. BARNES: Reminding her of what she needs to say.

A I don't think the way you just phrased that I can answer

that yes or no. I can explain to you.

THE COURT: Actually I would like an explanation,

sir.

A Yes. So I would sit with my mother and I would talk to

her and say -- give her both sides of the story, get an

understanding of what her wishes were; and then I would

say, "Mom, now we have to convince -- if that's what you

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want, we have to convince other people that that's what

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you want. So here's, you know, what we just went over,

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I'm going to say that again, and if you say what we went

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over and how you expressed what you want, then we'll,

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hopefully we'll be able to convince other people that

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that's what you want." That was the extent of my, if you

7 want -- however you define what that is.

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MR. BARNES: Okay.

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THE COURT: So before each of the videos that have

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been marked as full exhibits in this matter, there was a

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lengthy conversation between you and your mother before

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the video was turned on?

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THE WITNESS: No. Not before each one, no.

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THE COURT: Okay. Go ahead, Mr. Barnes.

15 Q . Before how many of those videos did you have a lengthy

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conversation with your mother?

17 A Well, certainly I didn't have one before -- when she was

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standing up leaving the bathroom. There was no

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conversation before that.

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THE COURT: At all, even before she went to the

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bathroom?

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THE WITNESS: I mean no conversation before, you

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know, that -- yes, there was no conversation about

24 anything before that.

25 Q So before you started videotaping her in the bathroom,

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you had had no conversation with your mother?

A Well, I didn't say that.

THE COURT: Well, that's what were trying to get

to, sir.

A I had a conversation, "Mom, we're going to go out. Let's

get dressed, we're going to go out." And my idea was I

was going to video -- she was very lucid. She was

saying, "I want to leave"; and I said, "Okay, let's get

going"; and I just started the video. And there was no

conversation about what she should say or anything like

that.

Q You spontaneously walked into the bathroom, turned on the

video camera, and started talking with your mother?

A Again, I was preparing to take her out. She was

. extremely lucid. I wanted to show that she could walk

and talk and, you know, go out and be very normal; and so

that's -- that prompted me to say, yes, I'm going to

videotape.

Q Did you speak with your mother prior to turning on the

tape player regarding the video where she was in the

bathroom?

A No, not regarding the video.

Q So you spontaneously walked into the bathroom and turned

on a video camera without telling your mother you were

going to do that?

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MR. MELISH: Asked and answered.

THE COURT: Overruled. You may answer, sir.

A Yes.

Q Why was she in the bathroom?

A She was relieving herself I guess. Not at the time I

walked in. She had finished.

Q So somehow you thought you didn't -- you can get to go in

the bathroom after she had just finished and start

videotaping her instead of waiting for her to come out of

the bathroom and start videotaping her then?

A Yes.

Q Did yOu ever, in taking these videos or preparing to take

them at the nursing home, coach your mother before you

started the video, saying, "Mom, say you want to go

home -- say, 'I want to go home'"?

A Not -- I mean, not those exact words. What I said after,

I would, like I say, I would tell her, "Here's why Kurt

wants you here. Here's how we could, you know, take care

of you if you wanted to go home. What do, you want to

do?" She'd say, "1 want to go home." And I would say,

"Okay, now you have to say that on the video. I'm going

to videotape. I'm explaining to you.why Kurt wants you

to stay here, and I'm going to explain how I can take you

home; and answer the questions like we just did."

Q On at least one occasion in the nursing home, isn't it

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true prior to turning on the video recorder, just prior

to turning it on you say to your mother, "Say you want to

go home"?

A I don't know what you mean by before I turned on the

video recorder.

Q Within 30 seconds.

A I explained to you how I did it.

Q Now these videos you took, these you characterized as

lucid moments of your mother?

A Yes.

Q Okay. So in the video, your mother states on one of them

when you're talking to her about the doctor not letting

her go home, she says, "I'm the doctor." That's her

lucid moment; right?

A . I don't recall her saying that.

Q When you say to your mother, "Mr. Melish talked to you

but you don't' remember," is that one of her lucid

moments?

A One can be lucid and not have a good memory, yes.

Q And she made reference to Kurt Willner as being her

father in one of the videos. Is that one of her lucid

moments?

A Generally she was lucid in that conversation. Obviously

she didn't catch that right; but she was lucid.

Q Sometimes in those videos she was not lucid?

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1 A Sometimes in those videos she would mistake --

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Q Because you weren't able to coach her with the video

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playing.

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MR. MELISH: Objection.

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THE COURT: Sustained. Move on.

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Q In fact, these videos, did you ever do a second shoot, so

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to speak? In other words, you did the first video, you

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look at it, this didn't come out good, you'd take another

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one within the same hour or so? 10 A No.

11 Q And do you recall off the top of your head, or if you

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think back, approximately how many videos you took of

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your mother at Robert's Health Center or when you removed

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her from Robert's Health Center? 15 A Fifty.

16 Q And out of those fifty videos, you picked the best for

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today; didn't. you? 18 A No.

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So there are some videos that are actually better than

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these that you didn't show us today?

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THE WITNESS: Better in whose opinion?

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MR. BARNES: Yours.

23 A I think there are other videos that are also good.

24 Q So out of 50 videos, your testimony, just so I'm clear,

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is these are not the best out of the fifty?

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MR. MELISH: Objection. That's not what he said.

A I don't believe that's my testimony.

THE COURT: I'm sorry, Mr. Melish.

MR. MELISH: Objection. That's a

mischaracterization of the testimony.

THE COURT: Sustained.

Q Now, in the videos you were talking to your mother about

how if she came home she would need 24-hour care;

correct?

A Yes.

Q And on at least one of those videos your mother doesn't

seem to think she needs 24-hour care; isn't that true?

A

No.

Q

So on each one of those videos she was a hundred percent

- certain that she needed 24-hour care?

A

After I reminded her that she did, yes.

Q

So she didn't have a recollection of that prior to you

prompting her?

A

Sometimes -- yes. Yes, she did not have a recollection

of that.

MR. BARNES: If I could please see Joint Exhibit 33.

(DOCUMENT HANDED-TO MR. BARNES)

Q

Mr. Willner, did you ever request an assessment of your

mother from the Department of Human Services, and in

particular I believe it's the Transition Assessment

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that's conducted by the State?

A Yes.

Q Okay. And I'm going to show you Joint Exhibit 33. Have

you seen that letter?

(BRIEF PAUSE)

A Yes.

Q Okay. And was that evaluation conducted at your request?

A I didn't request an evaluation. I requested that I

wanted to know how much Medicaid would cover of my

mother's home care expenses.

Q Okay. And this was one of the programs that you

investigated regarding that; correct? This is one of the

agencies that you called for assistance?

A Yes, I called the agency that I thought was responsible

for her Medicaid benefits.

Q Okay. And do you know if this agency conducted any type

of evaluation or assessment on your mother?

A Not firsthand.

Q Other than firsthand?

A Yes, its my understanding from this letter that you just

had me read that they did some assessment.

Q Okay. And they denied your mother's -- strike that.

They indicated your mother was not appropriate for their

program; correct?

MR. MELISH: Objection, document speaks for itself.

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THE COURT: It does speak for itself. Q Your mother has not received -- did not receive benefits from this program while you were guardian; correct? A Correct.

MR. BARNES: I'm returning Joint 33. Q Did there come a time when you called The Alliance for

Better Long-Term Care? A Yes.

Q And you called them for assistance with your mother? A Yes.

Okay. And they're the umbrella agency for the Rhode Island State Ombudsman; correct?

A I'm not sure.

MR. BARNES: If I could see proposed Exhibit G, please.

(DOCUMENT HANDED TO MR. BARNES) Q Did you ever have correspondence from the Alliance For

Better Long-Term Care? A Yes.

Q

And did you have correspondence from an employee there by the name of Colleen Pendergast? A Yes.

Q I'm showing you proposed Exhibit G. Did you receive a copy of that letter, or the original from The Alliance For Better Long-Term Care?

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A Yes.

MR. BARNES: Move this be admitted as full, your

Honor.

MR. MELISH: Objection.

THE COURT: Basis?

MR. MELISH: I believe he's going to call the author

of that document.

THE COURT: That is your intention according to your

list of witnesses; correct?

MR. BARNES: Yes, it is. Mr. Willner has just

testified that he received that letter and he initiated

contact with The Alliance.

THE COURT: There's an awful lot of material in this

that would need to be addressed. Overruled for the time

. being -- I'm sorry, sustained. Sustained. You may

introduce it through your witness.

MR. BARNES: If I could see Proposed Exhibit F

please.

(DOCUMENT HANDED TO MR. BARNES)

MR. BARNES: Thank you.

Q Mr. Willner, you testified on direct examination that you

were restricted to visiting with your mother in the

common areas of the nursing home. Strike that. There

came a time when you were restricted to only visiting

with your mother in the common areas of the nursing home;

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correct?

A There came a couple of times, yes.

Q Okay. And did you ever receive any correspondence from

The Alliance for Better Long-Term Care regarding this

visitation or restriction with your mother?

A One of the times, yes.

Q I'll show you proposed Exhibit F.

(DOCUMENT HANDED TO THE WITNESS)

Q Is that a fair and accurate summary of your -- strike

that. Is that a fair and accurate summary of your

restrictions or authorization to visit your mother at the

nursing home?

MR. MELISH: Objection.

THE COURT: Basis?

MR. MELISH: Again, there's no basis for those

restrictions. It has to come in through whoever the

author of it is.

THE COURT: He's just asking if this is an accurate

description of what the restrictions are. He hasn't yet

sought to introduce it in full. Overruled.

THE WITNESS: Could you repeat the question?

(PREVIOUS QUESTION READ BACK BY COURT REPORTER)

A No.

Q Did you ever receive this letter?

A Yes.

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1 Q Are any of the items in this letter -- strike that. Do

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any of these items in this letter address your

3 restrictions on visiting your mother in the common areas

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of Roberts Health Center?

5 A Not at present.

6 Q How about in September of 2012?

7 A Yes.

8 Q How about October 2012?

9 A I don't think so.

10 Q So it's your understanding that any restrictions that

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were placed -- strike that. Its your testimony that

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these restrictions are no longer in effect?

13 A Correct.

14 Q Mr. Willner, who is Colleen Pendergast?

15 A She is -- works for The Alliance.

16 Q Okay. And did you correspond with her at all?

17 A I received correspondence from her.

18 Q Okay. You never sent her any correspondence?

19 A E-mails.

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MR. BARNES: Okay. If I could see proposed Exhibit

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N, please.

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THE COURT: "N" as in Nancy?

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MR. BARNES: Yes, your Honor. Thank you.

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(DOCUMENT HANDED TO MR. BARNES)

25 Q I'm showing you proposed Exhibit N. Is this an e-mail

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from you to Colleen Pendergast?

2 A Yes.

3 Q Okay. And did you prepare this e-mail?

4 A Yes.

5 Q Okay. And are the terms in there correct? In other

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words, are the statements in there true?

7 A To the best of my knowledge.

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MR. BARNES: Okay.

9 Q And in this e-mail you asked Ms. Pendergast to provide an

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unbiased opinion as to your mother's current condition?

11 A I'll read the sentence. I don't understand your

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question.

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MR. BARNES: Okay.

14 A "If you would like an unbiased opinion of my mother's

15 . current condition relative to how she's been over the

16 past ten years, please contact her neighbors. Karla

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Steele is currently a volunteer advocate for foster

18 children and a former program for a nonprofit that

19 assists the refugees; and Marshall Feldman is a professor

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at the University of Rhode Island.

21 Q In essence, though, you were asking Colleen Pendergast to

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look into this?

23 A Yes.

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And based on your knowledge, did she look into this?

25 A She did not contact Marshall and Karla, so when you say,

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"Did she look into this," not based on what I just read.

Q And did you consider Colleen Pendergast to be your

mother's advocate?

THE WITNESS: When?

MR. BARNES: At the time you wrote this e-mail.

That would be August 10th, 2012.

A She told me she would be my mother's advocate.

Q So the sentence at the end that says, "Thank you in

advance for being my mother's advocate," is that true?

THE WITNESS: Is what true?

MR. BARNES: That you're thanking her for being your

mother's advocate.

A Yes, it's true. I wrote that sentence.

Q So did you believe that she was acting as your mother's

advocate?

A No, I believe that she told me that she would act as my

mother's advocate.

Q So its your belief that she did not act as your mother's

advocate?

A I believe that she did not properly act as my mother's

advocate.

MR. BARNES: Mark this as full please.

MR. MELISH: No objection.

THE COURT: Exhibit N, as in "Nancy," may be marked

in full.

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(WHEREUPON, THE EXHIBIT WAS RECEIVED IN EVIDENCE)

MR. BARNES: If I could see proposed Exhibit Q

please.

(DOCUMENT HANDED TO MR. BARNES)

Q Mr. Willner, you testified on direct examination that

once you became your mother's guardian there came a point

in time where you changed her advanced directives either

at the hospital or the nursing home, I don't recall which

place it was.

THE WITNESS: Is there a question there?

Q Did 17611 change your mother's advanced directives at the

hospital or the nursing home?

A At the nursing home.

Q . And what did you change the advanced directives to read

or to be?

A I changed them so that if she had a respiratory problem

she could go to the hospital.

Q Okay. And did you know your mother's wishes prior to

making that change?

A Yes.

Q I'm going to show you proposed Exhibit Q.

(DOCUMENT HANDED TO THE WITNESS)

THE COURT: Any questions, Mr. Barnes?

Q Is that your mother's signature on that document?

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A It appears to be, yes.

Q And is that document, from what you can see -- strike

that. Is it an advanced directive as to what your

mother's wishes would be if she were going to die?

A It appears that as of December 11th, 2006, after she had

been diagnosed with Alzheimer's, that she signed this

document. I was not present.

Q Okay. And does this document request that your mother

receive heroic lifesaving measures in the event that she

suffers from respiratory arrest?

MR. MELISH: Objection. The document speaks for

itselt.

THE COURT: It does speak for itself.

MR. BARNES: Move to admit as full, your Honor.

MR. MELISH: No objection.

THE COURT: Exhibit Q may be marked in full.

(WHEREUPON, THE EXHIBIT WAS RECEIVED IN EVIDENCE)

Q So when you changed the advanced directives of your

mother to require full resuscitation, you were going

against her wishes; correct?

A No.

Q Well, we have her wishes in Exhibit Q; correct?

A No.

• Exhibit Q does not represent her wishes on the date it

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was signed?

A I don't know that.

Q So before you made the change in her advanced directives

at the facility, you had no idea what her wishes were

then?

A Wrong.

Q Prior to her suffering from Alzheimer's, did you know

what her wishes were?

A Yes.

Q Did you ever challenge the accuracy of Exhibit Q?

A I never had an opportunity to.

Q Did you ever get an order from the Probate Court to

override your mother's wishes regarding heroic lifesaving

measures?

A Not that I recall.

Q Do you know if your mother receives blood transfusions?

A Yes.

Q Do you know what the reason is?

A She has low iron count in her blood I believe. Low red

cell --

Q Anemia would that be?

A Okay.

Q Would that be a fair statement; or you're not sure?

A She has anemia, yes.

Q And while you were guardian, do you know if she received

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any blood transfusions?

2 A Yes.

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How many?

4 A I'm not sure how many.

5 Q In January 2012, do you recall that your mother had an

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appointment with a blood specialist?

7 A Yes.

8 Q And do you recall that you refused to allow her to go to

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that appointment until you conducted some additional

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research?

11 A Yes.

12 Q And she was unable to receive these services for at least

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a month while you conducted research; correct?

14 A Yes. What services?

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MR. BARNES: The services of the doctor she was

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going to go to, the blood specialist.

17 A Yes. It wasn't a blood transfusion.

18 Q She was going to see a blood specialist?

19 A Yes.

20 Q Do you know the reason?

21 A Yes, they were going -- they wanted to have my father or

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the doctor at the nursing home -- or the nursing home

23 personnel wanted her to go through some tests to try to

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determine what the cause of her anemia was.

25 Q Weren't you the guardian at the time?

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1 A I was.

2 Q Why do you keep referring to what your father wanted?

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What did you want? You didn't want the best for your

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mother; did you?

5 A I did.

6 Q You wouldn't let her go see the doctor, now you're

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blaming your father.

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MR. MELISH: Objection, argumentative.

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THE COURT: Sustained. Next question, Mr. Barnes.

10 Q You made reference to your father regarding this visit to

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the blood doctor; correct?

12 A Yes.

13 Q Was he in charge of making that appointment?

14 A No.

15 Q Was he in charge of making her healthcare decisions at

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that point in time?

17 A No.

18 Q Who was?

19 A I was.

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•

So why would you blame your father?

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THE WITNESS: Blame him for what?

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MR. BARNES: The issue with the blood doctor.

23 A Because the nursing home was talking to my father and to

24 me about issues even after I was made guardian; and it

25 was my understanding that they had discussed it with my

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father, those exams, and that they wanted to have her

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take those tests.

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Q And you didn't want her to in January of 2013?

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A I wanted to conduct research; and ultimately they

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determined not to give her those tests because the

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doctor --

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THE COURT: Okay. Okay, sir. Next question please.

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Q Now, as the guardian you had indicated that you would

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take your mother out of the nursing home for visits to

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friends or something to eat or whatever it might be;

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correct?

12 A Yes.

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Q You took your mother, out of the nursing home against

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medical advice; didn't you?

15 A No.

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Q You were never told that you shouldn't take your mother

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out of the nursing home because she was ill?

18 A No.

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Q Did you ever take your mother out of the nursing home

20 when she was ill?

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THE WITNESS: Define "ill."

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MR. BARNES: A cold.

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A I was told --

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THE COURT: I'm sorry. I'm sorry, sir, please.

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When she had a cold?

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MR. BARNES: Yes.

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THE COURT: That is the question?

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MR. BARNES: Yes.

4 A She had sniffles.

5 Q And you were never told by the nursing home you shouldn't

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take her out?

7 A That I shouldn't take her out? No.

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MR. BARNES: If I could see Joint Exhibit 29 please.

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(DOCUMENT HANDED TO MR. BARNES)

10 Q Mr. Willner, is it fair to say for the last year that you

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and your father have been estranged from each other?

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THE WITNESS: Define "estranged."

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THE COURT: Well, I'm going to remind counsel again,

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we do not have to get into all of the factual statements

15 . that are set forth on the undisputed statement of facts,

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which we have 42 specific paragraphs, one of which is

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Michael Willner and Kurt Willner are currently estranged

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from each other and are no longer on speaking terms.

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Move along.

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MR. BARNES: Thank you, your Honor.

21 Q Do you like your father?

22 A Not at the moment.

23 Q Okay. And would you like to put him out of his house?

24 A I would not like that.

25 Q Did you ever request that?

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A Did I say I would like to put my father out of the house?

No.

Q Did you ever request that he be removed from the house?

A If that's what it says in the divorce complaint, then I

did.

Q And you made reference to a divorce complaint. Was there

a divorce filed between -- strike that. Was there a

divorce filed on your mother's behalf against your

father?

THE WITNESS: You mean a divorce complaint?

MR. BARNES: Yes.

A Yes.

Q And you signed the complaint; correct?

A I think so; but why don't you show it to me.

Q . I'm showing you Joint Exhibit 29, which has what purports

to be a divorce packet attached to it. I'm showing you

what's entitled I believe, "Complaint for Divorce." Did

you sign that document at the bottom?

A Yes.

Q And as part of this divorce filing, was there a motion

for temporary orders also filed?

THE COURT: Mr. Connelly, I recognize that you have

the right to confer with your clients; but it has to be

in a manner which is not disruptive. Can you restate the

question; because I'm not sure the court reporter got it.

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1 Q Attached to the divorce packet is there a motion for

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temporary orders?

3 A There is attached to the packet you just handed me a

4 motion for a temporary order.

5 Q Based on looking at the heading on that document, do you

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know if that is related to the divorce filing, the

7 complaint for divorce that you signed?

8 A It appears to be.

9 Q Okay. And in that request for temporary orders, are you

10 asking that your father be removed from the home? And in

11 particular let me read the exact sentence to you, "that

12 she b6 awarded title to and exclusive use of the marital

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domicile and the furniture and effects contained

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therein." Do you see that on here?

15 A . Yes, I see that.

16 Q So you were asking that your father be removed from the

17 marital domicile; correct?

18 A No.,

19 Q So even though this was filed with the Court, it's not a

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true -- it's not a true statement in the document?

21 A Wrong.

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THE COURT: No, next question please.

23 Q Was this motion filed along with the complaint for

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di.vorce?

25 A It appears that it was.

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Q And does that motion request that your mother have

exclusive use of the marital domicile?

A Yes.

Q There is another document attached here; and it is --

it's entitled, "Statement of Assets, Liabilities, Income,

and Expenses." Did you assist in completing that

document?

A I signed it.

Q Did anyone else sign it?

A My mother signed it.

Q Did anyone else sign it? Are there any other signatures

on it I should say?

A There's a notary.

Q And can you tell whose name that is?

A . I really can't; but I think it's Attorney Melish's

signature.

Q But you're not sure?

A Am I sure? It looks like it.

Q Are you a hundred percent sure?

A No.

MR. BARNES: Thank you.

So when you signed this document, the notary was not

present; is that true?

A No, the notary was present.

Q But you don't know who the notary was?

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A I just don't know if that copy -- it's a rough copy. He

was there when my mother and I signed that document; and

Attorney Melish signed it. All these months later I

don't recognize a bad copy of his signature.

MR. BARNES: If I could see Joint Exhibit 30,

please.

(DOCUMENT HANDED TO MR. BARNES)

Q Do you know if this divorce complaint was ever dismissed

by the Family Court?

A Yes.

Q Was it dismissed?

A I believe it was.

Q And have you seen this? It's marked as Joint Exhibit 30.

Have you seen that document before?

A . Yes.

Q Did you file an appeal to that Court order?

A No

Q And this order allows your sister Yaffa to dismiss the

divorce action if she saw fit; correct?

A Incorrect.

Q Incorrect?

A Yes, correct, it's incorrect. You could read it. It

speaks for itself.

THE COURT: I'll make that determination.

THE WITNESS: I'm sorry. I apologize. I'm sorry.

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Q Does it give your sister the power to review the petition

for divorce and dismiss the same if appropriate?

A Yes.

MR. BARNES: If I could please see Joint Exhibit 31

please.

(DOCUMENT HANDED TO MR. BARNES)

Q The divorce was ultimately dismissed; correct?

MR. MELISH: Objection.

THE COURT: Asked and answered. Move on.

Q Do you know what day the divorce was dismissed?

A I don't recall.

Q Okay. I'm showing you Joint Exhibit 31. It's the motion

for appointment of a guardian ad litem. Have you seen

that document before?

A Yes, I've seen it.

Q Does that document request that the Family Court appoint

a guardian ad litem for Joyce Willner?

A Yes.

Q And do you -- just let me know what day this document was

certified as being mailed to the parties.

A There's -- on this document there's a heading that says

"Certification"; and the paragraph under that says, "I

hereby certify that a true copy of the foregoing document

was mailed to Kurt Willner, 21 Tomahawk Trail, Wakefield,

Rhode Island 02879; Joe Barley, Esquire; R.J. Connelly,

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Esquire; and Laura Krohn, Esquire on the 20th day of

September 2013."

Q You were no longer the guardian at that point in time;

were you?

A I dispute that.

THE COURT: Sir, at that time, pursuant to an order

of the Probate Court, had there been an order at that

time entered removing you as guardian?

THE WITNESS: Yes.

THE COURT: Thank you.

Q So already having been removed as guardian, knowing that

your sister had been appointed and knowing that on

August 19th of 2013 the order that you did not appeal she

had the authority to dismiss the divorce notwithstanding

this motion was filed in the Family Court; correct?

MR. MELISH: Objection, argumentative.

MR. BARNES: Your Honor, he's a hostile witness.

THE COURT: I'm fully aware of that, Mr. Barnes; but

it doesn't mean that what you're saying isn't

argumentative. Sustained. Move along.

Q Was this motion for appointment of guardian ad litem

filed after your removal as guardian?

THE COURT: Asked and answered. Move on.

Q Was this filed after your sister had been appointed,

after you had been dismissed?

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THE COURT: Mr. Barnes, you made your point. Move

on.

Q Your mother, you had testified that she was removed from

the home and went to South Kingstown Hospital because she

had,. I believe, the flu; correct?

A Yes.

Q And then she developed pneumonia?

A Yes.

Q Prior to that, was she receiving assistance at home?

A Yes.

Q What type of assistance?

IHE WITNESS: What type of assistance? Could you be

more specific.

Q You said she was receiving assistance at home. You tell

me.

A She would get assistance getting dressed in the morning;

her meals would be prepared; she would have assistance

going to doctors' appointments or going on errands; she

would have assistance with cleaning the home; doing the

laundry; shower -- getting ready for the shower;

assistance in choosing what clothes to wear; given her

medication.

THE COURT: Anything else?

THE WITNESS: I can't recall offhand; but general

home care assistance.

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Q Is it fair to say that she needed some type of assistance

24 hours a day?

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A No, that's not fair to say.

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Q Let's say from 6 in the morning till 6 at night. Let me

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try to make this easier.

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THE WITNESS: Yeah, please.

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Q In the morning when she got up and got out of bed, did

8 she need assistance throughout the day, in other words,

9 maybe with toileting, food, paying bills?

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A She did not need assistance toileting. It was good to

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have someone there to monitor when she went to the

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bathrOom to insure that, you know, if she fell down or

13 whatever someone was there if there was an emergency. So

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there's -- in my mind there is a difference between

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"assistance" and "supervision." So she didn't need,

16 always need assistance; but for safety reasons it was

17 good for her to have supervision at all times.

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Q And you had stated that perhaps assistance in the

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bathroom in case she fell down. How many times had she

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fallen down, if you know, prior to the hospitalization?

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Once in the six years since she had been diagnosed with

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Alzheimer's.

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And since her admission to Roberts Health Center, how

24 many times has she fallen?

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A According to the records, at least four.

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Q And when your mother was at home, did your father assist

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with any of the supervision of your mother?

3 A Yes.

4 Q And did you?

5 A Yes.

6 Q How often did you come to the house to assist?

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THE WITNESS: When? What years?

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MR. BARNES: Just I'd say the three or four months

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prior to her being hospitalized.

10 A I was coming in, oh, three or four months, every other

11 week or so.

12 Q And fdr how long when you would come every other week?

13 A I had been doing that for about a year and a half.

14 Q And you would come for a day or two days?

15 A I'd come for six days. Six days on, Yaffa would do the

16 seventh, I would go to Virginia for a week, then I'd come

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back up. Twenty-four hours six days a week twice a

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month.

19 Q And what did you assist your mother with when you were up

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here those two or three months prior to her being

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hospitalized?

22 A I would prepare meals, give her her medication, take her

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for rides, do dishes, laundry, clean the house, you know,

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take her out on errands, doctors' appointments, normal

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home care aide work.

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Okay. And did your father assist with this at all?

A Yes, he did.

Q And did there come a time that, you know, of when your

father was unable to continue assisting with this?

A No.

Q Do you believe your father could assist with your

mother's care today if she were to go home?

A If he wanted to, he could give some assistance, yes.

Q So you're saying he's healthy enough physically and

emotionally to assist with your mother's care?

A I said he could offer some assistance if he wanted to.

Q What do you mean "some assistance"?

A If there was an emergency at night, he could pick up the

phone and call 911. He could probably help her pick out

what clothes to wear in the morning. You know, he could

make -- you know, again, if there was -- if she fell, if

there was an accident, some kind of emergency, he could

call 911.

Q So in addition to you being there maybe 12 days out of

the month, who else provided assistance for your mother

while she was at home?

THE COURT: Are we just talking just the three or

four months prior to her hospitalization?

MR. BARNES: Yes, your Honor.

A She was receiving home care aid by I believe she was a

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certified nurse's assistant working for a home care

agency.

Q And how often was this home care aide coming to the

house?

A I believe six days a week when I was not there; and

several hours a day when I was there.

Q Okay. Was anyone else assisting?

A Yaffa was assisting on Sundays.

Q Every Sunday?

A Most Sundays.

Q Most Sundays, okay. Have you seen --

A I'm sorry, there was also a nurse who would come on

occasion, certainly at least once a week, sometimes twice

a week. She would, you know, check my mom; take, you

know, blood pressure; she would give her vitamin shots;

she would determine -- you know, she would fill the pill

boxes up for the week.

Q So it sounds like your mother would not be able to

function in her home without this type of assistance;

correct?

A She would need -- yeah, I don't know what you mean by

function; but she needs assistance to be able to live at

home.

Q Twenty-four hour a day assistance?

A She needs 24-hour a day supervision with assistance

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several hours during the day.

Okay. And if your mother were to go home today, who

would assist her during the night when she's sleeping?

A A home care person; or I would supervise her.

Q You would stay awake?

A No. Maybe the home care person would. We would have to

determine that. I would not stay awake when I'm there;

but I would be --

THE COURT: Okay, sir, thank you.

THE WITNESS: Sorry.

Q Now you had mentioned on direct examination that you

filed a motion to access the income and assets of your

mother; correct?

A Yes.

Q And my recollection is it was to pay for an attorney?

A Yes.

Q How much of her income and assets did you want to receive

in order to pay an attorney?

A Whatever it would cost to pay for an attorney and other

litigation costs. It costs money to hire doctors to

examine her; and whatever litigation expenses necessary,

we would need money for that.

Q So we could say $50,000?

A Its possible.

Q A hundred?

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1 A I don't know.

2 Q The sky's the limit; or you're not sure?

3

MR. MELISH: Objection.

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THE COURT: Sustained.

5 Q You're an attorney; correct, Mr. Willner?

6 A Yes.

7 Q You're not an employed attorney though; are you?

8 A I'm not employed as an attorney.

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THE COURT: Hold on please. Your attorney is

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objecting.

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MR. MELISH: Objection, relevance.

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THE COURT: Overruled. I'll allow it.

13 Q Are you a practicing attorney?

14 A I'm not a practicing attorney. Well --

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THE COURT: You're not practicing, thank you.

16 Q Were you a licensed attorney in the State of Rhode

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Island?

18 A Yes.

19 Q Are you currently a licensed attorney in the District of

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Columbia?

21 A Yes.

22 Q Have you requested permission from the Supreme Court of

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the State of Rhode Island to practice law in the State of

24 Rhode Island regarding this particular matter?

25 A No. No.

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1 Q There was a time though when you had indicated you were

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going to do that; correct?

3 A Yes.

4 Q Approximately how long ago was that that you indicated

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you were going to do that?

6 A I indicated that I was going to look into it; and I think

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I told that to Judge O'Keefe probably around I'm thinking

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May 2013.

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THE COURT: Mr. Barnes, we have about five minutes

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before we will break for the afternoon.

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MR. BARNES: If I can see proposed Exhibit K please.

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(DOCUMENT HANDED TO MR. BARNES)

13 Q Mr. Willner, did you create or have someone create a web

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page, savejoyce.com?

15 A . Yes.

16 Q And on this web page have you posted any videos of your

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mother?

18 A Yes.

19 Q And on this web page have you posted any medical records

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regarding your mother?

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THE WITNESS: Define "medical records."

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MR. BARNES: South County Hospital medical records.

23 A I don't recall.

24

•

If you could please look at proposed Exhibit K, and

25 please let me know if that is a fair and accurate

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1

representation of the information contained on the

2

savejoyce.cau web page exclusive of the videos.

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A This is a fair representation of what it once looked

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like.

5

Q Okay. And upon reviewing this, does it refresh your

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recollection as to whether or not medical records were

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also posted on that website?

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A I know that -- I'm not sure. This was in the court

9 record, so I don't know if you consider it a court

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document or a medical record.

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THE COURT: Sir, you indicated that you could not

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recall if South County medical records were posted on

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this website. The question is, does this document that's

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marked as Exhibit K refresh your recollection as to

15 whether South County Hospital records are included on

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this website, yes or no?

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THE WITNESS: Well, medical records, there's a

18 clinical consultation report is one record.

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THE COURT: From South County Hospital; correct?

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THE WITNESS: Yes, correct.

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THE COURT: Thank you.

22

Q Were those records posted on this website while you were

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the guardian of your mother?

24

THE COURT: So the record is clear, Mr. Barnes,

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because you are showing the witness something, I

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certainly can't see it.

MR. BARNES: I'm making reference to the South

County Hospital record.

Q Was that posted on the savejoyce.com web page while you

were your mother's guardian?

A No.

Q When was it posted on the web page, prior to or

subsequent to your being guardian -- I'm sorry, prior to

your being guardian or subsequent to your removal?

THE WITNESS: Let me just say that we're talking

about the way that her Honor described it as opposed to

whether I was actually removed; correct?

THE COURT: Why don't you give a date, a trigger

date, Mr. Barnes. That may be more helpful rather than

. fight over this discussion.

Q Were these records posted after August 2013?

A Yes.

THE COURT: Mr. Barnes, perhaps this is the

opportune time, as I see you are approaching the Clerk

with Exhibit K, I'm assuming to return it.

MR. BARNES: And ask that it be marked as a full

exhibit, your Honor.

THE COURT: Any objection, Mr. Melish?

MR. MELISH: No objection.

THE COURT: It will be marked in full.

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(WHEREUPON, THE EXHIBIT WAS RECEIVED IN EVIDENCE)

THE COURT: With that we will take our recess for

the evening. Sir, you may step down.

MR. BARNES: Your Honor, a couple of housekeeping

issues. We do have two videos we would like to play as

part of Mr. Willner's cross-examination; and we have a

Dr. Khurshid on call. I'm not sure if the Court wants

Dr. Khurshid first or --

THE COURT: Certainly to the extent the parties

could agree on anything, that certainly makes it more

worthwhile. In terms of not, I certainly will not stand

in anyone's way of interrupting testimony in order to get

another witness in and out.

Is there an objection, Mr. Melish, or, Ms. Mu ready,

to taking Dr. Khurshid out of time?

MR. MELISH: No, your Honor.

THE COURT: We can proceed tomorrow morning at 9:30

with Dr. Khurshid and proceed with Mr. Willner

thereafter. Again, we will begin promptly at 9:30

tomorrow. Court will be in recess.

(RECESSED AT 4:30 P.M.)

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APRIL 15, 2014

THE CLERK: Resume the trial of WP2013-0400, In Re:

Estate of Joyce Willner. Attorneys please identify

yourselves for the record.

MR. MELISH: Attorney H. Jefferson Melish for the

Estate of Joyce Willner, and for Joyce Willner and

Michael Willner.

MS. MULREADY: Anne Mulready on behalf of the Rhode

Island Disability Law Center. We are the

appellant/intervenor on behalf of Joyce Willner.

MR. BARNES: Alan Barnes; I represent Kurt and Yaffa

Willner.

MR. CONNELLY: R. J. Connelly, III, for Kurt and

Yaffa Willner.

THE COURT: Are we ready to proceed this morning?

MR. BARNES: Yes.

MR. CONNELLY: If I may, one of our witnesses became

unavailable. She's an employee for the executive office

of Health and Human Services. Jennifer Sternick

represents that organization and I think she may want to

address the Court.

MS. STERNICK: Very briefly, if I may, Your Honor.

Jennifer Sternick, I am deputy chief legal counsel for

the office. Last week we received a subpoena in this

matter for an employee named Sandra Read. Ms. Read

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contacted me late yesterday afternoon. She had just come

from her doctor's office and has been taken out of work

for the next week with a medical condition, so she is

unable to appear this morning. I came because I wanted

to let the Court know that it was our every intention to

comply with the Subpoena, she just simply is not able to

be here because of illness. And whatever further

instructions the parties may want to agree to with regard

to her statement, records, or if we need to secure her

for a later appearance, that's fine, the department will

make her available. Probably she will be available next

week.

THE COURT: Well, I appreciate hearing from you,

Ms. Sternick, on this matter.

Counsel, have you had the opportunity to confer with

your colleagues?

MR. BARNES: I have not, Your Honor, I was

conferring with Dr. Khurshid. I have a proposed

Exhibit D, which happens to be the report of Ms. Read,

and what I would ask is that perhaps Ms. Sternick can

represent to the Court that that is a true and accurate

copy of a record from that particular office, unless my

brother then will stipulate to it being a full exhibit.

MR. MELISH: Your Honor, I have no objection to that

being a full exhibit. I would rather not have the trial

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extended into next week, and the document will speak for

itself.

THE COURT: Ms. Mulready?

MS. MULREADY: I concur, Your Honor.

THE COURT: So no need to have Ms. Read appear at a

later point in time or anything with regard to the

Subpoena.

MS. STERNICK: If we could just put on the record

that Mrs. Willner is, is it Yaffa Willner? Signed a

HIPAA release as the guardian to allow these records to

be presented in this matter. And I don't know if it's

possible to put them under seal once this matter is done,

because they do involve HIPAA-sensitive information.

THE COURT: Well, there have been other records

that, by agreement of the parties, have been placed under

seal. Counsel?

MR. MELISH: I have no objection to Exhibit D being

under seal just for the Court's review but not for the

public.

MR. BARNES: I have no objection, Your Honor.

THE COURT: Anything further, then, Ms. Sternick?

MS. STERNICK: I appreciate it, Your Honor. If

there's a change of plans, if somebody could let me know,

we'll try to make the witness available.

THE COURT: So by agreement of the parties, then,

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and based upon Ms. Read's unavailability at this time,

Appellee's Exhibit D will be marked in full and will be

placed under seal.

I understand we have Dr. Khurshid that, by

agreement, is being taken out of turn?

MR. BARNES: Yes, Your Honor.

THE COURT: Dr. Khurshid?

SHAHZAD KHURSHID, being duly sworn, testifies as follows:

THE CLERK: Please state and spell your first and

last names for the record.

THE WITNESS: First name, S-h-a-h-z-a-d, last name

is Khurshid, K-h-u-r-s-h-i-d.

THE COURT: Thank you, Doctor, you may be seated.

DIRECT EXAMINATION BY MR. BARNES:

Q Good morning, Doctor.

A Good morning.

Q Could you please let the Court know your current

employment.

A I'm in private practice, and I'm internal medicine and

I've been practicing for the last ten years in Rhode

Island, and I go to Roberts facility as attending

physician, one of the attending physicians.

Q That would be Roberts Health Care Center?

A Health Care Center.

THE COURT: Doctor, I'm going to warn you at the

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outset, you and the attorneys cannot speak over one

another. The court reporter, she can only take down one

voice at a time, so please allow Mr. Barnes to finish

asking the question before you answer, and he likewise,

as well as the other attorneys, will give you the

opportunity to fully answer before they pose another

question. And if an objection is raised, sir, you do

need to allow me the time to rule upon an objection

before you say anything.

Go ahead, Mr. Barnes.

Q Dr. Khurshid, where did you go to medical school?

A (Inaudible) Center Medical College in Pakistan.

Q And you graduated?

A 1990.

Q And have you had any experience working with geriatric

patients, the elderly?

A Yes. Since 2001 I've been working in nursing homes in

some capacity.

Q And are you licensed as a physician?

A Yes, sir.

Q In which states?

A Rhode Island.

Q Okay. And are you board certified?

A Yes.

Q In which area?

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A I'm board certified internal medicine and board certified

hospice and palliative medicine.

Q And have you taken any continuing education classes

within the last couple of years?

A Yes.

Q And approximately how many?

A Um, usually 40 hours, you know, that's required for

licensing, every two years we have licensing, so I have

to complete CME, at least 40 hours of CME to apply for

license again.

Q And do you have admitting privileges at any hospitals?

A I have privileges in Kent Hospital, Fatima Hospital, and

Roger Williams Hospital. And they're courtesy

privileges, I don't go to hospital anymore, but for now.

Q Okay. And what are the requirements to have admitting

privileges at those hospitals?

A You have to be board certified physician, good standing.

Recommendation from your own colleagues, you know,

just -- there is a few things I can think of.

Q Okay, thank you.

MR. BARNES: Your Honor, I would like to move to

have the doctor qualified as an expert witness.

THE COURT: Ms. Mulready?

MS. MULREADY: Your Honor, we agree -- as a treating

physician, I think the Court can decide on his expertise

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after listening to his testimony.

THE COURT: Well, he certainly seems to be qualified

to both serve -- well, we'll get into his familiarity

with Mrs. Willner, but certainly for purposes of his

training and background, the Court recognizes him as an

expert. Go ahead.

Q Dr. Khurshid, as far as your employment at Roberts Health

Center, what are your duties as far as being a physician

at that facility?

A I'm attending physician. I don't work for Roberts, but

I'm one of the attending physicians who has privileges in

Roberts nursing home, and the patient assigned to me as

attending physician.

Q And is Joyce Willner assigned to you?

A Yes.

Q And as Joyce Willner's attending physician, what are your

duties?

A I'm supposed to take care of her medical needs, I mean,

and other issues, like, you know, as well, so I'm being

attending, but medical problems, you know, or other

discipline like physical therapy or other problems, just

like any primary care will take care of the patient.

Q Are you the physician who writes the orders for

medication and testing?

A Yes.

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Q And how long have you been Joyce Willner's attending

physician?

A I think it's May 2012.

Q Okay. And how did you -- strike that. How did you

become Joyce Willner's attending physician?

A If I remember correctly, she was discharged from

hospital, she came to the nursing home, and the assigned

attending physician, one of our patients gets admitted in

Roberts nursing home, so they assigned me. So I think

she came on 9 May 2012, and I was attending so I was

assigned her case.

Q And if you recall, when you were assigned as her

attending physician, what was her overall health?

A Poor.

Q Was she receiving any type of treatment at Roberts Health

Center?

A Comfort medication. Just to give a little background,

she was in hospital, in South County Hospital, and she

was treated for pneumonia and flu. She didn't respond to

antibiotics or anything, so -- as her record. Because I

was not in hospital, the family decided to make her

comfort, and they asked for Hospice, you know, for her

dying process. So she was discharged to us as a comfort,

basically, just to provide comfort until she passes.

Q And was there a time when she was removed from comfort

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measures only?

A She did recover from that state, you know, and she's not

in Hospice anymore, so she did improve, medically

speaking, she did improve.

Q And what did you attribute that improvement to?

A See, I don't know all the answers, but I'm just -- it's

the care, you know, the nursing home care. Maybe she --

her own, you know, system kind of -- she fought it back

and she recovered from it. So we provided her comfort,

care, which a nursing home does. We didn't do anything

extraordinary to resolve that. She did recover on her

own.

Q And what is her current diagnosis?

A She has dementia, pretty advanced dementia, and I think

she has anxiety and swallow difficulties, you know, that

can come from having dementia. And I think some sleeping

problems, and she does get pneumonia or respiratory

infection frequently as well. And she requires blood

transfusion every couple of months for her low blood

count, so she is blood transfusion dependent anemia.

Q And you made reference to the fact that she has trouble

swallowing; could you elaborate on that, please?

A As the dementia progress, different things can happen.

It can affect your swallow ability, just like affect

cognition, because cognition has a lot to do with how we

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swallow, so that's a gradual process. As they, you know,

have dementia many years, they continue to develop that

problem, too, and that puts them at risk for sudden

pneumonia or they can choke on it, they can die of that,

too, so that's why I think she has a problem from...

Q And how can that lead to pneumonia?

A When we swallow it's supposed to go in our stomach and

everything, but if somebody is not, or they have

cognition impairment or problem with dementia, they can

have their food particles end up in their respiratory

system and that can trigger inflammation, infection, so

that's how it happens.

Q What type of -- are there any modifications to her diet

to try to prevent that?

A We do have a speech service there, swallow service, so

they do come and see patients.

THE COURT: Did you say, sir, speech?

THE WITNESS: Speech and swallow therapists.

Q Have there been any changes to her diet?

A I think she's on ground diet, if I'm not mistaken, so we

change the consistency of diet depending on how

difficulty she has.

Q And from the time you became her attending physician

until present date, has her dementia or Alzheimer's

progressed or remained stable?

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A Dementia is a progressive disease, so it grows with time,

it tends to get worse, it will always get worse. So

cognition can also appear over time, usually very subtle.

But my assessment, she has got more confused, and it's

going to keep going that way. But it's not major

changes, it's not stroke, like, one day somebody is fine,

but it's talking to staff there, and my observation,

she's gradually declining.

MR. MELISH: Objection.

THE COURT: Overruled, I'm going to allow it.

MR. MELISH: Just in terms of what the staff said to

him.

THE COURT: I understand. Overruled.

Q Dr. Khurshid, have you seen a significant change in her

cognitive ability from the time you became her attending

physician until the present date?

MR. MELISH: Objection, asked and answered. He's

already said no major change.

THE COURT: Sustained.

Q Do you know if Joyce Willner is at risk for falling?

A Yes.

Q And why would that be?

A It's her inability to walk properly and not knowing,

awareness, safe awareness when she walks. I think she's

using a walker now, but she's usually monitored,

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supervised when she's walking. She's definitely at risk

of falling.

Q And is she at risk at night when she's in her bed for

falling?

A It's possible, yes.

Q Now, do you know if she is being monitored at night while

she's in bed?

A She's not a one-to-one, she's not like somebody sitting

next to her watching her, but generally someone in her

condition, dementia, they are monitored for any fall.

Q So they come in and check on her?

A They go and check, residents, they put them in bed, keep

them in safe place and everything, and they can always go

back and check on them, too.

Q Do you see Joyce Willner's dementia improving -- strike

that. Do you anticipate, based on a reasonable degree of

medical certainty, that her dementia will increase or

decrease into the future?

A In my opinion, I don't see any chance that she will

improve. Generally, people, I mean, they will decline

over a period of time, and we don't do any active

intervention to reverse the process or correct it, so we

see the gradual decline in dementia.

Q Do you know Michael Willner?

A Yes.

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Q Is that the same Michael Willner that's sitting to my

left?

A Yes.

Q And how do you know Michael Willner?

A I have spoken to Michael quite a few times in facility

when he was visiting mom.

Q And what were the nature of those conversations?

A He inquired me, Mike inquired me about mom's health, what

do you -- he asked my opinion what I think about how she

will -- how she's doing, what I expect in future, things

like that.

Q Okay. And based on your being an attending physician, do

you review the records at Roberts Health Center on a

regular basis?

A Yes.

Q And have you been made aware, based on your review of

those records, of any actions of Michael Willner that

would not be in the best interests of Joyce Willner? If

you know.

A That will be my personal opinion, and what I know from

staff. Taking her out of the facility was not really

safe for her to go out and be with Michael or anybody.

And just talking to staff, I mean, I have to check

records, but I was told that --

THE COURT: Enough. Okay, sir.

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Q In reviewing those medical records, did you learn

anything else about Michael Willner's interaction with

Joyce Willner or staff?

A No, not from records or anything.

Q And based on a reasonable degree of medical certainty, do

you believe that Joyce Willner requires skilled nursing

care?

A She needs nursing care, long-term nursing care.

Q And is that what she's receiving at Roberts Health

Center?

A Yes, sir.

Q And is she receiving that 24 hours a day?

A Yes, sir.

Q Based on a reasonable degree of medical certainty, would

it be realistic for her to receive those type of services

in a nonmedical setting?

A I don't think she can get the same services at home. I

mean, if she's in hospital, that's different.

Q Thank you. Did you ever inform Michael Willner that it

would not be prudent to remove his mother from Roberts

Health Center and have her live somewhere else in a

nonmedical setting?

A I did discuss with him, because he asked me, but I never

said, like, exact. He discussed with me, he said he's

trying to get services, so it was a discussion but it was

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not like, okay, she can't go home and I'm fine and go

ahead or something. He did say that -- Michael said,

like, he's trying to do all that, and he just informed

me, and I just talked about it.

Q And, Doctor, you prepared a Decision-Making Assessment

Tool for Joyce Willner in, I believe January of this

year?

A Yes.

MR. BARNES: If I could see Exhibit E, please.

(CLERK HANDING DOCUMENT TO COUNSEL)

Q Doctor, I'm showing you this exhibit marked as E. Is

that your signature on the first page?

A Yes.

Q And are you familiar with the contents of the document

that's attached?

A Yes.

Q And on the last page, is that your signature?

A Yes.

Q And based on a reasonable degree of medical certainty,

are the items contained in this document true and

accurate?

A Yes.

MR. BARNES: I don't believe this has been marked as

full yet, Your Honor. I would ask it be marked as full.

THE COURT: Same objection that we addressed

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yesterday morning, Counsel?

MR. BARNES: I believe so.

THE COURT: Thank you, but I'm asking them.

MR. MELISH: I believe it was marked full. We

agreed to it being a full exhibit.

THE COURT: It may be marked in full.

(EXHIBIT SO MARKED)

MR. BARNES: Dr. Khurshid, thank you for being here.

I have no further questions, but perhaps my colleagues

do.

THE COURT: Rest assured, sir, they do.

Mr. Melish and Ms. Mulready?

MS. MULREADY: Thank you, Your Honor.

CROSS-EXAMINATION BY MS. MULREADY:

Q Good morning, Dr. Khurshid, my name is Anne Mulready and

I work for the appellant/intervenor, the Rhode Island

Disability Law Center, so I'm here today on behalf of

Joyce Willner, and I would like to, if I may, refer you

to Joint Exhibit 38, please.

(CLERK HANDING DOCUMENT TO COUNSEL)

MS. MULREADY: May I approach, Your Honor?

THE COURT: You may.

Q Doctor, I believe you testified that you did review the

records that were Roberts Health Center records?

A Yes, I reviewed some records. Of course, it's been a

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couple of years.

Q And is that something that you routinely do when you

review her status?

A Yes, I do see her and then I write my notes and review

the records.

Q I'd like to refer you to Page 4 of 72 of the Resident

Progress Notes, and that may take me a minute to find

them.

THE COURT: Page 4 of 72?

Q Page 4 of 72 of the Resident Progress Notes. Doctor, I

believe this is an entry that you made on January 28,

2014 regarding Joyce Willner, is that correct?

A Yes.

Q And I note at the top that you indicate that Joyce has no

pain, no apparent weight loss, and no reported falls as

of that period, is that correct?

A (Perusing document) Yes.

Q And could you read the item listed at the bottom, 1

through 3?

A "chronic anemia/blood transfusions dependant [sic]: she

was arranged to get blood transfusions which was done and

repeat h/h improved, continue po iron." That's Number 1.

Number 2, "alzheimer dementia with behavioral issues: no

behavioral issues noted and will continue exelon,

trazodone." Number 3, "CHF: no evidence of acute

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congestive heart failure, will continue oxygen prn."

Q Thank you, Doctor. I'd also like to refer you to Page 3

of 5 of the Care Plan.

THE COURT: You're going to have to help me out.

MS. MULREADY: Page 3 of 5 of the Care Plan. It's a

separate document from the Resident Progress Notes.

THE COURT: Before or after the Resident Progress

Notes?

MS. MULREADY: I believe it's before.

THE COURT: I have a two-page document that's before

that. Oh, there, it is; thank you.

Q And, Doctor, could you please read the evaluation note at

the bottom of that column.

A "11/15/2013, Theresa Kleinkopf Resident was seen by

Geri-psyche on 11/4/13; no new orders, mood stable."

Q And, Doctor, is Theresa Kleinkopf an employee of, or does

she consult with Roberts Nursing Home?

A They usually have consult with the psyche service.

Q Thank you. And I'd like to refer you to Page 4 of 5 also

within that Care Plan. And could you read the evaluation

down at the bottom of this Care Plan as well?

A "11/18/2013: Theresa Kleinkopf, No recent cognitive

deterioration noted."

Q Thank you, Doctor. Doctor, I would like to refer you as

well to Pages 11 and 12 of the Physician Order Report,

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which I believe is at the beginning of the packet.

Doctor, I believe at the bottom of Page 11 there is a

Treatments Flow Sheet, and most of the entries are signed

by you, is that correct?

A Yes, correct.

Q And some of those entries indicated on Page 11 and on

Page 12 are current and some of them discontinued, is

that correct?

A 11 and 12?

Q I'm sorry, turning the page.

A Yes, I signed them.

Q So of the current treatments that you have ordered for

Joyce Willner, are there any that could not be offered in

a community setting such as at home?

MR. BARNES: I'm going to have to object to that

question, unless Ms. Mulready is going to refer to the

entire exhibit instead of just piecemeal.

THE COURT: You will have the opportunity to

redirect Dr. Khurshid. Overruled, you may continue.

Do you need the question read again, sir?

A These are orders from 2012 which I think came from the

hospital.

Q That's correct, and they continue on to 2013, is that

correct?

A Yes. Most of the things can't be done home. I mean, I

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see, maintain bed alarm while in bed due to safety

awareness. I'm not -- I don't know how they can do at

home.

Q So you don't have any knowledge of whether it could be

done at home?

A Yes, that's correct.

MS. MULREADY: Thank you, Doctor.

Your Honor, I'm returning Exhibit 38 to the clerk

(handing document to clerk).

Q Doctor, when you completed what I believe is Appellee's

Exhibit A, the Decision-Making Assessment Tool, on behalf

of Joyce Willner, it is dated, I believe, April 1, but

did you complete that DMAT at an earlier date, do you

recall?

THE COURT: Ms. Mulready, why don't you show him the

document that you're referencing.

MS. MULREADY: Thank you, Your Honor.

May I please have Exhibit 38.

(CLERK HANDING DOCUMENT TO COUNSEL)

THE WITNESS: I'm sorry, what was the question?

Q My question was, this is dated -- I'm sorry, that's the

wrong one.

One moment, Your Honor. I'm returning Appellee's A

to the clerk. May I please have Appellee's Exhibit E.

Q Doctor, I'm showing you Appellee's Exhibit E, which is an

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affidavit prepared by you with, I believe, a

Decision-Making Assessment Tool attached. Did you

complete that Decision-Making Assessment Tool?

A Yes, I did.

Q And that is a typewritten version of the Decision-Making

Assessment Tool. Do you recall whether you completed an

earlier version?

A Yes, I did.

Q Do you recall when that was?

MR. BARNES: Could Ms. Mulready please speak a

little louder.

Q Do you recall when you completed the earlier version of

the Decision-Making Assessment Tool?

A Probably in January or February.

MS. MULREADY: Thank you. I'm returning

Appellee's E (handing document to clerk).

Q Doctor, did you ever tell Michael Willner that it was

beneficial for Joyce Willner to leave the nursing home

and go out on outings?

A No, I can't recall ever saying that.

Q Doctor, are you familiar with any programs through the

State that support people to live in their homes or --

MR. BARNES: Objection, Your Honor. Beyond the

scope of direct.

THE COURT: Ms. Mulready, it is.

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MS. MULREADY: Thank you, Your Honor. I have no

further questions.

THE COURT: Mr. Melish, any further questions?

MR. MELISH: No, Your Honor.

THE COURT: Mr. Barnes, any redirect?

MR. BARNES: Yes, Your Honor.

REDIRECT EXAMINATION BY MR. BARNES:

Q If I could please have Joint Exhibit 38 (handing document

to witness). Doctor, at Roberts Health Center, are there

other health care workers besides yourself that assist

Joyce Willner on a daily basis such as nurses or --

A Nurses --

MR. MELISH: Objection, leading.

THE COURT: Well, let's get this straight,

Ms. Mulready. Ms. Mulready did the examination, so she

will interpose any objections that are raised.

Overruled, it's preliminary in nature. Go ahead.

A Nurses, CNA, of course, nursing directors, and they have

other services, too. If we ask for them, they do come

and see her.

Q Such as?

A Psychiatry service, the psyche service is there, speech

and swallow therapist, physical therapist.

Q How about any dietary people and nutritionists?

A Yes; I forgot the dietician is there as well.

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Q And I would ask you to turn to Page 4 of 5 on the exhibit

in front of you. I will point it out to you. Doctor, on

that page there's an indication of a problem, and it

says, "Problem Start Date: 11/15/13"; do you see that at

the top left?

A 11/15, Problem Start Date.

Q Could you please read that to us.

A "Altered mental status R/T dementia, resulting in

self-care deficits."

Q And how about the entry above that, could you read that

to us, please.

A "Altered P.O. intake R/T poor appetite, resulting in

potential for weight loss, nutritional deficits and

dehydration."

Q Okay. And those are medical problems that Joyce Willner

is having, correct?

A Yes.

Q And over to the right, there's an entry that says

Approach. And would that be the approach to addressing

these medical issues?

A Do you want me to read them?

MR. BARNES: No, I'm asking --

THE COURT: What does Approach mean, sir, in this

context?

THE WITNESS: Approach means they're trying to

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address the problem.

Q Okay. And could you please read Number 1 to us.

A Number 1?

Q Yes.

A "Provide a house diet with ground meat."

Q And is that something that one of the people that assist

you at the nursing home takes care of?

A Yes, sir.

Q And which particular person would make that

recommendation?

A Speech and swallow therapists.

Q Okay. And the next entry down, could you please read

that.

A Number 2, "Monitor for increased difficulty with

adjustment as needed in texture of food."

Q Could you explain to us what that means.

A I think she -- they're saying that we need to monitor her

intake to see if there's further problem from, you know,

from swallow, you know, difficulty. Or the diet they

recommended.

Q And would that be the speech and swallowing therapist

that you made reference to, or other staff?

A Usually speech and swallow therapist.

Q And I would ask you to please take a look at the next box

down under problems where it states, "Problems Started

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Date: 11/15/13." Could you please read what the problem

is.

A "Problems Started Date: 11/15/2013, altered mental

status R/T dementia, resulting in self-care deficits."

Q Okay. And over to the column again where it says

Approach, could you please read Number 1.

A Number 1?

Q Yes.

A "Monitor for any change in cognitive levels daily."

Q And who would do the monitoring of that, if you know?

A Nursing.

Q And could you please read Number 2.

A "Assess for signs of infection if any change."

Q And who would do that assessment?

A Nursing.

Q And how often would they do that assessment, if you know?

A They assess every shift, every eight hours.

Q Every eight hours?

A (Nodding head)

Q And it's a registered nurse that does it?

A Registered nurse or LPN.

Q And what is an LPN?

A I think it's licensed, you know, nurse.

Q And what is a registered nurse, is that a licensed --

A Licensed nurse, yes.

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Q And could you please read Number 7.

A "Monitor for sadness and anxiety Q shift."

Q Who would be doing that monitoring?

A Nursing.

Q And what does it mean by Q shift, if you know?

A Every shift.

Q And how many shifts are there in a day?

A Three shifts.

Q And it's a registered nurse that would do that monitoring

three times a day?

A Most of the time.

Q Most of the time; the other times --

A No.

THE COURT: Gentlemen, you can't speak over one

another.

Q It would be a nurse?

A It would be a nurse.

Q Licensed?

A Licensed.

Q I'm going to have you turn to Page 10 of 12. Doctor, are

these your medical orders to the staff at Roberts Health

Center?

A Yes.

Q And the first order it says, "Order Type Prescription

2/24/13 - Open Ended." Do you see where it says that,

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the very first entry (indicating)?

A Yes, I see it.

Q And what is the description of your order for that

particular entry?

A Do you want me to read it?

Q Yes.

A Saline Spray, in bracket, sodium chloride nasal spray,

0.65 percent amount, one spray each Nare; nasal Special

Instructions, congestion, once a day, PRN.

Q And what does PRN mean?

A As needed.

Q And who would be the person to determine when it's

needed?

A Nurse.

Q And the next entry down, could you please read the

description of your order.

A Robitussin liquid, 100 milligrams/5 million, amount,

10 cc, oral Special Instructions, cough/congestion, every

four hours, PRN.

Q And what does PRN mean again?

A As needed.

Q And who would be the person determining if this is needed

for Joyce Willner?

A A nurse would determine.

Q The next entry down, could you please read the

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description of your order.

A DuoNeb solution, 2.5 milligrams/3 ML, inhalation, Special

Instructions: Three times a day, TID, three times a day.

Q And is there anything else after three times a day?

A Five a.m., 1 p.m., 7 p.m.

Q And what does that mean?

A They enter the time that -- when this treatment is given.

Q And what is the purpose for this treatment?

A Just to improve the airways, open up the airways so they

can breathe better.

Q And what is a DuoNeb? Is that how you pronounce it?

A (Nodding head)

Q What is that exactly?

A It's a bronchodilator, we call it. It causes the airways

to dilate so the air can go in properly.

Q And who administers that to Joyce Willner?

A Nurse.

Q And is that medication known to have any type of side

effects?

A Yes.

Q And who would monitor Joyce Willner for side effects

relating to that medication, if any?

A The nurse would monitor side effects.

Q And the next one down, could you please read your -- the

description of your order.

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THE COURT: Hold on a second, Mr. Barnes. What kind

of side effects, sir?

THE WITNESS: It can cause tachycardia, like, fast

heartbeat, that's the main one; chest pain; and it can

cause electrolyte imbalance.

THE COURT: And what is the treatment for each of

those side effects?

THE WITNESS: Treatment medication wise?

THE COURT: No, just what would an individual do if

he or she experienced any of those side effects?

THE WITNESS: We will stop the medication, or reduce

the frequency because we assume that the side effects are

coming from medicine, so if we see any problem from

medicine, we will stop them.

THE COURT: So your response, then, would be an

alteration of the medication itself?

THE WITNESS: Yes.

THE COURT: Not any other immediate action taken by

anyone that's around the patient?

THE WITNESS: Yes. That would be the first thing we

do, like, to stop the medication if we assume that this

comes from medicine.

Q Doctor, would those side effects occur while the

medication is being given to the patient?

A Yes.

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Q And would it take a -- strike that. These side effects

that you've just testified to, could those be mistaken

for some other type of ailment a patient could have,

especially with the heart palpitations?

A Yes, sir.

Q And what would that be?

A Heart problems, arrythmia. Heart arrythmia means

irregular heartbeat or fast heartbeat.

Q And would this be the type of side effect if -- strike

that. How do we know the difference between the side

effect of the medication or these other possible

ailments?

A If the problem comes with medicine when we administer

them, then we can guess it's coming from medicine, but

generally in medical field, we look for other reason,

like electrolytes can cause heart problems, so usually,

if you think the certain medicine have a certain

potential problem, we alter their dose or change them,

and at the same time, we look for other reason as well.

Q And if Mrs. Willner started experiencing these side

effects while taking this medication, would a lay person

be able to distinguish the side effects of the medication

compared to some other cause of the problem?

A It will be very difficult.

Q And I'd like you to please look at the next entry that

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you've made as far as orders for Ms. Willner, and if you

could please read that to us.

A Levaquin tablets, 500 milligram, amount: One oral

Special Instructions for seven days, once a day, 7 a.m.

Q And what is the reason that Joyce Willner is taking that

medication?

THE COURT: Hold on a second, I don't believe she

still is based on the end date.

Q I'm sorry. Is Joyce Willner still taking that

medication?

A I don't think so.

Q And could you please read the order, the next one down,

please.

A FeroSul tablet, 325 milligram, amount: One; oral, BID,

twice a day.

Q And what is the purpose of that medication?

A It is what we call iron tablets. It's used for anemia or

low blood count.

Q And is there any monitoring required of Joyce Willner

when she's taking that medication?

A We do check her blood count frequently, if I'm not

mistaken, at least twice a week, because she required

transfusions when she drops her blood count in spite of

taking iron tablet, then she goes for a blood

transfusion.

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Q And how about the next entry down, could you please read

that.

A Desyrel, Trazodone, tablet, 50 milligram, half tablet,

25 milligrams, oral, QHS - at bedtime.

Q And what is the reason that you ordered Joyce Willner to

take that medication?

A Trazodone is used for insomnia or sleep problems.

Q And is that the reason she's taking it?

A Yes.

Q Are there any side effects to that medication?

A Yes.

Q And what are some of the side effects of that medication?

A It can make you very drowsy or lethargic, you can

oversleep, and then also can cause fall.

Q And who would assess Joyce Willner to see if she's having

a side effect to this medication?

A The nurse will do that.

Q Okay. And you said falling was one of the possible side

effects. Are there other medical reasons that could

cause Joyce Willner to fall based on your diagnosis?

A Dementia can cause fall, lack of coordination of movement

or cognitive impairment can cause fall.

Q And who would be the person that would assess Joyce

Willner to see if the medication could cause a fall, or

if there was the dementia or something else. Who would

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do that assessment?

A The nurse will assess that, and then she pass that

information to me, so when I go next time or if I have an

opinion, I just let them know what I think.

Q Okay. Doctor, I'm going to have you look at Page 11 of

12, and in particular I'm having you look at the

Treatments Flow Sheet, and the first one it says or a

type general. Could you describe what the order was for

that.

A Discontinue Pic line.

Q And what is a Pic line?

A Pic line is central intravenous line that we insert to

give I.V. antibiotics for a long period of time.

Q And does a Pic line need to be monitored for any reason?

A Absolutely.

Q And what would those reasons be?

A It can cause blood clot, it can get clogged, and more

importantly, there could be very serious infection from

Pic line.

Q And who would be the one to evaluate Joyce Willner for

these possible problems?

A The nurse will do it.

Q I'm going to have you look at Page 12 of 12. Doctor,

there is a start date listed as 10/30/12 on that sheet.

Is that order still in effect? Let me rephrase the

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question. It indicates open ended. What does that mean?

A There are some orders we have open ended and some orders

will leave it open till we change the plan.

Q And is this one that you leave it open ended until you

change the plan? Is this an open-ended order?

A Yes.

Q And what is the order for?

A It's PSA/poor safety awareness/q shift.

Q Could you continue reading it.

A Every shift, PRN, and PRN 1, PRN 2, PRN 3.

Q And what does this mean as far as q shift and every

shift, PRN 1, 2, and 3?

A I think PRN is as needed, 1, 2, 3. I guess they're

saying shift, first shift, second shift, third shift. So

this order stays for all three shifts.

Q So does that mean she is monitored every shift?

A Yes.

Q And who does the monitoring at the facility?

A Nursing, nurses, CNAs.

Q And I would like you, please, to look at the last entry

on that page, it starts off with 2/1/14 open ended. Do

you see that entry?

A Allevyn Gentle Border to right buttock open area, change

q3 days until resolved. Once a day every 3 days, 3 p.m.

and 11 p.m.

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Q And what is that?

A I think it's the local treatment for pressure sores.

Q And what is a pressure sore?

A Pressure sore is the open area that someone can get from

being in bed or being in the same position for a long

period of time.

Q Could that be from sitting in a wheelchair also?

A Absolutely.

Q Okay. And what type of treatment is this that you

ordered?

A This is a local application, we do it like a patch we

apply on the area. We are to protect that area to

further erosion.

Q And does that need to be monitored?

A Yes.

Q How often?

A Usually every shift, at least daily.

Q And who would be the person monitoring this?

A The nursing.

Q And why would they have to monitor it?

A Because the sores can turn into really a serious problem,

and that can even threaten somebody's life if it's not

monitored properly.

Q Would it take someone with medical training in order to

observe that?

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A Depends on the degree of the sore, but, yes.

Q And then this is some type of bandage, is that what you

said?

A (Nodding head)

Q When this bandage is removed and there is still a bed

sore there, is there any treatment done prior to the next

bandage being placed on it?

A The pressure sores are monitored by nurses, and if there

is no improvement, they're supposed to notify doctors.

There is a wound clinic, wound person, a wound nurse

comes into the facility, too, then we ask her usually to

come and look at it and she makes further recommendation,

so, yeah, it needs to be very actively, I mean, watched.

MR. BARNES: We're going to turn to Page 15 of 72.

Your Honor, I'm just going to take a minute to try to put

these back in order.

THE COURT: They should be in the same order in

which they were presented to the Court in which they

originally appeared.

Q Doctor, on this page, there is what appears to be an

entry on October 1, 2013 at 2:33 p.m.

MS. MULREADY: Objection, Your Honor; this was not

asked on cross.

THE COURT: It is beyond the scope of cross.

MR. BARNES: She introduced the record, Your Honor,

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I'm just continuing with the doctor's --

THE COURT: It doesn't mean we go through every page

of the exhibit that was marked in full by agreement of

the parties. If there is any redirect in connection with

what Ms. Mulready asked, you may proceed.

MR. BARNES: This actually goes to my impeachment,

also, of Mr. Willner.

THE COURT: You've already examined Dr. Khurshid,

now you are limited to what was addressed on

cross-examination.

MR. BARNES: Fine, Your Honor. I'm returning Joint

Exhibit 38 to the clerk.

Thank you, Doctor, I have no further questions.

THE COURT: Ms. Mulready, anything further?

MS. MULREADY: Just a few follow-up questions,

Your Honor.

THE COURT: Go ahead.

RECROSS-EXAMINATION BY MS. MULREADY:

Q Doctor, when you testified regarding a Pic line, is that

treatment that Joyce Willner currently receives?

A I don't think so.

Q And do you recall whether she came from the hospital to

the nursing home with that line?

A Just looking at the date on Pic line, yes.

Q And with respect to the medication that you indicated

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there were side effects for, is that medication currently

being prescribed for Joyce Willner?

MR. BARNES: Objection, Your Honor; the form of the

question.

THE COURT: Overruled. You may answer, sir.

A I don't remember exactly if she's on or not.

Q And, Doctor, you also indicated that there were frequent

medical staff available to Joyce Willner. Can you

estimate the staffing ratio on the ward that Joyce

Willner is on, how many medical staff per patients there

are for any given shift?

A I can't answer exactly how many people are there at one

shift.

MS. MULREADY: Thank you, Doctor.

THE COURT: Thank you for your testimony. You may

step down; watch your step, sir.

We may proceed, then, with Mr. Willner's continued

cross-examination. Mr. Willner.

MICHAEL WILLNER, having been previously sworn, testifies

as follows:

THE CLERK: Just a reminder, sir, you're still under

oath.

MR. BARNES: Your Honor, Mr. Willner needs to use

the restroom.

(KURT WILLNER LEFT COURTROOM BRIEFLY)

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THE COURT: Certainly.

CONTINUED CROSS-EXAMINATION BY MR. BARNES:

Q Mr. Willner, what is your gross income in the year 2013?

MR. MELISH: Objection, relevance.

THE COURT: Mr. Melish, you do need to stand when

you're objecting.

What is the relevance, Mr. Barnes?

MR. BARNES: He testified that he was going to be

assisting with taking care of Joyce Willner, and I'm

trying to determine if it's financial or otherwise. I

could rephrase the question.

THE COURT: Rephrase the question.

Q Mr. Willner, are you planning on -- strike that. If your

mother were to return home, are you planning on

contributing anything financially to her care?

A If I can afford it, I would.

Q Can you afford it?

A Not today.

Q What was your gross income last year?

A I'd say it was about $30,000.

Q And how about in 2012?

A Again, I don't recall specifically.

Q Do you recall being deposed at my office?

A Yes.

Q Do you recall during that deposition you had said your

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income was somewhere around $13,000?

A Yes.

Q And do you recall that it was approximately that same

amount for the year 2013?

A Yes, that's what I didn't recall.

Q Okay, that's fine. And you appeared in the South

Kingstown Probate Court requesting to enter your

appearance pro se, and also you filed several other

motions, correct?

A Yes.

Q You appeared before the judge in that Court several

times?

A Yes.

Q Was there any indication in the Probate Court where you

actually shouted out, my father is stealing my mother's

money?

A No.

Q Was there any time in the Probate Court where you said

those words?

A No.

Q Was there any time in the Probate, while you were --

strike that. While the probate are the -- strike that.

Was there any time when you followed the probate judge

into the parking lot?

A No. I need to correct that. Technically, yes.

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Q Yes, you did?

THE COURT: Is that correct, sir?

A No; I wasn't following him.

Q Did you approach the judge in the parking lot?

A No.

Q Did you come within three or four feet of the judge in

the parking lot?

A We walked out of the courthouse. He walked out with his

friend, marshall, and I was right behind them.

Q Did you speak with the judge?

A Yes, I did.

Q Did you ever call the judge at his office?

A The clerk told me to call him and I did.

MR. BARNES: Move to strike, nonresponsive.

THE COURT: Overruled. Did you ever call the judge

at his office?

THE WITNESS: The clerk told me to call him and I

did.

THE COURT: The answer is, yes, you did?

THE WITNESS: Yes, I did.

THE COURT: Thank you.

Q Did you call the judge to discuss the probate matter that

was pending regarding Joyce Willner?

A No, I did not call to discuss the matter.

Q Did you call to discuss the probate proceedings?

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A Called to discuss a technical issue as to the timing of a

filing.

Q Regarding the probate proceedings for Joyce Willner? Yes

or no?

A Yes.

Q And we established yesterday that you had created a web

page, savejoyce.com, and you posted some videos on that

web page, correct?

A Yes.

Q Do you also have a YouTube account?

A Yes.

Q Did you post any videos of Joyce Willner on the YouTube

account?

A Yes.

Q And on the savejoyce.com website, you have a request on

there for donations, correct?

A Yes.

Q How much have you received in donations?

A Zero.

Q Zero dollars?

A Correct.

MR. BARNES: Your Honor, if I may, we're going to

play two videos that Mr. Willner --

(DVD PLAYING)

THE COURT: Hold on a second. Mr. Connelly, can you

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stop for a moment.

MR. CONNELLY: I'm sorry, Judge; I can.

THE COURT: You were saying, Mr. Barnes?

MR. BARNES: Your Honor, I would like to play two

videos that Michael Willner took of Joyce Willner, and in

particular, one was posted on savejoyce.com, and the

other was posted on his Facebook page.

THE COURT: Which exhibit are you referring to?

MR. BARNES: They're on L. They're on the same DVD.

THE COURT: Any objection?

MR. MELISH: No objection.

THE COURT: Go right ahead. You may retrieve those.

MR. BARNES: Mr. Connelly, if you would play L-A

first.

(DVD BEING SHOWN)

Q Mr. Willner, that was one of the videos you referenced

that you had posted on YouTube?

A Well, it came in and out. That's not the way -- that was

not the result of the video that I took. You could hear

everything that she said in the video that I took, and I

didn't take a video of computer monitoring showing that

video, so that looks like a video of the video, and I did

not do the video of a video.

THE COURT: Was it posted on YouTube, sir?

THE WITNESS: Yes, it was.

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Q And if someone were on the Internet anywhere in the

world, and if they had access to YouTube, would they have

been able to see the video that you posted on YouTube?

A No.

Q Would anyone in Rhode Island have been able to see the

video you posted?

A No.

Q So can you explain how that video was recorded from the

Internet, as you just stated?

A When I put it on the YouTube, there is a section on

YouTube that you can designate that only people who you

give the link to can access it, so when I first put it up

there, I put it in a link so that only if they knew what

the link was would they get to it. Then when I created

the website, savejoyce.com, and I wanted to put that

video onto the -- make it available on the website, I

would link it from savejoyce.com to that video, and at

that time I had to make it so that you could have public

access.

Q That would be anyone in the world if they had access to

the Internet?

A At that time.

Q And do you recall the approximate date that that video

was taken, the video that you took of your mother?

A I took that video of my mother in April or May 2012.

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Q Okay. And you had testified yesterday you only video'd

her when she was having a lucid moment. Was this a lucid

moment?

A Yes.

Q And you represented to your mother that she had a couple

of choices, one was Hospice, the other was make her

better and she could go home, is that a fair statement?

A No.

Q Is that a fair -- did you make any representations to

your mother regarding Hospice?

A Yes.

Q And what were they?

A I told her that if she stayed in the Hospice, they would

give her medication so that she wouldn't feel any pain

until she passed away.

Q Was your mother still ill with the flu or pneumonia at

the time you took that video?

A She had just recovered from pneumonia and had been

transferred out of the ICU.

Q Was she still ill with either pneumonia or the flu?

A I don't believe she was. I believe she recovered and

that's why they moved her out of the ICU.

Q But you're not sure? You're not sure, are you?

A I'm pretty sure.

Q And in speaking to your mother when you talked about

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Hospice, did you give her an alternative to Hospice care?

A I did.

Q And what was that alternative?

A The alternative was that they would still try to, you

know, prevent her from having pain, but at the same time

they would also try to make her get well.

Q But you just testified she was already well.

A I did not testify to that.

Q You testified she was no longer ill?

A I did not testify to that.

THE COURT: He did not, Mr. Barnes; go ahead, move

along.

MR. BARNES: Your Honor, I would like to move to

make that video a full exhibit.

MR. MELISH: No objection.

THE COURT: Exhibit L-A may be marked in full.

(EXHIBIT SO MARKED)

MR. BARNES: Mr. Connelly, if you could please play

Exhibit L-B.

(DVD BEING PLAYED)

Q Mr. Willner, that was a video posted on line?

A On YouTube.

Q On savejoyce.com or at least linked to savejoyce.com?

A I don't recall. It could have been.

Q Did you cause that video to be placed on the Internet at

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any point in time?

A It's possible. I don't have a specific memory of that

particular video. I've put about five or six up. I

could have put that one up, yes.

Q Okay. Did your attorney provide that video to my office

as part of discovery?

A I don't know.

Q You took that video, though, correct?

A Yes.

Q And do you recall when the video was taken?

A Not specifically.

Q Okay. You made reference in there to probate proceedings

and a doctor saying to the judge she could go home; do

you recall that?

A Yes.

Q So it's fair to say that the probate proceedings in

South Kingstown Probate Court were already in progress?

A Yes.

Q Had you been appointed the guardian yet?

A Yes.

Q And you represented to your mother that, Dad and Yaffa

are keeping you here, correct?

A Yes.

Q Isn't the reason she was there because you had not

submitted a Home Health Care Plan to the Probate Court to

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be approved?

A No.

Q So the Probate Court never provided you with an order

that you could only remove her if you submitted a Home

Health Care Plan to be approved by the Court?

A I don't think that's the language that the Court used.

THE COURT: I'm more interested in the time,

Mr. Willner. Was that video taken prior to the order in

which Yaffa Willner became the successor guardian?

THE WITNESS: Yes.

THE COURT: It was before?

THE WITNESS: Oh, yes, I was the guardian.

THE COURT: And when in relation to -- well,

Mr. Barnes, I will allow you to continue. You can

further identify this time period.

Q Do you recall approximately when that video was taken?

A Sometime after I was appointed guardian and before I was

removed as guardian, so it would have been sometime

between December 2012 and August 2013.

Q And did you ever remind your mother of the fact that Kurt

and Yaffa were keeping her there prior to them visiting

her?

A Yes.

Q And did she get upset?

A Sometimes she would get upset, sometimes she would just

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acknowledge that that's what was happening to her.

Q Okay. How upset would she get?

A It varied.

Q Okay. How about the worst?

A She was pretty upset right then (gesturing), I thought.

Q Okay. Would she cry?

A No, she didn't cry.

Q Was she more upset than that on at least one occasion?

A Yes, she was more upset than that on at least one

occasion.

Q You continued to remind her of the fact that Kurt and

Yaffa were preventing her from coming home?

A The time that she was more upset than that occasion was

when I had walked in and had not even talked to her yet;

my father had just left the nursing home, and she was

extremely upset.

THE COURT: Mr. Willner, stick to the question

that's asked.

Ms. Meenan.

(PREVIOUS QUESTION READ)

THE COURT: And, sir, I will strike the

nonresponsive answer that you have just given. Please

address the question.

A Yes.

Q And isn't the reason or one of the reasons you were

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saying that to her was to have her dislike your father

and sister?

A No.

Q Was it so she would have a great relationship with them?

A It had nothing to do with that.

Q You were trying to just do what was best for her?

A Correct.

Q You believed it would be best for her for you to tell her

the false statement that today Dad and Yaffa are keeping

you here?

MR. MELISH: Objection.

THE COURT: Overruled.

A No.

Q Then why did you tell her?

A Because I wanted to make sure that when my mother had to

determine whether or not she wanted to live in a nursing

home or not, that she had all the facts relevant to

making an informed decision, and, therefore, I wanted her

to know that the reason I was not able to take her home

was because Kurt and Yaffa were saying that they were

keeping her in the nursing home. They first kept her in

there using my father's power of attorney --

MR. BARNES: Thank you, Mr. --

THE WITNESS: I'm answering the question you asked.

THE COURT: You did ask, Mr. Barnes.

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Go ahead.

A And based on him using that power of attorney, they were

not letting her leave that nursing home and so I wanted

her to understand that. And then -- and I would explain

to her why they were saying they wanted to keep her in

the nursing home, and that changed. So sometimes

initially my father would say -- and this is what I told

my mother, because I wanted to make sure she understood

all the facts so that she could tell me exactly what her

wishes were.

MR. BARNES: Your Honor, this is beyond the scope of

my relationship of him relating to the video that we just

watched.

THE COURT: You opened that door and he walked right

through it, Mr. Barnes. Overruled. Mr. Barnes, we only

have a couple more minutes before we take our midmorning

break.

Q Mr. Willner, I did not hear on that video you telling

your mother that the reason she was there is because you

had not filed a Home Health Care Plan that had been

approved by the Probate Court if you were going to inform

her of all --

THE COURT: Hold on, Mr. Barnes, you're not going to

have compound questions here. You've introduced

something and the question is, please?

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Q In that video did you inform your mother that the reason

she was still in the nursing home was because you had not

been able to have a Home Health Care Plan approved by the

Probate Court as you were ordered to prior to her being

removed from the nursing home?

A I did not tell her that.

MR. BARNES: Thank you. I have no further

questions, Your Honor.

THE COURT: Then this would be the appropriate time

to take our midmorning break. Sir, you may step down.

MR. BARNES: Your Honor, if I may just move to have

that introduced as a full exhibit.

THE COURT: Exhibit L-B may be marked in full.

We'll resume at 11:35.

(EXHIBIT SO MARKED)

(BRIEF RECESS)

THE CLERK: Just a reminder, sir, you're still under

oath.

THE COURT: Go ahead, Mr. Melish.

REDIRECT EXAMINATION BY MR. MELISH:

Q Michael, I just want to focus on certain areas that you

were asked questions on cross-examination.

A Okay.

Q There's some questions about notice when the case was

first filed in the Probate Court in the Town of

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South Kingstown; do you remember being asked about that?

A Yes.

Q And you hired Attorney Reilly to assist?

A Yes.

Q And were there any requests to speed up the first

hearing?

A Yes.

Q And to your recollection, what was done there in terms of

notice?

A There was a filing made with the Court that asked for

notice to be reduced in order to be able to get the

hearing scheduled for the next, you know, for the next

time the Court would convene.

Q And to your knowledge, was your mother given notice of

that hearing?

A Yes.

Q And were you present when she received notice?

A Yes.

Q And was it written notice?

A Yes.

Q And who brought her the notice?

A Some woman came into the nursing home and came up to the

nurse, central nursing station, said she had to deliver a

document to my mom.

Q Do you know if that was a town official or who it was?

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A I think it was a -- it was not a town official, I don't

think. I think it was someone hired to go --

THE COURT: So you don't know? If you don't know,

sir, I don't want you to speculate.

A Okay. It would be more than a speculation, but I don't

know exactly.

THE COURT: Thank you.

Q It wasn't a sheriff that was hired by Mr. Reilly, was it?

A It was not a sheriff, to my knowledge.

Q Now, you were asked some questions about visitation and

taking your mom back to her home for visits?

A Yes.

Q And did you and your father discuss the possibility of

your mom visiting her home?

THE COURT: Hold on, Mr. Melish, put a time frame on

that, please.

Q Let's put the time frame, video A10B, which was -- the

time frame was 6/24/13. Did you have any discussion with

your father about visits in June of 2013?

MR. BARNES: Your Honor --

THE COURT: And your objection?

MR. BARNES: I'm going to object if this is actually

part of the settlement negotiations that Mr. Willner

referenced that he was having with his father.

THE COURT: This video? Which?

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MR. BARNES: This was June 2013. I believe father

and son were talking about resolving the case in January

of 2013, so this would be subsequent to that.

THE COURT: Overruled; you may further your inquiry.

A I was -- I recall that I could take my mother out to go

for rides and to visit, but I was unable to take her to

her home to visit because Kurt said that I could not

bring her to the marital home.

Q And did he tell you that more than once?

A Just twice.

Q And that was during the period of time that you were the

guardian?

A Yes.

MR. MELISH: Your Honor, I would like to approach

the witness to show him Joint Exhibit 8. He was asked

questions about it on cross.

THE COURT: You may.

Q Would you please just review quickly that exhibit

(retrieving exhibit from clerk). Would you look at that

document, please (handing document to witness).

A Yes, I've looked at it.

Q And would you look at Paragraph 5 of it. Would you read

Paragraph 5.

A Yes. "Joyce C. Willner's residency shall remain status

quo until Michael Willner submits a proposed plan for her

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care to be approved by this Court."

Q How did you interpret the Court Order there in terms of

residency?

MR. BARNES: Objection, Your Honor, the Order speaks

for itself.

THE COURT: Overruled; you may answer, sir.

A It was my understanding that I couldn't do anything to

move my mom out of the nursing home until I submitted a

plan, a Home Health Care Plan, to the Court which

described how I planned to take care of her, make sure

that she could live at home safely.

Q And did this Order, in your judgment, preclude you from

taking her for a visit to her home?

A No, this Order did not.

Q And did you discuss -- where you said you discussed on

two occasions with your father of taking your mom home

for a visit?

A Yes.

Q And he did not approve that, is that correct?

A That's correct.

MR. MELISH: I'm returning --

THE COURT: Mr. Willner, your attorney will ask

questions, okay?

THE WITNESS: Yes.

Q I'm going to ask you to look at 3a.

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A (Perusing document) I have.

Q Would you please read that.

A "Either Michael Willner or Kurt Willner may be permitted

to take Joyce Willner from the facility where she

presently resides as long as it is approved by said

facility for brief period of time."

Q Now, you took your mother out for visits, is that

correct?

A Yes.

Q And did you follow this order with the facility?

A Yes, I did.

Q And was there -- you testified about a time when there

were -- your mom had sniffles?

A Yes.

Q Did anybody there object to you taking her out at that

time?

A No.

Q There was some discussion about it?

A There was.

Q But nobody objected to it, correct?

A I was allowed to take her out.

MR. MELISH: May I return the document now, please?

THE COURT: You may.

Q Michael, there were questions about your mom's assets?

A Yes.

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Q Do you remember being asked about that?

A Yes.

Q And what efforts did you make with your father to

determine what your mom's assets were?

MR. BARNES: Your Honor, I believe this has been

asked and answered by Mr. Melish previously.

THE COURT: Overruled.

A I asked him to show me his current financial statement,

and, you know, explain to me what annuities were his and

what annuities were my mom's, you know, what accounts

were joint accounts, were there any accounts, you know,

that were just in his name, any that were just in her

name. And he did show me some financial statements when

I went to visit with him after I had been appointed

guardian.

Q And prior to January did he show you documents or was

that after January 1?

A It was around -- right around that January, early January

time.

Q And that would be the year 2013?

A Yes.

Q And at that time what was the status of the marital

domicile?

MR. BARNES: Objection, Your Honor.

THE COURT: Overruled.

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A My father was living in the home and my mother was living

in the nursing home.

Q And had title been changed?

MR. BARNES: Objection, lack of foundation.

THE COURT: Overruled, you may answer.

A Yes. My father had transferred the ownership of the home

from both of them as tenants by the entirety to him and

the sole owner, signing for himself and then signing on

behalf of my mother using his 1993 power of attorney.

Q Is there a reason why you did not file an inventory with

the Court, with the Probate Court?

A It was my understanding from the order that you had only

the authority to investigate the financial situation and

use that investigation to prepare the Home Care Plan.

Q And you did prepare a Home Care Plan, is that correct?

A Yes.

Q And you and your father worked on the Home Care Plan?

MR. BARNES: Objection.

THE COURT: Basis?

MR. BARNES: I'm unsure which Home Care Plan

Mr. Melish is making reference to. The Home Care Plan

that's been provided to the Court does not have any

information in it regarding Kurt Willner.

THE COURT: Sustained, Mr. Melish. Why don't you

further inquire and lay a better foundation.

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Q You and your father worked on an agreement, is that

correct, for your mother to come home?

A Yes.

Q And that agreement was put into writing?

A Yes.

Q And there also was a financial agreement that was put

into writing?

A Yes.

Q And what was the financial agreement?

MR. BARNES: Objection, Your Honor.

THE COURT: Basis?

MR. BARNES: That matter was never put before the

South Kingstown Probate, the only Home Health Care Plan

that was put before the Probate Court is actually

undisputed Exhibit Number 17.

THE COURT: Mr. Melish?

MR. MELISH: Your Honor, there was an exhibit in the

Probate Court, and it's part of the records, where there

was a motion to enforce that agreement; that is part of

the certified record.

MR. BARNES: What Mr. Melish is trying to do is

relitigate an issue that is not on appeal. The Home Care

Plan on appeal is the one that's marked as Joint

Exhibit 17.

THE COURT: He's also putting it into context for

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this Court to make a determination about the Home Health

Care Plan that was ultimately denied by the Probate Court

and which was on appeal here, so, overruled.

Mr. Melish, you may continue.

Q So just briefly, what was the agreement and what was the

plan to get your mom home in January of 2013?

A So in January, through December and January, I prepared a

first draft of the Home Care Plan and I brought it with

me after I had been appointed guardian, and reviewed it

with my father. We went over it --

THE COURT: Sir, just what did it include?

A It included an explanation of how my mother would be

cared for at home without my father having to provide any

of that care.

Q And part of that agreement had to do with finances?

A There was a separate agreement that we signed on the same

evening that dealt with finances.

MR. BARNES: Your Honor, I'm going to have to object

again. This has to do with settlement negotiations

between the parties. This plan was never submitted to

the Court as it's part of Mr. Willner's motion to approve

a Home Health Care Plan for July 9, 2013. This has to do

with his negotiations with his father in order to come up

with a family resolution, perhaps, of this matter. It's

not any type of document that was submitted and evaluated

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by the Probate Court.

THE COURT: It was a first draft, according to this

witness.

Mr. Melish?

MR. MELISH: Yes. And Joint Exhibit 12, which is a

full exhibit, indicates that a motion was filed

concerning that agreement, concerning the financial

assets and which really had to do with the Home Care

Plan.

THE COURT: Overruled, you may continue.

Q Now, in April and May, once your father renounced what

the two of you had agreed to --

MR. BARNES: Objection as to the characterization of

Mr. Willner, Mr. Kurt Willner.

THE COURT: Sustained. Rephrase.

Q At some point in time the plan you and your father talked

about died, correct?

A Yes.

Q And why did it die?

A My father changed his mind and hired two attorneys to try

to convince the Probate Court to, you know, effectively

overrule its earlier order and remove me as guardian.

Q And you filed a second Care Plan in May or so, is that

correct?

A Well, that was actually this, yes, the second draft of

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the plan, which had a lot more detail than the first

draft. It had an hour-by-hour chart to show who exactly

would be taking care of Joyce on every single day. It

had financial records indicating the assets and income

that my mother would get pursuant to the financial

agreement, if you could get it enforced, and it showed

how she could afford to live in her home, and it also had

a Plan B that showed how she could afford to live with

Marshall and Karla if there was some delay or a problem

in getting her to return back to her own home.

Q And why did you do a Plan B?

A Because I -- because Kurt was, you know, fighting in

Court to prevent me from bringing my mother back to her

home, and she didn't want to stay in the nursing home,

and Marshall and Karla had offered to let her live with

them.

MR. BARNES: Objection, Your Honor, hearsay.

THE COURT: Overruled.

A And, you know, my mother said she would prefer to live

with --

MR. BARNES: Objection, Your Honor, hearsay.

THE COURT: Overruled, I'll allow it.

A Preferred to live with Marshall and Karla than to stay in

the nursing home. And as far as my mother was concerned,

the sooner, the better. So I created that Plan B because

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I felt that that would be easier to get approved on a

short -- in a shorter time frame than the Plan A, which

was her preference. Plan A was her preference, but

Plan B was Plan B, Option B.

Q And your motion for a Home Care Plan, was that one of the

motions that the Probate judge struck from the record?

A Yes.

Q Now, you filed a plan in July, the third plan, is that

correct?

A Yes.

Q And who was Patricia Miller?

A She was a registered nurse that worked for a home care

agency and I hired her. I asked her to come to Marshall

and Karla's house to assess, you know, if anything had to

be modified in the house, to meet my mom and see what my

mother's capabilities were, and to determine whether or

not she felt my mother could live in Marshall and Karla's

house safely.

Q And was her report attached to the third motion for

approval of the Home Care Plan?

A Yes.

Q And were all of the modifications that she suggested

feasible and done?

MR. BARNES: Objection, Your Honor.

THE COURT: Feasible and done?

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MR. MELISH: Right. I'm asking if the changes were

done or -- I'll withdraw the question.

THE COURT: Okay.

Q Did Patricia Miller have a few suggestions?

A Yes.

Q And what were those suggestions?

A Her suggestions were to get an, I'm going to call it a

contraption, that would allow my mother to sit down and

then rotate in the bathtub to be washed, and then she

suggested that the carpeting be secured to the floor.

She suggested that if there were any sharp corners, that

we should put some cushioning around any sharp corners.

MR. BARNES: Your Honor, I'm going to object and

move to strike, because Mr. Willner is testifying beyond

the scope of the information you've been provided with,

and in particular, he had this particular plan attached

to his motion and it does not address many of the issues

he's testifying to.

THE COURT: Mr. Melish?

MR. MELISH: I believe the plan speaks for itself.

It's in the record, I think.

THE COURT: Where is it in the record, Mr. Melish?

MR. BARNES: Joint 17, Your Honor.

THE COURT: And you say, Mr. Barnes, that you did

not receive this?

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MR. BARNES: I received it, but I don't recall

anything about sharp edges or corners.

THE COURT: I'll give you the limited opportunity to

recross him on that. Overruled.

Q And your mom's and your friends were willing to make

their house available and modify anything that needed to

be done?

MR. BARNES: Objection, calls for a hearsay answer.

He actually had Mr. Feldman here as a witness. That was

the appropriate time to ask those questions.

THE COURT: I did note that there was nothing asked

of Mr. Feldman regarding the Home Health Care Plan.

Sustained.

Q There was some testimony, some questions asked about

whether Roberts Health Center ordered you not to take

video; do you remember those questions?

A Yes.

Q And did Roberts have the authority to order you to not

take videos?

MR. BARNES: Objection, calls for speculation,

Your Honor.

THE COURT: Sustained.

Q Did you discuss the issue of -- well, did you take videos

while you were the guardian?

A Yes.

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Q And did anyone at Roberts talk to you about it?

A Not while I was the guardian.

Q There were questions asked about whether or not you were

coaching your mom on those videos; do you remember those

questions?

A Yes.

Q And were you intentionally trying to coach your mom?

MR. BARNES: Objection, Your Honor. Exhibit 38

speaks to that. The document speaks to itself as to what

Roberts' records represent as far as their comments to

Mr. Willner.

THE COURT: That's all well and good, but Mr. Melish

can ask this witness whether he was doing -- what he was

doing. Go ahead, Mr. Melish.

You may answer.

A In my mind, when someone asked me if I'm coaching in this

particular circumstance, I would say no, because in my

mind, coaching is trying to get my mother to say

something without first making sure she knows both sides

of the story. So I always did my best to make sure my

mother understood all relevant facts so that when she

expressed her wishes, they were informed wishes. And I

never coached her given that that's what I think they're

trying to define coaching as.

MR. MELISH: I'd like to show you Joint Exhibit 33

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full. May I approach the witness?

THE COURT: You may.

Q Michael, I'm showing you Joint Exhibit 33, would you

review that quickly.

A (Perusing document) Okay, I've reviewed it.

Q How did you interpret that letter?

MR. BARNES: Objection, Your Honor.

THE COURT: Overruled. He may respond to what his

actions were as a result of reading the letter, his

interpretation.

Go ahead.

A Yes; I prepared a draft response to this letter because I

felt that the characterization that a comprehensive

assessment had been done was not true, and I countered

Number 1, they say that there are many unresolved issues

surrounding a guardianship.

MR. BARNES: Your Honor, I object. I have not been

provided with Mr. Willner's counter-proposal or response

to that particular document.

THE COURT: And he is answering what his actions

were as a result of seeing this. He said he prepared a

draft response.

MR. BARNES: I have not seen it.

THE COURT: He can still testify as to what he did

as a result of it without needing to produce it as an

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exhibit.

Go ahead, sir.

A So Number 1 says, There are many unresolved issues

surrounding guardianship which we feel will interfere

with the proper care of your mother. In the draft I

responded that I did not intend to move my mother back

into her home while we were still -- while the

guardianship issues were unresolved, although I was

concerned that if my father wanted to just keep filing

petitions to remove me as guardian forever, then at some

point we'd have to say the guardian issue is resolved and

I can bring her home, but I was agreeing that I would

not -- I did not intend to bring her home while we were

still in the midst of that.

Number 2, the temporary placement of your mother in

her neighbor's home, although they are willing to care

for her, is not an option that we find to be supportive

of the amount of care your mother requires.

I objected to that because they didn't speak to me

about it, they didn't -- and I was the guardian. I asked

them to, when they performed this assessment, that I be

allowed to be with them when they spoke to my mom, and

that they get my input, and they didn't get my input. So

I don't see how that could be comprehensive without even

talking to me. And then they didn't speak with Marshall,

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they didn't speak with Karla.

MR. BARNES: Objection, Your Honor.

THE COURT: Sustained. Let's move this along,

Mr. Melish. Next question, please.

Q Number 5, would you read Number 5 and give your response

to Number 5.

A In light of the necessity of guardianship, your mother is

not able to make an informed decision for herself to

return home.

Q What is your reaction to that statement?

A You know, my reaction was that when she has a lucid

interval, if she has been given all the relevant facts,

that she can, at a minimum, give an informed -- what her

wish is, and, you know, I would argue that she can make

an informed decision so long as, again, someone is there

to make sure she understands all her options from all

sides of the issue.

Q And throughout the last two years, that's what you have

attempted to do?

A Yes.

MR. BARNES: Objection, Your Honor.

THE COURT: Overruled.

Q The letter goes on to talk about the Personal Choice

Program?

A Yes.

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Q Would you discuss all of your efforts concerning the

Personal Choice Program.

A Yes. So I wanted to find out how much the, you know,

Medicaid would contribute to my mother's home care

expenses, and based on my research, I felt that they

could provide up to or equal to the amount that they were

paying to the nursing home, and so I spoke to the people

at the Rhode Island -- the Medicaid people at Rhode

Island, and they had me talk to people at Tri-Town, which

is an agency that they work with, and I was told that I

could apply for a Personal Choice budget pursuant to the

Personal Choice Program, and that they would do an

assessment of my mother's needs and create a budget. And

I asked if they could do that, they were saying, well,

you have to have --

MR. BARNES: Objection, Your Honor.

THE COURT: Sustained.

A Okay. And they said --

MR. BARNES: Objection.

THE COURT: Please.

THE WITNESS: I apologize.

THE COURT: Sir, what were your efforts in

connection with the Personal Choice Program? What

specifically did you do?

A I contacted the Medicaid office at the Rhode Island

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Department of Human Services. They said that --

MR. BARNES: Objection, Your Honor.

THE COURT: Again, sir, just what were your efforts?

THE WITNESS: Yes. And my efforts were to ask them

to approve the Personal Choice Program and give me -- and

I asked them to give me a budget so that I could present

to the Court, and I was told that --

MR. BARNES: Objection, Your Honor.

THE COURT: No, stop, stop, stop.

Mr. Melish.

Q You did make an application to the Personal Choice

Program?

A Yes.

Q And did you get a response from them?

A Yes.

Q And what was their response?

MR. BARNES: Objection, Your Honor.

THE COURT: How about, as a result of their

response, what, if anything, did you do?

A I continued to ask them to prepare the budget because

they said I could still --

MR. BARNES: Objection, Your Honor.

THE COURT: Sir.

Mr. Melish, do you need an opportunity to speak with

your client about staying away from hearsay, because we

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could be here all day long.

THE WITNESS: I'll do better. I apologize.

THE COURT: Thank you. I've reminded you several

times now.

THE WITNESS: I know.

Q Is the Personal Choice Program, as you understood it,

available for your mother if she goes home?

A Yes.

Q And it's your intent to apply for that program if you're

given the ability to bring her to her home or to Marshall

and Karla's home?

MR. BARNES: Objection, Your Honor; asked and

answered.

THE COURT: Overruled.

A Yes; I believe I've already applied, and if I have to

apply again, I will.

Q You were asked some questions about correspondence that

you had with a Coleen Pendergast?

A Yes.

Q And you received a communication from her September 24 of

2012, is that correct?

MR. BARNES: Objection, Your Honor. When I

attempted to approach Mr. Willner and have that marked as

a full exhibit, I believe the Court instructed me that

since Ms. Pendergast was going to be testifying, that

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would be the appropriate time to introduce those

documents.

THE COURT: And if you're listening to Mr. Melish's

question, he's not asking to have it marked in full, he's

just asking about the correspondence in general.

Overruled.

Q At the time of that correspondence of September 24, 2012,

had you been appointed temporary guardian?

A No.

Q Did you have any discussion with Coleen Pendergast about

her role when a guardian ad litem would be appointed?

A Yes.

Q And what was that conversation?

MR. BARNES: Objection. Calls for hearsay.

THE COURT: Sustained.

Q I will ask you a few questions about your mom's Living

Will.

A Okay.

Q What is your understanding of the Living Will that she

executed on December 11 of 2006?

MR. BARNES: Your Honor, the document speaks for

itself. Mr. Willner's interpretation of the document has

no bearing.

THE COURT: Overruled.

A It was my understanding that my mother felt that if

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she --

MR. BARNES: Objection, Your Honor.

THE COURT: Sir, just what was your understanding of

what the Living Will was?

A The understanding of the Living Will was that if my

mother had an incurable ailment that left her totally

debilitated, that she would not want to be resuscitated.

MR. BARNES: Your Honor, I'm going to move to strike

it. My recollection, correct me if I'm wrong, is that

Mr. Willner, when he testified regarding the Living Will,

I believe he said he hadn't seen it prior to my

presenting it to him.

THE COURT: And the question is simply what was his

understanding of it. Overruled.

MR. BARNES: But if he hadn't seen it prior to

yesterday, he could not have developed an understanding

of it.

THE COURT: Perhaps he had an understanding from a

discussion. Overruled.

Q There was some discussion between or disagreement between

you and Yaffa concerning medical directives. Can you

discuss --

MR. BARNES: Objection as to the characterization of

their interactions.

THE COURT: Overruled. I don't believe that the

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question was finished. Can you state that again, please.

Q You and your sister had discussions about changing

medical directives, correct?

A Yes.

Q Was there a point in time when your mother was -- talk

about the hospital time, were there discussions about

directives then?

MR. BARNES: Objection as to form.

THE COURT: Sustained as to form. And we do have an

individual that just came into the courtroom. As I

indicated yesterday, counsel is responsible for

sequestering material witnesses. I don't know if this

individual is expected to be a witness?

MR. CONNELLY: She's not, Your Honor.

THE COURT: Sustained as to form. Continue,

Mr. Melish. Rephrase.

Q Can you give me a time frame when you and your sister had

a disagreement about medical directives?

MR. BARNES: Objection, Your Honor. This is beyond

the scope of redirect. I did not raise those issues with

Mr. Willner on cross-examination between he and his

sister.

MR. MELISH: I believe there were questions about

why her directives, Joyce's directives, were sustained.

Overruled, you may continue.

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A All right. Well, the questions about the medical

directives being changed dealt with an incident in --

when I was made guardian, my mother developed a

respiratory infection in the nursing home and I was

staying with her and was very concerned that she may have

to go to the hospital. And I asked the nurse, you know,

what would happen if she had to go to the hospital, and

it was my understanding that the nursing home would not

let her go to the hospital because of the medical

directives that were in place. And I said, well, I'm the

guardian, and the last time she had, you know,

respiratory problems she went to the hospital and it

saved her life, so let's see the medical directives. And

he showed them to me, and it had in there that she could

not go to the hospital, the nursing home could not send

her to the hospital. And I said, well, I want that

changed. And he gave me another document, a blank form

of what I had just looked at, and I made sure that -- I

signed it and she would be allowed to go to the hospital

in an emergency. Later on --

THE COURT: Okay, next question, please.

Q And at anytime subsequent to that was your directive

changed?

A Yes.

Q And when was that?

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A After I was removed as guardian and Yaffa was --

MR. BARNES: Objection, Your Honor.

THE COURT: And your basis?

MR. BARNES: Evidently Mr. Willner has accessed

confidential information after his removal as guardian.

I believe his testimony on that is prohibited by law.

THE COURT: Overruled.

A Yaffa was appointed successor guardian. I learned that

she changed the medical directives so that in an

emergency, my mother -- the nursing home cannot send my

mother to a hospital.

MR. BARNES: Your Honor, I'm going to object to that

characterization, if there's an emergency his mother

cannot be brought to a hospital.

THE COURT: This is based on Mr. Willner's

understanding. Overruled.

Q Michael, there were questions about your mother's need

for blood transfusions; do you remember that testimony?

A Yes.

Q And there was testimony about your mother seeing a blood

specialist?

A Yes.

Q Do you remember that?

A I do.

Q Can you describe the circumstances of those discussions

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with the health center and with your mother and with your

father?

A Yes. The nursing home staff asked me if they could send

my mother to a blood specialist for tests to try to

figure out why she was anemic, and I was aware of the

fact that tests had recently been -- recently, within the

last two or three years, tests had been done, and they --

the risk, the tests themselves create a risk.

MR. BARNES: Objection, Your Honor, calls for

medical opinion.

THE COURT: Sustained. Sir, you're not a physician,

are you?

THE WITNESS: No, but I know that.

THE COURT: Good for you, sir.

Mr. Melish, Next question.

Q Michael, was there a period of time when you asked them

not to send your mother to a specialist so you could do

further research?

A Yes.

Q And how long a period was that?

A A couple of weeks.

Q And, in fact, your mother did go to the specialist?

A Yes.

Q And did you go with her?

A Yes.

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Q Did your father go with her?

A Yes.

Q And you all consulted with a specialist?

A Yes.

Q And after that meeting did the specialist recommend that

the tests be taken?

A No.

Q And did you and your father and your mother agree that

the tests would not be taken?

A Yes.

Q You were asked some questions about the divorce complaint

that was filed by your mother on her behalf?

A Yes.

Q And also a motion for a temporary order, is that correct?

A Yes.

Q And there was a hearing date scheduled for the motion on

a temporary order?

A Yes.

Q Do you remember that date?

A Not specifically. I'm sorry, I think it was September

2000.

MR. BARNES: Objection, Your Honor.

THE COURT: Overruled.

A September 2013. September 12, I think.

MR. MELISH: I'll refresh his recollection; it is a

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full exhibit.

MR. BARNES: I will have to object, Your Honor.

Mr. Willner just answered the question; he did not

claim -- he does not have a recollection.

THE COURT: Is there a need to say a specific date?

He did say September 2013.

MR. MELISH: I think we can stipulate that the date

was September 27.

MR. BARNES: I'm going to object to that, that was

not Mr. Willner's testimony.

THE COURT: Sustained.

MR. MELISH: May I show him Exhibit 31?

THE COURT: Do you presently recall as you sit here

today, sir, what the date for this hearing was scheduled

for?

THE WITNESS: Not the precise date.

MR. MELISH: May I approach and show him Joint

Exhibit 29.

(CLERK HANDING DOCUMENT TO COUNSEL)

Q Michael, I am showing you as part of Joint Exhibit 29 the

Family Court summons. Can you look at that document.

A Okay.

Q Is the date scheduled for the motion for a temporary

order set forth on the summons?

A Yes.

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Q And what is that date?

A September 27, 2013.

MR. MELISH: Thank you. I'm returning this document

to the clerk. May I approach with Joint Exhibit 32?

THE COURT: You may.

(CLERK HANDING DOCUMENT TO COUNSEL)

Q Michael, I'm approaching with Joint Exhibit 32; can you

look at that document.

A (Perusing document) Okay.

Q And the divorce matter was dismissed without prejudice

on -- the date of that should be the 27th of September?

MR. BARNES: Objection, Your Honor, the document

speaks for itself.

THE COURT: Sustained.

Q Michael, was the case actually dismissed on September 12

or was it dismissed on September 27?

A I believe it was dismissed on the 27th.

Q And, in fact, on the 27th the without prejudice became

part of the Court order, is that true?

MR. BARNES: Objection, Your Honor; the document

speaks for itself, and I don't believe that Michael

Willner was a party to this action based on the

signatures on the stipulation.

THE COURT: Sustained.

MR. MELISH: I'm retrieving the document.

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THE COURT: Mr. Melish, how much more do you have?

I ask because we are getting up to our lunch break.

MR. MELISH: Probably 15/20 minutes.

THE COURT: Then we will take our lunch break at

this time. Sir, you may step down. We will start up

again promptly at 2 p.m.

(BRIEF RECESS)

THE CLERK: Continue with WP2013-0400, In Re:

Estate of Joyce Willner.

THE COURT: Mr. Willner, please.

THE CLERK: A reminder that you're still under oath,

please.

MR. MELISH: Thank you, Your Honor.

CONTINUED REDIRECT EXAMINATION BY MR. MELISH:

Q Michael, I just want to cover a few more areas and then

we'll be finished. Can you explain why your mother

wanted to file for divorce and why you assisted her to do

that?

A Yes, she wanted --

MR. BARNES: Objection.

THE COURT: Sir, why don't you stick with why you

assisted her with it.

A I assisted her with it because I wanted to help her get

back into her home. I wanted to be able to get access,

help her get access to her financial assets so we could

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pay her legal fees and whatever home care expenses we

would have to pay above and beyond anything we would get

from Medicaid. I mean, those three things, primarily.

Q And you were guardian when you assisted her with that,

correct?

A Yes.

Q And all of the documents that were signed and that she

signed were in your presence and my presence?

A Yes.

Q Now, there were some questions about savejoyce.com, and

do you remember being asked about that?

A Yes.

Q And there was a question about the consultation report

from South County Hospital?

A Yes.

Q And was that part of the probate record, that document?

A Yes.

Q So when you put it on the Internet, it was already a

public document in the probate file?

A Yes.

MR. MELISH: That's all I have, Judge.

THE COURT: Thank you.

MR. BARNES: Your Honor, if I may, a couple

questions for Mr. Willner.

THE COURT: It will be very limited, Mr. Barnes, and

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let me remind everyone here, I did inquire of

Ms. Mulready with respect to the doctor as to whether

there was any further examination, but let me make clear

that Rule 43(d) of the Rules of Civil Procedure allow

direct, cross, and redirect. Any further examination is

only with express leave of Court.

I will allow three areas of inquiry, and only these

three: The facts and circumstances of how Mr. Willner

learned of the Living Will, the facts and circumstances

surrounding any response that he had and testified to

with regard to Joint Exhibit 33, and Patricia Miller's

submission that was attached to Joint Exhibit 17.

MR. BARNES: Thank you, Your Honor. If I may see

Joint Exhibit 17, please.

(CLERK HANDING DOCUMENT TO COUNSEL)

RECROSS-EXAMINATION BY MR. BARNES:

Q Mr. Willner, I'm going to show you Joint Exhibit 17, and

I'm going to have you look at Exhibit 1, which I believe

is part of Patricia Miller's evaluation. Is there an

indication on there as to any allergies that your mother

may have?

A Yes.

Q And what are those allergies listed on that document?

A Morphine, codeine.

Q Okay. Did your mother -- didn't you testify your mother

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was receiving morphine through Hospice?

A Yes.

Q When you asked this individual to prepare or assist you

with this Home Health Care Plan, did you provide her with

a history of your mother's medical condition?

A Yes.

Q And did she -- do you know if she used that to prepare

that report that you have attached to your motion?

A Yes.

MR. BARNES: No further questions, Your Honor.

THE COURT: Thank you.

Mr. Willner, sir, you may step down.

Mr. Melish?

MR. MELISH: Your Honor, at this time the appellant

rests subject to rebuttal.

THE COURT: Mr. Barnes, Mr. Connelly?

MR. BARNES: Your Honor, at this time I would like

to address my appellant's pretrial motion that I filed

for dismissal, and also I'm going to request that

pursuant to Rule 5, that Court enter judgment dismissing

the action filed by appellants.

THE COURT: Go ahead.

MR. BARNES: This is regarding my motion to dismiss

pursuant to Rule 12(c). Michael Willner's testimony was

clear that he hired Attorney Melish to represent himself,

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Joyce Willner, and the Estate of Joyce Willner. Clearly,

it was his understanding that there were three separate

parties involved. Michael Willner was the party that

filed the notice of appeal with Probate Court, the Estate

of Joyce Willner was the party that docketed the appeal

with this Court.

THE COURT: Well, let's be perfectly clear as to

which order and notices of appeal you are referencing,

because there certainly was the July/early August order,

and then the removal order, we shall call it.

MR. BARNES: I'll direct you to Exhibit 25; it's the

first one, Your Honor.

THE COURT: Exhibit 25 of?

MR. BARNES: The Joint Exhibit 25. The first page

of Joint Exhibit 25, Your Honor, is entitled, Amended

Claim of Appeal. And this document states that, The

Guardian is aggrieved by an order or decree entered on:

July 16, July 25 and August 15. This was actually filed

with the Court. It's indicated on the second page,

Michael Willner, Guardian, By the Estate Attorney. The

third page of this exhibit --

THE COURT: I'm sorry, I only have two pages.

THE CLERK: It's two pages.

MR. BARNES: Your Honor, it would appear that in

Mr. Melish filing the joint exhibits, he failed to

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include all pages regarding Exhibit 25.

THE COURT: These are joint exhibits. You have just

as much of a responsibility to ensure that they are

accurate. They're all joint exhibits, they've been

requested to be made full exhibits.

MR. BARNES: Would you like me to offer a copy of it

to the Court? If not, we can --

THE COURT: What's the import of Page 3?

MR. BARNES: Page 3 is the amended reasons for

appeal filed with the Superior Court, which should be

contained in the Superior Court file. The amended reason

for appeal filed in this Court indicates in Paragraph 3,

Appellant, Estate of Joyce C. Willner, is aggrieved by

the order and decrees of the South Kingstown Probate

Court. The page of that document with the attorney's

signature indicates, Appellant, Estate of Joyce Willner,

by its attorney, H. Jefferson Melish. It is not the same

entity that filed the appeal with the Probate Court,

Michael Willner, Guardian.

And if we look at Exhibit 26, Your Honor, titled

Claim of Appeal, this document was filed in the Town of

South Kingstown Probate Court indicating claim of appeal,

the Guardian is aggrieved by an order of July 16, 2003,

July 25, 2003. The second page of that document

indicates, Michael Willner, Guardian, By the Estate

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Attorney. The certification of notice of probate appeal

that was filed in this Court indicates that the

undersigned on behalf of the appellant, Estate of Joyce

Willner, in the above referenced probate appeal, hereby

certifies such and such. The certification, Your Honor,

under Paragraph 1 is a certification also to Michael

Willner, thereby --

THE COURT: Mr. Barnes, are you referring to

something beyond the three pages that are Joint

Exhibit 26?

MR. BARNES: I apologize, Your Honor. I took

Mr. Melish on his word that he was filing the joint

exhibits that we agreed to.

THE COURT: Mr. Barnes, again, these are joint

exhibits. You have as much of a responsibility to ensure

that they're accurate as Mr. Melish does.

MR. BARNES: The certificate that I'm referencing,

Your Honor, is contained in the Superior Court filing as

a Superior Court document. It's entitled Certificate of

Notice of Probate Appeal. It is signed by Mr. Melish,

Appellant, Estate of Joyce Willner, By its Attorney.

Clearly, this document also indicates that the appeal

docketed in this Court is docketed by the Estate of Joyce

Willner, a different entity that docketed the appeal with

the South Kingstown Probate Court, Michael Willner,

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Guardian, and I look at the intent of this document to

only include the Estate of Joyce Willner based on the

fact that the certification on it specifically lists that

it was also sent to Michael Willner.

THE COURT: Anything further?

MR. BARNES: Based on the defective filing,

Your Honor, with this Court, it's my opinion this Court

lacks jurisdiction on this matter because the filing of

the appeal in this Court is defective. Based on those

grounds, I'm going to ask that this Court dismiss this

action.

THE COURT: Thank you.

Mr. Melish?

MR. MELISH: Your Honor, this case has been going on

for over two years. I've been involved since June of

2013. Throughout the proceedings in the Probate Court, I

have been representing the Estate and the guardian and

the ward; that's what I mean when I use the term Estate

of Joyce Willner. The judge in the Probate Court didn't

agree with that and restricted who I could represent.

But I am asking and my clients are asking that I be able

to represent the Estate, the ward, and the guardian,

because they all have the same interests. They all

consistently have been attempting to have a guardianship

with Michael as the guardian, and with Joyce returning to

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the community.

THE COURT: Well, I certainly understand the

arguments that have been made over the past day and a

half. I recognize the long history in this. When you're

referring to the guardian and the Estate, we're speaking

of the guardian or person, the guardian of the Estate,

which one is it?

MR. MELISH: It's both, Your Honor. It's definitely

both. He was appointed temporary guardian of the person

and the Estate of Joyce Willner and he was appointed in

December of 2012 as the guardian of the person and the

Estate of Joyce C. Willner, and that's --

THE COURT: And by way of the August 15 proceedings,

Yaffa Willner was appointed to be what?

MR. MELISH: She was appointed as successor

guardian.

THE COURT: Of the person or the Estate?

MR. MELISH: Probably both, Judge.

THE COURT: Recognizing, of course, that you object

to the August 15 order of the Probate Court, and that is

the date of the Order being referenced in the Amended

Claim of Appeal, the Estate stays with the guardian. In

other words, how can you continue to represent the Estate

after August 15 if Yaffa Willner was appointed to be the

successor guardian of what you now recognize as being the

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guardian of the person and of the Estate?

MR. MELISH: I see them as together. We challenged

the decision based on notice requirements and

jurisdictional issues and appeal in the amended appeal.

We in good faith believed that the probate judge erred,

and that's part of the appeal. There was a motion for

partial summary judgment, and you did rule, I believe it

was October 21, that the lower Court had jurisdiction to

hear the matter on August 15, but we always thought that

that was an error, and we acted in good faith.

THE COURT: But at this point in time -- Mr. Melish,

may I please ask the question. Who is the we that you're

referencing? As of August 15, who is we?

MR. MELISH: I believe Michael Willner as the

guardian of the Estate, and as the son, who is a party in

interest. I have been representing him, I have been

representing his mother because she wanted me to, and I

believe I'm representing both of them.

THE COURT: And I noticed now that you've left out

the Estate.

MR. MELISH: Well, in my opinion, I'm the attorney

for the Estate until you rule on this issue, and I will

stand corrected if you rule that I'm not the attorney for

the Estate. I still believe that Joyce Willner wants me

to be her attorney, and I believe that Michael Willner

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wants me to be his attorney until such time as he

discharges me or not, but I am his attorney, I have been

working with him. He has signed all documents,

everything has been done with his petition, his

knowledge, his consent. And I think they're trying to

make a form over substance argument here.

THE COURT: And very late in the game, I recognize

that.

MR. MELISH: Very late in the game. And to me it's

not fair to make us go months and months getting ready

for trial, and go through trial, and then one day before

the trial file this motion. It's just not fair.

THE COURT: Twenty minutes before testimony.

MR. MELISH: Yes.

THE COURT: Well, whether it's fair or not, the

question as they have posed it is jurisdictional. And,

again, having been presented with that motion just

yesterday morning prior to the start of this trial, I

have not had the opportunity to spend as much time as I

normally would with a dispositive motion such as I did

back in October when the motion was presented to the

Court at that time, so I'm going to defer on this, on

ruling upon this motion at this point in time.

Mr. Barnes, your first witness.

MR. BARNES: Coleen Pendergast, please. Coleen

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Pendergast.

COLEEN PENDERGAST, being duly sworn, testifies as

follows:

THE CLERK: Please state and spell your first and

last names for the record.

THE WITNESS: Coleen Pendergast, C-o-l-e-e-n

P-e-n-d-e-r-g-a-s-t.

THE COURT: You may be seated, ma'am.

Go ahead, Mr. Barnes; whenever you're ready.

DIRECT EXAMINATION BY MR. BARNES:

Q Ms. Pendergast, could you state for the Court who you're

employed by.

A I'm employed by the Alliance for Better Long-Term Care

which houses the office of the Rhode Island long-term

care ombudsman.

Q And your position with that office?

A I'm an assisted living and nursing home ombudsman.

Q And what are your duties as far as that position?

A The role of the ombudsman -- Kathleen Heren is the state

ombudsman and we work for Kathleen Heren. The role of

the ombudsman is to serve as an advocate for folks who

are in assisted living and nursing homes and those

receiving skilled home care.

Q When you state, serve as an advocate, could you expand on

that a little bit.

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A The Older Americans Act, it actually mandates that each

state have an office of the ombudsman or an advocate for

folks who are in long-term care, and our job is to be a

third party. We do a lot of mediation. We receive

concerns and complaints from families, from residents,

directly from facilities, and our job is to go in and

help find a resolve to these situations.

Q Is your authority granted to you by the Federal

government, state government, or otherwise?

A Both. The Older Americans Act mandates that each State

house an office of the ombudsman. There are also -- in

the General Laws of Rhode Island there are specifics to

what the powers of the ombudsman, or the office of the

ombudsman, are. Some states have the office of the

ombudsman through state government. In Rhode Island, the

Department of Elderly Affairs contracts through the

Alliance to serve as that office.

Q And what is your educational background?

A I have a Bachelor's Degree in social work.

Q And when did you receive that degree?

A 1996.

Q And how long have you been working as -- did you say

assistant ombudsman?

A Nursing home or assistant -- I do both -- ombudsman.

Q How long have you --

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A I have worked for the state ombudsman's office for three

years.

Q Prior to that where did you work?

A I worked in long-term care facilities throughout the

state as a social worker.

Q And in your present position you stated that you

investigate complaints?

A Um-hum.

Q Approximately how many have you investigated in the last

three years?

A Hundreds, hundreds, probably, I would be safe to say.

Q Okay. And you also testified that you do a number of

consultations?

A Yes.

Q How is that different from an investigation?

A That is some more of our internal, which is the Federal

reporting system. We have to classify something as

either a consultation or a case. Both would involve

investigation. Consultation, sometimes there's -- we

receive a lot of state reportables that we have to follow

up on. If someone falls and is hospitalized, we would

then in turn contact the facility to ensure that their

plan of care has been updated. We may go and see the

resident that would be considered for a consultation than

us actually investigating a concern that was brought to

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us.

Q And how many consultations have you been involved with

since you've been employed with your current employer?

A Hundreds. Every time we pick up the phone. Generally it

could be a consultation, someone may be calling us

looking for information on an assisted living, questions

about maid care, medication. So those would be

considered for consultations.

Q And was your office ever contacted regarding Joyce

Willner?

A Yes.

Q And in what capacity?

A Michael Willner contacted my office in, I believe it was

August of 2012.

Q And do you recall what the purpose of that contact was?

A Mr. Willner called seeking information regarding the role

of the ombudsman and what we did at the Alliance, and the

odd -- we kind of use them interchangeably, the Alliance

is the housing agency, and then the ombudsman program.

So he called asking what the role of the ombudsman or the

office of the ombudsman was, which I explained to him.

Q Just as you explained to us?

A Yes, very similar.

Q And was that the end of your involvement with Joyce

Willner?

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A No. Michael Willner had stated that he was concerned

because he felt as though his father put his mother in a

nursing home because he -- at the time he had stated that

he thought he was taking up with the home care aide.

Q Okay. And as a result of that, did you open a case or

start a consultation?

A Yes, I did, I did.

Q And was it opening a case or doing a consultation, or is

it one in the same?

A It's one in the same. Technically, because we have to

investigate before we can classify it as a case if it was

something that was validated and verified.

Q Did you begin an investigation?

A I did.

Q Could you explain to us what that entailed?

A I believe Mr. Willner contacted me on a Friday.

THE COURT: I'm sorry, ma'am, because we have

several Willners here, could you --

A I'm sorry, yes. I believe Michael Willner -- is it

appropriate to just call him Michael?

THE COURT: That would be fine; thank you.

A Michael contacted me on a Friday, and one of my

colleagues was going to -- one of the first things we

would do in a case like this is go out to see the

resident. One of the questions I had asked Mr. Willner

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was when I spoke to him on the phone -- I'm sorry,

Michael -- was that if his mom had the capacity to make

decisions for herself, and he stated that she did. So

at that point, the first thing that we would do is

someone would go visit the resident to gauge whether the

person was able to voice their concerns, and I spoke to

one of my colleagues on Monday. I took the call on the

Friday, I spoke to her on the Monday, she was going to

Roberts Health Center on Wednesday. Because we're a

limited number of staff and we cover a pretty big

geographical area, I asked her if she could stop in and

see Mrs. Willner, and many times -- just to stay hello

and to see if she was able to engage in a conversation

with her. When my colleague came back to the --

THE COURT: Okay, we're going to go to the next

question.

THE WITNESS: Oh, sorry.

THE COURT: Next question, please.

Q Through the usual course of business in your office, were

you ever informed as to the result of your colleague's

visit with Mrs. Willner?

A Yes, I was.

Q And what information did you receive from the usual

course of business?

A My colleague explained to me that Mrs. Willner was not

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able --

MS. MULREADY: Objection, Your Honor.

THE COURT: Your basis?

MS. MULREADY: Hearsay.

THE COURT: Is there an exception to this hearsay

rule, Mr. Barnes?

MR. BARNES: If she is testifying based on the usual

course of business as to how they may confer or conduct

these investigations, I believe that it is an exception

to the hearsay rule.

THE COURT: Sustained. Move on.

Q Did you ever get a chance to go out and see Mrs. Willner?

A I did.

Q Okay. And approximately what time was this compared to

the initial report to your office or call from Michael

Willner?

A Probably within three to four weeks.

Q What did you do when you went out to see Mrs. Willner?

A One of the first things I do when we go out to see a

resident is we let the health care provider -- per law,

we need to notify them that we're in the building. We

will meet with the resident and we will also review their

record. The day that I met with Mrs. Willner I had also

met with her husband, Kurt, prior to my meeting with her,

in that he was her noted power of attorney. That copy of

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the power of attorney had been faxed to my office.

Having spoken to staff at the facility, and based upon my

colleague's assessment, they realized at that point that

Mrs. Willner may not be able to converse with us unless I

contacted her power of attorney.

Q And the day you went to go see her in the facility, in

what area of the facility did you meet with her?

A I met with her in a common area.

Q Okay. And is the unit that she's living on, is that a

locked unit where you cannot come and go as you please?

A No, it is not.

Q So if -- strike that. So you were able to just walk in,

let them know you were there, meet with Mrs. Willner, and

walk out?

A Correct.

Q Was Mrs. Willner in restraints?

A No, she was not.

Q Was she free to leave, as far as you knew?

THE COURT: I'm sorry, leave the common area or the

building?

Q Strike that. Did you see anyone or anything preventing

her from leaving the facility at the time you were

visiting with her?

A No.

Q Aside from meeting with her that time, did you conduct

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any further investigation?

A Yes.

Q And what did you do?

A I did a thorough record review, and I spoke with the

health care providers.

Q And which record did you review?

A I reviewed her medical record that was at -- from Roberts

Health Care Center which included information from

Roberts as well as information from, I believe it was

South County Hospital, which is where she was prior to

coming to Roberts.

Q In reviewing those records at Roberts Health Center --

strike that. What was the purpose of your reviewing

those records at Roberts Health Center?

A To see what -- I generally will review all documentation

by nurses if I'm meeting somebody for the first time.

It's a brief interaction, so we go back and we'll look to

see what the clinical staff is noting on a daily basis,

things pertaining to mental status, any issues, concerns,

complaints, as well as their diagnoses, medications.

Q And in reviewing those records, did you notice any --

strike that. In reading those records were you made

aware of any concerns or complaints?

A Noted within the chart were concerns and complaints,

concerns, rather, by staff regarding her son's

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visitation.

Q And what were those concerns that were documented in

those medical records?

A There was concern of him trying to provide care for his

mother.

Q Any other concerns?

A There were concerns within the hospital documents that

came with Mrs. Willner, Joyce, from the hospital, stating

about a family discourse and strained relations between

father and son.

Q And was there anything else in those records relating to

that?

A The record, the hospital records?

Q Yes.

A The hospital records indicated that there was a --

MR. MELISH: Objection.

THE COURT: Mr. Melish, please, again.

MR. MELISH: We haven't been provided with those

hospital records.

THE COURT: Are they part of the joint exhibit?

MR. MELISH: They're not.

MR. BARNES: I believe they're part of the Probate

Court record, Your Honor.

THE COURT: Well, they have not been asked to be

marked in this proceeding.

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MR. BARNES: I believe Mr. Melish had requested that

at the beginning of the trial.

THE COURT: He had Exhibits 1 through 8

specifically.

MR. MELISH: We were never provided with the

hospital record. There is the consultation report, that

is in the record, but that's the only --

THE COURT: That we've already discussed as part of

the Internet.

MR. MELISH: Correct.

THE WITNESS: And that's --

THE COURT: Ma'am, please.

Move on, Mr. Barnes.

Q The records that you were referring to from South County

Hospital, have you seen those records anywhere else

besides in the chart at Roberts Health Center?

A No, I have not.

Q What other records -- strike that. In reviewing Roberts

Health Care Center records, what other types of concerns

or problems did you see that were documented?

A There were incidences of --

MR. MELISH: Can we have a time frame for these,

Your Honor?

THE COURT: Sustained. Mr. Barnes, rephrase.

Q How long after you received the call from Michael to

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request that you look into this did you look at the

records of Roberts Health Care Center?

A The facility had faxed me some records within the week of

his call to me.

Q Okay. And in reviewing those records did you find

anything that was of concern?

A The concern that was brought forth to me was that his

mother was there against her will, so at that point I was

investigating whether the resident, Mrs. Joyce Willner,

was being held at the facility against her will. The

records did not indicate that nor did the conversations

that I had with the staff at the facility.

Q And as part of your investigation, did you look at any

additional records at Roberts Health Care Center that

were produced by Roberts Health Care Center?

A I had received brief -- the first thing that was sent to

me was the power of attorney as her husband's name for

health care, along with some demographics, and I had a

phone conversation with the director of nurses at the

facility.

Q Okay. After that point in time did you review any

additional records from Roberts Health Care Center

besides the records that had been faxed to you?

A Yes, I did, I went --

Q How long after the records were faxed to you were you

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able to look at additional records from Roberts Health

Care Center?

A I believe my notes indicate I was there on the 21st of

September.

Q Was this weeks, days, months, years?

A Weeks, days.

Q And when you reviewed the records days or weeks after,

was it days or weeks after the initial fax, if you

recall?

A When I reviewed her record?

Q Yes.

A It would be days, weeks. Probably four weeks.

Q Okay. And when you reviewed the records at that point in

time, did you see anything that was of concern to you

based on your role as the ombudsperson investigating the

request of Michael Willner?

A What I saw was that I found her husband to be acting in

her best interests. The concern that was brought forth

to my office was that her husband was holding her against

her will and was not acting in her best interests. So

the basis of my record review, this has been going on for

a long time, but at that point in time, the basis of my

record review was to see if the resident had a valid

power of attorney for health care, and if her husband was

acting in her best interests.

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Q Did you form an opinion as to that based on your

investigation?

A I did.

Q And what is that opinion?

A I had a meeting with -- after speaking with the care

providers and after meeting with Mrs. Joyce Willner and

Mr. Kurt Willner, it was my opinion, based upon the

evidence that I saw, that Mr. Willner was acting in the

best interests of his wife. When we were meeting he had

stated to me he didn't understand what was -- he couldn't

believe what was going on, and he said to me, "The doctor

told me my wife needs to be here. If the doctors tell me

my wife needs to go home, my wife goes home, simple as

that."

Q Okay. And did you review her records at any other time

besides the date you just referenced?

A I did.

Q And approximately how long after that did you review

records again?

A Can I look at some of my notes? It's been two years.

THE COURT: If your response is that as you sit here

right now you cannot presently recall, then you need to

state that.

A The last time I reviewed the records? I can say the last

time was in May of 2013, at which time I noted concerns

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documented by staff stating that Mrs. Willner was in need

of a blood transfusion in January of 2013 at which time

Michael was her guardian. He did not consent to the

blood transfusion till approximately three or four weeks

later. The nursing staff informed me that the only

reason that he consented to the blood transfusion was

because Mr. Kurt Willner got on the phone with him and

begged him to allow this transfusion.

Q And in reviewing the records, did you find anything else

that was of concern to you?

A There was a concern in that there was documentation in

either January or February of that year stating that it

was the nursing staff had asked Mr. Willner not to take

Mrs. Willner from the nursing home on that day due to

terrible weather. He insisted. He felt as though it

would not be in her best interests, as I believe the

Court already stated.

Q Let me just ask you this: When you're referencing

Mr. Willner, you're referring to Michael Willner?

A Michael Willner, yes, I apologize. Mr. Willner took her,

took Mrs. Willner out on that day as well. Within two

days of her, I believe it was the next day or the

following day, she was sick. The staff did not feel as

though he was making that -- made a decision that was in

her best interests at that time.

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Q And in reviewing the records did you find anything else

that was of concern to you?

A What was of concern to me was when, upon review of the

records, once Michael Willner was appointed her guardian,

he, in fact, changed her advance directive to a full code

status. The document that I had had previously was that

Mrs. Joyce Willner had a Living Will that did not want

any form of heroic measures. The moment that he was

appointed guardian, he changed that directive, which to

me was of concern as it appeared he was not acting on the

best -- on what the ward's wishes were.

Q Okay. And in reviewing the records did you find anything

else that you were concerned with? Let me rephrase that.

Did you find anything else that was out of the ordinary

when you were reviewing those records?

A There was documentation on one evening where the staff

had to ask Mr. Willner to leave because it was past 1:00

in the morning.

Q Which Willner was this?

A Michael Willner.

Q And it was -- they asked him to leave because it was past

1 in the morning?

A Um-hum.

Q Was there anything -- have you seen anything else

documented in the records where they've had to ask

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Michael Willner to leave the facility?

A What was of concern to me was that it was documented,

documented that Mrs. Willner becomes upset following her

visits with Michael. And staff has heard them speaking

about him talking to her about going home. There were

also notations in the chart that when her neighbors came

to visit, she became very upset when they left. Nursing

staff indicated that it was very difficult to redirect

Mrs. Willner and she was in a very upset state for a good

portion of the evening.

Q And were there any other items that you saw in those

records that were of concern to you regarding Michael

Willner's interaction with his mother, Joyce Willner?

A I don't believe there was.

Q Were there any notations -- as part of your review in

your investigation, were there any entries in the record

regarding the interactions between Joyce Willner and Kurt

Willner?

A Yes, there was.

Q And what were those?

A Their interaction --

MR. MELISH: Objection.

THE COURT: Basis?

MR. MELISH: All of the reports from Roberts are

there, they're full exhibits, and she has no personal

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knowledge.

THE COURT: But she's been requested to review the

record in order to make her determination at Michael's

request to look into the entire situation. So what she's

testifying to is what the impact of some of these entries

in these records are. Overruled. You may continue.

Madam court reporter, please read back that

question.

(PENDING QUESTION READ)

A The documentation in the chart, I believe there was a

note from -- more than one note stating that she had

visited with her husband. The records indicate that Kurt

Willner visits approximately, I believe, four to five,

five to six times a week, and that she looks forward to

his visits.

Q And what else did you do as part of your investigation

into Michael Willner's complaint?

A I obviously met with Mrs. Joyce Willner.

Q On how many occasions did you meet with her?

A Approximately four to five.

THE COURT: In what time period?

A That would be between September of 2012 and May of 2013.

Q And as part of your --

A I'm sorry, I made a mistake. It would be between

September 2012 and March of 2014.

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Q Part of your meetings with Joyce Willner were part of

your investigation?

A Um-hum.

Q And what did you do as part of your investigation when

you met with her?

A Mrs. -- I spoke to -- the first time I met with

Mrs. Willner she was very difficult to arouse, so there

was not -- actually, on two occasions that happened. A

nurse came over once. She was sitting in a common area

and she had fallen asleep and she did not want to

interact with me. I stated my name, who I was. I had

asked if she would like to speak to me, and she wanted no

part of me those days. The other times that I met with

Mrs. Willner she was able to engage in conversation with

me. She stated -- I asked her how she was, if she had

any concerns or complaints, as I would any resident I

meet with in a long-term care facility, and she stated,

no, she did not. I asked her if she was comfortable

where she was now and she said yes, she was. I asked her

how the care was, and she said very good.

Q Okay. And what else did you do as part of your

investigation?

A I spoke to health care professionals from Roberts Health

Center. I also spoke with health care professionals or

was contacted by health care professionals that had

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worked with Mrs. Willner in her home, or had known her

when she was at home.

Q Okay. And how did that add to your investigation?

A The information that was provided me was that

Mrs. Willner had been at home, living at home for six

years, and there were services in place at home. The

health care providers that contacted me stated that --

MR. MELISH: Objection.

THE COURT: Sustained.

Q Aside from health care providers that contacted you, what

else did you do as part of your investigation?

A My initial investigation began upon the complaint from

Michael Willner, and that part of my investigation, the

point of that investigation was to see if Mr. Willner had

put his wife in a nursing home.

THE COURT: Again, which Mr. Willner are we speaking

of?

THE WITNESS: Michael Willner.

THE COURT: I'm sorry. So your answer was to see if

Michael Willner had --

THE WITNESS: I'm sorry, the question was if Michael

Willner had contacted me to see if Mr. Kurt Willner had

put his wife in a nursing home.

Q So the investigation actually morphed into something else

besides that initial complaint?

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A It did.

Q And could you explain that to us?

A Once I had met with Mrs. Willner, the staff, Mr. Willner,

I had spoken to Michael Willner on the phone, I was of

the opinion that he had not, and I also had reviewed her

power of attorney for health care that I believe was from

1996, '93 or '96, that named her husband as the person

that she would want to make decisions for her if she was

unable to do so. Based upon all that information, I was

of the opinion that Mrs. Willner, Mrs. Joyce Willner, was

not being held at the nursing home against her will. On

September 14 --

THE COURT: Of what year, please?

A 2012, I received an e-mail from Michael Willner as to

follow up to his concerns stating -- wanting to know how

it went with me visiting his mother. Part of the e-mail

that he sent me also had video clips of his mother. His

mother was depicted at various times of the day in

various settings, and her cognitive status varied

greatly. Those were of great concern to me that he was

putting those out there, and I consulted with a long-term

care ombudsman, and at that point I drafted a letter to

Mr. Willner.

MR. BARNES: Your Honor, if I could please see

proposed Exhibit G, please.

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Q I'm showing you what's been marked as proposed Exhibit G.

Is that the letter you were just referencing?

A Yes, it is.

Q Okay. And could you please continue on with the

reasoning of sending him that letter.

MR. MELISH: Your Honor, that's a full exhibit, I

believe.

THE COURT: No, it's not, Mr. Melish.

A The basis of the letter, you had received the e-mail from

Mr. Willner, Mr. Michael Willner, with the videos, and

had consulted with the state long-term care ombudsman.

Following that I had met with Kurt Willner, the named

power of attorney, to discuss any concerns he may have.

Mr. Willner, Mr. Kurt Willner, stated he did not want his

wife being videotaped or pictures taken of her at various

times during the day while she was in the health care

facility. So the basis, at that time, I asked

Mr. Willner --

THE COURT: Again, which one?

A I'm sorry. Mr. Kurt Willner, if he, as the power of

attorney, if he wanted to place any form of restrictions

on his son's visitation, to which Kurt Willner replied to

me, "My wife loves her son very much. I don't want her

to not see him. I just don't want him to make her upset.

We need to stop the videotaping and pictures and him

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talking to her about going home."

So based on my conversation with the power of

attorney, Kurt Willner, and the videos that I had

received, I then went back to my office under the

direction of Kathleen Heren, the state ombudsman, and

drafted this letter to Michael Willner.

MR. BARNES: Your Honor, I would like to move that

as a full exhibit at this time.

MS. MULREADY: No objection.

THE COURT: The exhibit may now be marked in full.

(EXHIBIT SO MARKED)

MR. BARNES: I'm returning it to the clerk. Could I

please see proposed Exhibit F.

(CLERK HANDING DOCUMENT TO COUNSEL)

Q I'm showing you what's been marked as proposed Exhibit F.

Have you seen that document before?

A Yes. This document was enclosed with the letter that I

drafted to Michael Willner.

Q Did you prepare that document?

A I, in conjunction with the state long-term care

ombudsman.

Q So it was generated by your office as a result of your

investigation that Michael Willner initiated?

A Correct.

Q Okay. And could you please let us know why you drafted

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or sent the letter you're holding to Michael Willner?

A Once I was involved with this case and had spoken with

staff and spoken with Mr. Kurt Willner and had reviewed

the record, there were areas of concern that may be

violations of the resident's right to privacy. There

were concerns that the -- it was clear in all

documentation that there were strained relations between

Kurt and Michael Willner, and it would not be in the best

interests of Joyce Willner to have visits from both at

the same time. And in efforts to prevent any such

incidents, we drafted these, this guideline for

visitation.

Q And did you draft a similar guideline for visitation for

Kurt Willner?

A I did not.

Q You just mentioned that the videos might violate

something called the resident's right to privacy. Is

that some type of statute, or is that just something that

your agency has?

A Well, the first concern that I had was when he sent the

video directly to me in the e-mail. My concern to him

was that are these -- and I asked Mr. Michael Willner,

are these videos for the public to see, and he informed

me that at that time, they were sent in a private mode,

so they were only for my eyes to see. Since then,

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obviously, they've been seen elsewhere.

Q And when you say they've been seen elsewhere, have you

seen those videos elsewhere?

A I have.

Q Where have you seen them?

A I've seen them posted online at Mr. Michael Willner's --

at the website that I believe Mr. Michael Willner

developed. I believe it's savejoyce.com.

Q And have you seen any videos anywhere else on the

Internet besides the savejoyce.com website?

A I have.

Q And where was that?

A If you Google save Joyce Willner video, there are videos

that will come up of Mrs. Willner.

Q Separate from the save.com Joyce web page?

A I believe some of them are also in the savejoyce.com web

page, but that's how I initially found this website.

There was a video that has been on YouTube for a number

of years which was a video that Michael Willner, I

believe, had taken of Joyce and her sister. And I

believe that was approximately maybe 14 or 15 years ago.

It was a time when they were speaking of their youth and

being Holocaust survivors. It was very clear in that

video that Joyce Willner had the capacity to engage, and

was doing so willingly. The videos that I saw posted on

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save Joyce, or the ones that were sent to my office, I

don't know that Mrs. Willner would have the capacity to

understand that she was being videotaped, or let alone

putting them on the web for the entire world to see.

MR. BARNES: Could I have F marked as a full

exhibit, please, Your Honor.

MS. MULREADY: No objection.

THE COURT: F may be marked in full.

(EXHIBIT SO MARKED)

Q The letter that you sent to Michael Willner that we just

marked as Exhibits F and G, was that the end of your

investigation or did it continue on?

A It did continue on.

Q What aspect of it continued?

A I believe it was two days after the letter was drafted I

was notified that Michael Willner was proceeding with

guardianship for his mother.

Q And did your investigation continue past that point?

A Yes, it did.

Q And what happened past that point as far as your

investigation?

A As far as my investigation, I did attend the probate

hearings and, actually, the guardianship was held on an

emergent basis. I believe they received notice on -- I

was notified by Roberts Health Care that Mrs. Willner was

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served notice that there was going to be a probate

hearing within a day or so. I believe it was -- I may

have been contacted late in the afternoon, and it was

that day or the next day that there was an emergency

guardianship hearing for Mrs. Willner.

Q And what did you do, and, specifically, regarding your

investigation after that point in time?

A I first investigated the fact if there was going to be an

emergency guardianship hearing in that, and my time

involved with this. I had never seen an emergency

hearing for a woman who was in a safe environment. My

understanding of the statutes were that emergency

hearings were for folks who were in crisis, and that's

why they waived the notice for all these things. So I

did make some phone calls, and I was able to find out

that there was, in fact, going to be a hearing for

Mrs. Willner within the next day or two. I did attend

that hearing in South Kingstown Probate Court.

Q And after that day, did you continue your investigation?

A I remained involved until Mr. Willner, Mr. Michael

Willner, was appointed as the permanent guardian. Once

Michael was appointed as the permanent guardian, at the

direction of the state long-term care ombudsman, Kathleen

Heren, I think the order she gave me was to stand down,

it's in the Court's hands.

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Q And based on the investigation Michael Willner asked you

to do, and the subsequent information you uncovered, have

you formed any opinion as State's ombudsman as to the

proper residence for Joyce Willner?

MS. MULREADY: Objection, Your Honor.

THE COURT: Basis?

MS. MULREADY: I don't believe he's established her

expertise as an expert.

THE COURT: Mr. Barnes?

MR. BARNES: Your Honor, I'll move that she be

qualified as an expert witness as far as her

investigation ability under the Federal statutes and a

state ombudsman based on her education, based on the

amount of cases that she's investigated, and based on her

working for the Alliance of Long-Term Care.

THE COURT: I didn't hear anything with regard to

her duty and role in determining what the best placement

is for her living situation. Certainly she's qualified

to talk about the investigation into a number of

different complaints that are submitted to her

organization. Sustained.

Q Mrs. Pendergast, as part of your duties as working for

the ombudsman, do you make any recommendations to -- as

to an appropriate placement of an elderly person as far

as residential placement?

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A Yes.

Q And is that part of your normal job duties?

A Yes.

Q And how many times since your employment with the

ombudsman office have you made recommendations as to

placement, residential placement, of an elderly person as

to whether or not the placement is appropriate?

A Whether continued placement is appropriate or discharge

home?

MR. BARNES: Either one.

A I would venture, I would state 30 times.

Q And this is part of your normal job duties?

A A facility will contact our office many times when they

have a resident who wants to leave the facility against

medical advice, and they will ask for our assistance in

being a neutral, unbiased person who could intercede and

attempt to mediate the resolve. I will tell you that

90 percent of the times when we're contacted by the

facility in cases such as that, we are advocating for

residents to return home. We're advocating for what the

resident's choice and wishes are.

MR. BARNES: Your Honor, at this point I would like

to ask that the Court recognize her as an expert witness.

MS. MULREADY: Your Honor, I would have one further

question to ask regarding that.

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THE COURT: As to qualification? Go ahead.

VOIR DIRE EXAMINATION BY MS. MULREADY:

Q Ms. Pendergast, is the Alliance -- does the Alliance for

Better Long-Term Care have statutory authority to perform

the work you're describing?

A Could you clarify, the work. The investigation?

MS. MULREADY: No, not the investigation, the

ability to make a determination about where a person

should live.

A I believe the word that Mr. -- Attorney Barnes used was

recommendation. We do not make the final determination.

Q Do you have statutory authority to make that

recommendation?

A Regarding level of care?

Q No, regarding where a person should live.

A Our statutory responsibility rests in advocating for what

the wishes of the client are.

MS. MULREADY: I understand that. Thank you,

Your Honor. I don't believe that the ombudsperson has

the authority to, even though, in fact, they may be asked

to make that decision, I don't believe they have full

legal authority to do that.

THE COURT: And she is qualified as being asked to

provide a third-party assessment and to make a

recommendation. I'm going to overrule the objection,

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allow the testimony and expert in this area, recognizing

that it will all go to the weight of her testimony, given

that it is just a recommendation and not a statutory

obligation.

MR. BARNES: Thank you, Your Honor.

CONTINUED DIRECT EXAMINATION BY MR. BARNES:

Q As a result of your investigation, are you able to make a

recommendation as to the appropriate residential setting

for Joyce Willner?

A Yes, I am.

Q And what is that recommendation?

A Based upon my investigation and based upon Joyce's

inability to see her own limitations in returning home,

in making any determination and anytime we're involved,

one of the things that we always look for, our job is to

allow residents to make choices, but for them to make

choices, it's the understanding of the ombudsman's office

that we want to provide them with information to make

informed choices. My investigation, my meetings with

Mrs. Willner, my review of the guardian ad litem report,

indicate to me that Mrs. Willner does not have the

ability to understand the negative consequences that

could follow her returning home. So with that being

said, I believe that Mrs. Willner is best cared for in a

health care facility.

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MR. BARNES: Thank you. No further questions,

Your Honor.

THE COURT: And this would be an appropriate time,

then, to take our midafternoon break. We will resume

again at 3:25. You may step down, just watch your step.

(BRIEF RECESS)

THE CLERK: A reminder, ma'am, you're still under

oath.

THE COURT: Ms. Mulready?

CROSS-EXAMINATION BY MS. MULREADY:

Q Good afternoon, Coleen, I'm Anne Mulready from the Rhode

Island Disability Law center, and we have intervened as

an appellee in this matter to represent Joyce Willner. I

would like to refer to Appellee's Exhibit G, which I

believe is a full exhibit.

May I approach the witness, Your Honor?

THE COURT: You may.

Q Ms. Pendergast, this is Appellee's Exhibit G, a letter

from you to Michael Willner, is that correct?

A Correct.

Q And in the first paragraph I believe you indicate that

Joyce Willner doesn't have the capacity to make decisions

regarding her residence, is that correct?

MR. BARNES: If Ms. Mulready could keep her voice

up.

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Q I'm sorry. In the first paragraph I believe you indicate

that Joyce Willner does not have the capacity to make

decisions regarding residence, is that correct?

A I said, informed decisions regarding her place of

residence.

Q Do you believe she has the ability to express a

preference regarding where she would like to live?

A At varying times of the day.

Q Thank you. Ms. Pendergast, I believe you stated you

received an e-mail from Michael Willner to you at the

Alliance. I am handing you a document. Do you recall

receiving that?

A I do.

Q And in that e-mail Michael asked you, or suggested that

you follow up with Karla Steele and Marshall Feldman,

friends of Joyce, for more information regarding her, did

you do that?

A I did not.

Q And you also thought that mediation for all the family

and Joyce might be helpful, and I know you testified

earlier that the Alliance often offers mediation

services. Did you offer mediation?

A I did not.

Q And he also expressed concern regarding the lack of

physical therapy for Joyce. Were you able to look into

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that?

A (Perusing documents) His concern, I'm reading it here,

was that she had been discharged from physical therapy.

Q That's correct.

THE COURT: And the question is, did you investigate

that.

A Yes; she had been discharged from physical therapy.

Q And did you make any determination about whether

physical -- she could benefit from more physical therapy?

MR. BARNES: Objection, Your Honor, beyond the scope

of her expertise.

THE COURT: I find it very interesting that what's

good for the goose seems to not be good for the gander.

Overruled, you may answer.

Madam court reporter.

(PENDING QUESTION READ)

A I was provided information by the clinical staff, the

nursing staff, that she had been downgraded from physical

therapy but that they would continue as they do with a

restorative program. And I believe Mr. Michael Willner

was provided with the restorative exercises that she was

given, if my memory serves me correct.

Q And those exercises would be something that Michael

Willner could engage in with his mother, is that your

testimony?

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A The generally restorative staff would be working with,

which would be the primary caregivers, those that were

certified to provide care.

Q And in this case who would those primary caregivers be?

A They would be the certified nursing assistants that cared

for Mrs. Willner on a daily basis.

MS. MULREADY: Thank you. I'm returning Appellee's

Exhibit N, and may I have Appellee's F.

(CLERK HANDING DOCUMENT TO COUNSEL)

Q I'm showing you Appellee's F, which are guidelines for

visitation of Joyce Willner. I believe you indicated --

A Yes, I did.

THE COURT: Ma'am, could you just allow Ms. Mulready

to finish asking the question before you answer.

Ms. Mulready, your question again, please.

Q Yes. I believe you responded you developed those

guidelines?

A I developed these guidelines with State Ombudsman Heren.

Q Can you state any law for the ombudsman authority to

restrict residents in nursing homes?

A These restrictions were based upon the wishes of the

power of attorney of record. It was following my meeting

with Mr. Kurt Willner, who at that time was the power of

attorney of health care, that these guidelines were

established.

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Q Thank you. And similarly, any specific law you can cite

with respect to the ombudsperson's authority to restrict

the kind of issues that Michael Willner could discuss

with his mother?

A The question was, the kinds of things he could discuss

with his mother?

Q Yes.

A Again, based upon my conversation with the power of

attorney of record, Kurt Willner, he had stated that his

wife becomes very upset and uncontrollable after having

meetings about going home. He had indicated he wanted

his son to continue to visit, so it was based upon the

request from the power of attorney that we stated that he

should have no conversations with his mother regarding

her returning home.

THE COURT: Was it based on any particular law?

THE WITNESS: The law would be based upon the

direction of the power of attorney. If it's in the best

interests of -- I can share with you that the State

long-term ombudsman has historically, and in conjunction

with local law enforcement, placed restrictions on

visitations for residents in long-term care facilities.

MS. MULREADY: Thank you; I think you answered the

question. I'm returning Appellee's exhibit.

Q I believe that you testified that you participated in the

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guardianship proceedings regarding Joyce Willner?

MR. BARNES: Objection, Your Honor.

Q Were you present at those proceedings?

THE COURT: Hold on, please. And the basis,

Mr. Barnes?

MR. BARNES: I don't believe that she testified that

she participated in the proceedings, I believe that was

the initial question that Ms. Mulready asked.

MS. MULREADY: I will rephrase that.

THE COURT: Thank you.

Q I believe you testified that you were present at the

guardianship proceedings regarding Joyce Willner?

A I was not present, I was present at the initial hearing

for temporary guardianship. There were hearings that I

was not present at. I was not present for all of the

hearings that took place in South Kingstown Probate

Court, but I was absolutely at the initial hearing.

Q And did you review any of the guardianship petition and

documents that were filed in support of the guardianship?

A I did.

Q And were you aware that Dr. Rosenzweig prepared

Decision-Making Assessment Tools to support Joyce

Willner's guardianship? To support the need for

guardianship -- excuse me.

A Yes, I am, yes.

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Q And did you ever contact Dr. Rosenzweig regarding those

Decision-Making Assessment Tools?

A I did.

Q And did Dr. Rosenzweig have an opinion that was different

than yours regarding Joyce Willner's preferences?

MR. BARNES: Objection; hearsay, Your Honor.

THE COURT: It just calls for a yes or no answer.

Did Rosenzweig have a different opinion than you did?

Just yes or no.

A No.

Q So is it your testimony that you understand that Joyce

Willner preferred to live at home?

A She expressed a desire to return home.

Q Did you have a conversation with Michael Willner after he

was appointed guardian about your continued involvement

with Joyce Willner?

A I believe Mr. Willner approached me outside of the

Probate Court following one of the hearings, and I

believe it was after he was appointed guardian.

Q And that would be full guardian or temporary guardian, do

you recall?

A I honestly don't.

Q Do you recall what the substance of that conversation

was?

A Mr. Willner wanted --

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THE COURT: Which one, please?

A I'm sorry. Michael Willner had wanted my -- he wanted --

he didn't believe that I saw his side of things. He was

concerned that I didn't see what he was expressing to me.

I stated to Michael that I believed that he cared for his

mother very much, and that my role as the ombudsman and

in my role as the ombudsman, I acknowledged that both he

and his father cared, they both cared for Mrs. Willner

very much, but that -- and I believe the conversation

basically stated that it's in the Court's hands now.

Q Thank you. And I believe you testified earlier that your

office made a discussion that you should stand down, in

effect, after Michael Willner was appointed permanent

guardian, is that correct?

A Correct.

Q And then you also testified that in May 2013 you

requested access to records again regarding Joyce

Willner?

A I had received phone calls from the social worker at

Roberts Health Care facility stating that Michael Willner

was speaking of a Home Care Plan for his mother and was

working on getting a home plan together. She said he's

saying one thing and Mr. Kurt Willner is saying another.

At that point, I directed her that Michael Willner was

the guardian and they had to yield to what the guardian's

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wishes were. She also stated that he had concerns --

okay.

Q And did you at that time access records regarding Joyce

Willner in May of 2013?

A May of 2013, yes, I did.

Q And did you have Michael Willner's permission to access

those records?

A I did not have his specific permission. The statute

allows for us, if there are incidences of powers of

attorney or guardian, if someone is not acting in a

resident's best interests or if a resident does not have

the capacity to make the decision for themselves, at the

discretion of the state ombudsman, we can review records.

Q And did you confer with Michael Willner first?

A I did not, because he was the source of the concern.

Q And do you have a cite for that provision that allows you

to access those records?

(BRIEF PAUSE)

THE COURT: As you sit here, can you not recall what

that statutory citation is?

A I couldn't say it verbatim, but it's in Rhode Island

regulations in the Ombudsman Act of 1995, I believe, in

state law.

Q Do you recall speaking to the guardian ad litem in this

matter?

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A The guardian ad litem never contacted me.

Q And you believe you also testified regarding a change in

full code status. Did you review that change? Did you

discuss that change with Michael Willner?

A I did not.

MS. MULREADY: I have no further questions.

THE COURT: Thank you. Mr. Barnes?

MR. BARNES: No further questions, Your Honor.

THE COURT: Thank you. Ms. Pendergast, you may step

down. Just watch your step.

Your next witness, Mr. Barnes.

MR. BARNES: At this time we rest, Your Honor.

THE COURT: Anything further, Mr. Melish?

Ms. Mulready?

MR. MELISH: May we just have a moment to confer?

THE COURT: You may. Why don't we do this: I will

give you ten minutes that we will adjourn so that you can

make a determination if there's any further testimony.

So just take a quick ten-minute recess.

(BRIEF RECESS)

THE COURT: Mr. Melish, Ms. Mulready?

MR. MELISH: Your Honor, I would like to be very

brief with a rebuttal witness. Michael Willner. It

should be ten minutes or less.

THE COURT: Okay. Mr. Willner again.

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THE CLERK: Just a reminder, sir, you're still under

oath.

THE WITNESS: Okay.

THE COURT: Go ahead, Mr. Melish, redirect.

DIRECT EXAMINATION BY MR. MELISH:

Q Michael, you had an opportunity to hear Dr. Khurshid's

testimony today?

A Yes.

Q And did you, during the course of your mom's stay at

Roberts, have conversations with Dr. Khurshid?

A Yes.

Q And how many conversations did you have?

A At least three.

Q And can you give us a time frame of the three

conversations?

A The first conversation was after I was appointed

permanent guardian, so it was toward the end of December,

beginning of January 2013. The second conversation was

around April/May 2013, and the third was around June/July

2013.

Q And what did you discuss with him on that

December/January conversation?

A I informed him that I had been appointed guardian, and

that I would like to be able to take my mother out for

rides and visits so that she can get some fresh air. I

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told him that she hadn't been out of the nursing home on

a ride, I didn't think ever, since she had been there,

and I thought that she -- I told him that she enjoyed

going out for rides, and I thought it would be healthy

for her and he said --

MR. BARNES: Objection.

A I'm sorry. It was my understanding after that discussion

that he believed --

MR. BARNES: Objection.

THE COURT: Sustained.

A It was my understanding --

THE COURT: What did you do after that discussion,

sir?

A After that discussion, I took her out for rides, but I

made sure that I would bring the oxygen tank when I took

her out for those rides and visits.

Q And tell me about the discussion that you had in

April/May with Dr. Khurshid?

A In April/May I asked Dr. Khurshid if he thought my mother

was healthy enough to live at home so long as I provided

24/7 supervision. And it's my understanding that after

that conversation with him that it is not medically

necessary for her.

MR. BARNES: Objection, Your Honor.

THE COURT: Sustained.

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Q Based on that conversation, you did have an understanding

of what you believe he stated to you, is that correct?

MR. BARNES: Objection, leading question.

THE COURT: Sustained. Rephrase.

Q You were very clear as to what you were asking him, is

that correct?

A Yes.

Q And did he give you a positive or a negative response to

your question?

A He gave me a positive response.

Q And did you have a subsequent conversation on the same

subject in June and July with him?

A Yes.

Q And what did you ask him then?

A I repeated the question, did he believe that my mother

was healthy enough to live in a home environment so long

as she had 24/7 supervision.

Q And did he give you a positive or a negative response?

MR. BARNES: Objection.

THE COURT: Overruled. You may answer.

A He gave me a positive response.

MR. MELISH: Thank you, nothing further, Judge.

THE COURT: Mr. Barnes?

MR. BARNES: No questions, Your Honor.

THE COURT: Thank you, Mr. Willner, you may step

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down.

Anything further, Mr. Melish?

MR. MELISH: No, we rest.

THE COURT: Okay. There had been a previous request

for the Court to engage in an in-camera conversation with

Joyce Willner at the facility. Is that still something

that the parties are seeking the Court to do?

MR. BARNES: I don't believe it's necessary. I wish

to withdraw my motion at this time, Your Honor.

THE COURT: Mr. Melish?

MR. MELISH: We were going to suggest that you see

her somewhere in the community, but I will concur with

opposing counsel. I think she has had the opportunity

through these proceedings to indicate her wishes, her

preferences.

THE COURT: There have been a number of legal issues

that have been raised, albeit very belatedly, in the

matter that was addressed in the 12(c) motion yesterday

morning as well as in the Rule 52 motion earlier today.

I recognize that the appellants have not had the chance

to respond in writing, and that motion is still under

advisement with the Court. I will allow a very brief

period in order to set forth closing arguments, if you

will, as well as your legal, your response to the legal

issues that have been raised. I'm directing this to the

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appellant.

And certainly with respect to the appellees, you

will have the opportunity in a brief period of time to

submit your own closing argument in writing to the Court.

I will require simultaneous submissions, primarily

because I want to be able to adjudicate this sooner

rather than later as we have attempted to do throughout

this case to move it along because of the issues that

have been raised, and Mrs. Willner's age, certainly,

needs to be taken into consideration. So for that reason

I'm only going to allow a two-week period of time. April

30 for simultaneous submissions. I don't allow the

opportunity for reply briefs at all. And thereafter, the

Court will either issue a written decision or the clerk

will advise you whether a bench decision will be

rendered. I can't make promises when that will be, but,

again, I'm fully cognizant of the need for an expeditious

decision in this matter. As soon as I can review those

written submissions, the Court will undertake to draft a

decision and get that to you as soon as possible.

Anything further?

MR. MELISH: No, Your Honor, thank you very much.

MR. BARNES: No, Your Honor, thank you.

MS. MULREADY: May I ask one question. The response

to the appellee's motion is also due at the same time

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as --

THE COURT: It is. You may incorporate that into

the same document.

MS. MULREADY: Thank you.

THE COURT: And one last thing, please provide the

Court with a bench copy of your written submission as I

do tend to mark things up, and there's nothing worse than

getting to the end of the document and realize you just

ruined the original. So with that, the Court will be in

recess.

(COURT ADJOURNED AT 4:04 P.M.)

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONSWASHINGTON, SC. SUPERIOR COURT

IN RE: THE ESTATE OFJOYCE C. WILLNER WP2013-0400

HEARD BEFORE THE HONORABLE ASSOCIATE JUSTICEKRISTIN E. RODGERSON APRIL 15, 2014

APPEARANCES:

FOR THE APPELLANT: H. Jefferson Melish, Esquire- and -

Anne Mulready, Esquire

FOR THE APPELLEES: Alan Barnes, Esquire

GERALDINE M. MEENAN, RPRCOURT REPORTER - SUPERIOR COURT

C E R T I F I C A T I O N

I, Geraldine M. Meenan, hereby certify that thesucceeding pages, 1 through 140, are a true and accuratetranscript of my stenographic notes taken on April 15,2014.

____________________________Geraldine M. Meenan, RPRCourt Reporter

I N D E X

WITNESS PAGE

SHAHZAD KHURSHIDDirect examination by Mr. Barnes................. 4Cross-examination by Ms. Mulready................ 16Redirect examination by Mr. Barnes............... 22Recross-examination by Ms. Mulready.............. 37

Michael WillnerContinued cross-examination by Mr. Barnes........ 39Redirect examination by Mr. Melish............... 52Continued redirect examination by Mr. Melish..... 83Recross-examination by Mr. Barnes................ 85

Coleen PendergastDirect examination by Mr. Barnes................. 94Voir Dire examination by Ms. Mulready............ 123Continued direct examination by Mr. Barnes....... 124Cross-examination by Ms. Mulready................ 125

MICHAEL WILLNERDirect examination by Mr. Melish................. 135

E X H I B I T S

NO. I.D. FULL

E Decision Making Assessment Tool... 16F Alliance guidelines............... 119G Letter dated September 24, 2012... 116L-A DVD (video)....................... 46L-B DVD (video)....................... 52