1

1 ------------------------------------------------------------------DISTRICT COURT |

2 LARIMER COUNTY |COLORADO |

3 201 LaPorte Avenue, Suite 100 |Fort Collins, CO 80521 |

4 ------------------------------------| |

5 THE PEOPLE OF THE STATE OF COLORADO,|Plaintiff, |

6 |VS. |

7 |DOUGLAS JAMES AND LEAH SUE DYER, |

8 Defendants. |*FOR COURT USE ONLY* |-----------------------------

9 ------------------------------------|Case No. 2014CR1119 | 2014CR1120

10 For the People: |Division 5BDAVID P. VANDENBERG, ESQ. #38258 |

11 DANIEL M. McDONALD, ESQ. #36744 | |

12 For Defendant Douglas Dyer: |KATHRYN HAY, ESQ. #20817 |

13 M. JANET LAUGHON, ESQ. #24656 | |

14 For Defendant Leah Dyer: |SARAH B. CURE, ESQ. #36806 |

15 CHRISTINE ANTOUN, ESQ. #28964 | |

16 ------------------------------------------------------------------

17 COURT REPORTER'S TRANSCRIPT

18 ------------------------------------------------------------------

19 JURY TRIAL - DAY FOURNovember 1, 2016

20------------------------------------------------------------------

21The trial in the matter commenced at 8:25 a.m. on Tuesday,

22 November 1, 2016, before the HONORABLE GREGORY M. LAMMONS, Judge of the District Court.

23

24

25

Erin E. Valenti, RPR, CRR8th Judicial District

201 LaPorte Ave, Suite 100, Fort Collins, CO 80521

2

1 I N D E X

2 PAGE

3 WITNESSES:

4 For the People:

5 GARY TRUJILLOCross-Examination by Ms. Hay 5

6 Cross-Examination by Ms. Cure 23Redirect Examination by Mr. Vandenberg 32

7ASHLIEE PACKER

8 Direct Examination by Mr. McDonald 36Cross-Examination by Ms. Hay 41

9 Cross-Examination by Ms. Cure 45Redirect Examination by Mr. McDonald 49

10 Recross-Examination by Ms. Cure 51

11 DR. PAMELA WEBBERDirect Examination by Mr. Vandenberg 54

12 Cross-Examination by Ms. Hay 71Cross-Examination by Ms. Cure 98

13 Redirect Examination by Mr. Vandenberg 108Recross-Examination by Ms. Hay 114

14 Recross-Examination by Ms. Cure 115Further Direct Examination by Mr. Vandenberg 118

15 Further Cross-Examination by Ms. Cure 118

16 DR. ELLEN R. ELIASDirect Examination by Mr. McDonald 133

17 Cross-Examination by Ms. Hay 160Cross-Examination by Ms. Cure 182

18 Redirect Examination by Mr. McDonald 189

19 AMY MONTOYA (examination outside presence of jury)Examination by the Court 209

20 Direct Examination by Mr. McDonald 211Cross-Examination by Ms. Antoun 214

21 Cross-Examination by Ms. Hay 218Redirect Examination by Mr. McDonald 220

22 Recross-Examination by Ms. Hay 222

23

24

25

3

1 P R O C E E D I N G S

2 (Whereupon, Counsel and Defendants were present, and

3 the following proceedings were had:)

4 THE COURT: All right. Counsels, are there any issues

5 we should address this morning before we are ready to go?

6 MR. McDONALD: I don't think we have anything,

7 Your Honor, but Mr. Vandenberg was just here and I'm not sure

8 where he is.

9 THE COURT: Well, that's something.

10 MR. McDONALD: So hopefully he doesn't have anything

11 either.

12 THE COURT: Okay. Well, that's okay. We can hang on a

13 minute and see when he shows back up. We're early.

14 MR. McDONALD: But I don't believe we have anything,

15 Your Honor.

16 (Mr. Vandenberg entered the courtroom.)

17 (A discussion was held off the record between

18 Mr. McDonald and Mr. Vandenberg.)

19 MR. McDONALD: We don't have anything, Your Honor.

20 THE COURT: Okay. So it looks like the jury is all

21 here. We don't need to wait, unless folks just want a couple more

22 minutes to prepare, since they're here. I'm happy to wait until

23 8:30, though.

24 MS. CURE: I think we're ready, Judge.

25 THE COURT: Okay. All right. Get the jury, please.

4

1 (The jury entered the courtroom at 8:28 a.m.)

2 THE COURT: You may be seated.

3 Good morning, ladies and gentlemen. We're gonna resume

4 with the second day of testimony today.

5 Mr. Vandenberg, how would you like to begin?

6 MR. VANDENBERG: Your Honor, at this time, consistent

7 with what we talked about yesterday, I seek to publish People's

8 Exhibit 2.

9 THE COURT: All right. And People's Exhibit 2 are

10 statements of Mr. Dyer, correct?

11 MR. VANDENBERG: That is correct.

12 THE COURT: All right. So, ladies and gentlemen, the

13 prosecution will now present evidence against Defendant

14 Douglas Dyer. You are instructed that you must not consider such

15 evidence against the other Defendant, Ms. Leah Dyer.

16 All right. Counsel?

17 MR. VANDENBERG: Just a moment, Your Honor.

18 THE COURT: You bet.

19 MR. VANDENBERG: If I could move that a little bit

20 closer like I did yesterday, I'd appreciate it.

21 THE COURT: That's fine. Your cord -- you just pulled

22 the cord.

23 (People's Exhibit 2 was played.)

24 THE COURT: All right. Counsel, did you have further

25 questions for Detective Trujillo, or is it time for

5

1 cross-examination?

2 MR. VANDENBERG: No. Time for cross-examination. If I

3 may approach your court reporter, and I'll move that back.

4 THE COURT: Please.

5 MR. VANDENBERG: Thank you.

6 THE COURT: All right. Detective, why don't you come

7 forward, I'll swear you in again, and then we'll go to

8 cross-examination.

9 Please raise your right hand.

10 (The witness was duly sworn by the Court.)

11 THE COURT: All right. Thank you, sir. Please have a

12 seat.

13 Cross-examination, Counsel?

14 GARY TRUJILLO,

15 called as a witness by the People, having been first duly sworn,

16 testified as follows:

17 CROSS-EXAMINATION

18 BY MS. HAY:

19 Q Good morning, Detective.

20 A Good morning.

21 Q Mr. Trujillo, I understand that you're gonna come back

22 on the stand and discuss some more of your work a little bit

23 later, so at this point I'm gonna focus your attention on just

24 these first portions of the investigation.

25 JUROR: Excuse me. Could she speak into the

6

1 microphone?

2 MS. HAY: I'm sorry. I thought I was screaming.

3 Q (By Ms. Hay) So, Detective, let me start over and I

4 I'll speak a little more loudly.

5 You're expected to be taking the stand again in a

6 little bit and discussing a lot more of the work that you have

7 done in this case, so at this point in time I'm going to focus

8 your attention just on this very initial portion, the entry into

9 the Dyers' home after the call to the Department of Human Services

10 and the interactions that you had with Mr. Dyer at Poudre Valley

11 Hospital, where I understand that exhibit that we just listened to

12 was conducted. All right?

13 A Yes, ma'am.

14 Q All right. So when -- I want to talk a little bit,

15 first of all, about your experiences as a detective. So you've

16 been doing this kind of work for 16 years?

17 A Not as a detective. As a police officer I've been

18 almost 16 years, and as a detective --

19 Q For six years, right?

20 A Yes, ma'am. In this unit.

21 Q Okay. And so this law enforcement process is very

22 familiar to you; you've had an opportunity to do a lot of

23 investigations?

24 A Yes, ma'am.

25 Q And you're also someone who's had experience in these,

7

1 specifically, traumatic kinds of cases since you work in the

2 Crimes Against Persons Unit, correct?

3 A Yes, ma'am.

4 Q And before that, you had a lot of relevant experience

5 in speaking to people and -- and communicating and connecting with

6 them as a parole officer and a probation officer, right?

7 A Throughout my life, yeah, speaking in general to people

8 in different work -- work that I did, yes, ma'am.

9 Q And, actually, you would acknowledge that that's

10 probably one of your primary strengths, is being able to talk with

11 all kinds of people in all kinds of different situations, correct?

12 A I try, yes, ma'am.

13 Q Okay. In this circumstance you came into the Dyer

14 home, and you made an interesting aside. You discussed the fact

15 that what's chaotic for you isn't necessarily the same standard

16 that other people would experience, correct?

17 A Yes, ma'am.

18 Q So when Mr. Vandenberg was talking about going into the

19 Dyers' home and having the firefighters and the paramedics and the

20 law enforcement officers and the DHS workers all there, to your

21 way of thinking, it wasn't necessary -- necessarily chaotic,

22 correct?

23 A Yes, ma'am.

24 Q But for someone who hadn't had your years of experience

25 in law enforcement and scene visits, that very well could have

8

1 been perceived as a very chaotic situation, correct?

2 A It would depend on the person, but, yes, ma'am, I'm

3 sure someone would have felt that way.

4 Q And -- and, also, you had some advanced knowledge from

5 your sergeant. So Sergeant Volesky had given you an update about

6 what you were going into, right?

7 A Yes, ma'am.

8 Q So in the situation with the Dyers, they were in the

9 home, and the law enforcement officers and paramedics and such

10 showed up on their doorstep, right?

11 A Yes, ma'am.

12 Q And they'd had a notice previously from Department of

13 Human Services saying that someone wanted to come talk with them,

14 right?

15 A Yes, ma'am.

16 Q But at the time that the arrival occurred on

17 October 28th of 2013, there wasn't anything to forecast to them,

18 in your understanding and investigation of this case, that all of

19 these people would shortly be entering their home, correct?

20 A Well, they knew that DHS was gonna go over, and then we

21 knocked on the door. And then when she had a seizure, they were

22 told the ambulance was on the way, so they knew the ambulance was

23 coming. And fire always comes with the ambulance, and usually

24 beats them there.

25 Q That -- that process happened pretty quickly in this

9

1 case with the Dyers, right?

2 A I -- I don't know how quickly. I -- when I got there,

3 like I said, the fire department was there, the other patrol

4 officers were there, and DHS was already there.

5 Q And I know you weren't yet there on the scene, but as

6 the lead detective, you've had opportunity to talk with a lot of

7 different individuals in this case, correct?

8 A Since -- since it started?

9 Q Yes.

10 A Yes, ma'am.

11 Q And, also, you've had the ability to sit in and listen

12 to the different motions hearings and preliminary hearings that

13 have occurred in this case, right?

14 A Yes, ma'am.

15 Q And as the advisory witness, you've been working with

16 the district attorney in the presentation of this case, correct?

17 A Somewhat.

18 Q All right. So in the circumstance where you found

19 yourself walking into the Dyers' home with all of these different

20 professionals, you've also been in circumstances where individuals

21 refused to be cooperative with law enforcement officers, right?

22 A Yes, ma'am.

23 Q Because oftentimes that show of authority, of law

24 enforcement presence, can forecast to members of the public some

25 indication that they are the target of potential state action. Is

10

1 that fair to say?

2 A I don't know that you could say that, because we go

3 for -- for different things, for welfare checks, for a variety of

4 things, so it's not necessarily that -- that we're looking at them

5 for some type of action.

6 Q That's right. It could be just like you're out there

7 with an intent to go inquire and help a person, right?

8 A Yes, ma'am.

9 Q And that's oftentimes a very legitimate concern to law

10 enforcement, right?

11 A Excuse me?

12 Q That's a legitimate thing. Law enforcement's not

13 always looking to just prosecute people, right?

14 A Yes, ma'am. Correct.

15 Q And, in fact, if someone is stopped, I'm sure -- did

16 you have some experience as a patrol officer at all? Did you --

17 A Yes, ma'am.

18 Q -- ever do traffic stops?

19 A Yes, ma'am.

20 Q Oh, goodness. So I imagine you saw people who were

21 pulled over perhaps as a courtesy warning to acknowledge that

22 their light was out or that there was a road closure in front of

23 them. But you also oftentimes saw those people being very nervous

24 in the presence of law enforcement, correct?

25 A Some would; some would not.

11

1 Q Okay. Now, I want to focus on the Dyers' attitude to

2 you and towards you. There was an apparent medical emergency from

3 the perspective of the paramedics such that they were going to be

4 taking Stephanie from the home and transporting them -- her to the

5 hospital, right?

6 A I don't know what they were doing, but I know that they

7 came in and they did take her, yes, ma'am.

8 Q And during the course of that, you knew that there were

9 paramedics and firefighters that were working on Stephanie at the

10 time that you were discussing the status of the home with the

11 Dyers, correct?

12 A Well, when I was listening in to when Ms. Dyer was

13 talking to DHS, yes, ma'am.

14 Q Okay. And so you were present that day. Can you tell

15 us what you were wearing?

16 A Well, not exactly. I was wearing plain clothes. I had

17 a jacket on. Not as dressed up as I am now, but more probably,

18 like, khakis and a button-up shirt and a jacket over that.

19 Q So --

20 A Like an outside jacket, not a -- not like this.

21 Q Not a suit jacket?

22 A Correct.

23 Q And did you have a badge with you that day,

24 Detective Trujillo?

25 A Yes, ma'am.

12

1 Q And when you're in plain clothes like that, is that

2 badge visible to members of the public?

3 A No, ma'am.

4 Q Okay. Did you identify yourself as a detective to the

5 Dyers?

6 A At some point. I think when I walked in and spoke with

7 Mr. Dyer I did identify myself. And it wasn't until later that I

8 identified myself, because Mrs. Dyer was speaking with DHS, so I

9 didn't want to interrupt. But at some point, yes, I did identify

10 myself as a detective.

11 Q And even after you had identified yourself and aligned

12 yourself as a law enforcement officer, did you notice that the

13 Dyers stopped talking to you?

14 A No, ma'am.

15 Q Did they ask that you leave their home?

16 A No, ma'am.

17 Q Did they demand to speak to your supervisor?

18 A No, ma'am.

19 Q Did the Dyers continue to, in fact, show you around

20 their home?

21 A At that time, no, ma'am.

22 Q Did they at a later point in time?

23 A Yes, ma'am.

24 Q Okay. And we'll get to that, then, again. I'll leave

25 that for a little bit later.

13

1 When you spoke with the Dyers at their home, your

2 understanding was that you were going to have some forecast or

3 some foreknowledge before the ambulance personnel took the Dyers'

4 child to the hospital, correct?

5 A Yes, ma'am. Usually they -- they let us know that

6 they're ready to go and -- and they tell us.

7 Q And so that came as a surprise to you to find out that

8 this seven-year-old had already been removed from the home?

9 A Yes, ma'am.

10 Q And, in fact, I believe you were in the back of the

11 home looking at the bedroom area at that point in time.

12 A No, ma'am. I was still in the living room. I never --

13 I never left the living room. So when I came in, I came into the

14 kitchen, through the dining room, and basically was either in the

15 kitchen or the -- the living room the entire time.

16 Q And still you didn't know that they were leaving with

17 the Dyers' seven-year-old child?

18 A No, ma'am.

19 Q Did you notice any indications of surprise on the

20 Dyers' faces?

21 A Yes, ma'am.

22 Q And can you describe for the jury what their demeanor

23 appeared to you to be when they learned that the ambulance had

24 already left with their seven-year-old?

25 A Well, they were -- they were shocked, to me, it seemed.

14

1 Q Did they appear concerned, as well as shocked?

2 A I guess you could say that.

3 Q All right. Let me ask you about the recording and the

4 issues at the hospital. You know that the Dyers drove themselves

5 to the hospital. And you arrived a little bit later, I

6 understood.

7 A Yes, ma'am.

8 Q And when the Dyers went to the hospital, it was your

9 understanding that their belief was to go and check on their

10 daughter, right?

11 A I thought that they would be in the emergency room.

12 Q And did the Dyers have any demeanor that expressed to

13 you that that was their belief as well, that they were going to be

14 reunited with their daughter?

15 A I -- I don't recall specifically.

16 Q Did you know from the beginning that the Dyers were

17 trying to be reunited with Stephanie?

18 A Yes. They had asked, and we had been told by the nurse

19 that nobody could see Stephanie until the doctors had seen her.

20 Q And that was a point of contention in the time

21 following this hospitalization of Stephanie, whether or not the

22 Dyers had been prevented from reuniting with their daughter,

23 correct?

24 A Yes, ma'am.

25 Q And by whom, correct?

15

1 A Yes, ma'am.

2 Q But your belief is that it certainly was not law

3 enforcement officers that were preventing Mr. and Mrs. Dyer from

4 being by Stephanie's bedside.

5 A No, ma'am. It wasn't by law enforcement.

6 Q But you've also heard testimony by the hospital saying

7 that that wasn't their policy as well, right?

8 A In the prelim? Is that what you're talking about?

9 Q Yeah.

10 A Yes, ma'am.

11 Q Yes. And also there has been some conflicting

12 testimony by Department of Human Services whether or not they were

13 the ones that were preventing the Dyers from reuniting with their

14 child, correct?

15 A I don't know if -- can you ask that again? I'm sorry.

16 Q That's okay. I don't think I'll need to. Thank you.

17 A Okay.

18 Q Mr. Trujillo, when you did take Mr. Dyer back into that

19 separate room that you were able to locate for the purposes of the

20 interview with him, how long had it been since Stephanie had been

21 taken to the hospital?

22 A I don't know. I had just arrived shortly before that.

23 And, again, like I said, I had -- after -- after going into the

24 emergency room and them not being there, then I went to go talk to

25 them, were told by the nurses, and then tried to locate some rooms

16

1 where we could speak.

2 Q And the very first thing that you told Doug Dyer when

3 you went into that room was "you're not in trouble," correct?

4 A Yes, ma'am.

5 Q And you made sure that Doug knew that the door to that

6 hospital interview room wasn't locked, right?

7 A Yes, ma'am.

8 Q And that he could go at any time if he wanted to,

9 right?

10 A Yes, ma'am.

11 Q And you had not arrested Doug and prevented him from

12 leaving or handcuffed him at that point.

13 A No, ma'am.

14 Q And, in fact, it was your intention to make Doug Dyer

15 comfortable so that you could talk to him about the situation with

16 regards to his daughter, Stephanie, correct?

17 A I wanted to speak with Mr. Dyer, yes, ma'am.

18 Q And you know oftentimes, though, as a law enforcement

19 officer, when police are involved in questioning, it's not unusual

20 for someone to shut down, correct?

21 A To not talk to us, yes, ma'am.

22 Q Yeah. And to lawyer up.

23 A Sometimes they -- they do that, yes, ma'am.

24 Q And to remain silent.

25 A Yes, ma'am.

17

1 Q But in this case, Mr. Dyer was very open with you.

2 Wouldn't you agree?

3 A Yes, ma'am.

4 Q And not only was he open with you, we all could hear on

5 that exhibit that his demeanor and his interaction with you was

6 friendly and cooperative, correct?

7 A Yes, ma'am.

8 Q And Mr. Dyer didn't refuse to answer any of the

9 questions that you posed to him.

10 A No, ma'am.

11 Q And, in fact, he didn't attempt to hide or avoid the

12 questions that you were trying to get to the bottom of.

13 A No, ma'am.

14 Q When Mr. Dyer was speaking to you, he told you some

15 things that struck you, as an investigator, as odd. Is that fair

16 to say?

17 A I don't know what you're referring to.

18 Q Well, let me ask this: He discussed with you that he

19 had believed that, in his honest opinion, when Stephanie dropped

20 to the floor, it was his belief that that's where she wanted to

21 stay. Do you remember that portion of the conversation?

22 A Yes, ma'am.

23 Q That struck you a little odd, I bet.

24 A Yes, ma'am.

25 Q And, in fact, Mr. Dyer said that that was where she

18

1 wanted to stay so nothing could push her down again, right?

2 A Yes, ma'am.

3 Q And he questioned whether or not Stephanie was really

4 having seizures, didn't he?

5 A Yes, ma'am.

6 Q And even though you were brand-new to this

7 investigation at that point in time, that struck you as odd as

8 well, didn't it?

9 A Well, from what he had told me, he said that the

10 doctors didn't classify it as seizures. So I hadn't seen any of

11 the medical report, I hadn't talked to anybody else. He was the

12 first person I'd ever spoken to, so I had to go with what he was

13 telling me at that point. It wasn't until later that it did seem

14 odd to me.

15 Q And -- and part of that being odd was the fact that he

16 was discussing these possibilities of strange things happening at

17 his home, right?

18 A Not at that point, no. It wasn't odd to me until later

19 on when I started to understand what he was ask -- or telling me

20 about those strange things.

21 Q So am I understanding you right that when you were

22 first investigating Mr. Dyer, you didn't quite cue into the fact

23 that he was expressing to you statements that his daughter was

24 haunted by ghosts?

25 A I don't know when that had come up, but at that point I

19

1 didn't -- I didn't really understand what he was talking about.

2 Some people, I think, had said something, but I wasn't -- I wasn't

3 quite sure at that point.

4 Q And afterwards, upon reflection, you can see that that

5 would be something that would strike you as odd, that he was

6 discussing the fact or hinting at the fact that his daughter was

7 possessed, right?

8 A Yes, ma'am.

9 Q It also struck you as very odd that Mr. Dyer seemed to

10 discuss very openly the fact that Stephanie was not walking at the

11 time of the interview on October 28th of 2013, right?

12 A It struck me as odd?

13 Q Yeah. That he was just openly discussing the fact that

14 Stephanie wasn't walking.

15 A It didn't strike me as odd that he was telling me that.

16 Q The part of it that was odd, then, must have been that

17 fact that she had been walking before but that Mr. Dyer hadn't

18 seemed alarmed or upset by that fact. Is that fair to say?

19 MR. VANDENBERG: Your Honor, I'm gonna object to the

20 form of the question. The witness has not said that he thought

21 anything was odd.

22 THE COURT: Sustained.

23 Q (By Ms. Hay) All right. Well, was it odd to you?

24 A Was what odd?

25 Q That Mr. Dyer was so openly discussing the fact that

20

1 Stephanie had not been able to walk or talk or use the bathroom on

2 her own accord.

3 A That he was talking about it? No, ma'am.

4 Q So openly.

5 A Yeah. That he was talking about it openly, no, ma'am.

6 It wasn't odd -- it wasn't odd to me that he was telling me this

7 information. It was odd to me that -- or concerning to me that

8 she had been doing these things previously and then now, at seven

9 years old, she was no longer doing these things. That's what

10 concerned me.

11 Q Okay. And so that initial contact when Mr. Dyer was

12 discussing this with you, you'd classify it as an open discussion

13 of the symptoms that Stephanie was exhibiting at that point,

14 right?

15 A Yes, ma'am.

16 Q And when Mr. Dyer was questioned about wanting some

17 assistance to get to the Children's Hospital and set up

18 appointments with the doctors, you offered some assistance to see

19 whether or not law enforcement could get those appointments moved

20 up a little earlier and a little sooner than someone on their own?

21 A I don't know about a little earlier, but I was gonna

22 talk to the doctors about seeing what -- what they could do to

23 maybe get her over there. A lot of times when children come into

24 the hospital, they don't -- the emergency room doctors don't

25 necessarily ask for a consult, and -- and that's what I was gonna

21

1 ask them to do. I -- I never knew this prior, but you have to --

2 doctors have to ask for consults and have to ask for things. It

3 just doesn't -- I innocently assumed that this just all happened.

4 So I was telling him that -- in my way I was telling him that I

5 would ask the doctors to -- to maybe get a consult or something

6 done so Stephanie could be seen.

7 Q Okay. So that -- that was the point of surprise to

8 you, that this -- there wasn't a system in place that just kind of

9 took an issue and ran with it and set up appointments and that

10 would be taken care of. Is that what I'm understanding you to

11 say?

12 A No, ma'am.

13 Q Okay.

14 A So --

15 Q You -- let me go back and ask, then.

16 A Okay.

17 Q So you -- if I can clarify it, you indicated that

18 doctors had to ask for consults, right, and that was a surprise to

19 you?

20 A From -- so when -- when they go into the ER -- I'm

21 not -- I'm not talking about what happened previously with

22 Stephanie. When they go into the ER, sometimes they will make a

23 decision without consulting with the pediatricians on a child,

24 without consulting with the pediatricians, or maybe the

25 pediatricians aren't consulting with someone like Children's for

22

1 certain things. Sometimes kids will go in with a broken leg, and

2 they'll just think it's a broken leg and not consult with

3 Children's that it's a spiral fracture or something else. That

4 needs -- needs to be looked at a little bit more clearly. So

5 that's what I'm talking about.

6 Q Okay. And that makes sense to me. And so in this

7 instance when Mr. Dyer is presented with that information, again,

8 he didn't shut down.

9 A No, ma'am.

10 Q And he didn't lawyer up.

11 A No, ma'am.

12 Q And he didn't remain silent.

13 A No, ma'am.

14 Q And, in fact, his response was, yeah, I'd like to get

15 that in before it snows, right?

16 A Yes, ma'am.

17 Q And I want to talk about this interview at the end.

18 You know that Mr. Dyer was still questioning whether or not

19 Stephanie was suffering -- if she was even suffering from

20 seizures, right?

21 A Yes, ma'am.

22 Q Because he asked that direct question: Would you

23 classify that as a seizure?

24 A He had asked that to Officer Carver.

25 Q Yeah. And he asked that with a tone of disbelief in

23

1 his voice, correct?

2 A It sounded that way.

3 Q And then at the end of this interview, when you're all

4 done and you ask Mr. Dyer if he has any questions, his first and

5 last question to you there is whether or not he could be reunited

6 with Stephanie, correct?

7 A Yes, ma'am.

8 MS. HAY: Thank you. I'm sure we'll have a chance to

9 talk later.

10 THE COURT: Cross-examination, Ms. Cure?

11 MS. CURE: Yes, Judge.

12 CROSS-EXAMINATION

13 BY MS. CURE:

14 Q Good morning, Officer Trujillo.

15 A Good morning.

16 Q Detective Trujillo, right?

17 A Yes, ma'am.

18 Q Did you see Stephanie Dyer in the home on the 28th of

19 October?

20 A Yes, ma'am. Briefly.

21 Q So you saw Dollie Knab carrying her out as well?

22 A No. My back was to them.

23 Q Okay. But your understanding was that the paramedics

24 were taking her to the ambulance for more room?

25 A That was -- yes.

24

1 Q And there was a specific discussion of for them to tell

2 you if they took Stephanie.

3 A Yes. Well, I'd spoken with Officer Rayls --

4 Q Okay.

5 A -- and asked him if he would let us know before they

6 leave.

7 Q Okay. And that didn't happen?

8 A No, ma'am.

9 Q So you were surprised and the Dyers were surprised that

10 Stephanie had even been taken by the ambulance --

11 A Yes, ma'am.

12 Q -- right? And you're present when Mrs. Dyer's speaking

13 with DHS inside of the home, correct?

14 A Yes, ma'am.

15 Q And Mrs. Dyer's very cooperative?

16 A Yes, ma'am.

17 Q Friendly tone?

18 A That I remember, yes, ma'am.

19 Q She's taking individuals around her home?

20 A She took the two DHS -- I believe it was both of them.

21 Q Okay. And you know that law enforcement entered the

22 Dyers' home on the 28th before the Department of Human Services

23 did.

24 A Yes, ma'am.

25 Q And you didn't have a warrant?

25

1 A Me personally?

2 Q None of you had a warrant.

3 A Law enforcement?

4 Q Correct.

5 MR. VANDENBERG: I'd object. The Court's made rulings

6 on this and it's not relevant.

7 THE COURT: The objection's sustained.

8 Q (By Ms. Cure) Well, you knew that you weren't there

9 lawfully inside of the home.

10 MR. VANDENBERG: Same objection.

11 THE COURT: The objection's sustained. The jury should

12 disregard the question.

13 Counsel, I've made my rulings. You understand them.

14 Abide by them.

15 Q (By Ms. Cure) You never saw signs of trauma on

16 Stephanie Dyer?

17 A I never got to see her without a blanket on.

18 Q Okay. But throughout the course of your investigation,

19 you knew that there was no trauma to Stephanie Dyer's body?

20 A Yes. I had asked the doctors, and they said they

21 didn't see any trauma on Stephanie at all.

22 Q Okay. And at the time that Stephanie's taken to Poudre

23 Valley Hospital, there was no police hold on her, correct?

24 A Correct.

25 Q And there was no hold from the Department of Human

26

1 Services on her.

2 A I don't know what DHS had on her or not.

3 Q Well, you knew that the Dyers could have taken her out

4 of the hospital. That was discussed.

5 A Yes. Now I know.

6 Q But there was a lot of confusion about that, right? At

7 the time, on the 28th and the 29th, there was a lot of confusion

8 about who had custody of Stephanie Dyer.

9 A There was no confusion on my part.

10 Q So you always thought that the Dyers had custody of

11 Stephanie Dyer on the 28th and 29th?

12 A The Dyers had custody until DHS went to court the

13 following day and the judge gave custody to DHS.

14 Q Okay. And you were allowed to see Stephanie Dyer --

15 was it before or after your interview with Doug Dyer?

16 A When I took pictures?

17 Q Yes.

18 A It was after.

19 Q Okay. And in the audio there had been discussion

20 of and you had just previously testified that you believe it was

21 the doctors that were preventing the Dyers from seeing Stephanie

22 Dyer at the hospital.

23 A No, ma'am. The nurses told me -- what they said is

24 that they can't go back until they see the doctor, until Stephanie

25 is seen by the doctor.

27

1 Q Okay.

2 A I don't know if it was the nurses or the doctors, but

3 what I was told was the Dyers could not go back until Stephanie

4 was seen by the doctor.

5 Q Okay. But wasn't your previous testimony that nobody

6 could see Stephanie Dyer until the doctors had seen her?

7 A What previous testimony?

8 Q Just now with Ms. Hay.

9 A I don't -- I don't recall saying that.

10 Q Okay. Anyway, you were allowed to see Stephanie Dyer?

11 A I went in to take pictures of her.

12 Q How long did you spend with her?

13 A Long enough to take pictures, the three pictures.

14 Q And that was it?

15 A That was it. Then I -- I was looking to talk to the

16 doctors and the nurses, and I was also making calls to my

17 sergeant.

18 Q Okay. And you did get a chance to speak with the

19 doctors, right?

20 A I did.

21 Q And at that time there was no diagnosis of Stephanie.

22 A Correct.

23 Q And your understanding was that -- well, let me go

24 back. At some point, some doctor somewhere says Stephanie has a

25 failure to thrive diagnosis, was your understanding?

28

1 A At some point after that, yes, ma'am.

2 Q And you were confused by that at first?

3 A I don't remember being confused by that.

4 Q Do you remember having a conversation with Department

5 of Human Services on November 1st, saying, I don't understand why

6 there's a diagnosis of failure to thrive when Dr. Ballard has

7 already said there wasn't failure to thrive? Do you remember that

8 conversation?

9 A I don't remember the conversation, but I do remember

10 Dr. Ballard -- in one of the interviews that I did with

11 Dr. Ballard, she said she wasn't failure to thrive.

12 Q So there was some inconsistency, even in early

13 November, of what the actual diagnosis was and what you understood

14 of it.

15 A Well, there were -- she was admitted into the hospital

16 with failure to thrive, developmental delay, seizures, and a

17 precocious puberty. And so that's what I later learned happened.

18 Q Okay.

19 A I -- I remember talking to Dr. Ballard, and in that --

20 in that interview, she had said that she didn't believe failure to

21 thrive -- that Stephanie had failure to thrive.

22 Q Okay. So my question was you had some confusion about

23 what the diagnosis was all the way up until early November.

24 A I don't know that there was --

25 Q I'm not asking about anyone else, just you.

29

1 A No. I understand that. I don't -- there was a lot of

2 things that were going on. They had not completely diagnosed her.

3 They were still working through things at that time.

4 Q Okay. It was confusing?

5 A There was a lot of stuff going on at that time.

6 Q Okay. Your interactions with Mrs. Dyer have always

7 been incredibly cooperative on her part.

8 A Yes, ma'am.

9 Q In fact, she contacts you a lot.

10 A She would, yes, ma'am.

11 Q And there were times that you were trying to get

12 Mrs. Dyer off the phone, right?

13 A There were times that I was talking to her and -- and I

14 needed to go and do some other work, but yes, ma'am.

15 Q And you're telling her, I gotta write these reports, I

16 need to go, can I please get you off the phone is the tone that

17 you have with her, and she's just still talking, right?

18 A I don't remember that. I remember saying that there

19 were -- I had to go write reports.

20 Q Okay. And that's when Mrs. Dyer offered to be your

21 secretary.

22 A She did, yes, ma'am.

23 Q She says, I can type really fast and I really need a

24 job, I can write these reports for you, right?

25 A She did say that, yes, ma'am.

30

1 Q In one phone call she offers to be your secretary three

2 times, right?

3 A I don't know about three times, but I know she offered

4 it in different phone calls.

5 Q And you kind of laugh it off, because there's no way

6 you're offering Mrs. Dyer a job as your secretary.

7 A I don't do that.

8 Q Okay. As early as November 4th you hear of

9 Nurse Diane, right?

10 A I don't know -- I -- it might have been November 4th on

11 a phone call with Mrs. Dyer.

12 Q Okay. Let's talk about November 4th. You have a

13 45-minute phone call with Mrs. Dyer. And she called you, right?

14 A Yes, ma'am.

15 Q And in that phone call she tells you about Nurse Diane.

16 A I believe so, yes, ma'am.

17 Q And can you tell the jury what you understood of

18 Nurse Diane and what you did with that information?

19 A You know, I remember Nurse Diane. We talked about a

20 lot of things during that conversation, so if you have something

21 that you could tell me that you wanted me to remember or I could

22 refresh my memory through --

23 Q Nurse Diane was a nurse from Children's Hospital that

24 Mrs. Dyer had been in contact with, correct?

25 A I believe so.

31

1 Q Never knew Nurse Diane's last name?

2 MR. VANDENBERG: Your Honor, I'm gonna object at this

3 point. One, it's outside the scope. We've talked about how

4 they're gonna get chances to have these conversations about later

5 in the investigation. And, two, if we're gonna get into

6 statements by Mrs. Dyer on the phone through Detective Trujillo,

7 it's self-serving hearsay.

8 MS. CURE: And, Your Honor, it goes to what

9 Mr. Trujillo did with that information in that he didn't interview

10 Nurse Diane, he didn't follow up with the information he was

11 provided.

12 THE COURT: Let's talk about the first point that was

13 raised, because Detective Trujillo is gonna come up here on three

14 occasions, and we've -- the subject matter's been laid out. It

15 seems like we're outside of what was talked about earlier.

16 MS. CURE: This was shortly after -- so this is on

17 November 4th, so I apologize if the Court thinks it's outside the

18 scope. And if it's something we can address later, I'm fine with

19 that. But I was trying to get the information leading up to,

20 then, the home, which happens on November 5th.

21 THE COURT: All right. So I'm -- Counsel, you want to

22 respond?

23 MR. VANDENBERG: I'm gonna -- they will get that

24 chance. I will be talking about that phone call and that home

25 visit at a later time.

33

1 A Yes, sir.

2 Q Okay. Is it common for people to voluntarily speak

3 with police officers or detectives?

4 A Yes, sir.

5 Q Even in situations where people, when they talk to

6 those officers, end up confessing to a crime, is it still common

7 for them to voluntarily talk with police?

8 A Yes, sir.

9 Q And then even when a case has a, you know, longer than

10 normal time for investigation or an extended investigation, is it

11 still common for people, even during a lengthy investigation, to

12 remain cooperative and want to talk with police officers?

13 A Yes, sir.

14 Q So the fact that Mr. Dyer was cooperative with you and

15 Mrs. Dyer was continuing to talk with you throughout the

16 investigation, was that abnormal to you?

17 A No, sir.

18 Q You talked about part of your interview, saying you

19 wanted to try and see if you could perhaps expedite the process of

20 getting Stephanie seen either by Children's or by specialists. Do

21 you recall that?

22 A Getting her seen by Children's, yes.

23 Q Okay. And why was it important to you to do that?

24 A Because we didn't know what was going on with

25 Stephanie. We didn't know if -- if this was a serious health

34

1 issue or what was going on with her at the time. So Children's

2 has very good doctors. They've seen a lot of things. And -- and

3 I trust them a great deal. So I was hoping that she could get

4 seen and we could get this figured out for -- for the Dyers,

5 because they seemed concerned.

6 Q In your experience, does Children's Hospital in Denver

7 have pediatric specialists in various different areas?

8 A In a lot of different areas, yes.

9 Q Okay. You were asked a question, I think by Ms. Cure,

10 and I just want to clarify. I think that you -- you said that you

11 were surprised that Stephanie was taken by an ambulance. Were you

12 surprised that she was taken by an ambulance, or were you

13 surprised of when it happened that you weren't notified?

14 A I was surprised that we weren't notified.

15 Q Okay. But were you surprised in general that she was

16 taken by ambulance out of the house?

17 A No. I was -- I wasn't -- that she was taken out of the

18 house?

19 Q That she was transported by ambulance. Were you

20 surprised at that?

21 A No, I was not.

22 MR. VANDENBERG: Okay. If I could have just a second.

23 THE COURT: You may.

24 (A discussion was held off the record between

25 Mr. Vandenberg and Mr. McDonald.)

35

1 MR. VANDENBERG: Thank you. I have nothing else.

2 THE COURT: Ms. Hay, any recross?

3 MS. HAY: Not at this time. Thank you.

4 THE COURT: Ms. Cure, any recross?

5 MS. CURE: No, Judge.

6 THE COURT: Okay. You may step down.

7 Oh. I'm sorry. Does the jury have any questions for

8 this witness?

9 (No response.)

10 THE COURT: All right. Thank you. You may step down.

11 (The witness was excused.)

12 THE COURT: Mr. McDonald, who's your next witness gonna

13 be?

14 MR. McDONALD: Ashliee Packer.

15 THE COURT: All right. Go ahead.

16 (There was a pause in the proceedings.)

17 MR. McDONALD: May I have a moment, Your Honor?

18 (There was a pause in the proceedings.)

19 (The witness entered the courtroom.)

20 THE COURT: Ma'am, if you'd please come forward. Come

21 all the way up to me here at the bench. I'm gonna swear you in.

22 If you'd raise your right hand, please.

23 (The witness was duly sworn by the Court.)

24 THE COURT: All right. Thank you, ma'am. Please have

25 a seat right there on the witness stand. Please pull yourself up

37

1 Q And can you tell me what years you lived in

2 Fort Collins?

3 A I lived in Fort Collins from 2009 to 2013.

4 Q And at any point did you live next door to Leah and

5 Doug Dyer?

6 A Yes.

7 Q And can you tell me what your address was at that time?

8 A It was 124 East Trilby Road.

9 Q And can you tell me what date you lived in that house?

10 A We lived in that house from -- I believe it was March

11 2011 to December 2013.

12 Q Okay. So do you know how many years, approximately,

13 you lived there?

14 A Almost two.

15 Q Okay. Were you there when police made contact with

16 Mr. and Mrs. Dyer?

17 A Yes.

18 Q Do you see Mr. and Mrs. Dyer in court right now?

19 A No.

20 Q You do not see them in court right now at all?

21 A Yes. Sorry.

22 Q Okay. Do you -- can you point out Mrs. Dyer and tell

23 us what she's wearing.

24 A She is wearing, it looks like, a brown shirt and pants,

25 and has glasses.

38

1 Q And are her glasses on her eyes --

2 A On her head.

3 Q On top of her head?

4 MR. McDONALD: Your Honor, would the record reflect

5 this witness has identified Ms. Leah Dyer?

6 THE COURT: So noted.

7 Q (By Mr. McDonald) And do you see Douglas Dyer in

8 court?

9 A Yes.

10 Q And can you describe what he's wearing and where he's

11 sitting?

12 A It looks like he has a dark suit on, with a -- his hair

13 pulled back.

14 Q Is he sitting next to Mrs. Dyer?

15 A Yes.

16 MR. McDONALD: Your Honor, would the record reflect

17 this witness has identified Mr. Dyer?

18 THE COURT: So noted.

19 Q (By Mr. McDonald) Were you very close to the Dyers?

20 A No.

21 Q So you -- did you talk to them very much?

22 A Occasionally. Maybe once a month. Maybe -- I'd say

23 about every other month.

24 Q And did you talk to one more than the other?

25 A We talked to Mr. Dyer more.

39

1 Q Did you know, while you lived there, that they had any

2 children?

3 A I knew that they had a son.

4 Q And can you tell me why you knew that they had a son?

5 A We talked to them a couple times. I know that at one

6 point they were fixing a car for his son to drive. I believe

7 that -- or we were actually introduced to his son sometime when we

8 were living there.

9 Q You started that statement and I'm not sure I heard you

10 correctly. Did you say you talked to him or you talked to them?

11 A Sorry. I just phrased it -- Mr. Dyer introduced his

12 son to us at one point when they were living there because they

13 were working on a car together for him, for his son.

14 Q Okay. I'm sorry. I think I misunderstood what you had

15 said.

16 Did you ever see his son have friends over or people

17 about his own age over?

18 A I don't know if anybody ever came over, but they had,

19 like, a little drive-through-way by their house, and we'd seen a

20 car pull up a couple times and his son go out and say hi, but I

21 don't think they ever had anybody come over or stay.

22 Q Did you ever see a little girl at that house?

23 A No.

24 Q Had you ever been in the house?

25 A No.

40

1 Q So did you ever see a little girl outside of the house?

2 A No.

3 Q At any point did Mr. Dyer say anything to you about

4 having a little girl?

5 A Yes. A few times in our conversations he had said that

6 they'd had -- he'd had a daughter but she couldn't walk or

7 couldn't speak. To me, it seemed almost like he was speaking in

8 past tense, so maybe they had a little girl before. But I'd never

9 seen her and he never said her name, never introduced her,

10 anything like that.

11 Q So did you -- did you -- and when you heard this

12 information, did you believe that they had a daughter in their

13 house?

14 A I didn't believe they had a daughter in their house,

15 because like I said, we had never seen a daughter. He never, I

16 guess, spoke about her like -- you know, like she was real, like

17 he would hold her or do stuff with her, nothing like that.

18 Q And did you ever talk to Leah at all about having a

19 daughter?

20 A No.

21 Q So when was the first time you realized there really

22 was a little girl in that house?

23 A I think the first time was -- it was a little bit

24 before we left, a couple months before we left when, I think,

25 child services came and asked -- asked us if we'd seen a little

41

1 girl.

2 Q Did they have a car while you lived there?

3 A Yes.

4 Q And did you ever see them leave and run errands in that

5 car?

6 A Yes.

7 Q How often did you see that?

8 A I'd say about once a week or so, because, you know, the

9 car would be there, the car wouldn't be there. It seemed like

10 normal errands to me.

11 Q And I'm not assuming you watched this house like a hawk

12 or anything. That's just what you noticed kind of in passing. Is

13 that your --

14 A Yeah. Yeah.

15 MR. McDONALD: Okay. May I have a moment, Your Honor?

16 THE COURT: You may.

17 (A discussion was held off the record between

18 Mr. McDonald and Mr. Vandenberg.)

19 MR. McDONALD: Thank you.

20 THE COURT: Ms. Hay or Ms. Laughon? Ms. Hay?

21 CROSS-EXAMINATION

22 BY MS. HAY:

23 Q Good morning, Ms. Packer.

24 A Good morning.

25 Q So you were on Trilby. That's a pretty -- a relatively

42

1 busy street down south, right?

2 A That's correct.

3 Q It's getting a little bit busier as time goes along,

4 isn't it?

5 A Yes.

6 Q And you knew that you lived right next to the Dyer

7 house?

8 A Yes.

9 Q And the Dyer house was a concrete house, correct?

10 A Yes.

11 Q And you had never actually been inside the Dyers' home.

12 A Correct.

13 Q Can you tell me again how long you were living next to

14 the Dyers?

15 A We lived there -- I guess -- it was about 21 months.

16 Q Okay. So a little less than two years that you were

17 next to the Dyers?

18 A Correct.

19 Q And you didn't talk with the Dyers a lot, but that was

20 because they were a little different than you, right?

21 A They seemed pretty quiet. We talked to our other

22 neighbors on the other side pretty frequently. I'd say at least

23 once a week. We didn't talk to the Dyers a whole lot. But at the

24 same time, I mean, we were busy people, I guess, too. You know,

25 in-and-out-kind-of-thing like that. But we didn't -- it wasn't

43

1 like I made a point to talk to them.

2 Q When you did talk to them, you noted that they were

3 weird, in your words, right?

4 A A little different, yes.

5 Q Yes. And a little different than you. Not only a

6 little different, but weird?

7 A Yes.

8 Q And there were a couple of times when you were talking

9 with Mr. Dyer in particular when you -- he would come over and

10 talk with your husband, right?

11 A Yes.

12 Q And when Mr. Dyer would come over and discuss the

13 mechanic work that -- that they were doing, he also actually was

14 the one to volunteer and bring up this information regarding his

15 daughter, Stephanie, right?

16 A Yes.

17 Q So it wasn't something that you were asking about or

18 inquiring about.

19 A Correct.

20 Q And when he was sharing with you information about his

21 daughter, Stephanie, he did this on more than one occasion?

22 A Yes.

23 Q And he told you that they had this daughter, Stephanie,

24 and that in addition they had demons in their house, right?

25 A Yes.

44

1 Q And he told you that they had demons in their house and

2 that Stephanie was possessed, didn't he?

3 A Yes.

4 Q And he told you that Stephanie was possessed to the

5 point where she couldn't walk?

6 A Yes.

7 Q Or talk?

8 A Correct.

9 Q And he was concerned that his house had had

10 interventions from these ghosts, that the ghosts were actually

11 disconnecting the phone lines in his house, correct?

12 A Correct.

13 Q And it's interesting, because he was going over and

14 bringing up these discussions and asking if you had had problems

15 like this in your home as well.

16 A Correct.

17 Q So he wanted to know if your house was haunted.

18 A Correct.

19 Q And if your phone lines were going down.

20 A Correct.

21 Q Or if your cabinets were opening unexpectedly.

22 A Correct.

23 Q Or if you'd had electrical surges and had electronics

24 be blown out.

25 A Correct.

45

1 Q When you spoke with Mr. Dyer and he was discussing

2 these beliefs with you, he didn't seem to try and hide the fact

3 that he believed in ghosts or hauntings, did he?

4 A Correct. No.

5 Q In fact, he was openly sharing those beliefs with you,

6 his neighbor.

7 A Yes.

8 Q Even though you weren't close friends with the Dyers.

9 A Correct.

10 Q And you'd only spoken with Mr. Dyer a few times in

11 passing?

12 A Correct.

13 MS. HAY: Thank you.

14 THE COURT: Recross, Ms. Antoun or Ms. Cure?

15 CROSS-EXAMINATION

16 BY MS. CURE:

17 Q Ms. Packer, you had just testified on direct with

18 Mr. Vandenberg [sic] that you lived in that residence in 2011.

19 A Yes.

20 Q Are you certain about that?

21 A Yes.

22 Q And if you -- you spoke with Detective Trujillo,

23 correct --

24 A Yes.

25 Q -- in this case? And that was a phone call?

46

1 A Yes. Yes.

2 Q On September 17th of 2015?

3 A Yes.

4 Q Is it possible you told him it was 2012?

5 A I believe it was 2011, because we lived there almost

6 two years.

7 Q Okay. But could you have told Detective Trujillo it

8 was 2012?

9 A I -- I could have, because we did live there for a

10 little while. I think it was -- I remember -- I do distinctly

11 remember when he called, because I was surprised. You know, I

12 wasn't expecting it. And I think I tried to pull up information

13 of times when we lived there, but -- yeah, we -- I believe it was

14 2011, because --

15 Q What information did you pull up to try to figure out

16 when you lived there?

17 A Just an email of our contract to live there.

18 Q Okay.

19 A Because we rented the place.

20 Q Okay. So you just testified that you would speak with

21 Mr. Dyer more regularly than Mrs. Dyer.

22 A Correct.

23 Q But Mrs. Dyer wasn't rude to you?

24 A No.

25 Q You would say hi in passing?

47

1 A (Nodded.)

2 THE COURT: Is that a "yes," ma'am?

3 THE WITNESS: Yes. Sorry.

4 Q (By Ms. Cure) And how many cats and dogs did the Dyers

5 have?

6 A I don't know.

7 Q Because you were never inside the home?

8 A Correct.

9 Q But there were pets outside the home, weren't there?

10 A I don't really remember -- recall seeing pets.

11 Q Must not have been an annoying dog, right?

12 A Right. Because we had dogs ourselves. But I don't

13 remember seeing them have any animals.

14 Q Okay. Do you remember the Dyers having a garden?

15 A Not really.

16 Q And you said -- and I guess it was Mr. McDonald had

17 said I'm not expecting you to sit on this house and know what's

18 happening day and night, right? But you would notice the car be

19 there and then one minute not be there?

20 A Yeah. That's true.

21 Q But you didn't always see them leave, right?

22 A Correct.

23 Q But you were following this case in the newspaper?

24 A Yeah. We did see it.

25 Q And you saw the newspaper articles before you had

48

1 spoken with Detective Trujillo, right?

2 A I think -- I believe so. I think -- I don't know if

3 I -- I don't remember seeing the newspaper; I remember hearing a

4 little clip on the news.

5 Q Okay. And I don't want to talk about the facts; I just

6 want to talk about that you had.

7 A Yes.

8 Q And that was before your interview with

9 Detective Trujillo?

10 A Yes.

11 Q And you had -- these things that struck you as weird

12 and odd about your conversations with Doug Dyer, you discussed

13 those with your husband?

14 A Yes.

15 Q Did you discuss those with the other neighbors?

16 A No.

17 Q Okay.

18 A I think -- I think in passing I might have said, you

19 know -- I think, you know, maybe I've said something -- or I think

20 maybe I'd asked him at one point, you know, have you had any

21 issues with any of your house or anything like that, and they were

22 like no, and that was it. It wasn't a full discussion. It

23 wasn't --

24 Q And you're referencing the other neighbors. You asked

25 them?

50

1 A Correct.

2 Q Did you ever see your furniture move?

3 A No.

4 Q Beyond the annoying husband who might leave the

5 cabinets open, did you ever see them open by themselves?

6 A No.

7 Q Now, when you said you saw the Dyers' oldest son -- or

8 their son. I don't know if you know their oldest or whatnot. But

9 you saw they had a son that was out working on a car periodically?

10 A Correct.

11 Q Did you ever see him fall to the ground as if a force

12 had just pushed him down against his will?

13 A No.

14 Q Did you ever see him levitate?

15 A No.

16 Q Did you ever see Mr. Dyer pushed to the ground as

17 though some force had overtaken his body?

18 A No.

19 Q What about Mrs. Dyer? Did you ever see that?

20 A No.

21 MR. McDONALD: I don't have anything else, Your Honor.

22 THE COURT: Ms. Hay, recross?

23 MS. HAY: (Shook head.)

24 THE COURT: Ms. Cure, recross?

25 //

51

1 RECROSS-EXAMINATION

2 BY MS. CURE:

3 Q But you'd never been inside the Dyer home, right?

4 A Correct.

5 Q And did you see vehicles at the Dyer home or any

6 reference to other individuals of ghost hunters being at the home

7 at any time?

8 MR. McDONALD: Objection. That's beyond the scope of

9 my redirect.

10 THE COURT: I'm gonna allow that question.

11 MS. CURE: What's that, Judge?

12 THE COURT: I'll allow the question.

13 Q (By Ms. Cure) Did you notice any vehicles or anything

14 associated with ghost hunters at the Dyer home?

15 A No.

16 MS. CURE: Thank you.

17 THE COURT: Does the jury have any questions for this

18 witness?

19 (No response.)

20 THE COURT: There are none. May this witness be

21 released from her subpoena?

22 MR. McDONALD: Yes, Your Honor. I would request that.

23 THE COURT: Any objection?

24 MS. HAY: No objection.

25 THE COURT: Ms. Cure, any objection?

52

1 MS. CURE: No, Judge.

2 THE COURT: All right. Thank you, ma'am. You're free

3 to go.

4 Ladies and gentlemen, we're gonna go ahead and take the

5 morning recess at this time. We'll take about a 15-minute break

6 before we resume with testimony. Please do not discuss this case

7 amongst yourselves or with anyone else, and please do no research

8 of any kind regarding the case.

9 Ms. Butler, if you'd take them out, please.

10 (The jury exited the courtroom at 10:24 a.m.)

11 THE COURT: You may be seated.

12 Any issues from the People before we take the recess?

13 MR. VANDENBERG: No, thank you, Your Honor.

14 THE COURT: Any issues on behalf of Mrs. Dyer?

15 MS. CURE: No, Judge.

16 THE COURT: Mr. Dyer?

17 MS. HAY: No.

18 THE COURT: All right.

19 (A recess was taken from 10:25 a.m. until 10:41 a.m.)

20 THE COURT: All right. Are we ready for the jury?

21 MS. CURE: Ready for Mrs. Dyer, Judge.

22 THE COURT: Okay. Ready for the jury?

23 MR. McDONALD: Yes, Your Honor.

24 THE COURT: Okay.

25 (The jury entered the courtroom at 10:41 a.m.)

53

1 THE COURT: You may be seated.

2 All right. Mr. Vandenberg, would you call your next

3 witness, please.

4 MR. VANDENBERG: Certainly. The People will call

5 Dr. Pamela Webber, if I may go get her.

6 THE COURT: Thank you.

7 (There was a pause in the proceedings.)

8 (The witness entered the courtroom.)

9 THE COURT: Ma'am, if you'd please come forward. Come

10 all the way up to me here at the bench and I'll swear you in.

11 Would you please raise your right hand for me.

12 (The witness was duly sworn by the Court.)

13 THE COURT: All right. Thank you. Please have a seat

14 right there on the witness stand. Go ahead and pull yourself up

15 to the microphone. The whole base of the stand moves. The top of

16 it moves as well. Just adjust it so it's in a comfortable

17 position.

18 Please state your name.

19 THE WITNESS: Pam Webber.

20 THE COURT: Please spell your last name.

21 THE WITNESS: W-E-B-B-E-R.

22 THE COURT: Thank you.

23 Counsel, you may inquire.

24 MR. VANDENBERG: Thank you.

25 //

55

1 at -- in Fort Worth, Texas, at Carswell Air Force Base.

2 Q And what did you specialize in with your residency?

3 A Family medicine.

4 Q Okay. And from your residency, where did you go?

5 A Then I went to a duty station in the upper peninsula of

6 Michigan, K. I. Sawyer Air Force Base.

7 Q And did you practice medicine there?

8 A Yes, I did.

9 Q How long were you there?

10 A Two years.

11 THE REPORTER: Please slow down a little bit.

12 Q (By Mr. Vandenberg) And from there, where did you go?

13 A I went to Offutt Air Force Base in Omaha, Nebraska.

14 Q Okay. And how long were you there?

15 A I was there for two years.

16 Q Again, with family medicine?

17 A Yes.

18 Q Okay. And from there where did you go?

19 A From there I went to Wheeling, West Virginia, to the

20 Wheeling hospital family medicine residency for two years.

21 Q Okay. Seems to be a pattern there.

22 A Yes.

23 Q Where'd you go from there?

24 A And then I moved here to Fort Collins, and I started to

25 practice at Northside Health Center in Fort Collins in family

56

1 medicine.

2 Q And what year was that?

3 A That was 1999.

4 Q Okay. And then how long were you there?

5 A About two and a half years.

6 Q Okay. And then I still think there's a lit bit of a

7 gap before you started at Family Medicine.

8 A Right. So I left there, and then I did urgent care at

9 Harmony Urgent Care for about another two years before I started

10 at the Family Medicine Center.

11 Q Okay. So you've been a doctor a lot of different

12 places, it sounds like.

13 A Yes.

14 Q A lot of those by virtue of the Air Force, it sounds

15 like, as well.

16 A Yes.

17 Q Have you been a doctor in good standing that entire

18 time?

19 A Yes, I have.

20 Q Okay. And are you a member of any professional

21 organizations?

22 A The American Academy of Family Physicians and the

23 Society for Teachers of Family Medicine.

24 Q Okay. And do you engage in any ongoing training or

25 education throughout your practice?

57

1 A Yes. I meet the requirements for continued board

2 certification for family medicine.

3 Q And what are those requirements?

4 A Those requirements are 150 hours of continuing

5 education over three years, with 25 of them being group education.

6 Q And when you say "continuing education," is it things

7 like, you know, lectures or seminars or conferences, things like

8 that?

9 A Correct.

10 Q Okay. And is part -- as part of your general family

11 practice, is some of that focused on staying up to speed on

12 pediatric medicine?

13 A Correct. Yes.

14 Q Okay. And are you currently a board-certified doctor

15 in family medicine in the state of Colorado?

16 A Yes, I am.

17 MR. VANDENBERG: Your Honor, I move to admit Dr. Webber

18 as an expert in family medicine.

19 THE COURT: Is there any objection, Ms. Hay?

20 MS. HAY: There is not, Judge.

21 MS. CURE: No objection for Mrs. Dyer.

22 THE COURT: All right. She is so recognized and may

23 render opinion in her area of expertise.

24 MR. VANDENBERG: Thank you, doctor -- or thank you,

25 Judge.

58

1 Q (By Mr. Vandenberg) Dr. Webber, was Stephanie Dyer a

2 patient of Family Medical from 2006 to 2009?

3 A Yes, she was.

4 Q Okay. And let me -- let me go on another aside here.

5 Are you familiar with the medical records of Family Medical and

6 how they're kept?

7 A Yes, I am.

8 Q Okay. And specifically, have you reviewed the records

9 of Stephanie Dyer before coming here today?

10 A Yes, I have.

11 Q Okay. And when you reviewed those records, were the

12 records you reviewed for Stephanie consistent with the way that

13 records are normally kept at Family Medicine?

14 A Yes, they are. They were.

15 Q And are those records -- both what you keep at

16 Family Medicine and the ones you observed of Stephanie, are those

17 records that are consistently kept in the business of running a

18 medical office?

19 A Yes.

20 Q Dr. Webber, how many times was Stephanie seen at

21 Family Medical from her birth until September of 2009?

22 A She was seen -- I -- six times, I believe. I'm not

23 quite sure.

24 Q Okay.

25 A An additional two times at a walk-in clinic, and those

59

1 records are also included.

2 Q Okay. And so throughout that time period, from your

3 review of her records, from her birth until September of 2009, was

4 there any concern noted regarding her height or weight gain?

5 A No, not that I -- not that I remember.

6 Q So as far as you could tell, did she remain sort of on

7 her curve for that period of time?

8 A Yes.

9 Q And when I say "on her curve," what does that mean?

10 A It -- and, actually, there was nothing that jumped out

11 of the records that I reviewed. I did not actually see growth

12 charts to be able to answer that.

13 Q Okay. Well, then maybe the better question is this:

14 Based on what you reviewed as far as height and weight, was there

15 any concern throughout that time period of being in an abnormally

16 low percentile or anything like that?

17 A No, there was not.

18 Q Doctor, what -- what is, I guess, the ideal schedule of

19 appointments for a kiddo from birth up until the age of three?

20 A Yeah. We -- the standard schedule is two weeks -- a

21 visit at two weeks, two months, four months, six months, nine

22 months, a year, 15 months, 18 months, and two years, and then

23 every year after that.

24 Q Okay. And did -- from what you saw, did Stephanie have

25 appointments for each of those time periods?

60

1 A No, she did not.

2 Q Based on the records of -- of Family Medicine for

3 Stephanie, how would you classify her history of visits prior to

4 September of 2009?

5 A She had a regular -- she -- she attended the two -- the

6 two-week, two-month, and four-month visit, and then had very --

7 had sporadic visits after that, having only two visits, then,

8 between -- until her three-year check.

9 Q Okay. At some point in 2009, based on your review of

10 the records, are you aware whether Stephanie was taken to the

11 emergency room?

12 A Yes, she was.

13 Q And when was that?

14 A That was April of 2009.

15 Q And what was the chief complaint at that time?

16 A Seizure activity.

17 Q And do you know, from your records, what was the result

18 of that visit to the ER in April of 2009?

19 A In my review of the records, she was admitted, saw a

20 neurologist, and was diagnosed with a seizure disorder.

21 Q Okay. Do you recall whether she was prescribed any

22 medications at that time?

23 A Yes. At that time she was put on the -- the Keppra

24 medication.

25 Q Okay. And when you say Keppra medication --

61

1 A Or an antiseizure medication.

2 Q Okay. And do you recall what that antiseizure

3 medication --

4 A I think it was Keppra.

5 Q If I said it was Lamictal, would that --

6 A Oh. Yes. You're right. You're correct. It is

7 Lamictal.

8 Q And can you describe for the jury, generally, what

9 Lamictal is?

10 A It -- it is just a -- a centrally acting agent that

11 reduces the -- the ability of the brain to have abnormal activity

12 which causes seizures.

13 Q Okay. Based on your records, after that hospital visit

14 in April 2009, was Stephanie referred to a neurologist?

15 A Yes, she was.

16 Q And tell me what your records indicate about that.

17 A The records indicate that the neurologist that saw her

18 in the hospital wanted to see her back in her office in six

19 months.

20 Q Dr. Webber, do you have patients that have seizure

21 disorders?

22 A Yes, I do.

23 Q Does -- is it the normal policy of Family Medicine to

24 recommend that such patients be followed by a neurologist?

25 A Yes, it is.

62

1 Q Why is that?

2 A It's -- at least initially it can be a more complicated

3 diagnosis, and we generally like to have their expert opinions in

4 the management and the -- the choosing of the drugs that -- that a

5 patient should be on for seizures.

6 Q Okay. And why -- and explain that a little bit more

7 about the choosing of the drugs. Why -- why is that important

8 that a neurologist follow?

9 A It is just -- different people have different reactions

10 to drugs, and neurologists have more experience dealing with

11 seizure disorder. I mean, that's their -- their field of

12 expertise, and it just -- it feels -- it -- it -- it is a safer

13 way to know that the patient is on the right drugs.

14 Q Okay. So correct me if I'm wrong. It sounds like

15 there's not -- there's not a one-size-fits-all antiseizure

16 medicine.

17 A Correct.

18 Q So one that might work for one patient, another patient

19 may not have as positive a reaction to?

20 A Correct.

21 Q And is that sort of why you want them to see a

22 neurologist, so they can figure that out?

23 A Correct. And -- yes. And I think that there's always

24 the chance -- there -- it -- it just -- the neurologist is -- is

25 better equipped to deal with side effects of medications and --

63

1 and really assess that the medications are working for the

2 patient.

3 Q Okay. Do the Family Medicine records indicate that

4 Stephanie had a visit in August of 2009?

5 A Correct.

6 Q And do those records indicate statements made by the

7 mother of the child regarding the seizures and the medication?

8 A In my review, yes, it -- at -- those records indicate

9 that the seizures were under control at that point and that --

10 and -- and the reason that they had the appointment was, before we

11 filled it, they -- the doctors requested that Stephanie come in

12 for an evaluation.

13 Q Okay. During -- do those records indicate when the

14 mother of child indicated that the Lamictal was started?

15 A Oh. Yes. And I think it's -- there -- there is an

16 indication that -- that it's been a year in the records, and it --

17 it really was only from April to August.

18 Q Okay. Did -- were there any statements in the August

19 note on whether or not they had followed up with a neurologist

20 after that initial visit? To the hospital, I mean.

21 A They -- yes, there was. There was an indication that

22 they had not been able to follow up with a neurologist because the

23 neurologist did not accept their insurance, and the nurse

24 practitioner's notes indicate that she was going to do a referral

25 to someone who would accept their insurance.

64

1 Q Okay. And so then do the records from August 5th,

2 2009, indicate whether another referral to a neurologist would be

3 forthcoming?

4 A They -- it does indicate that.

5 Q Okay. And, Doctor, when -- when was the last time that

6 you saw Stephanie Dyer?

7 A So the first and last time I saw her was the 21st of

8 September of 2009.

9 Q And what was the purpose of the visit that day?

10 A That was her three-year well-child check.

11 Q Okay. And what do you do at a well-child check?

12 A You do a lot of talking about growth and development

13 and how things are going at home and look -- do a complete

14 physical on the -- on -- on the child, look at -- at that point I

15 would have had a growth curve and looked at it and then talked

16 about things that may be coming up, and then addressing any

17 problems that -- that have occurred or any concerns the parents

18 have.

19 Q Okay. And during that well-child visit on

20 September 21st of 2009, was the topic of seizures discussed at any

21 point?

22 A Yes, it was.

23 Q Okay. And what was the discussion?

24 A The discussion was -- continued to be that -- that --

25 the need for a referral, the need to see the neurologist, and to a

65

1 provider that would accept their insurance.

2 Q Okay. Did the -- was the mother of the child present

3 at that check?

4 A Yes.

5 Q Okay. Did she have any statements about Stephanie's

6 seizures?

7 A You know, I -- as I looked over my note, I do -- I did

8 not document any that I recall. And I did not -- and I don't -- I

9 do not recall the -- the visit.

10 Q Okay. But you do recall that it was an ongoing issue?

11 A Yes. Yes.

12 Q Okay. And that she'd previously been on the Lamictal

13 but it was reported she was still having seizures?

14 A No. My impression at that visit is that -- or my

15 recollection is that the seizures were under control at that point

16 with the Lamictal.

17 Q So -- so you don't recall anything in the records about

18 the mother making any specific statements about seizure

19 observations?

20 A I -- I don't -- I don't recall.

21 Q Okay. If -- if there were anything like that in the

22 record, would it refresh your recollection to look at the notes

23 from that date?

24 A It might.

25 MR. VANDENBERG: Okay. Your Honor, if I might

66

1 approach?

2 THE COURT: You may.

3 Q (By Mr. Vandenberg) Doctor, I'm approaching you with a

4 set of records that is labeled "Family Medicine" at the top. If

5 you could take a look at those, and specifically on page 2 under

6 the heading of "History."

7 A Yes.

8 Q Let me -- well, let me ask you: Having -- having

9 looked at those, do those appear to be records from your visit on

10 September 21st?

11 A They were.

12 Q Okay.

13 A They are.

14 Q And does that -- does looking at that refresh your

15 recollection about any reports of observations of seizure

16 activity?

17 A It does, but I -- I -- I have no recollection of the

18 visit other than making this note.

19 Q Sure. But you -- you made that note related to that

20 visit --

21 A Yes, I did.

22 Q -- is that correct?

23 A Yes.

24 Q And what is that note?

25 A It says that the mother was still concerned about the

67

1 seizure disorder -- or seizures, that they last two seconds, and

2 did hit head one time and that there's no postictal phase that

3 mom's noted.

4 MR. VANDENBERG: Okay. May I approach?

5 THE COURT: You may.

6 Q (By Mr. Vandenberg) Dr. Webber, what was the overall

7 result of the well-child check?

8 A Was that Stephanie was healthy, was growing well, her

9 development was normal, and that I needed to do a referral to

10 the -- to the neurologist.

11 Q Okay. And perhaps it's a silly question, but if there

12 were any very obviously noted developmental delays or impairments

13 of bodily functions, inability to, you know, walk, talk, or move a

14 certain way, are those kinds of things that would be noted --

15 A Yes.

16 Q -- in the records of a well-child check?

17 A Yes, they would.

18 Q Okay. Was there anything that was noted that was

19 either impaired or developmentally delayed in Stephanie Dyer as of

20 September 21st, 2009?

21 A Not -- not to what I documented and what I remember.

22 Q Okay. In your recollection, did she appear to be

23 developmentally appropriate for her age as of September 21st of

24 2009?

25 A Yes.

68

1 Q And what was her height and weight at that visit?

2 A I do not remember the height. The weight was 33

3 pounds.

4 Q Would the height be in your records of that visit, do

5 you believe?

6 A Yes. Would you like me to try to find it?

7 MR. VANDENBERG: Yes. If I may approach, Your Honor?

8 THE COURT: You may.

9 THE WITNESS: The height was three-foot-one-inch, or

10 93.98 centimeters.

11 MR. VANDENBERG: Thank you.

12 May I approach, Your Honor?

13 THE COURT: You may.

14 Q (By Mr. Vandenberg) And you said earlier based on --

15 you said you didn't know exactly what those figures were, but you

16 believed at that visit you would have looked at a curve and you

17 didn't see anything that concerned you.

18 A Correct. That's my usual practice.

19 Q At that visit did you discuss with the parents of the

20 child the need for regular doctor's visits?

21 A Yes. Yes.

22 Q And at that -- at that visit did you get an explanation

23 for why a neurology follow-up had not been done?

24 A Yes. They still had -- it was my understanding that

25 the referral that was supposed to go in in July, they had not ever

69

1 heard anything about it, and so I -- I -- I let them know that I

2 was putting the referral in again and they should hear from the

3 referring agency.

4 Q Okay. Did they -- did they indicate to you whether

5 they -- I guess having not heard anything, had they done any

6 follow-up or asked any questions about that?

7 A I don't recall.

8 Q And at the conclusion of that visit, what did you do

9 regarding a neurological referral?

10 A I made a referral to neurology at Children's Hospital.

11 Q And was it specifically to Children's Hospital?

12 A Correct.

13 Q After September 21st of 2009, that three-year

14 well-child visit, did Stephanie Dyer have any appointments at

15 Family Medicine between then and 2013?

16 A None that are recorded.

17 Q Is it typical that an office visit would be recorded?

18 A Yes.

19 Q Pretty universally?

20 A Yes.

21 Q So would it be fair to say that had there been a visit,

22 that you would expect there to be a record of that?

23 A Yes.

24 Q Do you know whether the referral that you made to

25 neurology at Children's that year was kept?

70

1 A No, I don't know.

2 Q And did Family Medicine keep records regarding the

3 prescription for Lamictal?

4 A Yes.

5 Q Okay. And when was the last record of Family Medicine

6 regarding the prescription for Lamictal?

7 A It was in March of 2013.

8 Q And what do you recall being indicated in that record?

9 A In that request there was a request for an

10 appointment -- that the -- that Stephanie needed to be seen before

11 it would be refilled.

12 Q Okay. So let me -- let's back up and talk a little bit

13 about how that works. So -- so you said there was a request,

14 meaning a request for the refill of the prescription?

15 A Correct.

16 Q Okay. And who did that come from?

17 A That came from the pharmacy.

18 Q Okay. And then the response from Family Medicine to

19 that request was what?

20 A Was denied, patient needs appointment.

21 Q Okay. Doctor, if a parent has concerns for their

22 child's health, can they call and make an appointment to come in

23 even if they are not scheduled for their well-child visit?

24 A Yes, they can.

25 Q And if a child presents at, you know, your family

71

1 medicine practice and has a problem that can't be handled at your

2 clinic, will you help in the referral process or, you know,

3 getting them where they need to go to get the answers they need?

4 A Yes.

5 MR. VANDENBERG: If I could have just a moment?

6 THE COURT: You may.

7 (A discussion was held off the record between

8 Mr. Vandenberg and Mr. McDonald.)

9 Q (By Mr. Vandenberg) Dr. Webber, in both -- I guess on

10 September 21st of 2009 and in the records that you reviewed, when

11 the topic of Stephanie having seizures was mentioned, is there any

12 indication in the records that the parents made mention of those

13 being caused by spirits or ghosts or anything like that?

14 A No.

15 MR. VANDENBERG: Thank you. Nothing else.

16 THE COURT: Thank you.

17 Cross-examination, Ms. Hay?

18 CROSS-EXAMINATION

19 BY MS. HAY:

20 Q Dr. Webber, nice to see you again. I want to talk with

21 you about your expectations. If a child comes to Family Medicine

22 Center with their family and is seen by yourself or one of the

23 residents, or even a nurse practitioner, your expectation would be

24 that that visit would be recorded in Family Medicine Center

25 records, correct?

72

1 A Correct.

2 Q And when the prosecution asked you a little bit earlier

3 would you expect to see a record if there'd been a visit, that's

4 what you're referring to, right?

5 A Correct.

6 Q But I want to talk about some of the changes in medical

7 records that have happened in the past decade. There's been a

8 huge shift within the healthcare industry from paper records to

9 electronic records, correct?

10 A Correct.

11 Q And then when the first generation of electronic

12 records kind of got old and outdated, there have been subsequent

13 updates to those computerized systems, correct?

14 A Correct.

15 Q One of the challenges in the healthcare system is

16 making sure that there is good communication between providers to

17 a particular patient, correct? For example, if you're seeing a

18 neurologist and a family medicine specialist, you'd hope that

19 those two were communicating well, correct?

20 A Correct.

21 Q But there are still systemic difficulties that are in

22 play today between -- that hamper that kind of communication,

23 aren't there?

24 A Yes.

25 Q And one of the most fundamental that you still see to

73

1 this day is communications between healthcare systems, right?

2 A Correct.

3 Q So you are with Family Medicine Center, which is a

4 teaching clinic, right?

5 A Correct.

6 Q And so you have lots of young doctors come into your

7 program.

8 A Yes.

9 Q And your goal is to learn them up and send them out in

10 the world to have their own practices, right?

11 A Correct.

12 Q And in the Family Medicine Center, you're located over

13 behind the Pizza Hut on Lemay, right?

14 A Correct.

15 Q Kind of over by Riverside and Lemay?

16 A Correct.

17 Q And -- in that location, you're just a few blocks away

18 from Poudre Valley Hospital?

19 A Yes.

20 Q And the system that you're a part of, this little

21 clinic on the second floor of a strip mall behind the Pizza Hut,

22 is actually a part of a much greater -- a much larger system,

23 right?

24 A Yes, we are.

25 Q And that's the UCH, University of Colorado Health

74

1 system, right?

2 A Correct.

3 Q And that includes hospitals such as Poudre Valley

4 Hospital?

5 A Yes.

6 Q And other hospitals across Colorado?

7 A Correct.

8 Q And so you're one small clinic in the -- part of the

9 big whole?

10 A Correct.

11 Q Now, Children's Hospital, the Children's Hospital

12 that's down in Denver, is a different system, right?

13 A It is.

14 Q And the Children's Hospital is a very large structure

15 out in Aurora off of East Colfax, correct?

16 A One of their locations, correct.

17 Q At that location there is a huge installation with

18 thousands of doctors practicing, thousands of healthcare providers

19 practicing out of that facility, correct?

20 A I -- I don't know. I don't -- I -- I don't know how

21 big they are.

22 Q Have you been down to the Children's Hospital?

23 A No, I have not.

24 Q Okay. All right. We'll find out from others. Let's

25 suffice it to say that the Children's Hospital computer system

75

1 doesn't talk to the UC healthcare computer system, correct?

2 A That's not correct.

3 Q Oh. So that's something that's different? Now you

4 have access to the records at the Children's Hospital?

5 A Yes.

6 Q How long has that been?

7 A Probably four or five years.

8 Q Four or five years. All right. So do you have a

9 specific time when you know that that came on board?

10 A No, I don't.

11 Q All right. Well, let me -- let me clarify, then,

12 because you're advising me that this is something that's happened

13 in the last four or five years, that now you can go on and get all

14 the records at the Children's Hospital.

15 A Yes.

16 Q All right. And so if you're a physician that's

17 assigned to and has practice authorization at a local hospital,

18 like Poudre Valley Hospital, you're saying that that individual

19 could access all of the records at the Children's Hospital?

20 A For the patient that they are seeking the information.

21 Q Okay.

22 A So -- so for a shared patient they could.

23 Q All right. Fair enough. And let's talk about the

24 computer system in your clinic at Family Medicine Center. So in

25 that clinic, you have had one of these upgrades occur within your

76

1 own practice, right?

2 A Correct.

3 Q And that occurred how long ago?

4 A 2013.

5 Q In 2013. So about three years ago?

6 A About -- yeah.

7 Q And the system that you had installed at that point in

8 time didn't automatically port all of the old records over to the

9 new system, correct?

10 A Correct.

11 Q And the fact of the matter is that a lot of those

12 documents had to be manually input into the new system, correct?

13 A Yes, they did.

14 Q And you know that there are certain documents that you

15 weren't able to easily find after that transfer of electronic data

16 to the new computer system, correct?

17 A Correct.

18 Q And so you can dig around and do your best to try and

19 find documents that predate 2013, but you're not always

20 successful, correct?

21 A Or I don't know how successful I am.

22 Q Okay. Fair enough. Because these two systems have

23 gaps in them, have holes in them?

24 A It appears.

25 Q All right. And you've found those gaps and holes in

77

1 your own research, right?

2 A Correct.

3 Q All right. So it's not just theoretical, you've

4 actually experienced that in your practice as the -- the director

5 of Family Medicine Clinic?

6 A I'm not director of the Family Medicine Clinic.

7 Q Oh. I apologize.

8 A Yeah. No. I'm --

9 Q You're one of --

10 A I'm a faculty physician, yeah.

11 Q Okay. So as a faculty physician there -- so one of the

12 teachers of the young doctors that come through the practice?

13 A Yeah. So there were -- yes. So I did find that --

14 that there were documents in -- yes. I did find a hole as I was

15 researching for this case.

16 Q Okay. So I want to go back and talk about

17 Stephanie Dyer. She went through Family Medicine Center after her

18 birth. And you know that the Dyers were coming to FMC as a

19 low-cost provider, right?

20 A Correct.

21 Q And the low-cost provider -- the great advantage of FMC

22 is that it provides much-needed healthcare to lower-income

23 individuals, correct?

24 A Correct.

25 Q And, in fact, your practice takes Medicaid?

78

1 A Correct.

2 Q And that can be something that's really a rare

3 commodity in this day and age, isn't it?

4 A It -- it is. We're one of the main providers for

5 patients who have Medicaid.

6 Q Because low-income individuals can have difficulty

7 finding providers that will take their government-sponsored

8 Medicaid insurance, correct?

9 A Correct.

10 Q Because it doesn't pay a whole lot, does it?

11 A It -- it does not pay like commercial insurances pay.

12 Q The reimbursement isn't the same, is it?

13 A No, it is not the same.

14 Q Okay. And when the Dyers came to Family Medicine

15 Center, they saw a number of different residents in the clinic

16 there, right?

17 A Yes.

18 Q You only saw Stephanie Dyer on that one occasion in

19 September of 2009, right?

20 A Correct.

21 Q And before that, she had seen -- she had seen providers

22 that were residents, right?

23 A And nurse practitioners.

24 Q Nurse practitioners. So you've talked about the fact

25 that you are one of the teaching physicians. You would oversee

79

1 the young physicians that come into the practice, correct?

2 A Correct.

3 Q And you'd have to actually be with them through the

4 first portions of their -- of their practice at FMC, correct?

5 A Yes.

6 Q And then after six months, when they've had enough

7 experience and exposure and gotten their legs under them, then

8 they would be allowed to see families and patients without one of

9 the teaching faculty, correct?

10 A Yes.

11 Q And in this instance, you know that the Dyer family

12 that came in on those different occasions saw different doctors

13 and nurse practitioners. I think I've said that before. Right?

14 A Yes.

15 Q Okay. So let me move on. When Stephanie was seen for

16 her well-child checkups at two months and at four months, there

17 was never any indication that she had been a victim of trauma,

18 right?

19 A The record does not indicate any -- any concerns about

20 trauma.

21 Q No breaks or fractures or burns, right?

22 A Correct.

23 Q And you, as a family medicine practitioner, would be

24 particularly attuned to any concerns of that nature, right?

25 A I'm not sure how to answer that. I mean --

80

1 Q I guess any doctor would be attuned to it, but, I

2 mean --

3 A Right. Yeah. So I don't know that -- that as family

4 physicians we're any more attuned than anyone else that would be

5 caring for a child.

6 Q All right. Well, let me say this: If there had been

7 any indication of abuse of Stephanie, that is certainly something

8 you would expect the records to -- to highlight, correct?

9 A If -- yes.

10 Q And there weren't any --

11 A There were not.

12 Q -- any indications of that?

13 All right. Now, there was an indication, when

14 Stephanie went to see a physician on February 9th of 2007, she had

15 some developmental concerns that were documented. Do you remember

16 that?

17 A In review of the records, yes.

18 Q And there were concerns at that point in time that she

19 didn't seem to have the manual dexterity that one would have

20 expected for her age, correct?

21 A Yes. That was -- that was documented.

22 Q And she had some odd stiffness in her torso?

23 A I do not recall that. I just recall the concerns of --

24 about sitting.

25 Q Okay. So she had manual dexterity issues, and she also

81

1 had concerns with regards to sitting up?

2 A Yes.

3 Q And there was indication in those records that that was

4 odd or not normal for a child of her age, right?

5 A Correct.

6 Q There was also an interesting referral that

7 Family Medicine Center had been aware of -- and I'm gonna call it

8 CAH. You're familiar with congenital adrenal hyperplasia?

9 A Correct.

10 Q And the testing that they had done originally upon

11 Stephanie's birth?

12 A I saw the -- I saw the records referring to that, yes.

13 Q And so she had this CAH that was outside normal limits,

14 correct?

15 A Correct. That was what was documented.

16 Q And, in fact, because it was outside of normal limits,

17 there was a referral for a follow-up test of CAH.

18 A No. There -- there's a standard -- we always

19 standardly do two newborn tests, so there was the first test that

20 demonstrated it, and then just making sure that the second test

21 was done and was normal.

22 Q All right.

23 A So it was not -- I don't think there was a special

24 referral, was my understanding.

25 Q Okay. So that was -- when they said a referral, that

82

1 was just because they would always follow up?

2 A Yes.

3 Q Okay. I understand. And in Stephanie's particular

4 case, the -- the issues, the reason that that was important and

5 someone wanted to look into that is because that's a potential

6 indicator of a hormonal problem in an infant, correct?

7 A Correct.

8 Q And that hormonal issue can affect things such as the

9 child's growth rates, correct?

10 A Correct.

11 Q And also things like their developmental stage, such as

12 their onset of puberty, correct?

13 A Yes.

14 Q Now, I also want to discuss this issue with regards to

15 the information that was provided to the Dyers. You had a chance

16 to see the referrals regarding immunizations and Stephanie, right?

17 A Yes.

18 Q And you know that there was information that was

19 provided by medical doctors to the Dyers that they should not get

20 Stephanie's immunizations at that point even though it was a

21 regularly scheduled time for that, correct?

22 A At the three-year visit, correct.

23 Q Okay. And so they had been actively told, when

24 Stephanie was three years of age, hey, you know what, for most

25 people this would be the time when we would say in our

83

1 conversation go get your kid immunized, but that's exactly the

2 opposite of the information that the Dyers were given, correct?

3 A What -- what I documented was that they were told to

4 not get immunizations until the seizure disorder was stable.

5 Q Fair enough.

6 A And that's why they were electing not to get

7 immunizations at the three-year well-child check.

8 Q Okay. I just wanted to clarify that issue about that

9 was doctor's orders, right, on the immunizations?

10 A That -- that is what I documented and that is what they

11 told me. I don't know what they were told.

12 Q Okay. Fair enough. I want to -- I want to ask -- and

13 I probably will follow up with other doctors on this. But when

14 Stephanie was seen at Family Medicine, there was no way to know

15 whether or not she had congenital brain abnormalities that would

16 display themselves in a smaller cerebellum than other infants her

17 age, correct?

18 A Can you -- can you ask again in --

19 Q Well, yeah. Let me say this: You don't normally

20 routinely go do an MRI or a CT scan on a child unless there are

21 other indicators.

22 A Correct.

23 Q Okay. And so if Stephanie had some sort of congenital

24 defect in her brain that showed that she had a smaller cerebellum

25 than other children her age, you wouldn't have had any

84

1 documentation or anything to compare against, correct?

2 A Correct.

3 Q Now, I do want to discuss the body mass index. We've

4 talked about the fact that Stephanie's height and weight were

5 counted by you. And that's something that, as a family

6 practitioner, you would regularly record, right?

7 A Correct.

8 Q And in addition to that, you would recognize that there

9 is a scope of body shapes, right?

10 A Correct.

11 Q I always call myself short and stocky. I think it's

12 fair to say there are people that are tall and thin, right?

13 A Correct.

14 Q And you know, because you've met both Doug and

15 Leah Dyer, that they both presented as very thin parents, correct?

16 A Correct.

17 Q They wouldn't be well described as short and stocky by

18 any means, would they?

19 A No.

20 Q And you know, as well, that a body mass index can be

21 affected by that discrepancy about whether or not you're short and

22 stocky or tall and thin, right?

23 A Correct.

24 Q And so someone who has a higher body mass index who's

25 short and stocky and who's on the upper spectrum of that body mass

85

1 index may not be overweight by any sense of the imagination, they

2 just may be short and stocky and have a dense body mass index

3 because of their body makeup, right?

4 A Correct.

5 Q And someone -- likewise, the converse is true. So if

6 you tend to be more on the lean side and you're at the lower end

7 of the spectrum of the body mass index, that doesn't mean,

8 necessarily, that you're undernourished; it could be that that is

9 more the type of your tall, thin body mass. Right?

10 A Correct.

11 Q And you know that these evaluations that were done on

12 Stephanie contained a body mass index in April of 2009. The

13 records show that she was at the 25th percentile for body mass

14 index, correct?

15 A I -- I don't know. I -- I did not look at that -- that

16 portion of her record in detail.

17 Q Dr. Webber, would it help refresh your recollection if

18 you had an opportunity to look at the CDC growth charts and

19 Stephanie's records regarding her body mass index on April 14th of

20 2009?

21 A I mean, it could. I wasn't involved with her care at

22 that time.

23 Q I -- correct. I understand that. You saw her just a

24 few months later, right?

25 A Correct.

86

1 Q In -- in September of 2009?

2 A Correct.

3 Q And you indicated that you've gone back and looked at

4 Stephanie's records, right?

5 A I have looked at Stephanie's records, yeah.

6 Q Okay. So this would be information that you would rely

7 on as a physician in the practicing of care of Stephanie, right?

8 A However, BMI is not a typical measurement that we worry

9 about in children.

10 Q All right.

11 A We are more concerned with height and weight and them

12 staying on their own growth curve for their height and weight.

13 Q Okay. Fair enough. In this instance, if you had

14 information and an actual growth chart for Stephanie, are you

15 saying you would disregard that, or would that be information that

16 you would rely upon?

17 A I would be more interested in seeing the growth chart

18 for her height and weight and seeing her trends than seeing what a

19 single BMI growth chart -- or where that plots out.

20 Q Sure. Okay. But you wouldn't discount a single point,

21 right?

22 A I wouldn't know what to do with it.

23 Q All right. So -- and I understand that. I'm not

24 asking you to do anything with it.

25 A Yeah.

87

1 Q But let me ask -- let me go back and ask this: You

2 said that, you know, I don't know what her BMI was on April 19th

3 of 2009. But if I told you that there's a chart in

4 Stephanie Dyer's record that she was on the 25th percentile at

5 that point in time, you wouldn't argue with me about that?

6 A No, I wouldn't argue with you.

7 Q Okay. Fair enough.

8 So I want to move to a new topic, and that is the

9 follow-up. I noticed Stephanie went to the hospital in April of

10 2009 with the seizure disorders, right?

11 A Correct.

12 Q And so there's been allegations that she didn't follow

13 up after that diagnosis of some unspecified seizure disorder by

14 Dr. Himes. You know that, right?

15 A Correct, yes.

16 Q But you actually have documentation that Stephanie and

17 her parents were present in Family Medicine in that summer and

18 fall of 2009, right?

19 A Correct.

20 Q So you were able to locate records that she was in and

21 being seen in July of 2009?

22 A Correct.

23 Q And, again, she followed up with you, and that's where

24 you came in, on the September of 2009 referral time, right?

25 A Correct.

88

1 Q So going back to the July of 2009 incident, Ms. --

2 well, the nurse practitioner, let's just say that, indicated that

3 there was a referral on to a specialist regarding the seizure

4 disorder at that point, right?

5 A Correct.

6 Q And that specialist was a neurologist?

7 A Correct.

8 Q Someone who would specifically have added expertise in

9 the area of seizure disorders or epilepsy, correct?

10 A Correct.

11 Q And there was a documentation in that medical record

12 that there was a concern that the Dyers' insurance couldn't cover

13 the referral to this specialist, right?

14 A Correct. I -- I am confusing -- it's running together

15 a bit. I'm -- I'm not sure if that record indicated that they had

16 tried to call Dr. Himes and it would not cover and so the nurse

17 practitioner made a new referral, or whether that was -- that was

18 something that I documented.

19 Q Okay. Fair enough. But you just know that whatever

20 the source of that, there was clearly a barrier to the Dyers

21 obtaining expert input with regards to their child in the form of

22 their monetary means, right?

23 A Correct.

24 Q And Medicare -- excuse me. Medicaid in this instance,

25 the government-subsidized program for individuals of low income,

89

1 isn't always accepted by the specialists such as neurologists,

2 either, right?

3 A Correct.

4 Q So there was a referral, then, afterwards that I

5 understood you testified to regarding a specialist, Dr. Saybo

6 (phonetic), a neurologist, in that area, correct?

7 A Correct.

8 Q And you never found any documentation or evidence to

9 show that the Dyers did follow up on that referral that you had

10 inputted?

11 A No. I didn't find any documentation in our record.

12 Q But you did find documentation in your records that

13 Family Medicine Center was the authorizing signature for ongoing

14 prescription refills past that time, right?

15 A Correct.

16 Q So you saw the Dyers in September of 2009, and then

17 there was apparently no follow-up that you could find in Family

18 Medicine Center records for quite a period of time. Fair to say?

19 A Correct.

20 Q But during that period of time there was indication

21 that you were able to locate that the family had been prescribed

22 an antiseizure medication?

23 A Correct.

24 Q And that antiseizure medication we talked about is

25 Lamictal?

90

1 A Correct.

2 Q And that antiseizure medication is one that you would

3 normally think would be best served to have a specialist, such as

4 a neurologist, overseeing in conjunction with the family medicine

5 provider, right?

6 A Correct.

7 Q And that is because their specialized knowledge would

8 help assist you in areas that you may not have expertise in,

9 right?

10 A Correct.

11 Q And in this case, the prescriptions that were

12 authorized have to be authorized by a medical doctor, so not just

13 anyone can go access Lamictal, right?

14 A Correct.

15 Q And before you could go into any pharmacy and ask the

16 pharmacist for this, you'd have to have a doctor's order saying,

17 hey, give this family this controlled substance -- I'm sorry, this

18 medication, correct?

19 A Correct.

20 Q And in this instance there's records that Dr. Latter

21 prescribed Lamictal to the Dyer family and repeatedly reauthorized

22 that from May 22nd of 2010 clear up until 2013, correct?

23 A No. There -- it is not Dr. Latter who did all the

24 prescribing.

25 Q Okay. I want to clarify that. I should have

91

1 corrected. Because there are two doctors here. Dr. Manrique is

2 another doctor that authorized this refill over and over?

3 A Correct.

4 Q So as I understand it, by the time that -- well, let me

5 ask you this: Dr. Latter, she was one of those students that was

6 learning the trade at the Family Medicine Center, right?

7 A No. She was a -- she was a DO who had had her complete

8 medical training who was training to become a specialist in family

9 medicine.

10 Q Okay.

11 A Yes.

12 Q So -- and I know she was a doctor. I'm not trying to

13 undercut her credentials in any way.

14 A Okay. Yeah.

15 Q Anyway -- right? But she was one of those doctors that

16 you're indicating came through the practice?

17 A Yes. She was one of our residents.

18 Q And she would be taught with a teaching faculty, such

19 as yourself, for the first six months, and then go on and see

20 children and families of her own accord and then move on to her

21 own practice. Am I right?

22 A Not quite.

23 Q Well, clarify for me.

24 A She would -- the first six months are -- have greater

25 supervision, but the remainder of the -- her two and a half years,

92

1 or any resident's two and a half years with us, they continue to

2 have supervision and are continued to -- it may not be direct, but

3 have access to teaching faculty and have each case that -- of a

4 patient that they see in clinic they discuss with an attending

5 physician.

6 Q Okay. So I think that that's really helpful. That

7 clarifies in my mind. Thank you.

8 This doctor, Dr. Latter, was a resident at

9 Family Medicine Center, and she had access to physicians who had

10 more training and more experience than she had, right?

11 A Correct.

12 Q And during the course of that, her trainer wasn't tied

13 to one particular faculty member, right?

14 A Correct.

15 Q And there's several of you on Family Medicine Center's

16 staff, right?

17 A Yes.

18 Q How many faculty members were there?

19 A Six to eight.

20 Q Okay. So a lot of different experienced -- more

21 experienced physicians that she could and in fact was required to

22 consult with, right?

23 A Correct.

24 Q And in this instance there isn't any specific

25 documentation that shows who Dr. Latter was consulting with when

93

1 she prescribed the Lamictal on May 22nd of 2010, correct?

2 A Correct. They have their medical license and can

3 prescribe without a supervising physician's advice or authority.

4 So --

5 Q So --

6 A So -- so they're -- I do not know whether there was a

7 supervising physician who was involved in those decisions or not.

8 Q So you know that Dr. Latter refilled prescriptions on

9 May 22nd of 2010, right?

10 A Correct.

11 Q And then one month later, on June 15th of 2010?

12 A I actually did not have that record to review. That

13 was not in the -- the electronic record that I could review.

14 Q All right. So if there were pharmacy records that show

15 that her prescriptions were reauthorized on a monthly basis until

16 February 27th of 2012, would that be consistent with what your

17 understanding was?

18 A Yes.

19 Q And that it was a repeated reauthorization of this

20 prescription for Lamictal?

21 A I don't know that.

22 Q You know that the pharmacy refilled the Lamictal

23 prescription on Family Medicine Center's authorization monthly?

24 A Correct.

25 Q For that period of time?

94

1 A Yes.

2 Q Okay.

3 A But did the pharmacy contact us monthly to ask for

4 those authorizations? I don't know.

5 Q Okay. Yeah. And I don't -- I don't -- I'm not going

6 there. I'm just saying that it was -- so you have to have an

7 authorizing physician, and in this case it was Dr. Latter. And it

8 was on a monthly basis for month after month after month until

9 Edmundo Manrique took over in March of 2012, right?

10 A Correct.

11 Q And then Dr. Manrique -- again, he's another one of

12 those residents?

13 A Correct.

14 Q The student that's working underneath -- or with the

15 supervising faculty?

16 A Correct.

17 Q And he reauthorized, again, one, two, three, four,

18 five, six -- another 13 times until February of 2013, didn't he?

19 A That's consistent with the records that I have.

20 Q All right. And to your knowledge, there was no other

21 record that you could see where Stephanie was seen by either

22 Dr. Latter or Dr. Manrique during that entirety of the

23 prescriptions being refilled.

24 A Correct.

25 Q That wouldn't be what you would want to have happen as

95

1 a physician, correct?

2 A I -- I really can't speak to what the other -- what the

3 physicians did.

4 Q Well, you would be their supervising faculty, right?

5 A Not -- not necessarily, no. So --

6 Q So let me ask you: In your expert opinion, it's not

7 good practice to reauthorize seizure medications for a young child

8 month after month without seeing that patient in person, is it?

9 MR. VANDENBERG: Your Honor, I'm gonna object to the

10 question. She's an expert in family medicine. She was not

11 qualified as an expert in standards of medical care and what's

12 acceptable and not acceptable within the medical community. She's

13 specifically qualified on her expertise, which is treating family

14 medicine.

15 THE COURT: I'm going to overrule the objection.

16 Q (By Ms. Hay) Dr. Webber, it's not good practice --

17 A No. It -- it would be preferable to see the patient

18 and -- and have -- have the patient seen rather than continue to

19 do the prescribing.

20 Q For months at a time and even years at a time, right?

21 A Correct.

22 Q Okay. And I know this is difficult, and it's -- I

23 don't mean to put you on the spot, Dr. Webber. Let me just tell

24 you that. Okay?

25 THE COURT: Counsel, no commentary. Ask the questions.

96

1 Q (By Ms. Hay) This -- your practice at this point in

2 time had a change where you now have a pharmacist, a doctor of

3 pharmacy, available to review prescriptions, correct?

4 A Correct.

5 Q And at Family Medicine Center, this new change

6 established a new protocol regarding those prescriptions, right?

7 A Correct.

8 Q And the new protocol now requires that the doctor of

9 pharmacy look at all prescriptions that are reauthorized on a

10 regular basis, correct?

11 A That isn't -- no. The doctor of pharmacy's looking at

12 most prescriptions, but not all.

13 Q The doctor of pharmacy would pay particular attention

14 to a prescription such as a seizure medication. Fair?

15 A No. It depends on what day she's working.

16 Q Okay. So even though you have a new pharmacist that's

17 supposed to be overseeing prescriptions --

18 A No. That was a role that she took on, but that is

19 not -- that is not part of her job description. And she is doing

20 that, but --

21 Q Okay.

22 A -- but our front desk also will put up -- pull up

23 prescriptions for physicians to refill through the electronic

24 system.

25 Q So I thought it was a bigger stopgap than that. This

97

1 new protocol that went in in June of 2014 where the doctor of

2 pharmacy oversees prescriptions is outside of that doctor's actual

3 job duties?

4 A Correct.

5 Q It's just a volunteer position that she's filling?

6 A No. It was a way to have us be able to handle the

7 amount of prescriptions that we get in our family practice office.

8 Q And it was supposed to be an added safety net, right?

9 A It -- it ended up being an added safety net.

10 Q But, really, it's only a safety net if those are the

11 days she's working. Fair?

12 A Correct. I -- we -- I mean, we have a system that

13 allows us more easily to see, in general, where -- when patients

14 have been seen, what is happening. So -- yeah. So -- so with a

15 new electronic system in 2013, we were able to handle our

16 electronic prescriptions differently, which allows us access to

17 the record to know -- to have a much better handle on when

18 patients have been seen and when they haven't.

19 Q And -- and so that -- that's a real change and an

20 improvement on the old system, correct?

21 A Correct.

22 MS. HAY: Thank you.

23 THE COURT: Cross-examination, Ms. Cure?

24 MS. CURE: Yes, Judge.

25 //

98

1 CROSS-EXAMINATION

2 BY MS. CURE:

3 Q Dr. Webber, I want to go back a little bit to the --

4 the recordkeeping of Family Medicine Center. Okay?

5 A Sure.

6 Q And we've met before, right?

7 A Correct.

8 Q And we have discussed this issue in the past, right?

9 A Yes.

10 Q And one of the things that came from our conversation

11 is that the labs aren't in the computer system. They weren't at

12 that time.

13 A Correct. Yeah.

14 Q And when we discussed things, you were having to pull

15 up two different systems, two different electronic systems, to be

16 able to tell me records from Stephanie Dyer.

17 A Correct.

18 Q And some of the records we discussed were handwritten

19 and had to be --

20 A Correct.

21 Q -- and had to be transcribed?

22 A No.

23 Q Okay. In the old system -- so there's been a couple

24 different shifts. One from paper to electronic, right?

25 A Correct.

99

1 Q And you weren't sure when that first system happened?

2 A No. I'm not sure when that happened.

3 Q And then -- and then there was an electronic system to

4 another better electronic system?

5 A Correct.

6 Q And that happened when?

7 A July 1st of 2013, approximately.

8 Q Okay. And we discussed, and you just testified, that

9 you have found some issues between the three separate updates of

10 records, of missing records?

11 A Correct.

12 Q And also duplicate records?

13 A Correct.

14 Q And you've had an opportunity today to review all of

15 Stephanie's records that you have access to?

16 A Correct. That -- that pertain to her care at

17 Family Medicine Center.

18 Q Okay. And that you know that exist, right?

19 A Yes.

20 Q Okay. And one of the records that you were able to

21 review was Stephanie being brought into the Family Medicine Center

22 on February 9th of 2007.

23 A Okay.

24 Q And she was actually brought in by her parents and her

25 brother. Do you recall that?

100

1 A Yes.

2 Q For constipation?

3 A Correct.

4 Q And the reports of the parents were that they were

5 uncomfortable with a sick child and they think she should be

6 admitted to the hospital.

7 A Actually, if I go back, I think that that record is

8 actually an urgent care record rather than a Family Medicine

9 Center record.

10 Q Okay. But you had an opportunity to review it?

11 A I -- I -- I've reviewed it in general. I did not look

12 at specifics.

13 Q Okay. Would it refresh your recollection if you had an

14 opportunity to see that record?

15 A Sure.

16 (A discussion was held off the record between Ms. Cure

17 and Mr. Vandenberg.)

18 MS. CURE: May I approach the witness, Judge?

19 THE COURT: You may.

20 Q (By Ms. Cure) If I could have you read the underlined

21 portion in red.

22 A Okay.

23 Q And then tell me if that refreshes your recollection.

24 A Okay. And I was incorrect. It was one of our nurse

25 practitioners at Family Medicine Center that saw her for this sick

101

1 visit. Parent uncomfortable --

2 Q Okay. Before you read it, could you just tell me if

3 that refreshes your recollection?

4 A It -- it does.

5 Q And then I'll ask you to turn it over and tell me --

6 A Well, can I review the whole record?

7 Q Sure. Absolutely. And if you can take particular note

8 of the underlined portions.

9 A Okay. Yes.

10 MS. CURE: May I approach, Judge?

11 THE COURT: You may.

12 Q (By Ms. Cure) So that does refresh your recollection,

13 correct?

14 A Correct.

15 Q And the parents were uncomfortable with a sick child

16 and think she should be admitted to the hospital, right?

17 A That's what they said.

18 Q For constipation, right?

19 A Correct.

20 Q And the parents are told by the provider, Dr. Campbell,

21 that they could give her some Karo syrup, right?

22 A Correct.

23 Q And to lay off the carrots?

24 A Correct.

25 Q And they send them home?

102

1 A Correct. She was sent home.

2 Q And this is the same record that Ms. Hay had referred

3 to that indicated that Stephanie, at that age, may have had

4 some -- and this is when she's seven months old -- may have had

5 some developmental problems?

6 A Correct.

7 Q Having trouble holding up her upper body, right?

8 A That's what the record says.

9 Q And having trouble sitting up?

10 A Correct.

11 Q And the parents indicate they tried to prop her up on

12 the couch and she still slumps over, right?

13 A Correct.

14 Q And she may have problems with her dexterity and hand

15 movement, right?

16 A Correct.

17 Q I just want to be clear. She was not admitted into the

18 hospital for constipation?

19 A No, she was not.

20 Q Okay. I want to go to the -- well, let me back up. So

21 Ms. Hay had asked you, there's a lot of doctors that saw Stephanie

22 at Family Medicine Center, correct?

23 A Doctors and nurse practitioners.

24 Q And residents too.

25 A Who are doctors, yes.

103

1 Q Okay. In your review of the records, would it -- would

2 you believe eight or more had seen Stephanie?

3 A Agreed. I think that she did not have -- I don't know

4 that it -- that I remember that she saw any person twice.

5 Q Right. She saw Dr. Karen Campbell?

6 A Our nurse practitioner Karen Campbell.

7 Q Dr. Macy Latter?

8 A Mm-hmm.

9 Q Dr. Jacquelynn Britton?

10 A Nurse practitioner Jackie Britton.

11 Q Thank you. Dr. David Williams?

12 A Correct.

13 Q And you're gonna have to help me with Janell --

14 Wozniak?

15 A Wozniak. Dr. Janell Wozniak.

16 Q And that's W-O-Z-N-I-A-K. She saw you, Dr. Webber,

17 right?

18 A Right.

19 Q Diana Smith?

20 A Correct. Our nurse practitioner.

21 Q And Dr. Manrique, right?

22 A I do -- is there actually a note in the chart from

23 Dr. Manrique?

24 Q You tell me what you remember.

25 A I don't -- I do not believe she ever saw Dr. Manrique.

104

1 Q Okay. How many patients do you see a day?

2 A I see eight to ten in a half day.

3 Q Eight to ten and a half?

4 A Mm-hmm.

5 Q Can you explain that half for me?

6 THE COURT: She said half day, I believe.

7 Q (By Ms. Cure) Oh, okay. Eight in a half day?

8 A Eight to ten in a half day.

9 Q I got you. Okay. I thought you said ten and a half,

10 and --

11 A No.

12 Q Okay. And you are supervising how many residents?

13 Tell me how that works.

14 A So when the residents are in clinic, they -- we have

15 assigned -- so -- so we have a maximum of four residents that

16 we're supervising when they're in clinic. And they can be seeing

17 anywhere from three to ten patients, those residents, depending on

18 what year of training they are.

19 Q Okay. And they have access to you, but you don't

20 necessarily participate in their care of patients?

21 A Correct.

22 Q Okay. And you said you don't recall your visit with

23 Stephanie, correct?

24 A No. I do recall my -- I don't recall the details, but

25 I recall the visit.

105

1 Q That's why you rely on your notes?

2 A Correct.

3 Q Can you tell me what WIC is?

4 A It can be two things. It can either be walk-in clinic

5 or it can be Women, Infants, and Children.

6 Q Can you tell me about that one?

7 A The women -- it's the supplemental food program for --

8 for families with low income --

9 Q Okay.

10 A -- that provides formula and foods for children.

11 Q Okay. And not only did you see Stephanie Dyer, you had

12 previously seen Leah Dyer, correct?

13 A Correct. In the distant past.

14 Q Right. And there had been discussion of WIC with

15 Leah Dyer, correct?

16 A I -- I do not recall.

17 Q Okay. Would that be unusual for you to discuss Women,

18 Infants, and Children with somebody?

19 A No.

20 Q It would be usual?

21 A It would be usual.

22 Q Okay. I want to go to the August 5th of 2009. That

23 was the last time Stephanie was seen as the Family Medicine

24 Center, correct?

25 A No. No. That was -- that was the second-to-last time

106

1 she was seen.

2 Q Okay. She was seen in September of 2009?

3 A Correct.

4 Q And right before that, in August of 2009?

5 A Correct.

6 Q And in August of 2009, the provider was

7 Jacquelynn Britton, correct?

8 A Correct.

9 Q And this is when there is a discussion about Stephanie

10 having a seizure problem, right?

11 A Correct.

12 Q And being prescribed Lamictal, right?

13 A Correct.

14 Q And that the mom has been trying to contact individuals

15 but hasn't received a response, right?

16 A Correct.

17 Q "Mom states in our discussion she may be able to come

18 off the medication in a year or two and she wants to discuss that

19 today," correct?

20 A That's in the record, yes.

21 Q And then you don't know what else was discussed in this

22 because you weren't here, right?

23 A No. I was not there.

24 Q And you don't have a recollection of having a

25 conversation with Dr. Latter or Dr. Britton regarding this

107

1 incident, right?

2 A No. And our nurse practitioners have their own

3 licenses and practice independently, so they do not -- they do not

4 necessarily consult with the -- the supervising physicians.

5 Q Okay. But they don't take their own records somewhere

6 else, right?

7 A No, they don't. This was her record.

8 Q Okay. And you were asked by Ms. Hay that it isn't good

9 practice, you wouldn't teach your students to refill prescriptions

10 without seeing a patient.

11 A Correct.

12 Q And, in fact, when that was first brought up with you

13 in reference to this case, you were concerned about contacting

14 your malpractice carrier, correct?

15 A Correct.

16 Q Because there may be some exposure to the

17 Family Medicine Center with regards to the care of Stephanie Dyer.

18 A Anytime there is any concern, we are requested to make

19 a -- a report to our malpractice carrier, no matter how big or

20 small.

21 Q Did you report it to your malpractice carrier?

22 A Yes, I did.

23 Q Specifically, the fact that Stephanie Dyer wasn't seen

24 but prescriptions were being refilled by the clinic repeatedly?

25 A Correct.

109

1 know we do a lot of referrals to Women, Infants, and Children. I

2 do not have, you know, great knowledge about how it works. I will

3 just give you -- my brief understanding is that it's a program

4 that's set up to provide nutrition for pregnant women and for

5 young children who may have nutritional needs that -- that are not

6 met by their parents' income.

7 Q Okay. And so do you know did that -- I don't know if

8 it's a clinic. Does it have a physical location?

9 A Yes, it does.

10 Q Okay. So to -- to take advantage of those services,

11 one would have to go to their physical location?

12 A Correct. That's my understanding.

13 Q Okay. Would they have to sign up?

14 A Yeah.

15 Q Apply and fill out income information, I'm assuming?

16 A I believe so.

17 Q Okay. And then after that, if they qualify, they would

18 be eligible to come back and pick up food, or would they get

19 vouchers or --

20 A I think it's a voucher program. So they're eligible to

21 get -- get formula, get milk, cheese.

22 Q Okay. But vouchers for those things?

23 A Correct.

24 Q Okay. So then you would take the vouchers and then go

25 to a different -- a store or some other place to pick those items

110

1 up?

2 A Correct. Yes.

3 Q Okay. And so you were asked a couple questions about

4 the nature of your clinic. And you said it is a teaching

5 facility, correct?

6 A Correct.

7 Q So is it abnormal for a patient to come in for --

8 whether it's a sick kid visit or a well-check visit, to see a

9 different -- different professional each time they come in?

10 A No. It's not unusual.

11 Q Is it typical?

12 A Yes. It's fairly typical.

13 Q Okay. Going back to that August 5th of 2009 note, so

14 your understanding is that the hospital visit where the Lamictal

15 started was in April of 2009?

16 A Correct.

17 Q Or that generated that prescription, anyways.

18 A Correct.

19 Q Okay. And then in that note on August 5th, am I -- am

20 I correct that it was the mother of the child asking that, hey,

21 we've been told that the kid can come off of Lamictal in a year or

22 two, and she wanted to discuss taking her off of that at that

23 August appointment?

24 A I don't know.

25 Q Okay. Would it -- would it refresh your recollection

111

1 on that to --

2 A I mean, the --

3 THE REPORTER: One at a time.

4 THE WITNESS: The documentation was that the -- that

5 the mother wanted to discuss getting -- getting the child off in a

6 year. I'm not clear what the nurse practitioner's thoughts were

7 about and what that further discussion was about getting the child

8 off of the medication at that time.

9 Q (By Mr. Vandenberg) Okay. Very good. Thank you.

10 So you were also asked a question about giving the

11 advice, after your September of 2009 appointment, to hold off on

12 further immunizations until the -- I think you said the seizures

13 were stabilized; is that accurate?

14 A Correct.

15 Q Okay. And what was your expectation, based on that

16 visit, about what was supposed to be done to ensure the seizures

17 were stabilized?

18 A My understanding would be that -- that Stephanie would

19 see the neurologist, who would make further recommendations about

20 the seizures and would make further recommendations about the

21 timing of immunizations at that point.

22 Q Okay. Do you have -- like I asked you earlier, you

23 have patients that do have seizure disorders that are managed by

24 medication.

25 A Correct.

112

1 Q And do those patients receive immunizations?

2 A Most of them are adults, so I can't speak directly to

3 the -- the pediatric issue.

4 Q All right. Fair enough. Thank you.

5 You were asked about some concerns in a February of

6 2007 visit about dexterity and not sitting up. At that point

7 Stephanie would have been, what, six months old or so?

8 A I believe she was seven months at that time.

9 Q Okay. And have you reviewed notes from the subsequent

10 visits after that initial visit where that particular concern was

11 noted?

12 A If I'm remembering correctly, her next visit was at

13 15 months, and at that point there were no concerns about her

14 development.

15 Q Okay. So there was a problem noted at seven months,

16 but the records at 15 months don't note any concerns along those

17 lines?

18 A Correct.

19 Q Do you believe had there still been concerns about

20 those developmental delays, that those would have been noted in --

21 in that type of visit?

22 A Yes, I do.

23 Q So you were asked some questions about records, and I

24 want to just see if I'm understanding right. So Family Medicine

25 is on the University of Colorado Health computer system, correct?

113

1 A Correct.

2 Q Okay. And Poudre Valley Hospital is a separate entity,

3 but are they also on the UCHealth system?

4 A Yes. We're all one big entity at this time.

5 Q Okay. And the Children's Hospital is not, itself, on

6 the UCHealth system, but you still have access. If you have a

7 patient in common, you can see those records?

8 A Correct.

9 Q Okay. Was there any indication in the records that you

10 have of Stephanie Dyer from any of these places that she was seen

11 between September 21st of 2009 and 2013?

12 A I did not look at the Children's records for her for

13 that time period.

14 Q Okay. But I suppose the ones that you did look at, any

15 indication?

16 A No, there was not.

17 Q You were asked several questions about Lamictal and it

18 being prescribed on a regular basis. And regardless of how that

19 may have come to be, I believe your testimony was that it was

20 stopped in February or March of 2013?

21 A That's my -- my -- the last note is I -- I believe it's

22 March of 2013 that the prescription was denied.

23 Q And it was denied pending the patient coming back in

24 for an appointment --

25 A Correct.

115

1 Family Medicine Center did outreach to the Dyers after March 17th

2 of 2013?

3 A Correct. That is correct.

4 Q So there is no documentation, that you can see, that a

5 nurse practitioner or an office manager or a physician reached out

6 to call the Dyers to tell them that they needed to be seen or

7 their daughter needed to be seen?

8 A There's no documentation of that.

9 MS. HAY: Thank you.

10 THE COURT: Ms. Cure?

11 RECROSS-EXAMINATION

12 BY MS. CURE:

13 Q To piggyback off of that, a lot of times the -- the

14 prescription referrals come from the pharmacy, correct?

15 A Correct.

16 Q And so can you tell from your records whether it was

17 the pharmacy that was rejected from filling it?

18 A I'm trying to recall.

19 Q It's not in the records, right?

20 A I -- it's vague. It's tough to tell.

21 Q Women, Infants, and Children, it is a program that

22 individuals need to qualify for economically, right?

23 A Correct.

24 Q And the prosecution had asked you, they need to go

25 there to -- to obtain those vouchers, right?

116

1 A It's -- that's my understanding.

2 Q The child also has to go there, right?

3 A I -- I don't know.

4 Q Well, you make this referral regularly to this program,

5 correct?

6 A I do, but I don't -- I make the referral through our

7 social work staff, and so they're the ones that give the

8 instructions and help the patient kind of navigate the process.

9 Q Okay. So you don't know that they check their height,

10 their weight?

11 A Oh, yes, they --

12 Q You do know that?

13 A I do know -- I do know that we get notes from WIC about

14 height and weight, yes.

15 Q Okay. And that they see a nurse practitioner when

16 they're there?

17 A I did not know that.

18 Q And that's not something that would necessarily be in

19 your records, right?

20 A No. It would not necessarily be there.

21 MS. CURE: Thank you.

22 THE COURT: All right. Does the jury have any

23 questions for this witness?

24 Okay. Counsel, please come forward.

25 //

117

1 (There was a discussion at the bench held out of the

2 hearing of the jury:)

3 (Counsel reviewed juror question.)

4 THE COURT: Any objection by the People?

5 MR. VANDENBERG: No.

6 THE COURT: Any objection by Mrs. Dyer?

7 MS. CURE: No objection.

8 THE COURT: Any objection by Mr. Dyer?

9 MS. HAY: No, Your Honor.

10 (Whereupon, the discussion at the bench was concluded.)

11 THE COURT: Dr. Webber, was Stephanie seen by doctors

12 July 2009 and August 2009?

13 THE WITNESS: Yes. No. She was seen by a nurse

14 practitioner in July of 2009 and seen by me in September of 2009.

15 THE COURT: Okay. So nothing in August 2009? Let

16 me -- let me just read the question -- let's start over.

17 THE WITNESS: No. I'm sorry. And I'm probably

18 incorrect. The visit with the nurse practitioner was in August of

19 2009, and then she saw me in -- in September of 2009.

20 THE COURT: Okay. And this question also asks about

21 July of 2009.

22 THE WITNESS: I did not see any records of -- I did not

23 review any records of a visit in July of 2009.

24 THE COURT: Okay. Thank you.

25 Any follow-up based upon that question?

119

1 occur in the records, what year or span those were, right?

2 A No. No, I don't.

3 Q Could be July of 2009?

4 A It could be, but there was nothing that I reviewed.

5 MS. CURE: Thank you.

6 THE COURT: All right. May this witness be released?

7 Oh. We have another question. Okay. Very good. Counsel, come

8 forward.

9 (There was a discussion at the bench held out of the

10 hearing of the jury:)

11 (Counsel reviewed juror question.)

12 THE COURT: Any objection by the People?

13 MR. VANDENBERG: No. She's gonna answer if she knows.

14 THE COURT: Any objection by Mr. Dyer?

15 MS. HAY: No, Your Honor.

16 THE COURT: By Mrs. Dyer?

17 MS. CURE: No objection.

18 THE COURT: All right.

19 (Whereupon, the discussion at the bench was concluded.)

20 THE COURT: All right. Dr. Webber, a couple more

21 questions. Was the prescription refilled at the same dosage every

22 time?

23 THE WITNESS: In my review of the records, yes, I

24 believe it was filled at the same dosage every single time.

25 THE COURT: Was the prescription given in the same

120

1 form, i.e., a pill?

2 THE WITNESS: Yes, it was.

3 THE COURT: Okay. Any questions based on that -- those

4 questions?

5 MR. VANDENBERG: No, thank you.

6 THE COURT: Ms. Hay?

7 MS. HAY: No, Your Honor.

8 THE COURT: Ms. Cure?

9 MS. CURE: No, Judge.

10 THE COURT: Any other questions from the jury?

11 (No response.)

12 THE COURT: None? May this witness be released from

13 her subpoena?

14 MR. VANDENBERG: Yes. Thank you.

15 THE COURT: Any objection, Ms. Hay?

16 MS. HAY: No, Your Honor.

17 THE COURT: Ms. Cure?

18 MS. CURE: No objection.

19 THE COURT: All right. Thank you. You're free to go,

20 Dr. Webber.

21 (The witness was excused.)

22 THE COURT: Ladies and gentlemen, we will take the noon

23 recess at this time. We'll take it for an hour and 20 minutes.

24 Do you feel like that's sufficient? I can give you an hour and 30

25 if you don't. Oftentimes I give an hour and 30 and the jury's

121

1 like, we'd rather get started again.

2 MR. McDONALD: Your Honor, our next witness is a

3 physician who will be here at 1:30, so if the Court can give us

4 maybe until 1:40, a little bit -- just in case she runs a little

5 bit late.

6 THE COURT: Okay. So if I give -- I just lost my math.

7 So that would take us to what time, then?

8 MR. McDONALD: She is coming from Denver. That's the

9 important point.

10 THE COURT: Okay. Ladies and gentlemen, we'll be ready

11 to go at 1:40, so there you go.

12 Please keep in mind you should not discuss the case

13 amongst yourselves or with anyone else. Please do not do any

14 research of any kind or make any communication regarding your jury

15 service.

16 Please rise for the jury.

17 (The jury exited the courtroom at 12:15 p.m.)

18 THE COURT: You may be seated.

19 Mr. McDonald, who's the next witness?

20 MR. McDONALD: Dr. Elias.

21 THE COURT: Dr. Elias? Okay. Any other issues before

22 we take the recess?

23 MS. HAY: No, Your Honor.

24 MR. McDONALD: No, Your Honor.

25 THE COURT: Any issues on behalf of Mrs. Dyer?

122

1 MS. CURE: No, Judge.

2 THE COURT: On behalf of Mr. Dyer?

3 MS. HAY: No, Your Honor.

4 THE COURT: All right. We'll see you here no later

5 than 1:40.

6 (A recess was taken from 12:16 p.m. until 1:40 p.m.)

7 THE COURT: You may be seated.

8 All right. It's 1:40. It looks like we're missing

9 some folks. Ms. Antoun, would you see where your co-counsel is?

10 MS. ANTOUN: She just went to fill up her water, so

11 she'll be right back.

12 THE COURT: How about Mr. and Mrs. Dyer? It'd be nice

13 to have them. And, Mr. McDonald, do you have your witness?

14 MR. McDONALD: She's here, Your Honor. She's in the

15 hallway. We -- before I came upstairs, I saw the Dyers outside,

16 just right under -- so that was about five minutes ago, so they're

17 not far away.

18 THE COURT: All right. Thank you.

19 (There was a pause in the proceedings.)

20 MS. ANTOUN: Judge, I did have a record to make on one

21 issue.

22 THE COURT: Do you want to wait for your client?

23 MS. ANTOUN: I can waive the appearance of Mrs. Dyer.

24 I don't know if the codefendant's okay with waiving the appearance

25 of Mr. Dyer.

123

1 THE COURT: Do they know what the issue is you're gonna

2 raise?

3 MS. HAY: I do. Thank you. I don't know Mr. Dyer's

4 input, Judge.

5 (The Defendants entered the courtroom at 1:42 p.m.)

6 MS. ANTOUN: Oh. Here they are. Okay.

7 THE COURT: All right. Mr. and Mrs. Dyer are here,

8 along with Ms. Cure.

9 Ms. Antoun, what issue did you wish to raise?

10 MS. ANTOUN: So I know the district attorney indicated

11 earlier they're calling some of their witnesses out of order,

12 which, obviously, is fine. They're calling Dr. Elias now, and

13 instead of Dr. Blanton, they're calling Amy Montoya. Amy Montoya

14 is a DHS caseworker. We object to her testimony under the statute

15 which I referenced earlier in regard to Hali Riewerts. That's

16 19-3-207, no professional shall be examined without the permission

17 of the client pursuant to the compulsory process in the D and N

18 case.

19 It's my understanding her testimony is solely in regard

20 to what they did in terms of the treatment plan and whether or not

21 they agreed to certain procedures for Stephanie and things of that

22 nature. But that, in our opinion, is pursuant to the compulsory

23 process, making statements in regard to the procedures and things

24 of that nature pursuant to the D and N case, and so we would

25 object to testimony on those issues.

124

1 THE COURT: All right. And, Ms. Hay or Ms. Laughon, do

2 you have a position on behalf of your client?

3 MS. HAY: We would join in that objection, Judge.

4 THE COURT: All right. And, Mr. Vandenberg or

5 Mr. McDonald, do you have a response?

6 MR. McDONALD: Well, Your Honor, first of all, the

7 statements and testimony of Amy Montoya will be about not the

8 Dyers' compliance with the treatment plan and not visitation with

9 the Dyers or anything like that. What it will be about is the

10 medical procedures that the doctors were trying to do for

11 Stephanie and the fact that the Dyers fought those medical

12 procedures and, in many cases, delayed those medical procedures

13 for, in some cases, almost over a year.

14 And the relevance of that is a couple things --

15 THE COURT: Can you tell me the date?

16 MR. McDONALD: I'm sorry?

17 THE COURT: Can you tell me when?

18 MR. McDONALD: It's from about -- well, it's from the

19 end of 2013 through basically when they lost custody of them in

20 the D and N, of Stephanie in the D and N.

21 THE COURT: Is it during the range of the charged

22 offense or after the range --

23 MR. McDONALD: It is after the range. But I can tell

24 the Court why it is relevant.

25 THE COURT: Okay. Go ahead. I'm listening.

125

1 MR. McDONALD: Sorry. I didn't know if you wanted me

2 to tell you.

3 THE COURT: Go ahead.

4 MR. McDONALD: The reason it's relevant is because some

5 of the best evidence in this case as to the fact that this was

6 medical neglect is the fact that the regression that Stephanie

7 experienced has abated and she's started to progress back to where

8 she was prior to -- prior to that regression starting. She isn't

9 back fully, but she's made pretty good strides. Most of that is

10 because she's had proper medical care.

11 The problem is a lot of that proper medical care was

12 delayed given the fact that the Dyers objected to it multiple

13 times, and then that delay process kicked some of those procedures

14 out a very long way. The -- the relevance is that if the evidence

15 that she is doing better today is evidence that that was medical

16 neglect that caused the regression, the argument is she would be

17 doing even better today had they not stonewalled a lot of those

18 medical procedures.

19 Your Honor, under 19-3-207(2), I don't believe this is

20 the kind of evidence that's contemplated under the statute either,

21 but . . .

22 THE COURT: All right. So you've just responded to

23 their initial argument. Now I want to give them a chance to

24 respond to the things that you have said.

25 Ms. Antoun?

126

1 MS. ANTOUN: Judge, and I would stand on my argument.

2 But the problem is if they introduce this evidence, then we don't

3 really have a full and fair way to cross-examine their thought

4 processes and things that are involved in why they did what they

5 did without getting into all the stuff in the DHS case. And so

6 that -- that issue is way too intertwined with this -- with the

7 DHS case.

8 And so -- and that stuff is protected, so I don't have

9 permission from my client to get into all of that stuff and -- and

10 to cross-examine this witness on all those issues regarding why

11 they may have felt like the equine physical therapy was not

12 appropriate or this and that. And I know that the attorneys in

13 the D and N case also had some input into that. So I just think

14 it's too confusing. It doesn't allow us to cross-examine, and

15 it's prohibited by the statute.

16 THE COURT: All right. Ms. Hay, did you wish to be

17 heard further on that?

18 MS. HAY: Judge, I think the underlying premise is that

19 the prosecution believes that they have evidence to prove that had

20 the Dyers, in their words, quote, not stonewalled access to

21 medical treatment, that Stephanie Dyer would be doing even better

22 today. And I would submit to the Court that that is pure

23 speculation and that I don't believe that there is a single

24 medical professional that would be able to, within a reasonable

25 degree of medical scientific certainty, give that sort of

127

1 analysis. Certainly none of the doctors that we've heard from.

2 And I'm relying specifically on the prosecution's updated

3 endorsement of expert witnesses, but there is no indication that

4 there was some sort of action by the Dyers post-charging date that

5 delayed Stephanie Dyer's development even further, thereby proving

6 relevant to their mental state.

7 I would then argue to the Court that it's the

8 prosecution's attempt to backdoor this DHS process in through

9 Amy Montoya and remind the Court that we were advised by the

10 prosecution that we weren't going into the DHS records and the

11 Maple Star events, because there is an enormous amount of

12 information there that -- and should not have even been presented

13 to the prosecution, and that it was because of, apparently, this

14 policy -- and as I understand it -- this could be inaccurate, but

15 the prosecution got this through a DHS caseworker and got access

16 to other confidential medical information, including, for example,

17 Dr. Lindstrom's confidential psychological evaluation that was

18 done with the Dyers that was presented to --

19 THE COURT: Okay. I think we're losing the train. You

20 were arguing about the relevance. I understand that argument and

21 I'm gonna ask for a response, because I have some concerns about

22 that as well. But now you're kind of segueing into some other

23 issues --

24 MS. HAY: I am.

25 THE COURT: -- that are really not on point.

128

1 MS. HAY: My reason being is we've not fought those or

2 addressed those other issues because we're relying on their

3 statement saying that, hey, we're not going to be introducing

4 them. And I would indicate that as soon as this issue became

5 apparent, we did ask and reach out to the prosecution as to

6 exactly what they felt they were going to be inquiring upon of

7 Ms. Montoya, because we didn't think it was relevant based on the

8 rulings of the Court previously.

9 THE COURT: All right. So, Mr. McDonald, I need, I

10 guess, some final information from you. You're saying, look, this

11 is relevant because it goes to the progress of the child; the

12 child would have progressed further if they had not delayed or

13 obstructed other treatment. Do you have an expert that is going

14 to testify to that conclusion?

15 MR. McDONALD: Your Honor, the trier of fact is allowed

16 to make reasonable inferences and --

17 THE COURT: I understand. My first question, though --

18 and I'm gonna let you expand, but answer that direct question. Do

19 you have an expert that is going to testify to that fact?

20 MR. McDONALD: I have experts that can testify to it.

21 I had not planned on having them testify to it, but, sure, I mean,

22 I have experts that can testify to that.

23 THE COURT: So you believe you have an expert, and it

24 was your intent to ask them those questions?

25 //

129

1 (A discussion was held off the record between

2 Mr. McDonald and Mr. Vandenberg.)

3 MR. McDONALD: I have experts that can answer that

4 question. I had not intended to ask them that because I view it

5 as a reasonable inference that the jury can make.

6 THE COURT: Okay. So -- finish. And that's the other

7 argument you were going to make. Go ahead and finish your

8 argument.

9 MR. McDONALD: I think it is absolutely a reasonable

10 inference for the trier of fact to make, that based on medical

11 treatment she has received that has improved her condition, the

12 fact that that treatment was delayed created a situation where she

13 didn't improve as quickly as she could have. And I believe it is

14 absolutely a reasonable inference. There does not need to be an

15 expert to testify to that; however, there are experts who could

16 testify to that. I didn't plan on asking them those questions,

17 but I suppose I could. But I did not plan on it.

18 You know -- and I hate to throw another wrench in the

19 works, but this also goes to their mental capacity, which has

20 become the main issue in this case, in my opinion. What their

21 reactions are to input from medical professionals about the --

22 about the procedures their daughter needs goes right to their

23 mental capacity and their mental health issues, which have been

24 made the key point of this case.

25 And also, Your Honor, we didn't plan on bringing up the

130

1 D and N case. We didn't plan on bringing up visitation. We

2 didn't plan on bringing up the fact that they lost their parental

3 rights. And, in fact, we have not. But those issues have come

4 out, and it has all been from the defense in this case. They've

5 brought up visitation. They've brought up the fact that they lost

6 their parental rights. They tried to ask the question, you know,

7 you're aware that they'll never see their daughter again. We

8 didn't bring any of that up. So I think it's a little

9 disingenuous for them to argue that they're relying on our

10 representation that we wouldn't bring up this civil case when we

11 have not, and we still don't plan to other than the fact that DHS

12 was involved at this point in trying to relay information about

13 medical procedures to the Dyers and the Dyers relaying their

14 opinion back about whether those medical procedures could occur.

15 We're not talking about visitation. We're not talking

16 about them losing their parental rights or anything of that

17 nature. That's it.

18 THE COURT: All right. Counsel, I'm gonna rule on

19 this, but not quite yet, because I want to look back at the

20 statute.

21 MR. McDONALD: Sure.

22 THE COURT: You're about to call Dr. Elias, so

23 Ms. Montoya is not your next witness, correct? When do you think

24 Ms. Montoya will be called?

25 MR. McDONALD: The plan was to call her after

131

1 Dr. Elias.

2 THE COURT: Okay. Well, why don't we start, then, with

3 Dr. Elias, and then we'll see where we are at the end of

4 Dr. Elias's testimony.

5 Any other issues before we bring the jury back on

6 behalf of the People?

7 (A discussion was held off the record between

8 Mr. McDonald and Mr. Vandenberg.)

9 MR. McDONALD: I don't have anything else, Your Honor.

10 THE COURT: All right. Ms. Cure?

11 MS. CURE: Not for Mrs. Dyer, Judge.

12 THE COURT: Ms. Hay?

13 MS. HAY: No, Judge.

14 THE COURT: All right. Why don't we bring the jury in.

15 MS. HAY: Judge, I'm sorry. Before the jury comes

16 back, I'd ask the Court not to permit the district attorney to ask

17 Dr. Elias about this, if they would have approved as they --

18 THE COURT: Are you planning on doing that,

19 Mr. McDonald?

20 MR. McDONALD: Well, this would be one of the experts

21 that I would need to ask those questions if the Court wants me to,

22 but I --

23 THE COURT: I don't want -- let me make it clear. I

24 have not directed any attorney to ask any questions. I have no

25 desire on what an attorney asks somebody, so please don't put that

132

1 on me.

2 MR. McDONALD: No, no, no. I didn't mean to do that.

3 My intent was to approach the bench before I were to ask a

4 question like that.

5 THE COURT: All right. So why don't we -- we'll still

6 keep it at that, that you would approach the bench. I need some

7 time. This -- you know, we've had this case pending for two

8 years, issues have been raised, some have not. This is coming to

9 me right now, so we'll take it as it comes.

10 (The jury entered the courtroom at 1:54 p.m.)

11 THE COURT: You may be seated.

12 MS. LAUGHON: Your Honor, before we start, it looks

13 like the sunlight is starting to cross through the jury panel,

14 so . . .

15 THE COURT: That's true. If anybody -- it comes to the

16 point where they're bothered and can't see, let me know and you

17 can move around, we can try and accommodate you. It's just this

18 time of year we get some direct sunlight that seems to travel

19 against the jury box. So if you're uncomfortable, let me know.

20 All right. Counsel, if you'd call your next witness,

21 please.

22 MR. McDONALD: Your Honor, the People call

23 Dr. Ellen Elias.

24 (There was a pause in the proceedings.)

25 (The witness entered the courtroom.)

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1 A I do. I am a pediatrician, and my subspecialty is a

2 clinical geneticist. I'm also boarded in a specialty called

3 neurodevelopmental disabilities.

4 Q Okay. That's a mouthful. Can you tell me what

5 neurodevelopmental disabilities means?

6 A It's a specialty within pediatrics where you have

7 training in caring for children who have developmental delay and

8 other disabilities.

9 Q And what position do you currently hold?

10 A I am the medical director of a clinic at

11 Children's Hospital Colorado which is called the Special Care

12 Clinic. It's a unique clinic. It's probably the largest clinic

13 in the whole country which provides medical care to children with

14 special needs.

15 Q And how long have you held that position?

16 A We will be here in Colorado for 16 years come January,

17 so 15 and a half.

18 Q And can you give -- tell the jury about your

19 educational background.

20 A Certainly. I'm an East Coast person. I went to

21 college at Princeton. I went to medical school at New York

22 University. And then I did my pediatrics training at

23 Johns Hopkins in Baltimore and my specialty training at Harvard,

24 at Children's Hospital Boston.

25 Q Have you held any academic appointments?

135

1 A I have. I am currently a full professor with tenure at

2 University of Colorado School of Medicine.

3 Q Were you an assistant professor at Harvard Medical

4 School at any point?

5 A I was, and then I got promoted to associate professor

6 there before we moved here.

7 Q And have you had any hospital appointments?

8 A I have. So for the past 15 and a half years, my

9 hospital appointment has been at Children's Hospital Colorado.

10 Prior to that, I was at Boston Children's Hospital and then at the

11 Floating Hospital, which is a children's hospital in Boston.

12 Q There seems to be a lot here, but can you tell the jury

13 about a few awards and honors you've received in this field?

14 A I can. So I do teaching for the medical students at

15 the University of Colorado School of Medicine. I teach them about

16 genetic disorders, such as Down syndrome. And I've gotten

17 teaching awards for those -- those lectures that I give to the

18 medical students. I've also gotten awards from a couple of the

19 chapters that I've written. As an academic physician, you have to

20 publish papers and book chapters and things like that.

21 Q And have you published some papers and things?

22 A Yes.

23 Q And how many of those do you think you've done?

24 A As of this week, 48.

25 Q And are those peer-reviewed and --

136

1 A Yes. Yes.

2 Q And are you currently licensed to practice medicine in

3 the state of Colorado?

4 A Yes, I am.

5 Q And have you previously been licensed in any other

6 states?

7 A I was licensed in Boston, where I resided for 17 years

8 before I moved here.

9 Q And any specific certifications that you have held?

10 A So I'm certified in pediatrics, in clinical genetics,

11 and in neurodevelopmental disabilities.

12 Q I don't think I'm gonna ask you about all the rest of

13 this, Dr. Elias.

14 MR. McDONALD: Your Honor, at this time I would ask the

15 Court to admit this witness as an expert, specifically in

16 genetics, genetic disorders, neurodevelopmental disabilities, the

17 identification of genetic disorders, specifically as to causation

18 and diagnosis of the victim in this case, but I'll get to that in

19 a minute, but specifically as to genetic disorders and

20 neurodevelopmental disabilities.

21 THE COURT: All right. Is there any objection to that

22 designation?

23 MS. CURE: No objection to those two designations,

24 Judge.

25 THE COURT: Ms. Hay?

137

1 MS. HAY: Judge, I have no objection that Dr. Elias is

2 an expert in the areas of pediatrics, in neurodisabilities, and in

3 her areas with regards to genetics. I didn't understand that

4 portion of what Mr. McDonald was saying that he was going to get

5 to in just a moment.

6 MR. McDONALD: That's fine, Your Honor. I haven't

7 talked about her treatment of the victim in this case, so --

8 THE COURT: So you're asking to have her qualified as

9 an expert in genetic disorders and neurodevelopmental

10 disabilities?

11 MR. McDONALD: And identification of genetic disorders.

12 THE COURT: Okay. Is there any objection?

13 MS. HAY: No.

14 THE COURT: As rephrased, is there any objection?

15 MS. CURE: Not from Mrs. Dyer.

16 THE COURT: All right. She's so recognized and may

17 render opinion in her area of expertise.

18 Q (By Mr. McDonald) Have you treated Stephanie Dyer?

19 A I have.

20 Q And how many times have you seen Stephanie Dyer?

21 A I first saw her in April of 2014, and then I have seen

22 her approximately every six months or so. And the last time I saw

23 her was in September of this year, 2016.

24 Q And was all -- have you seen her every time at

25 Children's Hospital?

138

1 A Are you asking if I'm the only provider who has seen

2 her in my clinic or --

3 Q No. Have you seen her at Children's Hospital?

4 A Oh. Every time I've seen her, I've seen her in the

5 Special Care Clinic at Children's Hospital Colorado.

6 Q And has she been seen by other people in your clinic?

7 A Yes, she has.

8 Q And are you familiar with the records that are kept in

9 your clinic and at Children's Hospital?

10 A Yes. They're all electronic.

11 Q And have you reviewed those records in preparation for

12 testimony in this case?

13 A Yes, I have.

14 Q And in the course of doing your job and treating

15 patients, do you rely on those records in trying to figure out

16 what's going on with someone and prescribing a course of

17 treatment?

18 A Yes. It's very helpful to have an electronic medical

19 record, because you can go back and see exactly what -- what the

20 child was like before per your notes. You can look at MRIs and

21 x-rays and lab tests and go back and -- and see everything right

22 there before you.

23 Q And can you describe for the jury in April of 2014,

24 when you first saw Stephanie, how did she present?

25 A So I was asked to see Stephanie because she presented

139

1 as a child who was not able to speak. She was nonverbal. She was

2 not able to -- to walk around. She'd be called nonambulatory.

3 And she was not able to eat in a normal fashion. She could not

4 safely consume food.

5 Q And at that time was she having seizures?

6 A And she presented with a seizure disorder, yes.

7 Q And in the course of seeing Stephanie, did you try to

8 determine what was causing those seizures and the issues that you

9 just described, being nonambulatory and those things?

10 A Yes. That was the reason that I was asked, as a

11 geneticist, to see her: to determine if there was an explanation

12 for why she presented in that fashion at that time.

13 Q And tell the jury what you do when you first see

14 somebody and this is what you're trying to find out. Can you

15 explain what the first thing is that you do?

16 A So it's -- it's a complicated question, and I first try

17 to find out what the past history of the child is, what they've

18 been like before I see them. And then I -- I try to get a history

19 of all the medical and developmental concerns that have occurred

20 for the child. And then I get a family history. I find out

21 what -- if there are other genetic problems, for example, that

22 might run in the family. And then I do a very detailed physical

23 examination that includes how well the child is growing, as well

24 as are there any unusual features about the child's appearance

25 that might give me a clue about their underlying diagnosis. And

140

1 then I try to put all that together.

2 Q And did you do that in this case?

3 A I did.

4 Q And were you able to get a good history on Stephanie?

5 A So that was a little bit more difficult. I had some --

6 I could look in our record at Children's Hospital and see if she'd

7 been seen there before. She had, in my clinic, since the fall of

8 2013, but had not really been seen at Children's as an active

9 patient prior to that, and so I wasn't able to go way back to find

10 out what she was like as a young infant or -- or a young child.

11 Q And so when you say she had been seen at Children's,

12 was that in that October -- that late October, early November of

13 2013?

14 A Yeah. She was seen by one of my colleagues,

15 Dr. Chowanadisai, who has a specialty in pediatrics called

16 rehabilitation medicine. And Dr. Chowanadisai's specialty is to

17 help children who are not able to talk and not able to walk and

18 figure out what they might need in terms of therapies to help them

19 improve.

20 Q And do you rely on some of the work -- and does she go

21 by Dr. Mod?

22 A She goes by Dr. Mod because she has such a hard name to

23 pronounce.

24 Q Does -- do you rely on some of the work Dr. Mod does in

25 terms of what you're doing next and --

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1 A Mm-hmm. So I certainly both looked at Dr. Mod's notes

2 in the chart and also spoke with her personally about Stephanie.

3 Q And did you do a physical inspection of Stephanie Dyer?

4 A Yes, I did.

5 Q And what did you find?

6 A So she was a child who at first, when I first met her,

7 was not as well-nourished as I would have liked to see. And that

8 was in part related to her feeding problems that she had. She had

9 required placement of a feeding tube directly into her stomach,

10 called a feeding gastrostomy, and special formula and water to

11 give her nutrition, because without those interventions she wasn't

12 able to nourish herself in normal fashion, so her nutritional

13 status wasn't quite up to par.

14 And then she's a beautiful child. She has beautiful

15 normal features. She does not appear unusual in her facial

16 features to make me -- to suggest to me an underlying genetic

17 disorder. She did have abnormalities on her neurologic exam. Her

18 muscles were too stiff, and she was just not able to walk and do

19 the normal things that a child of that age should have been able

20 to. You know, run around the office, walk and talk to me. She

21 couldn't do those things.

22 Q So in -- in trying to determine the cause of these

23 seizures, was one of the issues that you were concerned about her

24 ability to eat?

25 A I -- I was worried about her ability to eat because she

142

1 could not do it in a normal fashion.

2 Q And what do you mean by that?

3 A So she had a problem called aspiration, which is where

4 the food that goes into your mouth goes down the wrong tube into

5 your lungs instead of going down the esophagus into your stomach.

6 And so children with aspiration, if they eat something and it goes

7 down their trachea into the lungs instead, it can cause damage --

8 pneumonia, lung problems -- and the child is just not able to

9 thrive because of that.

10 Q So normal -- is that like when people say it went down

11 the wrong pipe?

12 A Yeah. Exactly.

13 Q They start coughing?

14 A That's right.

15 Q Did she not have the ability to do that, to cough that

16 back out? Is that --

17 A So it was hard for her to -- to get food down the right

18 tube into the stomach down the esophagus, and that's a neurologic

19 problem for her. She -- it takes a lot of muscles and nerves

20 working together to be able to swallow properly, and Stephanie had

21 neurologic abnormalities that prevented her from being able to

22 swallow in a safe way.

23 Q Did you do any genetic testing to try to figure out if

24 she had some genetic disorder?

25 A Yes, I did.

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1 Q And can you describe that for the jury?

2 A Yes. Absolutely. So there are many, many, many causes

3 of children having seizures and neurologic abnormalities and

4 developmental disabilities. What was more unique about Stephanie

5 was the information I had been given that she was not always that

6 way, that when she -- when she was younger, she was thought to be

7 a more normal, appropriately developing child. And at the point

8 that I saw her, she was clearly not neurologically normal.

9 So one of the things that was going through my mind was

10 could she have what we call a neurodegenerative disorder. These

11 are very, very rare, but they're the kinds of disorders where a

12 child might start out looking pretty normal, might develop in a

13 normal way, might be able to eat and grow in a normal way for a

14 while, and then over a period of time there's usually a

15 biochemical abnormality in the body that starts to get worse and

16 worse, and the child shows symptoms of losing skills that they

17 formerly had and might develop seizures that get worse, and might

18 lose their feeding skills and lose their skills to be able to walk

19 and talk. And so one of my biggest concerns was did Stephanie

20 have a problem like that, a neurodegenerative disorder that would

21 explain her underlying presentation when I first met her.

22 And so there are special chemical and genetic

23 biochemical tests that one does in that situation that helps you

24 either find abnormalities that suggest these kind of disorders

25 or -- or rule them out because the blood tests come back looking

144

1 pretty normal. And in Stephanie's case, those tests that she

2 had -- and there were many -- all came back normal. So I was not

3 able to -- I felt, after getting back a number of those special

4 metabolic tests, that the chance of her having one of those very

5 rare disorders was -- was pretty unlikely.

6 I also did some more common genetic tests that look at

7 a person's DNA. And I'm looking to see if a child has a missing

8 piece of DNA or an extra piece of DNA. And a DNA abnormality like

9 that can cause a child to have seizures and significant

10 developmental delays and feeding issues. And the tests that I do

11 to look at that is called a microarray. And so Stephanie had that

12 microarray test, which also came back normal.

13 She had a special DNA test that looks for two different

14 disorders that cause seizures and developmental disabilities and

15 feeding problems. One of them is called Rett syndrome. That's

16 spelled R-E-T-T. And there's a special DNA test that looks at the

17 gene causing Rett syndrome. And Rett syndrome is, in fact, a

18 neurodegenerative disorder. It's exclusively almost in -- only

19 seen in girls, because it's lethal if it happens in a male. So

20 that was one of the first tests that Stephanie had. She did not

21 have the classic presentation for Rett, because those girls are

22 normal only in their first year of life and their degeneration

23 happens when they're very, very young, much younger than Stephanie

24 was. But we ruled out Rett syndrome as a -- as a possibility,

25 because that's sort of on the -- higher up on your list as a girl

145

1 showing her symptoms.

2 And then the last thing that we ruled out with some

3 special genetic tests was a disorder called Angelman syndrome.

4 And children with Angelman syndrome can present with seizures and

5 significant neurologic and feeding issues. Again, her time frame

6 was not typical for Angelman, because usually those children

7 present with abnormalities from early infancy, and she did not.

8 So -- but we did the test anyway, just because it's a fairly

9 common genetic disorder that could cause her symptoms.

10 So she had a pretty comprehensive evaluation, many,

11 many tests, to try to look at genetic disorders that could cause

12 her constellation of symptoms, and all of those came back totally

13 normal.

14 Q I want to go back and talk a little bit about

15 neurodegenerative disorders, which is very difficult for me to say

16 for some reason. When do the majority of those onset?

17 A So there are dozens of these disorders, and they are

18 all a little different. The more severe ones start during

19 infancy, and so you might have a child who's normal for a few

20 months, and then the parents and the doctors start to appreciate

21 that there's a problem. And some of those more severe disorders,

22 children don't actually survive past two or three years of age.

23 And then there are other disorders that can present a

24 little bit later, and there you might be more normal until you're

25 two or three, around that age, and then start to show symptoms.

146

1 And those disorders, you would see this course where you're

2 continuing to lose function, lose function, lose function, and you

3 never sort of turn around and get better.

4 So I was worried at first, when I first met Stephanie,

5 that she might have something like that, because she could have

6 had -- it was -- there was a possibility she might have had a

7 disorder that didn't start to show symptoms until she was more of

8 a preschool-age child. But I would have expected that by the time

9 she's the current age that she is now -- and I just saw her in

10 September -- that had she had a disorder like that, she would have

11 continued to lose skills and not show any improvement whatsoever;

12 and that has not been her course since I've been following her.

13 Q So, generally, do people with neurodegenerative

14 disorders get better at any point, or do they just continue to

15 regress?

16 A No. They continue to regress. There is -- only in

17 very, very few of these disorders is there any kind of treatments.

18 And the treatment is generally not good, even in -- and it's very

19 intense treatment, like a bone marrow transplant, for the few

20 disorders that we can treat. But for most of them, we can't

21 treat.

22 The other -- the other kind of evaluation that

23 Stephanie had was an MRI of her brain and --

24 Q Let me ask you -- I want to ask you very quickly about

25 that, but before I ask that, I want to ask you about the DNA

147

1 abnormalities really quickly. Do -- do most of those -- do any of

2 those, really, that you're aware of cause a regression and then

3 allow someone to gain back that mobility or what they regressed

4 to?

5 A No. I can't think of any DNA abnormalities that would

6 cause a regression and then have the child start to improve.

7 Q And can you -- can you give the jury a few examples of

8 common DNA abnormalities?

9 A Mm-hmm. So the most common chromosomal abnormality is

10 Down syndrome. A person with Down syndrome has a whole extra

11 chromosome 21, and a person with Down syndrome has that right from

12 when they're born and through their whole life. And they can show

13 improvements. You can give them therapies and have them be

14 well-nourished and they can do fairly well. But they never lose

15 that problem that -- that chromosomal abnormality that causes

16 their Down syndrome. That's probably the most common one.

17 There are many, many different chromosome disorders

18 where people have different pieces or extra pieces. You have it

19 from birth; you have it your whole life.

20 Q So is the fact that Stephanie, when you look at her,

21 featurewise is a typical-looking child evidence that she does not

22 have a DNA abnormality?

23 A She does not have a chromosomal abnormality.

24 Q Okay.

25 A That's different than a DNA abnormality. Sorry.

148

1 Q What is -- what does that mean, a chromosomal

2 abnormality, what you just described?

3 A So your DNA comes in packages. You have 23 pairs of

4 chromosomes where your DNA is contained. You can look at them

5 under the microscope. You can see if they look like they have the

6 normal shape and size. You can stain them with certain stains and

7 make sure that they look like they have the correct pattern of

8 staining that makes them look normal. And these days we can have

9 very sophisticated ways of finding very subtle, tiny DNA

10 abnormalities with the testing that we have, microarray being one

11 of them.

12 And so with -- children with chromosomal abnormalities

13 tend to have changes in their appearance. So the genetic term for

14 that is to look dysmorphic. Thirty years ago, when we weren't as

15 politically correct, we would say a funny-looking child. But they

16 have unusual features, a child with a chromosomal abnormality, and

17 they don't have normal growth parameters. Their heads are often

18 too small, their bodies are very small, and it's very hard to get

19 them to grow.

20 So you can just -- I think even a nongeneticist can

21 look at a child with a chromosomal abnormality and feel like they

22 don't appear like a normal child. And I, with my training, can

23 look at a child and have more of a sense of what specific

24 chromosomal abnormalities they might have.

25 Q And is Stephanie Dyer dysmorphic?

149

1 A She is not dysmorphic at all. She's beautiful.

2 Q So did you identify any genetic disorder that would

3 cause her to have the seizures she was having and the regression

4 that she had?

5 A I did not.

6 Q And in part of doing what you do -- you just stated

7 about MRIs. Do you rely on MRIs and the results of MRIs?

8 A So an MRI is a special kind of radiologic test that

9 allows you to look at the anatomy of the brain in really excellent

10 detail. You can see pretty subtle abnormalities in how the brain

11 is formed on an MRI. And it's often part of the workup of a child

12 who has an abnormal neurologic exam and seizures.

13 And so Stephanie has had MRIs that I have been able to

14 review. And one of the things I was looking at on her MRI, with

15 the question in mind of could she have a neurodegenerative

16 disorder, is that many of them have abnormality of what we call

17 the white matter of the brain. So people have probably heard of

18 gray matter and white matter in the brain. The white matter are

19 the connections between different parts of the brain, and many of

20 the disorders that I was worried about as causing a

21 neurodegenerative process in a child Stephanie's age would show

22 you abnormal white matter on the MRI. That's what I was looking

23 for.

24 She did not have that. She had normal appearance of

25 the white matter on her MRI, and that helped me be reassured that

150

1 she did not have any of the typical what we call a leukodystrophy,

2 or a white matter disease, that would cause neurodegeneration.

3 Q And did you review an MRI from 2009 from when she would

4 have been about three years old?

5 A I did. That was not done at my hospital, but I was

6 able to see it. And it was read and appeared to be normal.

7 Q And did you look at another MRI that was done in 2013?

8 A I did. And there were two main changes on that MRI

9 that were read by the -- by the radiologist in our hospital, who

10 is the expert on MRIs in the brain. The two changes were that her

11 cerebellum, which is the back balance part of the brain, looked a

12 little smaller than normal. And, also, the front part of her

13 brain, which is the sort of thinking part of your brain, looked

14 smaller than normal. And the word that was used was atrophy. It

15 looked like it had become smaller over time. And that is the kind

16 of finding that you worry about when there's been some kind of

17 damage to the brain.

18 Q And you said there were two issues. Was the --

19 A The cerebellum being small and the frontal part of the

20 brain, the front part of the brain, being too small, or atrophic.

21 Q Okay. Was there another MRI done in 2015 or sometime

22 after --

23 A Okay.

24 Q -- 2015?

25 A Right. And that -- that most recent MRI that Stephanie

151

1 had continued to show her cerebellum looking a little bit small,

2 and so my feeling -- and the radiologist who reviewed it also

3 feels that that was probably something that Stephanie was born

4 with. And it's something we do see sometimes as a -- some -- as a

5 congenital abnormality, something she was born with.

6 But what was wonderful to see was that the front part

7 of the brain now looked normal on the repeat MRI. So after --

8 after a period of time where she had been getting good nutrition

9 and had her seizures under control, her brain did not show further

10 damage. In fact, it looked improved.

11 Q Let me ask you about this small cerebellum. Is it

12 possible to have a small cerebellum and live a totally normal life

13 and not even know it?

14 A Yes. That's correct. It is possible.

15 Q And is it -- is it possible that my co-counsel here has

16 a small cerebellum?

17 A He might. It's possible.

18 Q And that's not necessarily indicative of anything

19 abnormal?

20 A Mm-hmm. So hers was just a very -- it wasn't severely

21 small. If it's very, very, very small, that does cause problems.

22 But hers was just -- they called it very mild in their reading of

23 it. And a person could go around with an abnormality like that

24 and not know it their whole life.

25 Q Now -- and then, going back and talking about the

152

1 atrophy in the frontal lobe, what, in your opinion, caused that?

2 A To me, it was a sign of brain damage that Stephanie

3 sustained. I think -- my opinion is it was caused by having

4 uncontrolled seizures, is the most likely cause of it, and also

5 having nutrition -- nutritional status that was not optimal for a

6 period of time. I think those two things. But -- but the more

7 concerning thing, to me, was having untreated, unrelenting

8 seizures.

9 Q Well, let me go back to the nutritional component. You

10 talked a little bit about the aspiration issue. Could Stephanie

11 physically swallow enough food to meet her nutritional needs --

12 A She could not.

13 Q -- when -- when you first met her?

14 A When I first met her, she could not have nourished

15 herself appropriately by just eating by mouth.

16 Q So it doesn't matter how much food I tried to feed her,

17 she's not getting enough food?

18 A She would not have been able to get enough safely to

19 give her appropriate nutrition, that is correct.

20 Q And so would -- I mean, did her tongue work? Did her

21 swallowing work at all?

22 A Well, the swallow is a complicated process. You have

23 to put food in the front part of your mouth, your tongue gets it

24 to the back part of your mouth, and then a bunch of different

25 muscles have to work together in a coordinated fashion. The --

153

1 the top of the trachea has to be closed off so that the food only

2 goes down the into the stomach. And so if your -- if your nervous

3 system, if your brain is not working properly, then your -- all of

4 those muscles are not getting the correct signals to work in

5 sequence to be able to swallow in a safe way.

6 Q So it sounds like some of the food might go down your

7 throat, some of the food would go out of your mouth; is that

8 right?

9 A Yes. You might drool or -- or it might come out the

10 front, and then some might go down into your lungs.

11 Q Now, you said that she -- you were concerned about her

12 nutritional status. Do you remember what she weighed when you

13 first saw her?

14 A I believe she weighed in the high 40s. I want to say

15 47 or 46 maybe, something like that.

16 Q And was she otherwise small than just besides her

17 weight?

18 A Mm-hmm. And I think she's on the shorter side for her

19 age.

20 Q Today or at -- at -- when you first saw her?

21 A I think still -- both -- both back then and now.

22 Q And was she short in a concerning way to you at the

23 time when you first saw her, or do you recall?

24 A I -- I don't recall.

25 Q How -- I think you talked a little bit about this, but

154

1 the feeding issue was resolved through a feeding tube?

2 A Mm-hmm. So if you're unsafe to take food into your

3 mouth, we often will put in this feeding gastrostomy tube. It's

4 placed by the surgeon, and they -- they put in this tube that goes

5 directly into your -- into your stomach just below the ribs. And

6 when you want to feed a child, you attach the tubing to that

7 little button and then you can run the feeding in. When the

8 feeding is all finished, you take the tubing off, close the

9 button, put the clothes over it, and the person might not even

10 know a kid has a button. They're pretty small, about -- about,

11 maybe, the size of a nickel.

12 Q And does Stephanie still have that --

13 A She does still have her feeding tube.

14 Q Do seizures cause someone to be malnourished?

15 A No. No, if they are in good control.

16 Q Do -- can uncontrolled seizures cause someone to lose

17 the ability to swallow the way you're describing Stephanie had

18 trouble swallowing?

19 A I think that if a person has uncontrolled seizures,

20 they are not awake, they are not available to -- to do things in a

21 normal fashion. If it goes on for long enough, it can cause

22 damage to the brain so that those -- all of those complicated

23 nerves don't work well together.

24 Q This is gonna sound like a silly question, but can

25 someone with a seizure disorder or epilepsy live a pretty normal

155

1 life?

2 A Yes.

3 Q Can they be a full-functioning member of society?

4 A Yes.

5 Q What does it generally require to do that?

6 A You need to control the seizures with medication.

7 Q And when you first saw Stephanie, had her seizures been

8 controlled?

9 A She presented initially with uncontrolled seizures.

10 They are currently in good control.

11 Q And when you -- when you first saw Stephanie, you said

12 that there was a -- a record that she had been seen by neurology

13 in late 2013. But prior to that, did you find any record of her

14 ever being seen at Children's Hospital?

15 A I could see that she was referred to the neurology

16 department, but that the -- there was no -- she was not -- she did

17 not go to that appointment, she no-showed.

18 (A discussion was held off the record between

19 Mr. McDonald and Mr. Vandenberg.)

20 Q (By Mr. McDonald) And can you tell me, as best you

21 remember, the date that you first saw Stephanie?

22 A I saw her in April of 2014.

23 Q When was the last time you saw her?

24 A The most recent time I saw her was in early September

25 of 2016.

156

1 Q And how is she doing now physically?

2 A So Stephanie has made some really lovely, lovely

3 improvements in her status. She is now able to take some food by

4 mouth, and she's getting therapy to help her do that better. She

5 still needs to receive some of her nutrition through her feeding

6 tube, though.

7 She is able to communicate. Not in a normal way and

8 not in an age -- in a way that one would expect for her age, but

9 she is able to communicate, more like a child who's at a preschool

10 level than a child who's about ten. She also can use what we call

11 communication assists to help her communicate, and those include

12 pointing at pictures, using sign language. And so she is now able

13 to communicate her needs and wants much more efficiently than she

14 could when I first met her. She also is able to walk with a

15 walker.

16 Q Can she feed herself?

17 A She's starting to be able to do that, like a much

18 younger child would. But she is starting to be able to do that,

19 yes.

20 Q A minute ago you said about -- there was a no-show

21 appointment at Children's. Do you remember the date of that

22 no-show appointment?

23 A The year was 2010, but I don't remember the date.

24 Q What is your opinion as to what caused Stephanie's

25 condition when she was first taken out of the home in 2013?

157

1 A So I think that the major factor was uncontrolled

2 seizures, and a secondary factor was her nutritional status being

3 compromised by her feeding disorder.

4 Q And you said a minute ago that Stephanie's seizures are

5 under control now.

6 A Mm-hmm. And they were pretty easy to control. You

7 know, some kids have terrible, terrible seizures; you need three

8 or four different medicines or special diets or things like that.

9 For Stephanie, it was pretty easy to get her seizures under

10 control with one medication. And the test that we do to look for

11 seizures, called an electroencephalogram, or EEG for short, was

12 abnormal when she first presented and has -- has now normalized on

13 treatment.

14 Q When you say they're pretty easy to control, can you

15 describe for the jury kind of how you try to get someone's

16 seizures under control?

17 A So there are many, many different seizure medicines.

18 Some of them are trickier to use than others. Some seizure

19 medicines have more side effects than others, and some medicines

20 work best for certain kinds of seizures. So what the neurologist

21 usually does is they'll start with one medicine and they'll try to

22 see -- you know, start slowly and build up the dose to be to a

23 range where it's known that that range of medication should help

24 control seizures and then follow the child clinically, ask the

25 caretakers is the child having seizures that you can see, and then

158

1 do this EEG test, repeat the EEG test, and look for signs of

2 seizures on the EEG. And if you can get control with -- with one

3 medication, then you're golden.

4 It's not always so easy. Some kids you try medicine

5 number one and it helps a little bit, but not perfectly, and you

6 have to add a second medicine, sometimes even a third medicine to

7 really get seizures under control. It wasn't that hard for

8 Stephanie, though.

9 Q And it sounds like that just takes a couple trips to

10 the doctor, not just one.

11 A That's correct. There needs to be follow up. You need

12 to be seen at first and -- and decide what medicine you're gonna

13 pick, try it, make sure the child doesn't have any side effects

14 from it, and get their dose up to the place where you want it, and

15 then see how the seizure control is. And then, you know, it's one

16 of those art-of-medicine things to try to get seizures under

17 control.

18 Q In your opinion, if Stephanie's seizures had been

19 brought under control in 2009 when they first started, would she

20 have had the regression that she had and was found out about in

21 2013?

22 A In my opinion, I don't think she would have presented

23 with as severe neurologic issues as she did when she presented,

24 because if her seizures had been well controlled, she would have

25 been able to make developmental progress. She, you know, would

159

1 have been maybe able to get in better nutrition and stay healthier

2 and not have a loss of all of the skills that she lost in that

3 time period.

4 Q And has she, in fact, made advances since her seizures

5 were brought under control?

6 A Mm-hmm. She's made significant advances. She's not

7 normal, but she has made significance advances compared to the

8 child I first saw.

9 Q So in your opinion, was the regression that you saw

10 when you first saw her, that -- the state she was in, was that

11 more medical or environmental?

12 A I think it was a combination. I think she was having

13 seizures that weren't well-controlled. She was having feeding

14 issues that weren't being addressed. And then she wasn't getting

15 the proper attention to those problems.

16 Q And in your professional opinion, was she medically

17 neglected?

18 A Yes.

19 Q And in your opinion, what do you believe would have

20 happened to Stephanie Dyer had she continued to receive no medical

21 care?

22 A So --

23 MS. HAY: Objection, Your Honor. That calls for

24 speculation, and foundational in that I think even a doctor with

25 this credentialing doesn't have the ability to predict.

160

1 THE COURT: Overruled. You may answer.

2 THE WITNESS: Thank you.

3 In my opinion, if she had continued to have

4 uncontrolled seizures and inability to get an adequate nutritional

5 status, that she could have eventually died.

6 MR. McDONALD: May I have a moment, Your Honor?

7 THE COURT: You may.

8 (A discussion was held off the record between

9 Mr. McDonald and Mr. Vandenberg.)

10 MR. McDONALD: Thank you, Your Honor.

11 THE COURT: Ms. Hay, cross-examination?

12 (A discussion was held off the record between Ms. Hay

13 and Ms. Laughon.)

14 CROSS-EXAMINATION

15 BY MS. HAY:

16 Q Good afternoon, Dr. Elias.

17 A Good afternoon.

18 Q It's nice to see you again. We've had an opportunity

19 to speak once before down at your -- your facility at the

20 Children's Hospital, right?

21 A I believe so.

22 Q So I want to start off and ask you a few questions

23 about some of the issues that Stephanie has going on in her world.

24 You talked about how she's a beautiful young girl. Isn't she?

25 A Yes.

161

1 Q And you had a chance to meet her parents, Leah and

2 Doug Dyer, on one occasion, right?

3 A I believe I met them the very first time I saw her.

4 Q And they told you she was a beautiful young girl, too,

5 didn't they?

6 A I don't remember our exact conversation, but she is a

7 beautiful girl.

8 Q Okay. And they thought so too, right?

9 A Most parents do think that of their child, yes.

10 Q But you talked about the fact that Stephanie has some

11 issues that make her unique, and one of those issues is that she

12 has a small cerebellum.

13 A Yes.

14 Q And you've described that, at times, as an area of the

15 brain that seems to have more volume than would be normally found

16 in a person's brain. There are fissures in that child's brain

17 that look like a fern, I think you've described it as.

18 A I'm not sure I understand your initial question. So

19 the cerebellum, when you look at a picture of it, it can look to

20 some people like a fern.

21 Q And, in fact, you've described it as looking like a

22 fern, right?

23 A I might have done.

24 Q Okay. And -- and so that in this child, when an MRI

25 was taken, there was a picture of her brain that was done, right?

162

1 A Yeah. The MRI is a picture of her brain, yes.

2 Q And one was done in 2009, and then follow-ups in 2013

3 and 2015, correct?

4 A That is correct.

5 Q And so in 2013, it was apparent that her cerebellum

6 appeared smaller than normal?

7 A It looked mildly smaller than normal.

8 Q And so this fern-like picture of her brain had deeper

9 fissures than you would have expected to see in a normal brain,

10 correct?

11 A As I am recalling, the total size of the cerebellum

12 looked a little bit smaller than -- than is typically seen.

13 Q Okay. And so I'm using your own words. You remember

14 having had conversations with Detective Gary Trujillo over here on

15 the right?

16 A I remember it, yes.

17 Q Okay. And when you were talking with him, you

18 discussed the fact that these pictures of the MRI that took

19 photographs of this fern-like structure in the brain showed that

20 there were larger fissures in that structure in Stephanie than in

21 normal people?

22 A Yeah. I don't remember that conversation.

23 Q You wouldn't disagree with that description, though,

24 correct?

25 A I don't remember. I just -- I remember seeing the

163

1 picture and that the cerebellum itself looked smaller. That's

2 what I remember.

3 Q Okay. So you don't disagree with that description?

4 A That it looks smaller?

5 Q Okay. We'll just leave it at that. You agree with

6 that, that it looks smaller?

7 A Correct.

8 Q All right. So let me talk about some of the other

9 issues that make Stephanie unique. While she doesn't look, in

10 your words, dysmorphic or obviously suffering from some sort of

11 chromosomal disorder, there's still the possibility that she has

12 some sort of genetic disorder that's ongoing, correct?

13 A Yes. We don't know the underlying etiology of why she

14 developed seizures.

15 Q So you can rule out the chromosomes, because that's a

16 pretty easy test for those 23 pairs, correct?

17 A Correct.

18 Q And you know that those tested out fine, right?

19 A Yes.

20 Q But there are lots of other genetic components to a

21 person's makeup, right?

22 A Yes.

23 Q And in this particular instance, all of the DNA testing

24 that has been conducted to this point have shown no genetic

25 component of abnormality in Stephanie Dyer, right?

164

1 A That's correct.

2 Q But there are thousands of tests that can be done on

3 more and more obscure abnormalities, right?

4 A Yes.

5 Q And in your case, of course Stephanie hasn't had

6 thousands and thousands of genetic tests conducted, correct?

7 A She has not.

8 Q She did have that small array that you had discussed

9 earlier?

10 A Microarray is the name.

11 Q Okay. That's what I'm talking about. Right? And that

12 didn't come up with anything.

13 A Correct.

14 Q But there's also this other array that can be done.

15 It's called a whole exome array, correct?

16 A It's called whole exome sequencing.

17 Q All right. And that whole exome testing is a test that

18 can describe in great detail any kind of genetic abnormalities

19 that may be present in a child, right?

20 A It can. The whole exome sequencing is one of our newer

21 genetic tests. Here in Colorado it's actually difficult to send

22 it, because it's very expensive.

23 Q Right. And I know that. And so let me talk about

24 this. You don't know what's causing Stephanie's small cerebellum.

25 You know that there is a test out there, the whole exome

165

1 sequencing. And in your words, it was a gazillion times more

2 sensitive than the earlier tests that had been conducted on

3 Stephanie, right?

4 A It's more sensitive, yes.

5 Q And it compares a particular child's DNA to what the

6 regular DNA should look like, right?

7 A The whole exome sequencing is a different technology

8 than microarray.

9 Q I understand. And it's much more sensitive. We agree.

10 A It looks at -- at the parts of the genes that tell your

11 body how to make protein.

12 Q So let me ask this: It's more sensitive. You agree?

13 A It -- it can detect a different kind of abnormality

14 than the microarray.

15 Q And so you'd agree it's more sensitive than a

16 microarray, right?

17 A We can see more -- different kinds of abnormalities

18 than a microarray can detect. The microarray is specifically

19 looking at is there a chromosomal abnormality in amount of DNA, is

20 there too much or too little. The exome is looking at the DNA

21 itself at the gene -- at part of the genes to see if there's an

22 abnormality there. And Stephanie has not had whole exome

23 sequencing. Is that your question?

24 Q No. Let me go back and ask it once more. So the whole

25 exome sequencing is a more sensitive test than the microarray,

166

1 right?

2 A It can pick up different diagnoses than a microarray.

3 Q Okay. So even when a microarray has come back normal

4 in the past, the whole exome sequencing might show or disclose

5 abnormalities, correct?

6 A That is correct.

7 Q And you know that the testing procedures just keep

8 exploding. There's more and more technology advancement that's

9 going on every day, right?

10 A That is correct.

11 Q And you just published a paper, I guess this week, your

12 48th, so congratulations on that.

13 A Thank you.

14 Q I understand that as this cutting-edge technology comes

15 online, it can be quite expensive, right?

16 A Yes.

17 Q And the whole exome sequencing can cost $8,000 or more,

18 right?

19 A Mm-hmm. Yes.

20 Q And not only that, but it's expensive and insurance

21 doesn't necessarily pay for those tests, does it?

22 A That is correct.

23 Q And while it may be a gazillion times more sensitive

24 and it might give an answer different than the microarray, a test

25 like that still takes quite a long time to schedule out, right?

167

1 A It can take a number of months for the test to return.

2 Is that your question?

3 Q Well, even to schedule it, because you need to put

4 aside an operating room, right?

5 A Oh, no. It's a blood test.

6 Q Oh. So it's just a blood test. You don't have to go

7 under anesthesia for the whole exome sequencing?

8 A Correct.

9 Q Okay. And this -- this testing is the kind of test

10 that you would still like to do on Stephanie Dyer, right?

11 A I'm just thinking of how I can explain the answer to

12 that question. We think of doing whole exome sequencing in

13 patients who are medical mysteries. You know, you have a child

14 who has a neurodegenerative disorder, you're convinced of it, you

15 see changes on the MRI, you see continuing progression, and you've

16 done all the tests you think of to do and -- but you want to try

17 to find an answer for the family. That might be a time that you

18 would think of doing whole exome.

19 Or you have a child who has multiple birth defects,

20 very unusual features, very severe disabilities, and you're

21 worried that's the kind of condition that a family has a risk of

22 having a second affected child with that. And you've done every

23 test you can think of and you still don't have an answer for that

24 family, and they're a young family that want to have more kids.

25 In that family, you might think about whole exome. But you don't

168

1 necessarily think about doing it in every single patient that you

2 see, because it does not give the answer in every patient that you

3 see.

4 Q Of course. Right. So it may be an expensive test that

5 still doesn't come up with an answer that you need, right?

6 A That's correct.

7 Q All right. So you had a conversation with

8 Gary Trujillo about this potential whole exome sequencing test on

9 February 29th of 2016, didn't you?

10 A Correct.

11 Q And, in fact, you know that Detective Trujillo

12 tape-recorded his interviews with you, correct?

13 A He often did.

14 Q Yeah. And so he got your permission. He told you he

15 was tape-recording your interviews with him, didn't he?

16 A He usually did, yes.

17 Q And when you talked with him in February of 2016, you

18 indicated that there was this whole exome sequencing test and it

19 was a gazillion times more sensitive than the microarray, didn't

20 you?

21 A I may have said that.

22 Q And, in fact, you told him that it looked at the coding

23 areas of genes to see if there's anything different, because the

24 child's DNA is not normal in that circumstance, correct?

25 A When the whole exome is abnormal, that's what it does,

169

1 it looks at the coding regions of the DNA.

2 Q And you said that you've been able to make specific

3 diagnoses in circumstances when you've done lots of other testing

4 that's come back normal, right?

5 A Yes.

6 Q And that -- you mentioned the fact that it was really

7 expensive and that insurance wouldn't pay for it, correct?

8 A We often have to fight for insurance to pay for it,

9 yes.

10 Q And you indicated at that point in time that that test

11 was one of the tests on your list of things to do with

12 Stephanie Dyer, didn't you?

13 A At some point in the future we might think about it.

14 Q Okay. And one of the reasons that it was on your list

15 for Stephanie Dyer is because you still don't have any underlying

16 genetic explanation for some of the things that Stephanie -- makes

17 Stephanie Dyer unique, correct?

18 A Yes.

19 Q We've talked about the small cerebellum. I want to

20 bring up that the cerebellum also is the area of the body that

21 addresses swallowing, and that could have an impact on --

22 A Not exactly. It's the balance part of the brain.

23 Q Okay. So if Dr. Green had talked about the small

24 cerebellum might be impacted -- or might impact Stephanie's

25 ability to swallow, you don't think that's accurate?

170

1 A There are other nerves that are more important for the

2 swallow that are in a different part of the brain.

3 Q Okay. Are there some nerves in the cerebellum, then?

4 A The -- sorry. The cerebellum is really important for

5 your -- how your muscles move and balance, but there are other

6 nerves in a different part of your brain that are more important

7 for helping you swallow correctly.

8 Q And muscle movement is an issue that Stephanie suffers

9 from with regards to her ability to swallow, right?

10 A Her swallowing problems are, in part, neurological,

11 yes.

12 Q Now, she's also got some deformities in the way that

13 her arch, or her palate, presents, correct?

14 A I'm not sure I can answer that question.

15 Q All right. So you're not familiar with the issues that

16 Stephanie has had and the descriptions of her palate as being

17 overly arched or having excess tissue hanging down in the back of

18 it?

19 A I don't recall that.

20 Q You do know that there have been several swallow

21 studies that have been conducted on -- on Stephanie --

22 A Right.

23 Q -- correct? Okay.

24 A The swallow study is an x-ray. It's not looking right

25 at her palate.

171

1 Q Okay. You know that something else that makes

2 Stephanie unique is that she has nearsightedness, correct?

3 A Mm-hmm.

4 Q So that's not all that unique in the population, is it?

5 A No, it is not.

6 Q But she also has a lazy eye, doesn't she?

7 A I believe so.

8 Q Another thing that's different and makes Stephanie

9 unique and special is that she has a very clear, documented sleep

10 disorder, doesn't she?

11 A She has had an abnormal sleep study.

12 Q And that sleep study found that Stephanie was not

13 getting into full REM sleep, so her body wasn't able to really

14 rest and rejuvenate itself the way it was supposed to, right?

15 A I think so.

16 Q You know that Stephanie is still on oxygen to this day,

17 isn't she?

18 A Yes.

19 Q But she's also being -- her residence is up at like

20 8,600 feet up in Conifer, right?

21 A It's someplace in the mountains, yes.

22 Q But when she was down having the actual sleep study,

23 the physician that conducted that sleep study noted that she

24 didn't need the supplemental oxygen at the level of the testing,

25 which was Denver, right?

172

1 A So Colorado is an interesting state, because --

2 Q So can I ask you, Dr. Elias --

3 A Yeah.

4 Q And I appreciate the explanation, but could you answer

5 that question first? She didn't need oxygen at the level of

6 Denver, where the testing was --

7 A I -- I don't remember what that sleep study showed.

8 Q Okay. Fair enough. In addition to the seizures and

9 the small cerebellum, the lazy eye, and potentially the arched

10 palate, and the sleep disorder, you do know that the study itself

11 found that she had obstructive sleep apnea, correct?

12 A Mm-hmm.

13 Q And, in fact, that sleep apnea was significant enough

14 that they went to look at her adenoids and her tonsils, correct?

15 A That's usually what happens.

16 Q So in this case, Stephanie's adenoids and tonsils were

17 removed, right?

18 A Yeah. I -- I don't remember when that happened, yeah.

19 Q Because there are a whole lot of specialists working on

20 a kid like Stephanie Dyer's care, right?

21 A She does have specialists, yes.

22 Q Tons and tons of them, right?

23 A She's got a fairly typical number for a child with

24 medical complexity.

25 Q All right. And in this case, when they removed her

173

1 tonsils and her adenoids, it didn't completely fix her breathing

2 problems while she was sleeping, did it?

3 A And that's not that unusual to see that.

4 Q But it is unusual for a kid to be on oxygen when

5 they're sleeping at night, right?

6 A Not so much in Colorado.

7 Q Oh. So with Stephanie, another area that makes her

8 unique and makes her special is that she has what's called

9 dystonia, which -- and I see you nodding affirmatively. That --

10 dystonia is an abnormal muscle tone, correct?

11 A Dystonia can be an abnormal muscle movement where a

12 child doesn't quite have control of how they're moving their -- it

13 can be of your limbs or of your trunk.

14 Q And so with Stephanie's case, she's had surgeries on

15 her feet, hasn't she?

16 A Mm-hmm.

17 Q And, in fact, they have injected Stephanie's feet with

18 Botox, right?

19 A Yes.

20 Q To try and address the abnormal muscle tone in her

21 feet, right?

22 A Yes.

23 Q And they've also gone in and surgically lengthened a

24 tendon in her foot, correct?

25 A Mm-hmm.

174

1 Q So that the hope would be that her foot would lie flat,

2 right?

3 A Yes.

4 Q And that was deemed to be a congenital issue that

5 Stephanie suffered from as well, correct?

6 A No, not -- I don't quite agree with that.

7 Q Okay. So you would disagree with that finding?

8 A That -- that her problem was congenital?

9 Q Mm-hmm.

10 A Yes.

11 Q With regards to the --

12 A When you have increased tone, then the feet can turn in

13 more and more over time, and so the doctors try to give Botox,

14 which relaxes the nerves. And if that is not enough, they can do

15 a procedure, a surgical procedure, so that your feet aren't

16 turning in like this but can be more flat. It makes it easier to

17 fit into shoes and braces and help so they can be able to walk

18 better. But this could be something that gets more pronounced

19 over time. It's not necessarily a congenital defect.

20 Q But it can be a congenital defect, correct?

21 A But it was not in Stephanie.

22 Q Oh. So you're saying that it absolutely was not a

23 congenital --

24 A I don't -- I don't recall her having congenital

25 deformities of her feet.

175

1 Q Okay. Now, I want to talk about what you do know about

2 some abnormalities in her eyes and follow up with that. We've

3 talked about the lazy eye and the nearsighted. She had a test

4 that's called an ERG that showed some abnormalities in her eyes,

5 correct?

6 A Yes.

7 Q And the way that her eye cells respond to light,

8 correct?

9 A Yes.

10 Q And, in fact, those -- those abnormalities were unclear

11 as to their origin in Stephanie, correct?

12 A Yes. A nonspecific.

13 Q So, again, that's something where you don't know what

14 caused this difference in this kid.

15 A I don't know what caused the abnormality in her ERG,

16 that is correct.

17 Q Another thing that makes Stephanie unique is that she

18 had an early puberty as opposed to most kids, correct?

19 A So like many children with neurologic problems --

20 Q So -- Dr. Elias, thank you. I appreciate the

21 explanation, but if I can ask first for the answer of that

22 question. Stephanie had an early onset of her puberty, correct?

23 A She showed some changes that showed that puberty was

24 starting.

25 Q All right. So she was Tanner Stage 2, correct? Can I

176

1 ask you to answer out loud? She was Tanner Stage 2 at age eight,

2 correct?

3 A I believe so.

4 Q All right. And that Tanner Stage 2 means that she had

5 some indication of breast buds and pubic hair at the age of eight,

6 correct?

7 A So she was starting to show early changes of puberty at

8 age eight.

9 Q Okay. And those changes were breast buds and pubic

10 hair, correct?

11 A Yes. The breast buds are first.

12 Q Okay. Thank you.

13 There is also very much an association between

14 neurological problems in individuals and early onset puberty,

15 correct?

16 A Yes.

17 Q So if someone is undergoing early onset puberty, that

18 is generally in response to a hormonal surge in their body,

19 correct?

20 A So we don't know what starts puberty. It is more

21 common to see it in children with neurological problems that it

22 starts at a younger age. But Stephanie is over ten and has not

23 had her period yet, so, by definition, she does not have

24 precocious puberty.

25 Q And I'm not talking about precocious puberty, because

177

1 that's something different than early onset puberty, right?

2 A Right. What people are worried about is that early

3 puberty will turn into precocious puberty, but --

4 Q I understand.

5 A -- it's not.

6 Q Let's focus on the early -- the early onset puberty and

7 the correlation with neurological problems. That is something

8 that there's a clear connection between, right?

9 A It's more common to see puberty start at a younger age

10 in children with neurologic problems.

11 Q So you agree with me?

12 A I do.

13 Q And there's also something else that's making Stephanie

14 unique, and that is she's had some behavioral problems more

15 recently, hasn't she?

16 A I believe so.

17 Q Okay. And she's actually been referred to the child

18 developmental unit?

19 A Yes.

20 Q A -- excuse me. A genetic test doesn't necessarily

21 rule out or rule in a biologically based mental health illness,

22 does it?

23 A It does not.

24 Q And I want to talk about an area where you talked

25 about. There were phone calls -- excuse me. We talked with

178

1 Dr. -- I'm sorry. Dr. Elias, you talked with Dave Vandenberg, the

2 prosecutor, just a little bit earlier about the fact that you

3 couldn't see any records of a follow-up between the Dyers and

4 Stephanie at Children's Hospital. Do you remember that?

5 A I don't remember that.

6 Q So after 2009, there had been a referral to a

7 neurologist at Children's in early 2010?

8 A Yes.

9 Q And you testified that you had gone over the records

10 and you hadn't seen any follow-up that Stephanie Dyer had made or

11 kept an appointment in 2010, right?

12 A Correct.

13 Q And one of the reasons I want to focus on that is

14 because you had an interview -- again, this was with Detective

15 Gary Trujillo and also one of your coworkers, Dr. Carolyn Green.

16 Do you remember that?

17 A Not sure.

18 Q Did you say sure?

19 A I said "not sure."

20 Q Okay. It would have been on October 27th of 2014. And

21 Detective Trujillo asked you about the first documented incident

22 of any telephone calls regarding Stephanie Dyer's case to the

23 Children's Hospital. Does that ring a bell now?

24 A So that was a conversation that was more than two years

25 ago.

179

1 Q It was.

2 A So I don't remember exactly.

3 Q But you do recall that Detective Trujillo asked you

4 about that first call, and you went through -- scrolling through

5 the records and could locate a first call to the Children's

6 Hospital on October 30th of 2013. And that was important, because

7 Detective Trujillo brought up the fact that he was confident

8 Department of Human Services had actually called

9 Children's Hospital two days earlier, on October 28th of 2013,

10 correct?

11 A I don't know.

12 Q But you weren't able to find any records of that call

13 from October 28th, 2013, were you?

14 A I don't recall.

15 Q All right. So I want to move to a different topic, and

16 this is with regards to the medications that can control seizures.

17 You discussed the fact that if a child is lucky enough, in the

18 unlucky sense, to have seizures but to be able to find the correct

19 medication, then it's golden, you use that medication, and the

20 seizures [sic] can help that child live a normal life, right?

21 A That child can have a normal life if the seizures are

22 in control and there's nothing else going on.

23 Q All right. And you said that Stephanie's seizures were

24 pretty easy to control with one medication, right?

25 A So it seems to be in the recent past that they've been

180

1 very well controlled on just that one medicine.

2 Q Okay. So I want to clarify with you. You know that

3 Stephanie Dyer has been on Lamictal to control her seizures,

4 right?

5 A I think that's one of her medicines.

6 Q She's also been on Depakote to control her medicine --

7 her seizures, right?

8 A That's a separate medicine.

9 Q And then she's been on another medicine, Zonegran, to

10 control her medications [sic], correct?

11 A So -- but not concurrently.

12 Q And she's also been on the medicine Keppra, correct?

13 A So I -- I don't have the list in front of me of all of

14 her medicines over the past several years.

15 Q All right. So I just want to clarify.

16 A That was not my job, to regulate her seizures.

17 Neurology was doing that.

18 Q All right. That's not my question, though. She was on

19 Keppra too?

20 A I do not know.

21 Q All right. But you just told me that she wasn't on two

22 of those medications at once, didn't you?

23 A I said that her seizures seemed to be easy to control

24 compared to some of my patients who need four medicines at the

25 same time and still are seizing.

181

1 Q Oh. All right. So you don't know what medications

2 Stephanie Dyer was on to control her seizures, correct?

3 A She's been on several different ones, but it was not

4 that hard to get her in good control.

5 Q That wasn't my question, Dr. Elias. You don't know

6 what medications Stephanie was on, do you? Yes or no.

7 A At the time -- at the time --

8 Q Dr. Elias, wait --

9 THE COURT: Wait, wait. Define it to a time, Counsel.

10 Q (By Ms. Hay) At this point, as you're sitting here

11 right now testifying, you don't know how many different seizure

12 medications Stephanie Dyer has been on, do you?

13 A I have the ability to go back and look in her chart and

14 find that, yes. And that's what I do when I'm seeing a patient.

15 Q Could you answer my question, please? You don't know

16 how many medications Stephanie Dyer's been on to control her

17 seizures, do you?

18 A I believe she's required trials of several different

19 ones to find the right one.

20 Q Could you answer that question, Dr. Elias, please?

21 MR. McDONALD: Your Honor, I believe this question has

22 been asked and answered.

23 THE COURT: Overruled. It hasn't.

24 So, Doctor, there's gonna be some opportunity for the

25 DA to ask you some further questions. They may ask you to expand;

182

1 they may not.

2 THE WITNESS: Okay.

3 THE COURT: But that's a straightforward question.

4 She's just asking at this point in time, as you sit there right

5 now, do you know.

6 THE WITNESS: I don't know exactly which medicines she

7 had in exactly which months over the course of the past several

8 years, because that was -- that care was provided by a different

9 doctor, not me.

10 Q (By Ms. Hay) So my -- the answer to my question is no?

11 THE COURT: Okay. So now the question has been

12 answered. Ask your next question.

13 Q (By Ms. Hay) All right. So let me ask you, finally,

14 about the MRI that was -- the MRI that would have been conducted

15 in Stephanie's case. One thing that is -- you have said very

16 clearly is that the MRI does not show any sign of scarring or

17 traumatic abnormalities, correct?

18 A I haven't said that here today, but I believe that to

19 be true.

20 MS. HAY: Thank you, Dr. Elias.

21 THE COURT: All right. Cross-examination, Ms. Cure?

22 CROSS-EXAMINATION

23 BY MS. CURE:

24 Q Good afternoon, Dr. Elias.

25 A Good afternoon.

183

1 Q You talked about the steps that you take when you first

2 assess a patient, correct?

3 A Yes. Mm-hmm.

4 Q And one of them is that you try to get the family

5 history?

6 A Yes.

7 Q And in this case, you had only met with the Dyers, I

8 believe, one time?

9 A I believe that's true.

10 Q And that was your first meeting with Stephanie Dyer?

11 A I believe that's true.

12 Q And did you interview them about any of their medical

13 issues that they had?

14 A So I would have asked typical questions that I ask to

15 find out what's going on in the family history.

16 Q Okay. And does that include their -- the parents'

17 history, medical history?

18 A It doesn't always include that in enormous, great

19 detail.

20 Q Okay. Did you note Ms. Dyer's lazy eye?

21 A Are we talking about the mother?

22 Q Mrs. Dyer.

23 A Mrs. Dyer. I'm not aware that she had a lazy eye. I

24 don't remember that.

25 Q Okay. Do you recall discussing with Mr. or Mrs. Dyer

184

1 any of their mental health history for them themselves, not

2 Stephanie?

3 A I don't remember any details about that.

4 Q Okay. And when you -- when a patient is first

5 presented to your clinic, you have a special intake nurse that --

6 that gathers information for you, correct?

7 A Yes.

8 Q And in this particular case, the information that your

9 special intake nurse had was in the form of a note from

10 Dr. Turner.

11 A Possibly, yes. That might have been, yeah.

12 Q It -- it was, correct?

13 A I believe so.

14 Q Okay. And the information that you had caused you some

15 concern, correct?

16 A I believe so.

17 Q And the information specifically that I'm discussing is

18 that Stephanie Dyer was found locked in a closet and in starvation

19 conditions, right?

20 A I don't remember exactly what that note said.

21 Q Okay. Do you remember testifying previously in this

22 matter?

23 A So this is my first time that I have been actually here

24 in this courtroom.

25 Q Okay. But you did testify via phone, right?

185

1 A I did.

2 Q Okay. So you testified in this matter via phone on

3 January 20th of 2016, correct?

4 A I believe I did. I don't remember the exact date.

5 Q Okay. And even though you were on the phone, you were

6 placed under oath, correct?

7 A Yes.

8 Q And do you recall testifying at that time that you had

9 received a note, dated November 26th, that discussed Stephanie

10 being locked in a closet -- found locked in a closet and starved?

11 A So I -- when I testified over the phone I was in my

12 office able to look at notes and look in the computer.

13 Q That was your testimony, correct?

14 A So I'm sitting here now not looking at notes.

15 Q Okay. Fair enough. But your testimony was that you

16 had a note from Dr. Turner dated November 26th, 2013, that said

17 Stephanie was found in a closet, and that caused you concern.

18 MR. McDONALD: I'm gonna object, Your Honor, to the

19 form of that question. She's stating what the testimony was. If

20 she wants to ask if it would refresh her recollection, she can do

21 that.

22 THE COURT: Counsel, you have a tendency not to ask

23 questions but make a statement without the question. Just make

24 sure you're forming it in the form of a question. I'm not telling

25 you what form that needs to be, but it does need to be in the

186

1 format of a question.

2 Q (By Ms. Cure) Dr. Elias, would it refresh your

3 recollection if you saw a transcript of that -- of that trial?

4 A Probably it would.

5 MS. CURE: Okay. May I approach the witness, Judge?

6 THE COURT: You may approach.

7 THE WITNESS: Are you going to show me something on the

8 computer?

9 MS. CURE: Yes.

10 THE WITNESS: I need to take out my glasses.

11 MS. CURE: I'd ask the witness to start on page 46 at

12 line 15, and if you could just read through page 47, and then let

13 me know if that refreshes your recollection. This is a touch

14 screen, so you can move it up and down.

15 THE WITNESS: Okay.

16 THE COURT: Doctor, make sure you're reading that

17 silently to yourself.

18 THE WITNESS: Okay. Okay. I've read that part.

19 Q (By Ms. Cure) Does that refresh your recollection of

20 that testimony that you gave?

21 A Yes.

22 Q And the testimony was that you received a note from

23 Dr. Turner, correct?

24 A Yes.

25 Q And it was dated November 26th, 2013, correct?

187

1 A Yes.

2 Q And that note caused you concern, right?

3 A Yes.

4 Q Because that note indicated that Stephanie Dyer was

5 found locked in a closet, right?

6 A Yes.

7 Q And starved?

8 A Yes.

9 Q And you had no way of verifying whether that

10 information was true or not.

11 A Yes. I had no way.

12 Q And when you are trying to make -- trying to put the

13 puzzle pieces together of these complex medical cases, you need

14 the most accurate information you can get, right?

15 A That is true. So I'm the person who reviews the

16 information that's sent to us to determine if a patient is

17 appropriate to come to Special Care Clinic.

18 Q Okay.

19 A We get contacted by pediatricians in the community

20 saying, I have a patient I'm having trouble caring for, I think I

21 need some help; and they tell me the information that they think

22 they have about a patient and say, Is this something -- are these

23 problems something that your clinic can help me with. And in the

24 case of Stephanie Dyer, I said, yes, we'd be happy to help you and

25 see this patient.

188

1 Q And you're forced to rely on that information that you

2 get from various sources, right?

3 A Right.

4 Q And in this case, you did have information that Mr. and

5 Mrs. Dyer believed there might be a spiritual component to their

6 daughter's issues, correct?

7 A I don't remember the details of that.

8 Q Okay. But you remember details about spirits and

9 ghosts?

10 A I believe so.

11 Q Did you have electronic access to Family Medicine

12 Center records?

13 A No.

14 Q Okay. So you might have had paper documents, but you

15 didn't have electronic access to them?

16 A Right. Our electronic medical record does not allow me

17 to see outside records from elsewhere in most cases.

18 Q Okay. And, Dr. Elias, you would agree that just even

19 looking through the course of your -- of your research, your

20 particular field, genetics, has come a long way?

21 A Oh, yes.

22 Q Okay. And it is constantly improving.

23 A Yes.

24 Q And you discussed with Ms. Hay the importance of the

25 different testing that can be performed, correct?

190

1 business, did you make that note?

2 A I believe that note was made by my intake nurse.

3 Q And that was from information that your intake nurse

4 received from someone else?

5 A From an outside pediatrician.

6 Q And so that -- that note caused you concern. Were you

7 concerned about Stephanie Dyer independent of the information in

8 that note?

9 A I was concerned about her neurologic status, but that's

10 a concerning note to a pediatrician.

11 Q And apart from that note, did you do your own

12 assessment of Stephanie?

13 A I did.

14 Q Did you talk to the Dyers?

15 A I did.

16 Q Ms. Hay brought up something -- biologically based

17 mental health issues. What -- what is that? I mean, I don't know

18 if I'm the only one who was lost. I don't know what a -- what is

19 that?

20 A There are some genetic disorders that are associated

21 with behavioral and mental health issues. I believe that's what

22 she was asking me about.

23 Q Okay. I -- can you give me an example of that?

24 A So there's a genetic disorder that children can be born

25 with where they have severe heart disease and severe cleft palate

191

1 and unusual features and intellectual disabilities, what we used

2 to call mental retardation. And their parent might carry the same

3 gene and just have schizophrenia.

4 Q So if somebody has -- okay. So -- but if the kid had

5 those issues -- you just described things that would be readily

6 apparent.

7 A I would have found that on microarray.

8 Q And she doesn't appear to have anything like that.

9 A That's correct.

10 Q Okay. And how many kids have you seen in your --

11 A In my life?

12 Q -- in your career as -- as a doctor.

13 A All right.

14 Q Probably more just on the street, but as a doctor, how

15 many kids have you --

16 A So I graduated medical school in 1980, so I've been a

17 pediatrician for -- then it's a three-year training program to be

18 a pediatrician, so I've been a pediatrician for 33 years. I've

19 been a specialist for 30 years.

20 Q So pretty quickly, it sounds like, you decided you

21 wanted to go into pediatrics.

22 A Yes.

23 Q Right out of the gate. That's what you wanted to do?

24 A We're the nicest of the doctors.

25 Q Have you seen kids before who've been neglected?

192

1 A Yes.

2 Q Seen kids that have been abused?

3 A Yes.

4 Q Do those kids sometimes show behavioral issues?

5 A Yes.

6 Q And are you aware that recently Stephanie has shown

7 some behavioral issues?

8 A Yes.

9 Q You were asked questions about early onset puberty.

10 Seemed like you wanted to answer some of those questions a little

11 more and you weren't really allowed to. Can you explain what

12 precocious puberty is?

13 A Right. All I wanted to say about Stephanie's puberty

14 is that it's very, very common to see little girls who have

15 seizures and other neurologic problems start to show signs of

16 puberty before the typical age. The average age for girls is to

17 start to show some body changes when you're around ten, and the

18 average age of getting your period is around 12 or 13. Kids with

19 neurologic problems can show some body changes when they're eight

20 or nine, but it usually is a couple-of-year process before you

21 actually get your period and are farther along in the puberty

22 process.

23 So if I see a little girl who's eight who has some

24 changes, I would be more worried if those changes happened very

25 quickly and a child had their period before they were ten. That

193

1 did not happen for Stephanie. She's over ten; she has not had her

2 period yet. So it's not truly, in my opinion, an endocrine

3 problem for her. It was something I expected to see. Those body

4 changes are just so common in a child who has her neurologic

5 issues. And I did not think that that had anything at all to do

6 with her other problems.

7 Q Do they -- does early onset puberty and precocious

8 puberty in someone with treated and controlled neurologic issues

9 still early onset or show -- those body changes show up early?

10 A They can.

11 Q They can. The term dystonia was brought up. And can

12 you briefly explain what dystonia is?

13 A Mm-hmm. So dystonia is an abnormal movement. It often

14 involves the limbs. It can also involve the trunk. It's a sort

15 of uncontrolled movement. And many children who have brain damage

16 or abnormal neurologic function or cerebral palsy can have those

17 abnormal movements. They go together as part of having increased

18 muscle tone, which Stephanie has.

19 The specialists for that, called physiatrists or rehab

20 doctors, have several ways of intervening several different kinds

21 of medications that they try, because they're trying to help kids

22 be more functional, to be able to walk more easily. And that's

23 what they were trying to do in Stephanie.

24 Q And are you aware, through all of your treatment of

25 Stephanie Dyer, whether she had dystonia prior to the onset of

194

1 these seizures?

2 A I don't know what she was like before I saw her. What

3 I can tell you is I do have patients who have dystonia from

4 infancy or early childhood, and you can see deformities that

5 progress and progress and become pretty significant. So if she

6 had had that kind of a problem that was congenital, I would have

7 expected to have noticed that in terms of the appearance of her

8 limbs when I first met her, and I did not see that.

9 Q So can uncontrolled seizures cause dystonia?

10 A Not necessarily, but -- but brain dysfunction causes

11 dystonia.

12 Q And can uncontrolled seizures cause brain dysfunction?

13 A Yes.

14 Q Now, this -- the things that made Stephanie unique,

15 like sleep apnea, do kids have sleep apnea sometimes?

16 A Many, many, many children have sleep apnea for many

17 reasons. The easiest thing is if your tonsils and adenoids get

18 too big and they need to be taken out by the ENT doctor. That's

19 the most common cause, but you can also have sleep apnea because

20 the muscles in your airway are too floppy and don't hold the

21 airway open. There are many, many different causes of sleep

22 apnea.

23 Here in Colorado, it's very common for kids to need to

24 be on oxygen. I was shocked, when I moved here 15 years ago,

25 because nobody at sea level needed to be on oxygen that I was

195

1 taking care of, or very, very few. But when I came here to

2 altitude, many, many, many more kids need to be on oxygen. And

3 the lower you are, the less oxygen you might need. But if your

4 family goes up, you know, to Breckenridge or up to the mountains

5 or something and you're at higher altitude, then very often my

6 families need to take an oxygen tank with them and give the kid

7 more oxygen when they're on a higher level. And that's a pretty

8 common thing here in this state.

9 Q So what does it mean when, like, somebody says that

10 they desaturate? Desaturation, what does that --

11 A It means that their oxygen level goes down lower than

12 you'd like to see.

13 Q And does that happen sometimes to people while they

14 sleep with sleep apnea?

15 A Yes.

16 Q And can -- can seizures cause somebody to desaturate

17 while they're sleeping?

18 A Yes. Because you can actually stop breathing when you

19 have a seizure.

20 Q And you said something about tonsils and adenoids being

21 removed in this case. And did that happen with Stephanie? Did

22 her tonsils and adenoids get removed?

23 A I believe they did.

24 Q And then Ms. Hay brought up feet problems as well, and

25 you brought up Botox. What do you know about Botox injections

196

1 and -- in Stephanie's feet?

2 A So if your muscles are too stiff, Botox is one of the

3 ways you can help them relax so that -- you know, if your feet are

4 in an unusual position, you can't even put shoes on or put braces

5 on to help a child walk. And so Botox is a very common

6 intervention that helps children with that problem.

7 Q And did that happen in this case?

8 A I believe so.

9 Q And are you aware of whether that helped her walk

10 eventually?

11 A You know, I'm not sure.

12 Q Okay. So a lot of information has been asked about you

13 about the cause of these seizures and the exome analysis. Is it

14 common for people who suffer from seizures to not know the reason

15 they're having the seizures?

16 A Yes.

17 Q And is it necessary to know why the seizures are

18 happening, in many cases, to treat those seizures?

19 A You don't need to know always what is causing the

20 seizure in order to treat it, because the medicines you'll try

21 anyway.

22 Q And I'm sure you like to know every single time why

23 somebody's having seizures. Is that accurate?

24 A I wish I knew the underlying genetic explanation for

25 every single one of my patients, but I don't.

197

1 Q Do you need to know that to adequately treat some

2 people?

3 A No.

4 Q And right now, are Stephanie's seizures under control?

5 A Yes.

6 Q If Stephanie's seizures are under control, is it as

7 important at this point to know why they're being caused?

8 A I don't think so.

9 Q So I want to go back to this -- this sequencing, and we

10 were talking about whether it was more sensitive. It sounded to

11 me like they're actually testing two different things; is that

12 accurate?

13 A Yes.

14 Q And can you explain that?

15 A So whole exome sequencing is now a test that is being

16 done more and more and more in -- to try to help geneticists

17 figure out what the underlying etiology is for your patient's

18 problems. It's a really pretty new test. And new tests start out

19 being super expensive, and the longer they're around, the less

20 expensive they become. Insurance company -- some insurance

21 companies that are very difficult to deal with won't even let me

22 do microarray. They're still calling that experimental, and

23 that's been around for more than ten years. So for me to be able

24 to get approval for whole exome is exceedingly difficult.

25 Q If you got up tomorrow, they paid for it, would you do

198

1 it?

2 A Yes.

3 Q Do you think it's necessary to treat Stephanie moving

4 forward?

5 A I don't -- I think it would be nice to know if there's

6 an explanation for why she developed epilepsy and why she has a

7 smaller cerebellum on her MRI, but would it change what I would do

8 for her now in terms of trying to make her better nourished and

9 keeping her seizures in control? No.

10 Q So it sounds like you would do the test to find out why

11 she was having seizures. But would that test tell you why she

12 stopped walking?

13 A Not necessarily.

14 Q Would it tell you why she stopped talking?

15 A Not necessarily.

16 Q Would it tell you why she lost the ability to eat, feed

17 herself?

18 A Not necessarily.

19 Q But it might tell you why she was having the seizures?

20 A Yes.

21 Q And is it your opinion that those untreated seizures

22 are what caused those other issues?

23 A Yes.

24 MR. McDONALD: If I may have a moment?

25 //

199

1 (A discussion was held off the record between

2 Mr. McDonald and Mr. Vandenberg.)

3 MR. McDONALD: Nothing further, Your Honor.

4 THE COURT: So, counsel, it's about time for the

5 afternoon recess. My concern is that if we press on, it's gonna

6 take quite a bit of time, and I can see the jury has a couple

7 questions. Ms. Hay, you tell me. Do you believe your recross is

8 gonna be very short, or do you believe that's not the case?

9 MS. HAY: I think it would be fine to take a break

10 right now, Judge.

11 THE COURT: All right. So, ladies and gentlemen, we

12 will take the afternoon recess. We will take a break for at least

13 15 minutes. I may have an issue I need to discuss with the

14 attorneys outside your presence, so it's possible it will last

15 about 20 minutes. In any case, please keep in mind the

16 admonitions I've given to you throughout this case. Thank you.

17 Please rise for the jury.

18 (The jury exited the courtroom at 3:37 p.m.)

19 THE COURT: Please be seated.

20 Doctor, if you'd do me a favor and step out for a few

21 minutes, we have an issue to take up that probably won't involve

22 you, but I don't want to take any chances.

23 THE WITNESS: Okay.

24 THE COURT: So I'll have you step out. You can take a

25 break, and we'll call you back in in 15 to 20 minutes.

200

1 THE WITNESS: Okay. Thank you.

2 THE COURT: Thank you.

3 (The witness exited the courtroom.)

4 THE COURT: So, Mr. McDonald, I'm gonna have a couple

5 questions.

6 MR. McDONALD: Yes, Your Honor. Can you give me one

7 second?

8 THE COURT: You bet.

9 (There was a pause in the proceedings.)

10 THE COURT: So, in looking at 19-3-207 and some case

11 law interpreting that, it looks like the Court is going to need

12 some more information to make a determination. So you were

13 talking about the witness, Ms. Montoya, and you kind of gave me

14 some broad strokes. But I think I need to have some more

15 definitive -- a more definitive offer of proof. So if called to

16 testify, what do you believe her testimony would be?

17 MR. McDONALD: Your Honor, well, there are several

18 medical procedures that were -- doctors wanted Stephanie to do.

19 And, interestingly, Ms. Hay brought up two of them during her

20 cross-examination of Dr. Elias. One being Botox and one being

21 tonsil and adenoid removal. So at this point, I think it's --

22 it's interesting that she doesn't want us to be able to ask

23 questions about it but she wants to cross-examine Dr. Elias about

24 them. But there's the Botox injections, there's the tonsil and

25 adenoid removal, and then there's the G-tube. And the Dyers

201

1 fought every one of them.

2 The Botox injections were suggested in 2013, December,

3 pushed a little bit harder in 2014. They both objected. And in

4 July of 2014, the court ordered it be done over the parents'

5 objections. I don't intend to elicit that testimony, that it was

6 done over their objections by court order, but that they objected

7 to it, which delayed it until July of 2014. The tonsil and

8 adenoid removal was suggested in April of 2014 and was delayed

9 until 2015. The G-tube is a little different, because it wasn't a

10 huge delay, but they definitely objected to it multiple times. I

11 think that more goes to their -- the mental capacity issue where

12 doctors are telling them and they're just consciously objecting.

13 That's the basis of that testimony.

14 There was a little bit about the mental health issues

15 where she's talking to the Dyers, the Dyers admit that they know

16 she's having seizures, which seems to be -- I'm not really sure

17 where they're going with the mental health defense at this point.

18 But I believe that that shows that they knew what was happening to

19 Stephanie yet still refused to get medical care.

20 So that's the basic testimony.

21 THE COURT: So the determination the Court has to make

22 is whether any statements that you're seeking to elicit from

23 Ms. Montoya that she attributes to the Defendants, whether they

24 were statements made that were pursuant to compliance with the

25 court-ordered treatment. So that's what I don't understand. If

202

1 they're statements that have nothing to do with the court-ordered

2 treatment, it doesn't matter. But if they're statements that have

3 something to do with the court-ordered treatment, then the

4 statute's implicated.

5 MR. McDONALD: I don't think that had anything to do

6 with treatment. There was a treatment plan in place; they didn't

7 comply with any of it. They weren't going to get drug testing.

8 They weren't going to get any of the things -- they weren't doing

9 any of the things they needed to do to comply with the parenting

10 plan. I don't intend to elicit that testimony. I don't think

11 that has anything to do with this proceeding.

12 What this is is Stephanie seeing doctors, doctors say

13 she needs a certain procedure, they tell the Dyers, the Dyers

14 object because they're still the parents and they still have

15 rights. But it doesn't have anything to do with compliance with

16 the treatment plan.

17 THE COURT: That's where 19-3-207's prohibition comes

18 in. That's the analysis I have to make. And it's clear, from

19 some case law interpreting that, that the Court has to have a

20 finding on that. I can't make an assumption.

21 MR. McDONALD: I understand that. And I can bring

22 Ms. Montoya in outside of the presence of the jury to answer those

23 questions for the Court if the Court wishes.

24 THE COURT: We may need to do that in order for the

25 Court to make the determination.

203

1 So, Ms. Antoun, you wanted to respond. Go ahead.

2 MS. ANTOUN: I do, Judge. I read the transcript in the

3 D and N case. Ms. Montoya testified in the D and N case, pursuant

4 to the termination hearing, that the Dyers did not comply with the

5 treatment plan; and part of her testimony was in regard to these

6 very specific things, that they stonewalled these procedures.

7 And part of the treatment plan -- and I apologize. I

8 don't have the treatment plan in my hand, but I -- but I can tell

9 the Court that part of the treatment plan was that they comply

10 with the Department on everything that they need them to do. And

11 the fact that she testified at the termination hearing about these

12 particular things that the prosecution is bringing up is exactly

13 what 13 -- I'm sorry, 19-3-207 contemplates.

14 THE COURT: All right. Ms. Hay, did you want to be

15 heard on that?

16 MS. HAY: I would just echo those arguments.

17 THE COURT: All right.

18 MS. ANTOUN: I can find the transcript as well,

19 Judge, and forward that or load it -- upload it, making

20 Ms. Montoya's testimony --

21 THE COURT: This is what we're gonna do. We're going

22 to take the afternoon recess, I'm gonna come back in 15 minutes,

23 and then I'm going to need to take some testimony outside the

24 presence of the jury from Ms. Montoya so I can make a

25 determination of whether 19-3-207(2) does apply or does not apply

204

1 to the situation. But right now, based upon the offer of proof

2 from, really, both counsel, I don't think I can make that

3 determination.

4 So the Court will be in recess for 15 minutes.

5 (A recess was taken from 3:44 p.m. until 4:00 p.m.)

6 THE COURT: Counsel, I've reconsidered the order I want

7 to do this. I want to make sure, since the doctor is up here,

8 that we finish her testimony. So let's finish her testimony

9 first.

10 MS. HAY: And, Judge, I want to let the Court know

11 that, after a moment of reflection, I don't have any further

12 questions on cross-examination of Dr. Elias.

13 THE COURT: And, Ms. Cure, do you?

14 MS. CURE: I do not.

15 THE COURT: Okay.

16 MS. CURE: So it's a nonissue, Judge.

17 THE COURT: Where does that leave me? So what do you

18 want to do? I mean, we can bring her back in and release her. I

19 can --

20 MR. VANDENBERG: If they don't object, I'd ask that she

21 be released from her subpoena not in front of the jury.

22 THE COURT: We had two jury questions. Thank you. So

23 somebody has some questions, so thank you for reminding me.

24 MR. McDONALD: Should I bring her back in now?

25 THE COURT: Yeah. Why don't you go ahead and bring her

205

1 back in, and then we'll bring the jury back in and then we'll have

2 the jury questions, and then we'll see what the follow-up is from

3 there.

4 (The witness entered the courtroom.)

5 (The jury entered the courtroom at 4:02 p.m.)

6 THE COURT: You may be seated.

7 Counsel, the attorneys, don't have any further

8 questions at this time, but there are two juror questions, and so

9 I'm gonna have counsel come forward and we're gonna go through

10 those.

11 (There was a discussion at the bench held out of the

12 hearing of the jury:)

13 (Counsel reviewed juror question.)

14 THE COURT: All right. Jury Question Number 3 has

15 three parts to it. Is there any objection to any of those parts

16 from the People?

17 MR. McDONALD: Can I have one moment?

18 (A discussion was held off the record among counsel.)

19 MR. McDONALD: I don't have any objection.

20 THE COURT: Ms. Hay, do you have any objection to any

21 of those three questions?

22 MS. HAY: No, Your Honor.

23 MS. CURE: No objection.

24 THE COURT: All right. Hang on. Question Number 4.

25 (Counsel reviewed juror question.)

206

1 THE COURT: Any objection by any counsel?

2 MR. McDONALD: No objection.

3 MS. HAY: No, Your Honor.

4 MS. CURE: I don't have an objection. I think this

5 witness has already testified she's not a neurologist. I don't

6 have an objection.

7 THE COURT: Okay. Thank you. Question 4 will be

8 asked.

9 (Whereupon, the discussion at the bench was concluded.)

10 THE COURT: All right. The jury has some questions for

11 you. The first one is kind of a three-part question. Would the

12 Dyers be able to access your clinic using Medicaid?

13 THE WITNESS: Yes. In fact, about 80 percent of our

14 patients are Medicaid.

15 THE COURT: Question Number 2 was what percentage of

16 patients rely on Medicaid to access your clinic.

17 THE WITNESS: There we go.

18 THE COURT: That's good. Question -- the third part is

19 how long is the waiting list to access your clinic?

20 THE WITNESS: So we can get patients in emergently when

21 we need to. Sometimes it's a very, very sick baby that is --

22 needs to see us right away. We can get a baby in within several

23 days. If you're asking about seeing me specifically for a

24 genetics evaluation, that is much longer. For just a -- a routine

25 patient that's not emergent, I'm booking now into March. But if

207

1 it's somebody I really, really need to see emergently, it's just a

2 couple of days.

3 THE COURT: Okay. What is the difference between

4 epilepsy and any other seizures?

5 THE WITNESS: That's a good question. So epilepsy is

6 just a general name for a seizure disorder. And there are many,

7 many different kinds of seizures. But a person who has more than

8 just one seizure at one time in their life, if they're having

9 recurrent seizures, we call that epilepsy.

10 THE COURT: All right. Thank you.

11 Any questions from the People based upon the jurors'

12 questions?

13 MR. McDONALD: Nothing -- no, Your Honor.

14 THE COURT: Ms. Hay, any questions on behalf of

15 Mr. Dyer?

16 MS. HAY: No, thank you.

17 THE COURT: Ms. Cure, any questions on behalf of

18 Mrs. Dyer?

19 MS. CURE: No, thank you.

20 THE COURT: May this witness be released from her

21 subpoena, Mr. McDonald?

22 MR. McDONALD: Yes, Your Honor, please.

23 THE COURT: Any objection?

24 MS. CURE: No objection from Mrs. Dyer.

25 MS. HAY: No, Your Honor.

208

1 THE COURT: Thank you, ma'am. You're free to go.

2 THE WITNESS: Thank you.

3 (The witness was excused.)

4 THE COURT: All right. Ladies and gentlemen, I had

5 said we were going to take up a matter outside of your presence,

6 and we are. I made the determination to do that after we

7 completed the testimony of the doctor because I wanted to make

8 sure we got that done. So we're gonna have to take a short break

9 and take up an issue. We will move as quickly and efficiently as

10 we can, but at this time we're gonna excuse you for a few minutes

11 and take this matter up.

12 Please rise for the jury.

13 (The jury exited the courtroom at 4:08 p.m.)

14 THE COURT: You may be seated.

15 All right. Counsel, I think it may be most efficient

16 to bring in Ms. Montoya if she's present.

17 MR. McDONALD: Yes, Your Honor.

18 (There was a pause in the proceedings.)

19 (The witness entered the courtroom.)

20 THE COURT: Ma'am, if you'd come forward, please. Come

21 all the way up to me here and I'll swear you in. Please raise

22 your right hand.

23 (The witness was duly sworn by the Court.)

24 THE COURT: All right. Thank you, ma'am. Go ahead and

25 have a seat there on the witness stand.

209

1 And I think the way I'll handle this, Counsel, is I'm

2 gonna ask a few preliminary questions, and then I'll have all

3 counsel follow up with that.

4 AMY MONTOYA,

5 called as a witness by the People, having been first duly sworn,

6 testified outside the presence of the jury as follows:

7 EXAMINATION

8 BY THE COURT:

9 Q Ma'am, if you'd just go ahead and state your name for

10 the record.

11 A Sure. It's Amy Montoya.

12 Q All right. And would you bring the microphone just a

13 little bit closer to yourself.

14 A Sure.

15 Q And who's your employer?

16 A Larimer County Department of Human Services.

17 Q And what is your job?

18 A I am a Senior Social Caseworker, level III, which

19 qualifies me to be a practice coach and a child welfare trainer.

20 Q Okay. And have you been involved in a dependency and

21 neglect action with Mr. and Mrs. Dyer and their child?

22 A Yes, I have.

23 Q Okay. And I want to ask you about a couple areas,

24 because we've heard some things about this. Was there, in fact, a

25 dependency and neglect action that you testified at?

210

1 A There was.

2 Q Okay. And let me understand what -- well, you tell me

3 your understanding of what the court's treatment orders were.

4 A The court's treatment plan was to provide services for

5 Mr. and Mrs. Dyer to be reunified with their child. Those

6 included a parenting education course, substance abuse evaluation

7 and recommendations for treatment, mental health evaluation and

8 recommendations for treatment, and to provide for a stable and

9 safe environment.

10 Q Okay. Were there any aspects of the treatment plan

11 regarding Mr. and Mrs. Dyer's interaction with medical

12 professionals?

13 A It was the understanding, not part of the treatment

14 plan, that they were to be informed and a part of the medical

15 process and procedures.

16 Q Was it part of the treatment plan that they had to give

17 any permission to doctors to provide any -- certain types of

18 medical care?

19 A Not that I am recalling. I believe they were to be a

20 part of the decision-making, as well as the Department informing

21 them of any sort of procedures and medical appointments.

22 Q Under the treatment plan, did they have the ability to

23 direct that treatment be withheld from the child?

24 A Not to my understanding.

25 Q And what was your professional relationship with

212

1 medical treatment, did they ever face -- did they face any

2 negative repercussions under the orders of the court?

3 A No.

4 (A discussion was held off the record between

5 Mr. McDonald and Mr. Vandenberg.)

6 MR. McDONALD: Thank you, Your Honor.

7 THE COURT: Who would like to take this first?

8 MR. McDONALD: I'm sorry. May I ask one more question?

9 THE COURT: Yes.

10 Q (By Mr. McDonald) Is it -- is it inherently

11 understood, in cases where DHS is involved in a D and N, that

12 parents still have, quote/unquote, some kind of decisions that

13 they can make in regard to their child because they still

14 technically have custody? Not custody, but still have parental

15 rights?

16 A Correct.

17 Q So that's not necessarily part of the plan; it's just

18 understood?

19 A That's correct.

20 Q Because the D and N, if taken to its final result, is

21 that they take the parental rights away from the parent?

22 A Correct.

23 Q And that's not part of any treatment plan; that's what

24 the D and N is doing?

25 A Correct.

213

1 MR. McDONALD: Thank you.

2 THE COURT: All right. All right. Now I'm gonna

3 interrupt, because I want to make sure I understand one other

4 aspect.

5 During -- during the course of treatment, were there

6 times when treatment was administered over the objection of

7 Mr. and Mrs. Dyer?

8 THE WITNESS: Treatment for the child?

9 THE COURT: Yes. Medical -- sorry. Let me be

10 specific. I'm only talking about any medical care of any type for

11 Stephanie.

12 THE WITNESS: There were several court hearings

13 regarding their objection to medical intervention with the child,

14 and those were ruled in favor for the child to receive the

15 treatment or the medical procedure.

16 THE COURT: Okay. So a decision was made for the child

17 to receive medical treatment?

18 THE WITNESS: Correct.

19 THE COURT: Okay. All right. Now, counsel -- which

20 counsel would like to take this first?

21 MS. ANTOUN: I'm going to.

22 THE COURT: All right. Ms. Antoun.

23 MS. ANTOUN: Thank you.

24 //

25 //

214

1 CROSS-EXAMINATION

2 BY MS. ANTOUN:

3 Q Ms. Montoya, obviously you're familiar with the

4 treatment plan, correct?

5 A I am.

6 Q The treatment plan dated March 19th of 2014 in 13JV439,

7 correct?

8 A Yes.

9 Q Okay. And number seven of that plan indicates Ms. Dyer

10 will develop a medical plan which will outline how she intends to

11 ensure that communication, medical follow-up care, medication

12 management, nutritional needs, and therapies are followed through

13 with and continue to meet Stephanie's specific needs, correct?

14 A Correct.

15 Q Okay. And then you testified at the termination

16 hearing in this case, correct?

17 A I did.

18 Q All right. And in that termination hearing, this

19 question was asked: "Another element for Ms. Dyer was the element

20 that she be able to understand and meet Stephanie's special

21 needs?" Do you remember that question?

22 A Yes.

23 Q And do you remember your answer was, "There's been very

24 little progress"?

25 A Correct.

215

1 Q And do you remember talking about all the various

2 things that they did to stop Stephanie from having medical

3 procedures?

4 A I -- I believe -- and I can't recall exactly what I

5 testified to during that hearing, but I believe that we discussed

6 that there was not much focus on Stephanie's medical needs; it was

7 more about how the Department was intervening.

8 Q Right.

9 A Yeah.

10 Q But they were -- instead of focusing on that, they were

11 focusing more on that the Department wasn't giving them medical

12 records; is that right?

13 A Part -- part of the --

14 Q Okay.

15 A -- question.

16 Q But you also said, "When Ms. Dyer contacted them, it's

17 mostly about medical records and clarification on who said what to

18 whom," correct?

19 A That was referring to any of the medical professionals,

20 yes.

21 Q Okay. A question was asked, "Do you know how many

22 medical appointments or treatment appointments there have been

23 from July 1st to -- July 1st of 2015 to present?" And you

24 answered, "Approximately six or seven appointments." Do you

25 remember saying that?

216

1 A Yes.

2 Q The question then was, "Has, to your knowledge,

3 Ms. Dyer made any separate appointments to communicate with those

4 treatment providers either before or after the appointment?" Do

5 you remember that question?

6 A I do.

7 Q And the answer was -- do you remember answering the

8 question?

9 A I do.

10 Q Why don't you just tell us the answer.

11 A I believe at that time -- I'm trying to think back to

12 my exact words -- were that she had made some phone calls to some

13 of the medical providers but was not able to attend those

14 appointments or asked for information about those appointments.

15 Q Okay. You indicated she did have a phone call with the

16 orthopedic surgeon in the case, correct?

17 A She did.

18 Q And that there was a surgery scheduled for Stephanie's

19 foot on January 14th of 2016, correct?

20 A Correct.

21 Q And that was delayed, correct?

22 A It was.

23 Q Because of Ms. Dyer, correct?

24 A Yes.

25 Q And that was testified to pursuant to your -- the --

217

1 A There was --

2 Q -- termination hearing?

3 A There was a decision made not to proceed because of the

4 termination hearing going on at that time, so it was -- we just --

5 Q And then -- I'm sorry. And then the question was

6 asked, "Has Stephanie needed various medical procedures throughout

7 this case?" Correct?

8 A Correct.

9 Q And she has, correct?

10 A She has.

11 Q And you testified, "Oh, my goodness. I thought that

12 there was -- starting back in 2013, she needed a G-tube. She also

13 needed a tonsillectomy, an adenoidectomy, as well as some Botox,

14 an MRI, all of those things." Correct?

15 A Correct.

16 Q And the Dyers stonewalled those things, correct?

17 That's what your testimony was.

18 A I don't know if I used that language.

19 Q Okay. You said, "I believe they've delayed about all

20 of those procedures."

21 A Yes.

22 Q And that testimony was pursuant to the termination

23 hearing regarding element number seven, that they were to make

24 sure that they followed through with Stephanie's special needs,

25 correct?

218

1 A Correct.

2 MS. ANTOUN: Judge, I would like to make the treatment

3 plan part of the record, and we will upload that as well. If the

4 Court wants to review it --

5 THE COURT: Counsel, if you want me to consider it, I

6 need to see it. That's something I can't look at later, because I

7 need to make a decision before this witness testifies.

8 MS. CURE: Your Honor, it can --

9 MS. ANTOUN: We can email it. And the Court doesn't

10 like emails, but we -- we can --

11 THE COURT: It has nothing to do with what I like or

12 not; it is what the Supreme Court has said. That's how the system

13 works. We're not supposed to circumvent it, so I'm just asking

14 everybody to follow the rules; that's it. So let's finish this

15 portion, and then we'll talk about that special issue.

16 Ms. Hay, you may have an opportunity to examine this

17 witness.

18 CROSS-EXAMINATION

19 BY MS. HAY:

20 Q Good afternoon, Ms. Montoya.

21 A Good afternoon.

22 Q That amended treatment plan of March 19th, 2014, in

23 Case Number 13JV439 addressed requirements of Douglas Dyer as

24 well, didn't it?

25 A It did.

219

1 Q And in that treatment plan, Mr. Dyer was required --

2 under paragraph five of the treatment plan, Mr. Dyer will sign

3 releases of information for the caseworker to communicate with the

4 treatment providers, including any medical treatment providers and

5 any current therapists obtained outside of the Department's

6 referral, correct?

7 A Correct.

8 Q And in paragraph four of the requirements, the

9 treatment plan requires that Mr. Dyer will learn to -- learn what

10 to look for in Stephanie to understand when she needs immediate

11 medical care and will come up with a plan of support to ensure

12 that Stephanie is receiving consistent, ongoing, and preventative

13 follow-up care, correct?

14 A Correct.

15 Q And so at that same hearing where you were testifying

16 with regards to Mrs. Dyer, you also gave testimony about these

17 requirements that were demanded of Doug Dyer, correct?

18 A Correct.

19 Q So those actually -- I think the judge asked, you know,

20 were these part of the treatment plan. After you've had a chance

21 to hear that, is it fair to say that those actually are the

22 requirements of the treatment plan?

23 A Yes. And it still doesn't address about consent for

24 medical procedures in that element.

25 Q Okay. I understand. But those are requirements that

221

1 seven?

2 A I did not.

3 Q Paragraph five -- and I don't -- I'm sorry. I don't

4 have it in front of me, but paragraph five, Mr. Dyer's signing

5 medical releases. Isn't that for his medical records?

6 A It is.

7 Q So it doesn't have anything to do with Stephanie's

8 medical records at all.

9 A No.

10 (A discussion was held off the record between

11 Mr. McDonald and Mr. Vandenberg.)

12 MR. McDONALD: That's it, Your Honor. Thank you.

13 THE COURT: All right.

14 MS. HAY: Judge, can I follow up? I'm sorry. I didn't

15 know this was all going on. There's one more question I think

16 that's important here. Ms. --

17 THE COURT: Hang on. Wait for me to answer you. Okay?

18 MS. HAY: Okay.

19 THE COURT: Let me think about it sometimes. Have a

20 seat, because I have a question for Mr. McDonald for a second.

21 Mr. McDonald, please go to the podium. A couple times

22 I've asked you for an offer of proof, and you've kind of generally

23 said these are the subject matters. I want to make sure -- I

24 still don't understand exactly what it is. I mean, is the

25 question going to be did you ask, for example, Mrs. Dyer for

222

1 consent to do Botox? Yes. What did she say? Can't do it. I

2 mean, are those the questions that you're asking --

3 MR. McDONALD: Pretty much. Did they object to it?

4 Did that affect the time frame in which it was done? Was it

5 actually done? When was it done? So how long was it delayed from

6 when it was suggested to when it was done? That's pretty much it.

7 THE COURT: All right. So you would go through the

8 different tests and ask her to say what the Defendants said

9 regarding whether they permitted it or not?

10 MR. McDONALD: Yes.

11 THE COURT: Okay. Thank you.

12 Ms. Hay, you can go ahead and ask your question.

13 Please go to the podium.

14 MS. HAY: Thank you, Judge.

15 RECROSS-EXAMINATION

16 BY MS. HAY:

17 Q So I just wanted to follow up, Ms. Montoya. There was

18 not just a requirement that Mr. Dyer release his own medical

19 records, but there was also a accommodation in this plan for

20 Mr. Dyer to communicate with medical professionals on Stephanie's

21 behalf, correct?

22 A Yes.

23 Q So in the plan, under element three,

24 protective-parent-slash-child's-needs-met, the plan lists out

25 several requirements. And paragraph three states, "Mr. Dyer will

223

1 communicate with all of the medical professionals that Stephanie

2 has seen to assist in answering questions regarding Stephanie's

3 diagnosis, treatment planning, and implementation of suggested

4 therapies, medications, supplements, or other recommendations,"

5 correct?

6 A Yes.

7 MS. HAY: Thank you.

8 THE COURT: All right. You're raising your head like

9 you want to ask me something.

10 MS. ANTOUN: Yes. May I ask -- may I make an

11 additional argument to the Court when the Court is ready?

12 THE COURT: Go ahead.

13 MS. ANTOUN: Okay. I think one of the parts that the

14 Court needs to think about, also, is even if the Court allows them

15 to ask this one question, did they -- was this procedure offered,

16 what did they do, they stopped it or they said no, and it's a

17 one-word thing. The problem is, as I said earlier, that we can't

18 fully and fairly cross-examine on all the reasons why --

19 THE COURT: Counsel, I'm happy for you to make a new

20 argument, but that's what you told me a couple hours ago.

21 MS. ANTOUN: No, I'm not. I want to make sure I was

22 clear.

23 THE COURT: I was listening. I was listening, Counsel.

24 New arguments are great. I like new arguments. Old ones I'm

25 listening to, I don't need them.

224

1 All right. So, counsel, here's a question for you.

2 It's 4:30. Do you have any other witnesses that you can call

3 today?

4 MR. McDONALD: No, Your Honor.

5 THE COURT: Okay. All right. Well, then I'm gonna

6 send the jury home, because I'm not gonna make a rash decision on

7 a complicated issue. I'm just not gonna do it.

8 So would you bring the jury in, please.

9 MR. McDONALD: Your Honor, can I --

10 THE COURT: Sure.

11 MR. McDONALD: -- say one thing? I just wanted to give

12 you the citation for one case that seems to be really on point.

13 It's People v. Gabriesheski --

14 THE COURT: I'm looking at it right now, and I've read

15 it. I appreciate that. I'm -- I've read it now twice.

16 MR. McDONALD: Okay.

17 THE COURT: Not until today. Not until about an hour

18 ago.

19 MR. McDONALD: I will tell the Court, before the jury

20 comes in, that we are actually ahead of schedule, so we're going

21 relatively fast. So I know the Court gets concerned about time,

22 and we're looking pretty good, actually.

23 THE COURT: All right. That's good to know. Thank

24 you.

25 Ms. Montoya, you can step down. Thank you very much.

225

1 MR. McDONALD: Right now, at least.

2 THE COURT: Who knows what tomorrow will bring.

3 (The jury entered the courtroom at 4:29 p.m.)

4 THE COURT: You may be seated.

5 Ladies and gentlemen, as I said, we had to take up a

6 matter outside your presence. We certainly try and keep that at a

7 minimum. It's 4:30 today. I don't believe we're going to be able

8 to get any more testimony on today. You've heard a lot. You'll

9 hear a lot starting tomorrow again. But we're gonna release you

10 about a half-hour early today.

11 Please remember not to do any investigation of any

12 sort. Please do not go on the Internet. Do not look at any media

13 of any sort. Please do not discuss this case with anybody except

14 to tell them you're still on a jury and you'll tell them after

15 it's all over.

16 Have a great evening. We'll see you at 8:30 tomorrow.

17 (The jury exited the courtroom at 4:30 p.m.)

18 THE COURT: You may be seated.

19 All right. And if counsel could give me kind of a

20 brief overview of where you think tomorrow might go.

21 MR. McDONALD: I opened this when you said that and did

22 not hear you.

23 THE COURT: Okay. Give me your tentative schedule for

24 tomorrow.

25 MR. McDONALD: Your Honor, we're trying to put

226

1 Dr. Green on, Betty Agens, Dr. Blanton. Dr. Jason Green, by the

2 way. I may have said that. If Ms. Montoya's allowed to testify,

3 Ms. Montoya. I'm trying to get Wendy Heckel here to testify.

4 That's about as far as I've been able to get today.

5 THE COURT: All right. Thank you.

6 MR. McDONALD: Oh, and Officer Trujillo,

7 Detective Trujillo.

8 THE COURT: Okay. All right. And just so we're all on

9 the same page, kind of the second section of his testimony, remind

10 me and defense counsel what that section's gonna be about.

11 MR. VANDENBERG: Right. So that one will be kind of

12 taking it from October 28th of 2013 forward through essentially a

13 visit to the home, some phone calls and discharge from

14 Poudre Valley Hospital. I believe that -- and that will

15 involve -- that will involve, also, some photographs of Stephanie

16 from the time prior to 2013. And that will -- that's kind of the

17 plan for the second chunk of his testimony.

18 And I'll tell the Court, depending on how things go,

19 tomorrow it's very possible we could get the third section on too,

20 which will be largely encompassive of the interviews at the police

21 station.

22 THE COURT: Okay. Thank you. And that just reminded

23 me. I don't -- there was a photograph, one of the first exhibits,

24 I think was 7. I don't think it was ever offered.

25 MR. VANDENBERG: It was not, no. I gave it to her and

227

1 she testified about it. I did not offer it yet. I will do that

2 later.

3 THE COURT: All right. I just wanted to make sure that

4 wasn't just an oversight.

5 MR. VANDENBERG: Thank you.

6 THE COURT: Any issues on behalf of Mrs. Dyer you'd

7 like to discuss?

8 MS. CURE: No, Judge.

9 THE COURT: Okay. Any issues on behalf of Mr. Dyer?

10 MS. HAY: Judge, we do have a copy of the March 19th,

11 2014, treatment plan. It's an amended treatment plan. I think it

12 would be helpful to the Court. If you'd like, we can give you a

13 copy of that.

14 THE COURT: So I would like you to do two things. One,

15 to upload a copy sealed. And then I would be -- I'd love to have

16 a courtesy copy at this time.

17 MS. HAY: And I'm sorry. The second thing you'd like?

18 THE COURT: A courtesy copy, if I cannot cough.

19 All right. So if there's no other issues, then I'll

20 see all counsel here tomorrow morning at 8:25. I don't have any

21 preliminary matters tomorrow morning. Thursday I will, but

22 nothing tomorrow morning. So I'll see you all at 8:25.

23 (The trial was adjourned at 4:34 p.m. on Tuesday,

24 November 1, 2016.)

25

228

1 DISTRICT COURT Case No. 2014CR1119COUNTY OF LARIMER 2014CR1120

2 STATE OF COLORADO

3 __________________________________________________________________

4 REPORTER'S CERTIFICATE__________________________________________________________________

5

6

7

8 I, Erin E. Valenti, an Official Court Reporter in and

9 for the Eighth Judicial District of the State of Colorado, do

10 hereby certify that the foregoing transcript is a full, true, and

11 complete transcription of my stenographic notes taken in my

12 capacity as Official Reporter at the time and place above set

13 forth.

14 Dated this 6th day of June, 2017, in Fort Collins,

15 Larimer County, Colorado.

16

17

18

19 /s/ Erin E. Valenti ERIN E. VALENTI, RPR, CRR

20 Official ReporterEighth Judicial District

21

22

23 Note: Transcripts of the foregoing not obtained directly from the

24 court reporter are not certified; therefore, the integrity of the

25 record cannot be guaranteed.