1 1NO: FA09-4037658-S : SUPERIOR COURT 2 3SUNNY LIBERTI : JUDICIAL DISTRICT 4 OF MIDDLESEX 5 6 v.

: AT REGIONAL FAMILY TRIAL 7 DOCKET 8 9ROBERT LIBERTI : AUGUST 25, 2011 10 11 12 13 14 DR. KENNETH ROBSONS TESTIMONY 15 16 17 18 19 BEFORE THE HONORABLE LYNDA B. MUNRO, JUDGE 20 21 22 23 24 25A P P E A R A N C E S : 26 27 28 29 Representing the Plaintiff: 30 31 ATTORNEY JAMES SMITH 32 1331 Main Street 33 Springfield, MA 01103 34 35 ATTORNEY KRISTINA BORDIER 36 1331 Main Street 37 Springfield, MA 01103 38 39 40 Representing the Defendant: 41 42 ATTORNEY NOAH EISENHANDLER 43 Noah Eisenhandler, LLC 44 1164 Townsend Avenue 45 New Haven, CT 06512 46 47 48 49 50 51 52 53 54 Transcribed By: 2

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Danielle Levine Court Recording Monitor One Court Street Middletown, CT 06457

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1 THE COURT: E N N E T H R Dr. Robson, come on up. O B S O N ,

1 2K 3

Called as a witness, being first duly sworn by the

4Clerk, was examined and testified under oath as follows: 5 6 7 8 9 10 11 12 13 THE CLERK: Please be seated.

If you could just state your full name, spell your last name, and give your business address for the record. THE WITNESS: Dr. Kenneth Robson, R-O-B-S-O-N,

18 North Main Street, West Hartford, Connecticut 06107. THE COURT: Your witness. Thank you, Your Honor.

ATTY. EISENHANDLER:

14DIRECT EXAMINATION BY ATTY. EISENHANDLER: 15 16 17 18 19 20 21 22 23 24 25 26 27 3 Q A Good morning, Dr. Robson. Good morning. ATTY. EISENHANDLER: Exhibit 27. Your Honor, I think its

Its Dr. Robsons report Yes. - which we had the motion

THE COURT:

ATTY. EISENHANDLER:

in limine last week, and I think that resolved the admission of that document. THE COURT: Since weve been using it

extensively in examination, one would hope. ATTY. EISENHANDLER: box, Your Honor. THE COURT: Im aware of it. The witness has left the

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2 (Brief pause in the proceedings.) THE COURT: Go ahead.

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3BY ATTY. EISENHANDLER: 4 5 6 Q A Q Good morning, Dr. Robson. Good morning. Doctor, could you describe to the Court your

7educational background? 8 A I attended public high school. I attended Yale

9University, University of Pennsylvania School of Medicine. 10I trained in psychiatry in Boston, then internship at 11Childrens Hospital in pediatrics, two years in adult 12psychiatry at Mass Mental Health Center, two years in child 13psychiatry at the Beth Israel Hospital. After that I was

14two years at the National Institute of Mental Health doing 15research with children and mothers and subsequently went to 16Tufts Medical School where my career began. 17 18 19 20 Q A Q A What year did you graduate from medical school? 1961. What is your practice now? My practice is approximately fifty percent forensic, Clinical

21that is court related, and fifty percent clinical.

22practice consists of tertiary diagnostics, a lot of complex 23diagnostic evaluations, and a fair amount of psychotherapy. 24 25 26 27 3 Q Im going to show you a document. ATTY. SMITH: evidence, Judge. We have this all ready in With due respect, its part of

Exhibit 38, his CV.

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3 THE COURT: ATTY. SMITH: THE COURT: ATTY. SMITH: Okay. Very good.

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Its in evidence right now. So its all ready in. So we can avoid putting it in.

5BY ATTY. EISENHANDLER: 6 Q Doctor, what is your purpose in regards to the What was your role?

7Liberti matter? 8 A

My role was to perform I would say a second tier

9evaluation of Max and the family in response to Dr. John 10Collins concerns that he raised prior to my - just prior to 11my involvement. 12 13 14 15 16 17 Q Would you call it a custody evaluation? ATTY. SMITH: THE COURT: Objection. Overruled. In large, I would call it a family

THE WITNESS:

evaluation with certainly a focus on custodial questions. Yes.

18BY ATTY. EISENHANDLER: 19 Q Have you ever done that before - well call it a Have you ever performed that service

20family evaluation.

21before in the state of Connecticut? 22 23 A Q Yes, I have. Approximately how many times have you done these

24family evaluations? 25 26 A Q 100, 150 times, something like that. How many times have you testified in court in

27Connecticut? 3

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4 A Im not certain of the exact number. I would say

2probably 50 times. 3 Q Have you ever testified outside the state of

4Connecticut? 5 6 7 8 9 10 A Q A Q A Q Yes. Approximately how many times? Two or three only. Two or three? Yes. And have you been certified as an expert in this

11court? 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 A Q A Q A Yes, I have. Approximately how many times? I would say 10 or 20 times at least. As an expert in what? Child and adolescence psychiatry. ATTY. SMITH: THE WITNESS: THE COURT: Im not hearing him, Judge. Child and Well, if you dont talk in the

middle of it, it would help a little bit. Would you keep your voice up, please? THE WITNESS: THE COURT: Yes, Your Honor. Project to the back of the room.

Everyone seems to have trouble being heard in this courthouse courtroom. ATTY. SMITH: THE COURT: I heard the word child. Child and adolescence psychiatry; is

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5 that right, doctor? THE WITNESS: THE COURT: Yes, it is, Your Honor. Thank you.

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4BY ATTY. EISENHANDLER: 5 6 7 8 9 10 11 12 13 Q A Q A Q A Q A Q Do you hold any state licenses? Im sorry? Do you hold any state license? Yes, I do. What licenses do you hold? State of Connecticut. What licenses do you hold? Medical license. Do you hold any certifications in the field of

14psychiatry? 15 A I do. I have certification in general psychiatry,

16and I have certification in child and adolescent psychiatry. 17 Q Do you maintain a private practice? I know fifty

18percent is forensic. 19you see patients? 20 21 22 A Q A Yes, I do.

Is the other part of practice where

And is there is it more adults, is it more child? No. Its approximately eighty-five percent child. I

23have around 300 open cases that I carry currently. 24 25 26 27 3 ATTY. EISENHANDLER: Your Honor, Im going to

offer Dr. Robson as an expert. ATTY. SMITH: In what, please? Child psychiatry.

ATTY. EISENHANDLER:

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6 THE COURT: Child and adolescent psychiatry? Child and adolescent

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 time.

ATTY. EISENHANDLER: psychiatry. THE COURT:

Any objection? Not to that. But Judge, I will

ATTY. SMITH:

note for the record I understand the doctor was appointed in this case to do an evaluation on the credibility of certain allegations of sexual abuse. Ive received no disclosure from Attorney Eisenhandler that he was offering him as expert in any area. I know what the Courts done in terms of his appointment, and I understand that is appropriate. But in terms of the broadening of the scope of his testimony, Im a little unclear and I raise that at this point. ATTY. EISENHANDLER: about the child THE COURT: Youre going to go further? Im going to go further. Take it a step at a I was going Id ask him

ATTY. EISENHANDLER: THE COURT: Thank you.

All right.

23BY ATTY. EISENHANDLER: 24 Q Doctor, do you have any experience in the diagnosis

25and treatment of sexual abuse in children? 26 27 3 A Q Yes, I do. Could you tell the Court what that experience is?

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7 A Ive been interested in that problem for the last 25 I had I was at Tufts Medical School for 20 years,

2years.

3and we had a sexual abuse team there run by a physician 4Maria Sauzier who is prominent in child sexual abuse. 5written quite a bit. 6 And I had contact with all of those people and saw a Shes

7modest number of cases of alleged sexual abuse and many 8youngsters who clearly had been sexually abused within our 9programs. 10Tufts. 11 When I came to Connecticut and started the forensic We had a large department with many programs at

12efforts, over the years Ive seen from the beginning in 1987 13quite a number of youngsters in forensic evaluations such as 14this and some clinical cases where there are allegations of 15sexual abuse whom I have treated. 16 Q So you have treated children for issues regarding

17sexual abuse? 18 19 20 A Yes, I have. ATTY. SMITH: THE COURT: Objection to form. Overruled.

21BY ATTY. EISENHANDLER: 22 23 Q And you have testified THE COURT: But dont keep leading him.

24BY ATTY. EISENHANDLER: 25 Q Have you testified in a court in Connecticut

26regarding childrens sexual abuse and treatment, diagnosis? 27 3 A Yes, I have.

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8 Q A Q Approximately how many times have you done that? Maybe seven to twelve times, something like that. Were you certified as an expert in those fields by a

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4court? 5 A Well, I was certified as an expert. Im not sure

6what the appendage, what the terminology was. 7 Q Now, in your private practice, do you treat or

8diagnose children who have been sexually abused? 9 10 11 A Q A Yes, I do. Okay. Is that a large portion or a small portion? I would say

Its a fairly constant portion.

12currently I have in my practice several youngsters who have 13been sexually abused whom I treat, maybe four or five kids. 14And thats usually constant. 15 Q And youve been practicing psychiatry for how many

16years now, doctor? 17 18 19 20 A Q A Q Since 1963. So its almost 50 years? Yes. 47 years.

In those 47 years, have you been called upon to give

21an opinion as to whether or not a child has suffered from 22sexual abuse? 23 24 25 26 27 3 A Q A Yes, I have. One time, two times, a hundred times? A dozen times. ATTY. EISENHANDLER: Im going to offer this

gentleman as an expert, Your Honor.

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9 ATTY. SMITH: THE COURT: May I Hang on just one minute. Im just

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taking my notes because I know this is going to be detailed. Excuse me one minute. (Brief pause in the proceedings.) And youre offering the doctor as an expert in what additional things besides child and adult psychiatry? ATTY. EISENHANDLER: Expert in whether or not a

diagnosis of sexually abuse, a child has been sexually abused. THE COURT: ATTY. SMITH: THE COURT: Any objection? Yes. Basis? First Id like to voir him if I

ATTY. SMITH: might. THE COURT:

You may.

18VOIR DIRE BY ATTY. SMITH: 19 Q Doctor, isnt it accurate the last presentation that

20you have on sexual abuse according to your CV took place in 211997? 22 23 24 25 26 27 3 here. THE COURT: Why dont you take a minute because THE COURT: Do you have your CV -

THE WITNESS: I dont. THE COURT: - in front of you? I have my CV buried somewhere

THE WITNESS:

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10 Im going to get it out too? THE WITNESS: THE COURT: Thank you. 27 is where the CV is? 38. 38. 38 Thank you. - in the back part of it. Thank you. One minute.

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ATTY. MURPHY: ATTY. BORDIER: ATTY. SMITH: THE COURT: ATTY. SMITH: THE COURT:

(Brief pause in the proceedings.) THE WITNESS: Smith. Yes, thats correct, Attorney

13BY ATTY. SMITH: 14 Q Okay. And its fair to say that the study of sexual

15abuse evaluations has changed since that time, has it not, 16doctor? 17 18 19 A Q A Yes and no. Yes in what way? Yes in that in every field that clinical evaluations

20take place in, new tools are designed and they hold promise 21and variably deliver with that promise. 22 23 24 25 26 27 3 Q A All right. Doctor, can -

No - do you want to know no? THE COURT: Do you want to know the no? You

said yes and no, how so.

He gave you the yes and now

hes asking if you want the no. ATTY. SMITH: I think he said yes, Your Honor.

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11 THE COURT: ATTY. SMITH: THE COURT: Right. No, I dont want to the no. Okay.

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4BY ATTY. SMITH: 5 Q Are you familiar with the American Professional

6Society on abused children practice guidelines? 7 A Im not familiar with the details of them. But I

8know the organization. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 ID. ATTY. SMITH: ATTY. BORDIER: ATTY. SMITH: THE COURT: ATTY. SMITH: We have for everyone. She said not the Court yet. I understand. Just for ID. For ID, yes. ATTY. SMITH: THE COURT: show him? ATTY. SMITH: identification. THE COURT: All right. I have extra copies. Do you have a No. I was going to mark it for May I approach the witness? Is this marked what youre about to

ATTY. BORDIER: THE COURT:

Yeah, why dont you?

copy for Mr. Eisenhandler? ATTY. SMITH: THE COURT: Yes. Excellent. How about the guardian?

ATTY. BORDIER: THE COURT:

And for the Court as well. Its only

Well, Im not there yet.

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12 THE COURT: All right. Is there a question

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pending or is he merely looking at them?

3BY ATTY. SMITH: 4 Q Doctor, what - are you familiar with the psychosexual

5evaluation of suspected sexual abuse in children second 6edition which Ive just given to you? 7 8 A Q I havent read these, Attorney Smith. Now, if you go to page 2 on this document, please,

9and could you - if I go to number 3, it reflects that the 10evaluator in this particular area should have specialized 11training in child development and child sexual abuse in 12terms of formal course work, etcetera, etcetera, seminars 13and workshops. 14 15 16 17 18 19 When is the last time you attended Excuse me. The etcetera I have no But he

ATTY. EISENHANDLER: counts.

Hes quoting this document.

objection to the Court seeing this document. shouldnt be saying etcetera. THE COURT: ATTY. SMITH: Please. Of course.

Read what it says.

20BY ATTY. SMITH: 21 Q The evaluator must have specialized training in child The training should be

22development and sexual abuse.

23documented in terms of formal course work, supervision, or 24attendance at conferences, seminars, and workshops. 25 How many conferences have you attended in the

26specialty of child sexual abuse in the last 5 years? 27 3 A None.

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13 Q How many conferences have you attended in the area of

2child sexual abuse in the last 10 years? 3 4 5 6 A Q A Q Two or three at most. Were they specifically involving child sexual abuse? Yes. How many workshops have you attended in the last five

7years in the area of child sexual abuse? 8 9 A Q The answer is the same as the previous question. And how many actual forensic evaluations have you

10performed in the area of child sexual abuse in the last 5 11years? 12 13 14 15 16 17 A Q A Q A Q Oh, half a dozen at most. How many in the last 2 years? Probably two. Are you including this case? No. Now, in this particular case, did you conduct any

18evaluation of Max, the child? 19 20 21 22 23 ATTY. EISENHANDLER: That goes to the weight. Objection, Your Honor. I dont think it goes to

the qualifications of the doctor. THE COURT: I think thats right. Outside the

scope of the voir dire.

24BY ATTY. SMITH: 25 Q Now, with respect to protocol, could you please look

26at the third part A, number 3? 27 3 ATTY. EISENHANDLER: Im sorry. In the

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14 protocol? ATTY. SMITH: A, number 3. Okay.

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ATTY. EISENHANDLER:

4BY ATTY. SMITH: 5 Q It says when possible unsupervised contact between

6the child and the suspected offender should be strongly 7discouraged during the evaluation process. 8disagree with that? 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 A I disagree. THE COURT: Excuse me. Why is that relevant to Do you agree or

whether hes an expert? ATTY. SMITH: Its relevant because the process And its

of evaluation of sexual abuse has changed.

our position that while the doctor has considerable knowledge in the area of child and adolescent psychiatry, the doctor is not familiar with where the developments of sexual abuse evaluation is at this point in time. So that is one of the tenants, and

thats why Im asking him about this, if he agreed with it or not. ATTY. EISENHANDLER: Your Honor. ATTY. SMITH: cross-examination. THE COURT: Right. Im trying to eliminate in my mind Okay. Ill deal with that on I think it goes to weight,

ATTY. SMITH:

whats cross-examination and whats opinion at this

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15 point. (Brief pause in the proceedings.) ATTY. SMITH: no objection. ATTY. EISENHANDLER: THE COURT: Theres no objection. Id like to offer this if theres

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Make that full. All right. The second objection

ATTY. SMITH:

I have nothing else for the doctor. THE COURT: Okay. Do you have any do you want

to state your objection then now? ATTY. SMITH: My second objection. The

objection that I had I was going to restate is that Im familiar with the Courts appointment as of the doctor to do an evaluation concerning the question of - strike that. I have not received - Im familiar with the Courts appointment of the doctor, period. not received from Attorney Eisenhandler any disclosure that this doctor was going to testify in terms of his expertise in the area of sexual abuse evaluation. In fact, Ive received from Attorney Eisenhandler no disclosure concerning this witness whatsoever. I assume that the investigation would follow the transcript of the I think it was February 22nd when the doctor was appointed. But I have no disclosure I have

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16 hes going to go into these areas in any great depth. I have an understanding from the doctor in terms of what hes done, and I accept the report as it is and the opinions of the report and his acknowledgement that he himself is an expert in child and adolescent psychiatry from his deposition where he said that. So I accept all of that.

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I just have no disclosure, and Im raising that question in terms of his expertise. ATTY. EISENHANDLER: witness. This is the Courts The Court

The Court appointed Dr. Robson.

did not limit what Dr. Robson was able to accomplish in his evaluation. Its in the transcript. The

Court indicated specifically Im not limiting what you can do. The Court appointed this witness.

There was a deposition held I believe it was back in May after the report came back. Mr. Smith

had freedom to ask him any question he wanted including his conclusions here that Dr. Robson has made. So to suggest theres some kind of surprise about what the doctor is going to testify, its not appropriate. I think hes certainly qualified. notice. Theres been The

They know hes going to testify.

opportunity to ask him questions, which they didnt ask him any questions about any specifics of the

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17 case, quite, frankly, but I dont know what the basis of the objection is. This is the Courts witness.

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This is the expert appointed by the Court. THE COURT: Well, are you claiming, Mr. Smith,

that because Mr. Eisenhandler did not accomplish a 13-4 disclosure that youre suffering surprise or are you claiming that because he didnt do it he shouldnt be allowed to offer him for anything beyond his report? assertion is. ATTY. SMITH: time. I think both at this point in I just want to understand what your

The question of - I mean, I understand that

theres a lot I can deal with in terms of my interrogation in terms of weight. and credibility issues. THE COURT: When you filed your motion in I understand that

limine, why didnt you make the claim at that time instead of waiting until the witness was on the stand? ATTY. SMITH: That probably would have been a

more appropriate thing to do. THE COURT: Objection is overruled. Thank you, Your Honor.

ATTY. EISENHANDLER:

24CONTINUATION OF DIRECT EXAMINATION BY ATTY. EISENHANDLER: 25 Q Doctor, how did you become involved in the Liberti

26matter? 27 3 A I was contacted by Attorney Murphy. And she asked if

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1I would be willing to be involved. 2 3 Q A Do you recall what your assignment was? Loosely I was told that there had been a prior

4evaluation by Dr. Adamakos, that Dr. John Collins was not 5John Collins was concerned that that evaluation by 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ATTY. SMITH: THE WITNESS: THE COURT: Objection. - doctor Whats the basis? Hes testifying to what a I have no

ATTY. SMITH:

conversation it appears with Mr. Collins. problem THE COURT:

Hes testifying as to a conversation Murphy excuse me. Attorney

with Attorney Murphy.

Murphy told him that there had been a prior eval by Dr. Harry Adamakos and that so far we got that John Collins was concerned and then you objected. ATTY. SMITH: I thought he was talking about a

conversation he had THE COURT: THE WITNESS: THE COURT: ATTY. SMITH: Do I understand that correctly? You do, Your Honor. All right. Continue.

I withdraw the objection.

23BY ATTY. EISENHANDLER: 24 25 Q A Please continue, doctor. That Dr. Collins was concerned that the evaluation

26done by Dr. Adamakos was insufficiently deep and 27insufficiently thorough to render a useful opinion and that 3

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1there should be another evaluation. 2 3 Q A An evaluation of what? Of the allegations of sexual abuse and presumably the

4parenting plan. 5 Q Now, what steps did you - what is your process from

6beginning of that assignment? 7 A Ordinarily I send out a letter of agreement to the

8attorneys and the parties and require that to be returned to 9me along with a payment - initial payment that proceeds my 10starting. 11 And when I begin, I ordinarily begin by seeing each

12parent usually for three hours or thereabouts and cover as 13much material in that initial meeting as I can. 14 And there are subsequent meetings with the parents

15depending on information that appears in the first session 16with them. 17 I meet with the parent and the child at least once,

18both parents and the child or children, and sometimes more 19than once. On some occasions, I do that in my office. On

20others, I do it at home. 21 I contact a substantial number of collateral sources

22of data including pediatricians, therapists current and 23past, caretakers, school teachers, sometimes friends and 24relations. And when that is done, collate that information

25and prepare a report. 26 Q When you say collateral sources, what do you mean by

27you contact collateral sources? 3

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20 A As I said, those include people who have relevant

2data about the child, the family, or both such as 3therapists, pediatricians, school teachers, day care 4providers, baby sitters, nannies, etcetera. 5 Q Do you rely solely upon the statements of the

6parents? 7 8 9 A Q A No. Why not? Because truth is difficult to come by. And if you

10have a variety of sources of data and more than one pair of 11eyes, youre likely to come somewhat closer to that elusive 12phenomenon called truth. 13 Q Do you meet with you indicated you meet the Did you do that in this case?

14parents. 15 16 17 18 19 20 21 22 A Q A Q A Q A Q

Yes, I did. Who did you meet with first? I believe Mr. - Mr. Liberti. Do you recall that meeting? Not in great detail. And do you recall how long that meeting lasted? Three hours. And does any - what was your impression at that

23meeting of what the situation was? 24 25 26 27 3 A Q Complicated. How so? What do you mean by complicated? Overruled. It was clear to me that there were

THE COURT:

THE WITNESS:

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21 polar opposites of opinions in this matter that were extreme and intense, that the stakes seemed very high for both parents, and their positions irrevocably opposed to one another, that the child sounded as if he had exhibited complex behaviors which may be confusing to any and all observers, and that the conflict level was exceedingly high, and the case was not likely to be simple in terms of reaching clear opinions.

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10BY ATTY. EISENHANDLER: 11 12 13 14 15 16 17 Q A Q A Do you recall the meeting with Ms. Kelley? I do. Can you tell the Court what happened at that meeting? Nothing happened. ATTY. SMITH: THE COURT: Object. Sustained. But he got he got the

answer he deserved, nothing happened.

18BY ATTY. EISENHANDLER: 19 20 21 22 Q A Q A Do you recall Ms. Kelleys concerns? Yes, I do. What were those concerns? They were specifically that despite evidence to the

23contrary she remained deeply convinced that Max had been and 24perhaps was being sexually abused by his father. 25 Q Now, did she relay to you what information that

26opinion was based on? 27 3 A I would have to refer back to that my notes of that

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1meeting to 2 3 4 5 6 7 THE COURT: Do you want him to? Please.

ATTY. EISENHANDLER:

(Brief pause in the proceedings.) THE WITNESS: This is a four tree case.

(Brief pause in the proceedings.) THE WITNESS: May I begin?

8BY ATTY. EISENHANDLER: 9 10 Q A Please. She began by telling me that she was frightened by

11her sons behavior, that she explained Max had tried to 12sodomize her, and she described further his sing-song themes 13of monsters and his preoccupation with sexual matters, 14suicide, electrocution, etcetera. 15 When I asked her what was the source of that behavior

16in those preoccupations, she answered I believe he is 17experiencing abuse, all I can believe is what he said that 18daddy tickled my weenie and tricked my mind. 19 She believes that the prior investigations are all

20deficient, that Maxs story would change 21 22 23 24 25 26 27 3 ATTY. SMITH: Objection. My impression the

doctor is that with due respect, that Dr. Robson is reading some notes at this point in time. THE COURT: Are you reading your notes? Im reading from the notes, Your

THE WITNESS: Honor. THE COURT:

Okay.

Are you soliciting that?

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23 ATTY. EISENHANDLER: was disclosed by THE COURT: All right. The witness had Yes. I want to know what

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testified he didnt have an independent recollection of the details so its permitted. access to his notes as you desire. ATTY. SMITH: THE COURT: Thank you. Yes. Of course you have

9BY ATTY. EISENHANDLER: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q Please continue, doctor. THE COURT: I missed the last statement though

because I was paying attention to the objection. THE WITNESS: She commented that all she, Sunny,

can believe is that, quote, daddy tickled by weenie and tricked my mind. And she believes that all the

prior investigations are deficient. She believes that Max changed his story via his fathers prompting and by - in that manner deceived the evaluators or confused them at least. She felt

the entire evaluative process had been unfair and very stressful to her son. So in general what Ms. Liberti - Kelley was citing as the sources of her concern were her sons behaviors mainly.

25BY ATTY. EISENHANDLER: 26 Q Did she indicate whether or not the behaviors were in

27her presence or the presence of third parties? 3

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24 A Q I dont recall her differentiating. Did she indicate when she thought the sexual abuse

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3began? 4 A She suggested that it had been at least one and one

5half years. 6 7 8 9 10 Q A Q A Q From the date of your meeting? Yes. What was the date of your meeting? April 5, 2011. Did you ask her what concerns she had about the prior

11evaluations? 12 13 14 A Q A Yes, I did. What was her response? That they were misinformed, that Max, as I said a

15moment ago, had been confused by his father and more or less 16talked into denying that any abuse had occurred at the hands 17of his father, and that despite the efforts of the prior 18evaluators none of them could be trusted for that reason. 19 20 Q A Trusted? None of them could be accepted by her as reasonably

21accurate. 22 23 24 Q Did she tell you what the current parenting plan was?

(Brief pause in the proceedings.) Q Let me rephrase that. Did she tell you what her

25parenting access was? 26 A I believe she did. But Im looking in my notes. She

27informed me that her contact was supervised. 3

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25 Q A Q Did she indicate why it was supervised? No. Now, did she indicate whether or not that she

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4believed that Max was currently being abused by Mr. Liberti? 5 6 A Q She was concerned that that might be the case. Now, you met with the parents. What was your next

7meeting involved in regards to your assignment? 8 9 10 11 12 13 A Q A Q A Q I met with Mr. Liberti and Max. And where did you do that? In my office. Now, I noticed you met with Ms. Kelley at her home? Correct. Why did you meet with Mr. Liberti in your office and

14not in his home? 15 A I thought that the evaluation of Max would be more

16comfortable for him in his mothers home than in my office 17and wanted to maximize his comfort particularly since there 18was a supervisor who would be present in some fashion. 19wasnt certain how close or how far. I

But I made the guess,

20as I just said, that Max would be more relaxed in his 21mothers home than in my office. 22 23 Q A Why not meet Max with Mr. Liberti at his home? Not for any particular reason. But Max was not

24particularly comfortable with me in my first meeting with 25him with his father, and I wanted to maximize his comfort. 26Had he been more comfortable, I probably would have met with 27him with his mother in my office as well. 3

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26 Q What was your observation in that first meeting with

2Mr. Liberti and Max? 3 4 5 A Q A Max was not dying to stick around. Is that unusual in your experience for a child? Yes. Its fairly unusual. Kids like coming to my

6office, and I dont come on like gangbusters, and they have 7a good time. I have a lot of interesting things including a

8computer filled with Pudge Fisk memorabilia. 9 10 11 12 13 14 15 16 17 Q A Q A Q A Q A Q What kind of memorabilia? Pudge Fish. Pudge Fisk? Pudge Fisk. Carlton Fisk, Attorney Eisenhandler.

Is that a baseball player? He was. Boston Red Sox. Thats What was your observation of Max and his father at

18that meeting? 19 A Max and his father played. And I played with Max

20some of the time.

Mr. Liberti was - and intruded frequently

21into Maxs conversations in a way that I wished he hadnt, 22but he did. 23 24 Q A Were you concerned about that? No, I wasnt concerned about it. It was a little

25distracting for Max. 26with me. 27 3 Q

It made it harder for Max to connect

Do you think you connected with Max at that first

1
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27

1meeting? 2 A Not terrible well. Though at the later part, we

3played a game together and he seemed to enjoy himself, 4particularly beating me. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q A Q A Q A Q A Q A Q A Q A Q A Q And how long did that meeting last for? An hour. Now, Max met you at that meeting for the first time? Yes. When was your next meeting? April 14th. Where was that? That was in Ms. Kelleys home. And who was present? Myself, Ms. Kelley, Max, and Allison Chiodo. Was Ms. Kelleys mother there or Ms. Shaw there? No. Have you ever met Ms. Shaw? I have not. Did you receive documentation from Ms. Shaw? Yes, I have. And can you describe how that meeting of April 14th

22went? 23 A Yes. In general, Max was calm. I didnt see the Max

24frenzied descriptions that the supervisors described. 25played with the supervisor, played with his mom. 26 On one occasion, Max wanted to go into his own

27bedroom and mother forbade him to. 3

He pushed on anyway, and

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28

1she stopped him effectively. 2 And toward the end of the meeting, he and mother, Max I think they were Mother encouraged Max who

3that is, participated in a writing. 4preparing some papers for school.

5sat at a distance from her and worked in a concentrated 6fashion for 20 minutes or so without distractibility that 7was evident to me. 8 Once in the course of the meeting, Max turned to me

9and farted and laughed and no one said anything to him about 10that. 11 And on another occasion, he and mother were at the

12television monitor and he made comments about hitting 13himself and mother intervened and he stopped talking about 14that. 15 In general I had the impression that Max was quite

16responsive to his mother during that visit. 17 18 Q A Did anything in either of those visits concern you? I did leave out that in the visit with his father Max

19when he was playing with Legos took a long Lego piece and 20jabbed it in his anus and laughed and father said I think 21this is what happens at school, this is what Max does for a 22laugh and discouraged Max from further play of that kind. 23 Q Now, you described a description of frenzied Where did you get that information from? Objection. Im not sure what

24activity by Max. 25 26 27 3

ATTY. SMITH: were referring to. about -

He described frenzied activity

1
2

29 THE COURT: He said the supervisor had described That was the

1 2 3 4

frenzied had frenzied descriptions. use of the word. in mind.

So rephrase your question with that

5BY ATTY. EISENHANDLER: 6 Q You used word frenzied description. Where did you

7obtain that information? 8 9 10 A Q A Mainly from the supervisory notes. And what does frenzied description entail? Singing, hyperactivity, a lot of physical contact

11with mother and with Ada that was almost violent and clearly 12was aimed at the rear end, the genital area, and breasts 13again and again and again such that if one wanted a 14scientific demonstration of interest on Maxs part it was 15focused on those parts of the anatomy and words that often 16accompanied his behaviors that specified vagina, butt, and 17boobs, etcetera. 18 Q In regards to Max singing songs with the words maniac

19and madman, is it unusual for a young adolescent boy to sing 20those types of songs? 21 22 boy. THE COURT: Youre suggesting hes an adolescent

23BY ATTY. EISENHANDLER: 24 25 Q A 5 to 7 year old boy, is that unusual? Well, theyre not your typical nursery rhymes, nor I would say

26preschool or early elementary school lyrics. 27Rogers would hammer them. 3

I no, theyre not typical.

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30

1They the level of excitement, however, is more typical. 2 3 Q A What do you mean? Well, boys that age, if you listen to them, have a

4great fascination with bathroom humor. 5 6 7 8 9 10 ATTY. SMITH: that last word. Im sorry, doctor. I didnt hear

Fascination with? Bathroom humor.

ATTY. EISENHANDLER: ATTY. SMITH: THE COURT:

Bathroom humor. Yes. Just keep your voice up,

please, Dr. Robson.

Thank you.

11BY ATTY. EISENHANDLER: 12 13 Q A Go ahead, doctor. Boys that age if you listen to their jokes are

14convulsed with laughter around bathroom matters and 15sometimes because at that age sexual anatomy and excretory 16anatomy are totally mixed up. 17 Kids that age dont appreciate the difference between

18pee, poop, babies, you know, babies are conceived by 19swallowing a seed, babies are born by passing through a 20cloaca which is a common opening of the anus and the vagina. 21They dont have Greys Anatomy in mind. 22 So there is a great fusing and confusing of anal and And boys in particular

23genital functions in kids that age.

24get hysterical about that kind of stuff. 25 Q Did you see evidence of that in the supervisor

26reports? 27 3 A Oh, yes.

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2

31 Q A Is that in and of itself concerning to you? In and of itself, no. But to the extent it was

1 2

3sustained over time in the midst of a session lasting more 4than an hour or two, that was concerning. 5 And equally, if not more concerning, was that it was

6associated with Max groping for his mothers genital area, 7for her breasts, sliding his hand up her leg, etcetera. 8That concerned me. 9 10 Q A Concerned you why? Because it seemed so outlandishly sexual, that it And what

11kept happening again and again gave me pause.

12concerned me especially was there seemed no effective way or 13even a wish to interrupt Maxs behaviors. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 ATTY. SMITH: Again, Im sorry, Judge. I heard

something behaviors, wish, and I missed the middle part. Wish to something Maxs behaviors. THE COURT: Do you remember your exact words? I remember them almost, Your

THE WITNESS: Honor. THE COURT:

Do your best.

Go ahead.

THE WITNESS:

What concerned me was that there

was minimal effort on mothers part to interdict or anticipate those behaviors despite the fact that they were recurring again and again and again. Part of a mothers job is anticipation. big part of a mothers job. Its a

Mothers who know their

children dont let things happen because they cant.

1
2

32 They have to be ahead of the game. I was struck in the notes of the supervisors how frequently Ms. Kelley was not ahead of the game. fact, it kept happening again and again and again that Max was able to commit whatever touching he wished with minimal discouragement. In

1 2 3 4 5 6

7BY ATTY. EISENHANDLER: 8 Q Well, how would Ms. Kelley anticipate that Max would I mean, what would your

9come up to her and hit her? 10expectation be? 11 A

Well, Ms. Kelley is Maxs mother.

And all the way

12back well before this time Max had begun to interact with 13her physically, not verbally. 14 I believe that had to do with the difficulty he had

15at a younger age in getting her attention, and thats 16confirmed by at least two observers, if not three who 17 18 Q A Im sorry. Go ahead, doctor.

- who suggested that when Ms. Kelley was at the

19computer particularly she was hard to distract when Max 20wanted her attention. And ultimately he began hitting her

21or bumping into her or grabbing her to gain her attention. 22 23 Q A Would that happen once? No, that didnt happen once. That happened multiple

24occasions over time according to the witnesses. 25 26 27 3 Q A Q Who are these witnesses youre referring to? Joseph Doherty, Jennifer Bourne. Who is Joseph Doherty?

1
2

33 A He is a neighbor, a builder who has a son about Maxs

2age. 3 4 Q A What did he tell you? He reported that what I just said, that he observed

5that Sunny often spent a lot of time at the computer and Max 6had difficulty getting her attention and would begin hitting 7her physically to get her attention and hitting others 8including himself. 9 10 11 12 13 Jennifer Bourne said Objection. Bourne. Bourne. Bourne as in Massachusetts. Bourne Bridge.

ATTY. SMITH: THE COURT: THE WITNESS: THE COURT: THE WITNESS:

14BY ATTY. EISENHANDLER: 15 16 Q A What did Jen Bourne? Jen Bourne said well, around the issue of this mode

17of interacting, she said almost verbatim the same thing that 18Joseph Doherty did. 19 20 Q A How does Ms. Bourne know Ms. Kelley? They were old friends going back to the time of Maxs

21birth. 22 Q Heres what I dont understand, doctor. If Max hits

23Ms. Kelley to get her attention, isnt that a one time 24action? 25 26 27 3 A Not if he cant get her attention ATTY. SMITH: THE COURT: Objection. Sustained.

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34

1BY ATTY. EISENHANDLER: 2 3 4 5 Q Would it be your opinion, doctor, that Max THE COURT: Dont lead him. Beg your pardon?

ATTY. EISENHANDLER: THE COURT:

I said dont lead him.

6BY ATTY. EISENHANDLER: 7 8 9 10 Q A Q A What is your when Max struck Ms. Kelley? At what point in time? The first time. I think initially it had to do, as far as I can tell,

11with what Mr. Doherty and Ms. Bourne reported to me, that it 12was difficulty gaining her attention. 13 I believe over time that mode of interacting took on

14a sexual coloring and began to have erotic undertones and 15overtones that became pre potent with the passage of time 16over the last couple of years in particular. 17 18 19 Q A Q Erotic overtones, undertones as to whom? As to Max as to mother. You mentioned three independent witnessed, I think Was there any

20you said there, Mr. Doherty, Ms. Bourne. 21others? 22 23 A Q

I think Mr. Liberti reported the same to me. You would not characterize him as independent,

24though, would you? 25 26 27 3 A Q A No. Separate and unequal.

How many times did you meet with Ms. Kelley? Three times.

1
2

35 Q A Q Did she ever discuss her time on the computer? No. You said theres a sexual undertone, sexual overtone.

1 2 3

4When did it become a sexual conduct compared to attention 5getting? 6 A I cant tell you precisely because I think like all But I

7developmental strains it evolved in that direct.

8believe probably the last two years plus or minus that began 9to - that flavor of the interactions between Max and his 10mother became increasingly sexual. 11 12 13 14 15 16 Q A Q A Q A Sexual as to whom? Both mother and son. Is it a conscience sexual feeling? On mothers part, no. On Maxs part, partly.

When you say no as to mother, what do you mean? I dont believe she was consciously seeking sexual

17gratification from Max. 18 19 20 Q A Q How about Max? I think partly Max was. Is a 5-year-old boy capable of getting sexual

21satisfaction? 22 A Yes. Not in the adult sense of sexuality, but Flooding, yes.

23arousal, yes. 24 25 26 27 3 Q A Q A

Im sorry? Flooding. Flooding, what does that mean? It means in the same way that a car engine floods and

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36

1comes to a halt, the human childs mind and emotions can 2become flooded with too much feeling and make trouble 3developmentally. 4 Q Youre not suggesting Ms. Kelley was conscience of

5these acts? 6 7 A Q I said she was not in my opinion. Youre aware that the child was or has been

8massaged? 9 10 11 A Q A Yes. Whats your understanding of that? Well, my understanding is that it was bad judgment on

12Mr. Libertis part, that it contributed to an overall 13dreadfully high level of overstimulation that Max was 14subjected to by both parents, but that minute for minute and 15hour for hour the amount of sexual overstimulation that he 16received in his mothers home in my opinion was vastly 17greater than whatever he did receive in his fathers home. 18 Q Can you describe what sexual stimulation Max received

19in his mothers home? 20 A Well, he slept in the family bed from birth. It was

21difficult to be sure how often mother slept naked and father 22slept naked. Both admitted to doing so. And that lasted up

23until Max was at least I think 5 years of age. 24 Any child any child lying in bed with two naked

25parents or one naked parent is going to feel, touch, see, 26hear a great deal more than if parents are dressed and 27children are in a separate bed. 3 So it began I think in that

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37

1situation. 2 I think modesty, particularly on mothers part was

3not a great concern which is not a criticism, but it was her 4style. She was not embarrassed about nudity. At times, she

5apparently went without underwear. 6 Max was fascinated with his mothers body. And in

7certain respects, she was fascinated with his starting in 8infancy. 9 10 Q A What do you mean by that? Well, one of the comments that Jennifer Bourne made

11was that she was impressed with how preoccupied Sunny was 12with Maxs lack of being circumcised which was a problem 13from early infancy. 14early on. 15 He was constipated. And in the course of this She had to manipulate his foreskin

16gathering information, she had a fair amount to do with 17wiping him when he finished defecating even up to his 18current age on occasion. 19 So she had a lot of contact with his penis, with his

20foreskin, with his anus, with those functions from the 21beginning of his life and then exposed her own nudity to him 22in a way that must have been arousing and exciting as it 23always is for children of that age. 24 And Max is in certain ways precocious, in other ways

25regressed; that is, hes a quick study with regard to 26there was one episode where Max observed mother putting a 27tampon into her vagina. 3 And he asked her, knowing the

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38

1anatomy of kids that age, are you putting that into your 2butt? So it doesnt take long for a child to see something

3like Max saw as bright as Max is to then elaborate on that 4theme. 5 The preposterous tale that Max greeted mother lifting

6her nightie and saying he was going to insert his penis into 7her butt is for me very difficult to understand literally as 8it was for Dr. Whelan, the pediatrician. 9 10 Q A What are you saying, doctor? Well, its hard to imagine how a 5 or 6 year old boy

11has the time to lift a parents nightgown, spread her cheeks, 12and where he was sitting, kneeling or standing, how - why 13would anything like that go on beyond an instant. 14what I meant by the lack of anticipation. 15 I mean, if one feels hands of ones child starting to Well, even the child groping close Thats

16explore, thats enough.

17to the bed, if you know that child is prone to explore your 18body that way and know thats not useful or good for the 19child, you dont let it happen. 20 21 22 23 Q A Q A Are you suggesting this did not happen? No. What was your suggesting? I dont know what happened. I dont honestly know

24what happened.

In another situation, Max asked if mother And that had All of

25would lie on top of him because it feels good.

26been proceeded by a very intimate physical contact. 27that is inappropriate in my opinion. 3

And what was striking

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39

1was there was no emergency break. 2 3 4 5 6 7 Q A Q A Q A Im sorry? There was no emergency break. Emergency break? Break. On mothers part.

What does that mean? It means she didnt she neither anticipated nor

8stopped Maxs advances. 9 She described Max in her words as a little man, that

10hes powerful, that he would hit her up to 20 times a day 11causing her flashes of light in her eyes and that he was 12strong, describing him almost as if he were an adult. 13 Q Is the hitting her is there any other explanation

14other than what youve given regarding the sexual overtones? 15 16 17 A Q A You mean in terms of motivation? Motivation for Max? Well, I mean, my sense is - and I say this in my

18report - that this behavior is primary a result of chronic 19overstimulation on mothers part and partly on fathers part 20as well. 21 22 Q A How so on the fathers part? Well, as I said, the massage and touching the

23genitals, if he did that, certainly was inappropriate and 24was over stimulating to Max as well, talking about vaginas 25and penises which Mr. Liberti said he did with Max was 26premature and probably not sensible to a boy who was also 27exposed to some kids, not surprisingly, who were his age or 3

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40

1a little older who were full of that kind of content, Nash 2in particular, his buddy Nash who was a teacher of evil 3doing so to speak. Nash sounds like he was filled with

4knowledge and not too many skills, but he passed them onto 5Max in their boys club. 6 Q Did Ms. Kelley tell you that she had massage Max on a

7regular basis? 8 9 ATTY. SMITH: THE COURT: Objection. Sustained.

10BY ATTY. EISENHANDLER: 11 12 13 14 15 A Q A Q Ms Kelley withdrawn. The massaging of Max, how did you learn about that? I believe initially fro Ms. Kelley. What did she say to you? That Rob had massaged Maxs thighs and touched his

16genitals and Max had reported it to her. 17 18 19 20 Q Did she indicate that she would massage Max? ATTY. SMITH: THE COURT: THE WITNESS: Objection. Overruled. No, I dont believe so.

21BY ATTY. EISENHANDLER: 22 23 24 Q A Q Would that hane been important to know? Yes. Do you think that would have been important to know

25if she massaged him a on regular basis? 26 27 3 A Yes. ATTY. SMITH: This is - objection. Theres no

1
2

41 fact in evidence that she did that at all. THE COURT: Overruled. Thank you.

1 2 3 4 5 6 7 8

ATTY. EISENHANDLER: ATTY. SMITH: THE COURT: say. Pardon?

Overruled.

It only needs fact you

It only needs to be testimony, and it is

testimony from Mr. Liberti that she did so hes permitted to ask about it.

9BY ATTY. EISENHANDLER: 10 11 12 Q A Q Is there ever reason to massage a child? Surely. What if the massaging had a calming effect on the

13child 14 15 A Q Im sorry? The massaging had a calming effect on the child,

16would that be a reason to do it? 17 18 19 A A calming effect? ATTY. SMITH: THE COURT: Hes leading him now. Sustained.

20BY ATTY. EISENHANDLER: 21 22 Q A What would be the reasons to massage a child? Its frequently done at bedtime when a child needs Rubbing a childs back, for

23soothing to get off to sleep.

24example, is a common parental behavior at bedtime with 25youngsters Maxs age. 26 27 3 Q A Thats appropriate? It depends how intense it is, whether the parent is

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42

1lying in the same bed or next to the bed and what the 2intensity of it is. 3 Q Now, have you reviewed any medical records regarding

4Max? 5 6 7 8 9 A Q A Q A Yes, I have. What medical records are those? The pediatric records from Dr. Whelan. Any other medical reports or records? The emergency room records from Yale-New Haven

10Hospital. 11 Q Now, what did your review of Dr. Whelans records

12indicate to you? 13 A Well, they confirmed what Dr. Whelan conveyed to me

14in my telephone conversation with him. 15 16 17 18 19 20 21 22 Q A Q A Q A Q A When did you talk to Dr. Whelan? April 27, 2011. How long was that conversation? About 20 minutes. And tell us what happened. Nothing happened. What was discussed? Dr. Whelan basically described his increasing

23skepticism as Sunny Kelleys claims became more and more 24extravagant, including the final one that I mentioned of Max 25spreading her cheeks, lifting her nightgown, and trying 26saying that he would penetrate her butt. 27 3 Dr. Whelan was I think increasingly concerned that

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43

1Ms. Kelley was going in a direction that seemed fanciful to 2him and potentially harmful to Max. 3 Q At that time, did you discuss Dr. Newberger or

4Silberg? 5 6 7 A Q A With Dr. Whelan? Yes. I dont believe so. But Id have to look at my

8notes. 9 10 11 12 13 14 15 16 17 18 Q Could you look at your notes, please?

(Brief pause in the proceedings.) Q It would be April 27th notes. ATTY. SMITH: THE COURT: Im sorry? Hes just prompting him that it was

April 27th that the he had a telecom thats what my notes says telecom with Dr. Whelan. (Brief pause in the proceedings.) THE WITNESS: either of them. No, I dont believe he did mention

19BY ATTY. EISENHANDLER: 20 Q Anything else you recall about your conversation with

21Dr. Whelan that your notes reflect on? 22 A Well, he did mention that he couldnt help but think

23of some kind of folie du which is a diagnostic term for 24Munchausen by proxy. 25 26 Q A Folie du, what is that? Well, its a French phrase that means madness for

27two. 3

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44 ATTY. SMITH: THE COURT: Object. Basis? How is he an expert in these

1 2 3 4 5 6 7 8 9

ATTY. SMITH:

particular areas, Munchausen, folie du? THE COURT: ATTY. SMITH: THE COURT: are specialties. psychiatry. Hes a psychiatrist. Child psychiatrist. Hes a psychiatrist and then those Hes certified in general Overruled.

10BY ATTY. EISENHANDLER: 11 12 Q A Im sorry, doctor. Folie du is madness? The And

Folie du is a shared delusional disorder.

13original term was folie du which means madness for two. 14it describes an interactive diagnosis where a parent or 15another partys preoccupations absorb or are taken up by

16another person so that they share the same disturbed belief, 17the same unrealistic belief. 18 19 Q A And whats Munchausen by proxy? Munchausen by proxy is a diagnosis made in pediatrics

20and child psychiatry that involves ordinarily one parent who 21consciously exaggerates or falsifies symptoms in their child 22in order to experience the victim or patient position. 23a pathological dangerous condition where the parent 24falsifies information and data to create an apparent 25diagnosis in the child. 26 Q Anything else in your notes regarding Dr. Whelan? Its

27Anything else in your notes regarding your conversation with 3

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45

1Dr. Whelan? 2 3 A Q I dont believe so. When you - you said you looked at the Yale records

4you indicated? 5 6 7 8 A Q Yes. What date of admission was that?

(Brief pause in the proceedings.) A The report I have is a social work report. It is

9dated 4/1/2010. 10 11 12 Q A Q Does it tell you the date of admission? I believe its the same. Okay. April 1, 2010.

Now, what about that report, if anything,

13contributed to your report? 14 15 16 17 18 19 20 21 22 23 24 25 3/28. ATTY. SMITH: For the record, are we talking

about the Yale admission or are we talking about the interview at the - sorry - the hospital admission or the interview? ATTY. EISENHANDLER: The hospital admission was

I think the follow up was dated - the social

work was dated 4/1. THE WITNESS: ATTY. SMITH: THE COURT: ATTY. SMITH: THE COURT: Yes. I accept that for the record. Okay. Just so theres no confusion. All right. Very good.

26BY ATTY. EISENHANDLER: 27 3 Q Sorry. What were you saying, doctor?

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2

46 A Q I believe Attorney Smith is correct. Okay. Were referring to the social work report of

1 2

34/1; is that correct? 4 5 A Q Yes. What about - what information did you use from that

6report to give you your opinion in this matter? 7 A Well, it was negative for a disclosure - a verbal And I used that as one of many

8disclosure of sexual abuse. 9sources of information. 10 Q

Are you familiar with the Yale Sex Abuse evaluation

11clinic? 12 13 14 15 16 17 A Q A Q A Yes, I am. And have you worked with them before? Yes, I have. What is your opinion of them? Mixed. ATTY. SMITH: In general?

18BY ATTY. EISENHANDLER: 19 20 21 22 23 24 Q Whats your opinion of their work? THE COURT: not probative. ATTY. EISENHANDLER: THE COURT: Sorry. Why hasnt anyone objected? Its

And not useful. Yes, Your Honor.

ATTY. EISENHANDLER:

25BY ATTY. EISENHANDLER: 26 Q Now, did you view the Yale ER report - records of

27March 28th? 3

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2

47 A Yes, I did. THE COURT: Well, wait a minute. I want to say

1 2 3 4 5 6 7 8 9 10 11

its not probative unless - I heard the witness say mixed, unless he completely rejects anything they do or blindly accepts anything they do. would be probative. ATTY. EISENHANDLER: THE COURT: Well, I was asking I mean, that

So I should not have cut off your But its as

ability to inquire in regards to it. applied to this case. ATTY. SMITH:

Thats my objection.

12BY ATTY. EISENHANDLER: 13 14 15 16 A Q Q Applied to this case - withdrawn. Did you review the DVD of Maxs interview? Yes, I did. Do you think it was probative as to whether or not

17Max was being abused by his father? 18 19 20 21 22 A I thought it was a reasonably solid interview. ATTY. SMITH: THE COURT: ATTY. SMITH: THE COURT: Reasonably solid? Interview. Interview? Yes. Im sorry.

23BY ATTY. EISENHANDLER: 24 25 26 Q A Q Have you seen interviews like this before? Yes, I have. Many of them.

Now, any other medical records of Maxs that you

27reviewed in regards to the report? 3

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2

48 A Well, the earlier - the March 28th record where his -

2where the question of anal tearing was reviewed. 3 4 5 6 Q A Q A Okay. And what was your review of those records?

How do you mean? What did you believe of your review of those records? That in the opinion of the examining clinicians,

7there was no evidence for any kind of anal trauma which 8confirmed what Dr. Whelan had said to me as well. 9 Q Did you have any conversation with Ms. Kelley after

10April 7, 2010? 11 12 13 THE COURT: you really meant? ATTY. EISENHANDLER: Im sorry. Were in 2011. Is that the question

14BY ATTY. EISENHANDLER: 15 Q In your interview with Ms. Kelley, did she provide

16you photographs of Maxs anus that she took on April 7, 172010? 18 19 20 21 22 23 24 25 26 27 3 A Q A Q A Q A I believe so, yes. And was that in your interview with her? My interview with Ms. Kelley? Yes. I believe so. So youve seen the anus pictures; correct? Yes, I have. THE COURT: Why dont we stop for our morning

recess, 15 minutes, please. (The Court recessed.)

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49 (The Court resumed.)

2BY ATTY. EISENHANDLER: 3 Q Doctor, you testified that youve seen the picture of

4Maxs anus; is that correct? 5 6 7 8 A Q A Q Yes. And how did - when did you see that picture? I am not precisely certain. And how were you - was that picture made available to

9you? 10 11 A Q I believe Sunny gave it to me. What did she say to you when she gave you that

12picture? 13 14 15 A Q A I dont recall what she said to me precisely. Is it in your notes? I dont think so. She gave it to me with alarm on

16her part that this photo demonstrated trauma compatible with 17the abuse that she expects has or is happening. 18 19 20 21 22 Q A And what did you say to her? Thank you. ATTY. SMITH: THE WITNESS: THE COURT: I didnt hear that. Thank you. Thank you.

23BY ATTY. EISENHANDLER: 24 Q Did she tell you the circumstances of taking that

25picture? 26 A I learned of them. I dont know whether from her

27directly or from reading it, but I know about them. 3

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2

50 Q A So she just handed you this photo, said Look at this, will you please look at this. ATTY. SMITH: THE COURT: or summarize? Objection. Yes. Would you, sort of, not lead

1 2 3 4 5

6BY ATTY. EISENHANDLER: 7 8 9 10 Q A Q A Do you think taking that photo was appropriate? No. And why not? I think it contributed to Maxs preoccupation with

11and iridization of his back side, his anus, his rectum, his 12butt. 13 14 Q A What does that mean it added? It means that when you are interested in - most

15parents are not particular interested in their childs anus. 16Max had a lot of attention directed to his penis and his 17anus prior to the presumed bleeding secondary to the alleged 18sexual abuse. 19 You can iridize a zone. Thats a fancy phrase. But

20what it means is you can load apart of a childs anatomy 21with sexual meaning. 22 For example, children who are constipated and

23frequently have suppositories inserted in their anus often 24in later life are quite preoccupied in their sexual life 25with anal kinds of matters. The attention paid to the anus So I think its an

26early in life lasts into later life. 27unhealthy interest. 3

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51 And indeed, if you read, as I did again this morning,

2what happens shortly after that manipulation of Maxs anus, 3Max says I want to stick my finger in the cats butt. And

4if that isnt posttraumatic impulses on Maxs part, I dont 5know what is. 6 7 Q Is there any - well, withdrawn. Is it appropriate if one parent thinks the other

8parent is sexually abusing the child to take these kind of 9photographs of the child? 10 A Its inappropriate whatever the parent thinks. If

11photographs need to be taken of a lesion, they should be 12taken to a pediatrician who then ought to dispense the 13proper direction in which to go, if any, including none. 14 Q Now, who else did you speak to in regards to your

15evaluation? 16 17 18 19 20 A Well, Im not sure who youre asking. ATTY. SMITH: THE COURT: Objection. I dont know

He listed at the beginning numerous

collateral contacts. ATTY. SMITH: Right.

21BY ATTY. EISENHANDLER: 22 23 24 25 26 27 3 Q A Q A Q A Did you talk to the family relations officer? Yes, I did. Do you remember his name? Robert LaMontagne. And how many times did you speak with him? Twice, I believe.

1
2

52 Q And what was your conversation - withdrawn. What did he tell you? A Initially he told me that he did not believe anything And during the

1 2 3

4untoward sexually had happened to Max.

5course of my evaluation, he wanted information from me about 6my opinions regarding the allegations of sexual abuse. 7 8 Q A What else did he tell you? Well, nothing that surprised me or that was new

9information I dont believe. 10 11 12 13 Q A Q A And how many times did you talk to Mr. LaMontagne? Twice I believe. And what did you tell him? Initially I told him nothing because I hadnt reached The last time I spoke to him which was I

14an opinion.

15believe shortly before my report came out I told him I had 16reached an opinion and I told him what it was. 17 18 19 20 21 Q A Q Okay. And what were your exact words?

I dont know my exact What were your words? ATTY. SMITH: THE COURT: He just said he didnt Sustained.

22BY ATTY. EISENHANDLER: 23 24 Q A What did you tell him? I told him that in my opinion the allegations of

25abuse were unfounded. 26 27 3 Q A Now, who is Linda Smith? Linda Smith is a PhD psychologist who lives in this

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53

1state. 2 3 4 5 6 7 Q A Q A Q A Have you ever had business with her in the past? Yes, I have. Now, you referred Max to her; is that correct? I did. For what purpose? To evaluate him psychologically and to evaluate more

8carefully the allegations of sexual abuse. 9 Q And what did Ms. Smith - Dr. Smith, excuse me, report

10back to you? 11 A She reported some concerning clinical diagnostic And she discussed the

12information about Max in her opinion. 13allegations of sexual abuse as well. 14 Q

Did you have a phone conversation with her at any

15point? 16 17 18 19 20 A Q A Q A I did. Can you recall when that was? Yes. April 26, 2011. What did she say to you?

All right.

She said that she found Max to be a troubled

21youngster, that she felt he, as I did, was terribly 22 23 24 25 26 27 3 THE COURT: Could you stop for a minute? I dont

Marshal, are we having another earthquake? know if anyone else feels whats going on. ATTY. BORDIER: that was. THE COURT: Okay.

I heard the loud bang, whatever

You and I heard that.

And

1
2

54 then I felt a shaking in my seat ATTY. SMITH: THE COURT: I heard a bang. - and it distracted me. The last thing I got is I didnt

1 2 3 4 5 6 7 8 9

Im sorry, Dr. Robson.

she found Max to be a troubled youngster. get the next statement. THE WITNESS: THE COURT:

Im distracted, Your Honor. Okay. Theyre agreeing we didnt Go ahead.

have one, so lets focus again, you and I.

10BY ATTY. EISENHANDLER: 11 12 Q A What did Dr. Smith tell you? She told me that she found Max to be troubled

13psychologically, structurally, that she found him to be 14regressed and developmentally operating at a much younger 15level than his chronologic age, much more similar to a 16preschool child than an early school aged child, that he was 17over stimulated all of the time and was flooded with 18overstimulation, and that as far as she could tell he - the 19allegations didnt of sexual abuse didnt hold much water. 20 21 Q A When you say regress, what do you mean? Regression refers to a developmental - its a

22developmental term that refers to a child slipping backwards 23developmentally. 24 For example, when a sibling is born and a 5-year-old

25child starts bedwetting again, thats an example of 26regression. 27 3 And what Dr. Smith felt was that Max was in general

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55

1regressed developmentally, that his cognitive and emotional 2life were in some sense retarded. 3 4 5 6 Q A Q A Is it being immature? Yes. Is that a layman Yes. We wouldnt make a living if we used that word

7though. 8 Q What does developmentally younger age, what does that

9mean? 10 A It means the same thing. For example, I not

11infrequently see children who are verbally quite precocious 12like Max is who still soil or wet the bed. Thats an

13example of developmental delays or regression or immaturity 14developmentally. Development occurs in lines. There are

15subsystems some of which like speech can be way out ahead of 16the race and some for which like sphincter control can be 17way behind. And thats the reality of children Theyre at different places whenever you Theyre not all at the

18developmentally.

19take a cross section through an age.

20same place with regard to their different subsystems of 21development. 22 So she was saying that many of Maxs developmental

23lines, emotional, cognitive were much more similar to those 24of a 3 or 4 year old child than a 6 or 7 year old child. 25 26 Q A What causes that? Well, part of it is constitutional and part of it is

27how a child is handled, parented. 3

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2

56 Q How does parenting - what type of parenting causes

2that? 3 A There are a number of illusions to Mr. Liberti

4infantilizing Max which means treating him like a much 5younger child. Thats one example. I think Dr. Carlson in

6Stony Brook observed that about Max, and I think Dr. Smith 7did as well. 8 I think mother wiping Maxs bottom, mother hovering

9around his penis and his anus, those are regressive too 10because part of development is learning respectful 11boundaries between yourself and your child. 12critical part of healthy development. 13 I think Maxs boundaries were crossed again and again Thats a

14and again by both parents, not just mother, in the course of 15his years. 16 17 Q A The overstimulation, what does that mean? Overstimulation is a critical issue. Ive written

18about that in several papers in the past.

Overstimulation,

19if you think about sexual abuse, if I may, I conceptualize, 20kind of, two kinds of sexual abuse. 21 There is discrete events of abuse, an assault on a And thats discrete

22specific day by a specific person. 23sexual abuse. 24

But then there is what I call process abuse which is And its much more

25chronic overstimulation of a youngster.

26toxic because its analogous to the Connecticut River full 27of chemicals spewed into it by manufacturing plants. 3 Its a

1
2

57 And I think

1chronic toxin that erodes the developing child.

2Max suffered and suffers still from process abuse. 3 4 Q A Whats an example of process abuse? All of the interactions described by the supervisory

5notes. 6 7 Q A Specifically what interactions are you referring to? The groping, the fondling, the - all of the behaviors

8in which Max is permitted free rein rather than having 9structure and anticipation and restraint. 10 His engine is constantly flooded, and thats what you

11read about in the supervisory notes, a child whose engine is 12running at high idle all the time. 13 Q Is there any bearing on your opinion that Max is not

14striking his father? 15 16 17 A Q Im not sure what youre asking me. Would you agree. THE COURT: I didnt understand the question.

18BY ATTY. EISENHANDLER: 19 Q The notes indicate that Max is groping and hitting

20his mom? 21 22 A Q Yes. Is the fact that hes not hitting his dad does that

23have any bearing on your diagnosis? 24 THE COURT: Sustained.

25BY ATTY. EISENHANDLER: 26 27 3 Q A Are you aware if Max hits his father? I believe I am.

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2

58 Q A Whats your understanding of that? That in his fathers presence its unusual that he

1 2

3hits his father or exhibits the same frenzy that he does 4with his mother. 5 6 7 8 Q A Q A Do you draw any conclusion from that? I do. What is that conclusion? That at least at this point in time the paternal

9environment is healthier and more modulated. 10 In my paper, I talk about a concept of Donald I talk about orgiastic way of relating versus The orgiastic way is

11Winnicots.

12the ego related way of relating. 13overstimulation.

The ego related way is respectful

14boundaries and modulated stimulation. 15 Its my opinion that in fathers home theres much And in mothers home, at least in the

16more ego relatedness.

17past until the recent past, much more orgiastic stimulation. 18 Q In your review of the supervisors notes, did you

19read that Max would strike Ms. Shaw? 20 21 A Q Yes. Now, how does that - well, do you draw any

22significance from that? 23 A Well, its not your average way of relating to He would run up to her and hit her Thats

24friends and relations.

25on the bottom several times or hit her breasts. 26described many, many times in the notes. 27 3 Do I draw any conclusion from that? Yes.

Max has

1
2

59 And Ms. Shaw has bad

1poor control in some situations. 2judgment. 3 4 Q A

What do you mean bad judgment? She, again, was late in her response to stopping Max.

5I mean, I dont see any instances where someone says Max, 6now look, this has happened ten times, Ive told you hands 7off, do you understand that, Max, the next time you touch me 8youre going to your room for an hour and theyll be no 9video games, there will be no whatever, whatever the 10punishment is. 11 I dont hear any of that kind of executive I hear as times go on the

12structuring of Maxs environment. 13prohibitions grow stronger. 14happens.

But for many months, nothing

Max goes about his groping as if theres no And thats what struck me.

15expecting it. 16 Q

But youre aware of Ms. Kelleys concern about

17silencing the child, are you not? 18 19 A Q Im sorry? Are you aware of Ms. Kelleys concern about silencing

20the child? 21 22 23 A Q A Yes, I am. And whats your opinion of that? My opinion is that its based upon her own traumatic

24childhood which receives far too little attention in 25understanding all of this and that its a projective 26identification of Max as a small version of her. 27 3 Q Whats your understanding of Ms. Kelleys childhood?

1
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60 A That she was physically abused at least by her father

2whom one therapist said Ms. Kelley described him as 3predatory in quotes. 4 And she was groped by a stepsibling when she was I believe she was molested, if not date raped,

5younger.

6when she was in college or rather in high school and again 7experienced the lack of attention from administrators who 8didnt take her seriously. 9 So she has a preoccupation with not wanting to muscle And

10anything that could suggest the truth of Maxs traumas. 11it really reaches almost delusional proportions and in my 12opinion is bad parental judgment. 13 14 15 16 17 18 19 20 Q A Q A Q A Q A Whats your source of that information? Which part of it? The part about Ms. Kelleys sexual abuse history. Her, Ms. Kelley. How about the physical abuse history? Ms. Kelley as well as her therapists. Do you recall their names? All four therapist said the same thing. They all

21said as soon as they began to approach the childhood traumas 22of Ms. Kelley she left therapy. 23 Dr. Boudreaux, Dr. Templeton, Sloan Gorman, and I was very struck by

24Ive got three but missing the fourth. 25the convergence of information. 26 27 3 Q A What does that mean to you?

Well, it means that three different - at least three

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61

1different pairs of clinically trained eyes observed the same 2phenomenology, that Ms. Kelley was anxious about her 3childhood experiences and had difficulty weaving them into 4her therapy in a way that would help her to understand her 5current behaviors. 6 Q Do you think Ms. Kelleys past is affecting her

7relationship with Max? 8 9 10 ATTY. SMITH: THE WITNESS: THE COURT: Objection. Absolutely. Sustained.

11BY ATTY. EISENHANDLER: 12 13 14 15 16 Q A Q A Q Doctor, do you treat adults? Yes, I do. And how long have you treated adults? 47 years. Do you have you testified in court regarding adult

17psychiatric issues? 18 19 20 21 22 23 24 25 26 27 3 A Q A Yes, I have. How many times? Many times. ATTY. SMITH: THE COURT: witness. Objection. Are we -

The problem was you lead the

Thats why I sustained the objection. Okay. But Im going to

ATTY. EISENHANDLER: qualify him as an expert. THE COURT:

Well, youre going to attempt to. Im going to attempt to.

ATTY. EISENHANDLER:

1
2

62 THE COURT: the problem. ATTY. EISENHANDLER: THE COURT: Okay. But I think this is I I understand. But you lead the witness. That was

1 2 3 4 5 6 7

ATTY. EISENHANDLER: just want to be clear. it.

I thought I previously did

I just want to make sure its clear.

8BY ATTY. EISENHANDLER: 9 Q Im sorry. You testified in court regarding adult

10psychiatric issues? 11 12 A Q Yes, I have. Have you been certified by a court in the state as an

13expert? 14 15 16 17 18 19 20 21 22 23 24 A Q A Q A Yes. How many times do you think? 25, 50, 75. A few? Yes. ATTY. EISENHANDLER: Im going to offer the More than a few?

doctor as an expert on this too, Your Honor. THE COURT: On what, adult psychiatry? Yes.

ATTY. EISENHANDLER: ATTY. SMITH: THE COURT:

May I voir dire? You may.

25VOIR DIRE BY ATTY. SMITH: 26 Q Doctor, I thought your practice was a practice of

27psychiatry with respect to children and adolescence? 3

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2

63 A Well, Im boarded in general psychiatry and child and Through my career I have always

2adolescence psychiatry.

3treated adult patients either parents as parents or parents 4as patients. And I get a good many referrals of adults as

5well, so I carry maybe fifteen percent of my patients are 6adults. 7 8 9 10 11 Q A Q A Q Fifteen percent are adults? Yes. Today? Yes. And are they being treated with you in accordance

12with the children you treat or are they being treated with 13you individually on their own? 14 15 16 17 18 19 20 21 22 23 24 25 A More the later than the former. ATTY. SMITH: for him on this. Okay. I dont have anything else

Again, I would think that this

particular area would be part of disclosure, but I understand the Courts rulings and I have nothing else to argue on it. THE COURT: All right. You can proceed.

ATTY. EISENHANDLER: an expert, Your Honor. THE COURT: psychiatry. ATTY. EISENHANDLER:

I am offering the doctor as

Hes an expert in general

Thank you.

26CONTINUATION OF DIRECT EXAMINATION BY ATTY. EISENHANDLER: 27 3 Q Doctor, do you attach any significance to Ms.

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64

1Kelleys non cooperation with her therapists in discussing 2her past abuse? 3 4 ATTY. SMITH: THE COURT: Objection. Sustained.

5BY ATTY. EISENHANDLER: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Q A Q A Q A Q You spoke to Ms. Gorman? Yes. How long did Ms. Gorman treat Ms. Kelley? I think four years. Four? I believe so. Please. Id have to refer to my notes.

(Brief pause in the proceedings.) Q A Q A Doctor, can I refer you to page 24 of you report? You certainly could. Yes.

Does that refresh your recollection? Well, Im afraid the time isnt mentioned there. ATTY. SMITH: THE COURT: Im sorry? Yes. 24.

And the witness replied Im

afraid the time was not mentioned.

21BY ATTY. EISENHANDLER: 22 23 24 25 26 27 3 Q A Q A Q Do you remember - how many times did Ms. Gorman Im sorry? How many times did Ms. Gorman see Ms. Kelley? I have to Page 24, last paragraph, doctor, does that help you? THE COURT: Mr. Eisenhandler, its all ready in

1
2

65 evidence. So if theres something you want to refer

1 2 3 4

to and ask the witness a question, you can read from the document in evidence and then ask the question. ATTY. EISENHANDLER: I will, Your Honor.

5BY ATTY. EISENHANDLER: 6 Q Ms. Gorman - the report you indicate on page 24 of

7you report says so Sloan Gorman was Sunnys therapist for 8some 20 sessions between 10/5 and 2/6? 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ATTY. SMITH: Im not it would be very hopeful

if he told me where we are. ATTY. EISENHANDLER: ATTY. SMITH: THE COURT: ATTY. SMITH: THE COURT: Page 24. My page 24.

I dont have that on 24. Wrong page. 26, Judge? Im sorry. Well, whats in evidence 26 top.

in your cut off was wrong in printing apparently. ATTY. EISENHANDLER: edition. THE COURT: got it? ATTY. SMITH: THE COURT: THE WITNESS: I have it now, yes, Judge. Thank you. Yes. 26 top of the page, Mr. Smith. You Im using a different

24BY ATTY. EISENHANDLER: 25 Q Okay. Sorry for the confusion. Does that refresh

26your recollection, doctor? 27 3 A Yes.

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2

66 Q A Q How many times did Ms. Gorman see Ms. Kelley? Approximately 20 times. Okay. Did Ms. Kelley relate to you information about

1 2 3

4her auto accident? 5 6 7 A Q A Well, she mentioned it. What did she say? That it was a dreadful accident and that she suffered

8significant injury that was disabling for her. 9 10 11 Q A Q Im sorry. I didnt hear your last

That was disabling for her. Okay. Did she indicate how long she was disabled

12for? 13 14 15 16 A Q A Q Months. Months? Yes. Now, Ms. Gorman in the in your report, last line,

17it says, she wondered if Sunny was stuck in the victim mode, 18and thats in quotations. 19 20 21 22 23 ATTY. SMITH: Last line, Im sorry, where? Last line in that first

ATTY. EISENHANDLER: paragraph. ATTY. SMITH:

First paragraph She wondered if Sunny was

ATTY. EISENHANDLER:

24stuck in the quotations 25 26 27 3 ATTY. SMITH: Are we talking page 24 now? 26.

ATTY. EISENHANDLER: THE COURT:

Quote, she wondered, spelled wrong,

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2

67 if Sunny was stuck in the, quote, unquote, victim mode. ATTY. SMITH: you. I see it. Page 26. Okay. Thank

1 2 3 4

5BY ATTY. EISENHANDLER: 6 7 8 9 10 11 12 13 that. Q A Q Were those her exact words? Yes. Okay. Did you ask her what she meant by victim mode? ATTY. SMITH: THE COURT: she meant. ATTY. SMITH: Oh, did you ask. No problem with How can he testify what she meant? No. He asked did you ask her what

14BY ATTY. EISENHANDLER: 15 16 17 Q A Q Did you ask her what she meant by victim mode? No. Okay. In the next line you indicate Sunny stopped

18therapy because her insurance changed and because the 19childhood issues became uncomfortable for her? 20 21 22 23 A Q A Q Yes. Ms. Gorman told you that? Yes. Did she say what childhood memories were

24uncomfortable? 25 A I dont recall for certain. But all of the

26therapists had in mind the traumatic interactions with her 27father and the other traumas that she experienced growing 3

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68

1up. 2 Q Did Ms. Kelley tell you what happened between her and

3her father? 4 5 6 A Q A Well, I know there was a period of estrangement. Did she give you any more detail than that? Well, I believe she found him a very difficult man.

7And she was particularly concerned that he and her mother 8would no acknowledge the reality of her traumas. 9 Q Do you feel her childhood experiences are affecting

10her parenting of Max? 11 12 13 A Q A Yes. How so? If I may use an example from Jennifer Bourne, when And

14Max was an infant, he required catheterization.

15Jennifer Bourne was present apparently when that happened 16took place. And she recalled Sunny getting very angry at

17the doctors and saying that doing this to Max was tantamount 18to sexual abuse. 19 I think thats an example of how her own

20preoccupations spread to Max at the very beginning of his 21life and grew and amplified with the passage of time. 22Thats 23 24 Q A Ms. Bourne - Im sorry. Go ahead. And what

Thats called a projected identification.

25it means is you see someone else as an aspect of yourself. 26 27 3 Q A So Max being catheterized is her being abused? Was analogous to her being abused.

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69 Q Did Ms. Borne tell you that she was actually

2physically present when Max was catheterized? 3 4 A Q That was my understanding. Any other concerns you have about Ms. Kelleys past

5as to her ability to parent Max? 6 A Well, yes. I think that her insistent preoccupation

7that Max has been abused or is being abused is a toxic 8environment for Max. 9 And unless Ms. Kelley internally can deal with the

10relationship between that preoccupation on her part and her 11own traumas quite independent of Max and earlier in her 12life, she will find it hard ever to see Max through clear 13lenses that arent colored by her own past. 14 Q Im not - what is your suggestion that Ms. Kelley

15should do? 16 A Well, my suggestion is she probably needs to have a

17good therapist who is familiar with the sequelae of 18childhood trauma, who various reads reports including my 19own, and is willing to work with her and she needs to be 20willing to work with that person if shes to stand a chance 21to modifying what is a very toxic problem in my opinion. 22 23 Q A Without this treatment, what are your concerns? That she will find it virtually impossible to modify

24her attitudes and beliefs and convictions about Max and Max 25being abused. 26 Q Do you believe shes sincere in her belief that Max

27is being abused? 3

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70 A Q A Q A Q Yes. At of the hands of the father? Im sorry. Being abused at the hands of Mr. Liberti? Yes. Did she tell you that she believed that Mr. Liberti

1 2 3 4 5 6

7is anally raping Max? 8 9 ATTY. SMITH: THE COURT: Objection. Sustained.

10BY ATTY. EISENHANDLER: 11 Q Now, can you describe to the Court your methodology

12in determining whether or not child abuse has taken place? 13 14 15 16 ATTY. SMITH: Did he say methodology? Methodology.

ATTY. EISENHANDLER: THE WITNESS:

I would rather call it a system

rather than a methodology.

17BY ATTY. EISENHANDLER: 18 19 Q A System, well use that word. Its a way of organizing data. I believe the Court

20is familiar with it, but Im happy to review it. 21 22 Q A Please. I believe that it is impossible to evaluate

23allegations of sexual abuse without a comprehensive database 24that includes a variety of kinds of information. 25are relevant. 26 They include the family, the family interactions, the They all

27parents individual life experiences over time, the childs 3

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71

1temperament, the state of the relationship mother and father 2in terms of intimacy and divorce, the sexual life o the 3parents, the family practices in the home with regard to 4modesty and boundaries and stimulation and structure, the 5degree to which the home environment is orgiastic versus ego 6related, and the extent of which each parent practices one 7or another of those modes of relatedness, ancillary 8information about schools, about medical care, the opinions 9of the whole variety of people with regard to the child, the 10family, patterns of interaction. 11 All of those things and many more are relevant to the

12assessment of sexual abuse allegations because, as I said in 13my paper in my report, you really for the most part never 14know whether someone has been sexually abused. The only

15time you know with certainty is if theres a confession by a 16perpetrator, if theres a witness to the abuse, or if 17theres frank physical evidence. 18 Short of those three sources of information, youre I know that and honest people know

19left with probabilities. 20that. 21 22 Q A Thats the truth. Im sorry.

What kind of people? So

Honest people who are objective know that.

23granted that we had none of the three sources of information 24in my opinion, what I do is gather as much data as I can 25that are relevant to the allegations of abuse and I separate 26them into three columns which include data that supports the 27credibility of the allegations, data that is neutral, points 3

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72

1neither way, and data that diminishes the credibility of the 2allegations. 3 And I try and organize the information I have in

4relation to those three categories, and then I apply simple 5five point scale looking at those three columns. And the

6scale goes from highly probable that the abuse occurred, 7probable, dont know, improbable, highly improbable. 8its not a very elegant scale. So

And then I try and land on

9that five point scale with the data that Ive just described 10to you. 11 Q Can you give me an example of a piece of data and how

12you would rate it? 13 A Yes. The descriptions by the supervisors of the

14interactions between Max and his mother, his groping for 15sexual organs again and again and again, thats data. 16 17 Q A All right. I interrupted your description.

And that data diminishes the credibility of the

18allegations against father. 19 Q Is there any different way to weigh different

20factors? 21 22 A Q Yes. What would the weight be given to the mothers

23statements? 24 25 26 27 3 A Well ATTY. SMITH: THE COURT: Objection to that. Basis? Im not sure I understand the

ATTY. SMITH:

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73 question. What weight you mean what category is he

1 2 3 4 5 6 7

putting it in or what THE COURT: What weight does he provide does

he attach to Ms. Kelleys statements? ATTY. SMITH: THE COURT: THE WITNESS: In this case, okay. Yes. Are you asking her statements of

8conviction that abuse is occurring or has occurred? 9BY ATTY. EISENHANDLER: 10 11 12 13 Q A Q A Her statement of what has occurred. I as time went on, I gave those less credibility. Why is that? For reasons that should be apparent from my

14testimony, that reasonably careful examinations by a variety 15of professionals, her own background, the story as you begin 16to put the parts together in my opinion diminished the 17likelihood that her conviction was accurate. 18 Q What about the weight you gave to Mr. Libertis

19statements to you? 20 21 22 23 24 25 26 27 3 A Q A Which ones? At the beginning when he first met you. Well, his THE COURT: THE WITNESS: THE COURT: Excuse me. - comments Excuse me, doctor. Are you asking

him now looking back on that or at the time that he received them?

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74 ATTY. EISENHANDLER: When he initially met with

1 2 3 4

him and then Im going to ask him now. THE COURT: understand. Okay. Im sorry. I didnt

5BY ATTY. EISENHANDLER: 6 Q When you initially met Mr. Liberti, do you weigh

7heavily in his position? 8 9 10 11 12 13 14 15 16 17 A Q No. Youre aware ATTY. SMITH: I think he asked Im sorry

what weight did he give THE COURT: interviewed him. ATTY. SMITH: And I didnt hear an answer. I At the time that he first

just heard Attorney THE COURT: ATTY. SMITH: No. No. Thank you.

18BY ATTY. EISENHANDLER: 19 Q Youre aware that Ms. Kelley accusing Mr. Liberti of

20domestic violence, are you not? 21 22 A Q Yes. What weight do you give Mr. - at the time you

23prepared withdrawn. 24 At the time you prepared your report, what weight

25give to Mr. Libertis statements to you regarding whats 26going on? 27 3 A Whats going on meaning whether -

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2

75 Q What you had learned? ATTY. SMITH: THE COURT: Im lost with the question. Yes. Please rephrase. Hang on there. Thank you. You get

1 2 3 4 5

lunch in a half hour. ATTY. EISENBERG:

6BY ATTY. EISENHANDLER: 7 Q You testified earlier about what weight you gave Ms. Im asking you what weight did you give Mr. The statements -

8Kelley. 9Liberti? 10 11 12 13 14 A Q A Q A

With regard to his denials of his Absolutely. In the beginning, no much. How about the end? I think he minimized the massaging and the touching But I think overall he was Im sorry, Judge. You cant hear him? He minimized the massaging And touching of Maxs genitals.

15of Maxs genitals. 16 17 18 19 20 21 22 23 24 25 26 27 3

ATTY. SMITH: THE COURT: ATTY. SMITH: THE COURT:

Could you speak up? THE WITNESS: Yes, Your Honor.

And I counted that, that is I took it into consideration, but I considered it quantitatively, a relatively modest part of his interactions with Max compared to the chronic overstimulation that was observed between mother and Max. I took his early education I think probably

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76 both parents educating Max to terms like vagina and Mr. Libertis describing intercourse too early for a young child to hear about it as inappropriate and I counted that as adverse influence on Max.

1 2 3 4

5BY ATTY. EISENHANDLER: 6 Q What - youre familiar with Dr. Newbergers work in

7this case? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 ATTY. SMITH: and I lost ATTY. EISENHANDLER: ATTY. SMITH: Work Involvement Work in this case. Im sorry. Again, Dr. Newberger,

ATTY. EISENBERG: THE COURT:

Are you familiar with Dr. Why is it Im the

Newbergers work in this case? only one who can do this? ATTY. SMITH: THE COURT:

I dont know. Thank you.

Maybe because

ATTY. SMITH:

- hes got his hand and hes

talking that way and youre right there, perhaps. THE COURT: Okay. Maybe I should step back.

ATTY. EISENBERG: THE COURT:

For some reason given Mr. Smiths

place in the courtroom, he struggles with hearing some of the words unless someone talks like I do. ATTY. EISENHANDLER: I have no objection if Mr.

Smith wants to move his chair next to the witness. THE COURT: Thank you. Hes taking notes where

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77 he is. ATTY. EISENHANDLER: Okay. Thank you.

1 2

3BY ATTY. EISENHANDLER: 4 Q Youre familiar with Dr. Newbergers involvement in

5this case? 6 7 A Q Yes, I am. Okay. Are you aware that he believes that you are

8biased against women who make a claim of domestic violence? 9 10 11 12 13 A No. ATTY. SMITH: Well Its in Dr. Newbergers

ATTY. EISENHANDLER: report. ATTY. SMITH: Well

14BY ATTY. EISENHANDLER: 15 Q Are you biased against women in your findings who

16make claims of domestic violence? 17 18 A Q Not to the best of my knowledge. Okay. Now, we were discussing your process, How many times have you used this process to

19methodology.

20make a determination whether or not sexual abuse has taken 21place? 22 A Its not whether I have determined whether sexual Its whether I reach an opinion

23abuse has taken place. 24about its probability. 25 Q Youre correct.

Im sorry.

How many times have you

26used this process to make a determination whether it is a 27probability that sexual abuse has taken place? 3

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78 THE COURT: He didnt call it a process. He

1 2

called it a system.

3BY ATTY. EISENHANDLER: 4 Q How many times have you used this system, doctor, to

5make a determination? 6 7 A Q Perhaps 20, 25 times. And using this system, have you made a determination

8whether its likely or high unlikely that, in fact, sexual 9abuse has occurred in this case? 10 11 12 13 14 A Q A Q A Yes. What is your opinion? My opinion is that its highly unlikely. What? That sexual abuse has and is occurring between father

15and Max. 16 Q Okay. Now, if a child was being sexual abused, is

17his school experiences relevant? 18 19 ATTY. SMITH: THE COURT: Objection. Sustained. Relevant to what?

20BY ATTY. EISENHANDLER: 21 22 23 24 25 26 27 3 Q Relevant to whether or not hes being abused? THE COURT: little tired. Everyone is probably getting a He wants to know

Let me try it.

whether you would need to consider his school experience in your reaching a conclusion as to whether you can render an opinion as to the probability of sexual abuse.

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79 THE WITNESS: Yes, it is relevant.

2BY ATTY. EISENHANDLER: 3 4 5 6 7 8 9 10 11 12 13 14 Q A Q A Its a factor? It is a setting from which data emerges. Are you familiar with Maxs current report card? I dont believe Ive seen his current report card. ATTY. EISENHANDLER: THE COURT: Hm-hmm. May I?

(Brief pause in the proceedings.) ATTY. EISENHANDLER: THE CLERK: 24. 24.

(Brief pause in the proceedings.) THE COURT: Someone have a copy? Thank you very

much, Attorney Bordier.

15BY ATTY. EISENHANDLER: 16 Q Im going to show you Maxs report card, doctor. I

17must tell you just so theres no confusion that the pluses 18on his behavior column are a positive thing. 19from a 2 to a 2 plus, thats a good thing. 20improved. 21 22 23 24 25 26 27 3 So if he went It means he

Can you take a moment and review that?

(Brief pause in the proceedings.) Q A Q A Q A Youre chuckling, doctor? What? Youre chuckling. I am. Why is that? I think the descriptions are funny of Max slithering

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80

1as a great boa constrictor. 2 3 4 5 6 7 8 (Brief pause in the proceedings.) Q A Q A Q A Did you have a moment to review that, doctor? Yes. Do you put any weight on Maxs behavioral grades? I do. What weight is that? Well, it seems to me that Max has improved over the And in fact, when Dr. Newberger

9last four to six months.

10and Dr. Silberg kept describing his terrible decline, it 11seemed to me it was going the other way, that Max was 12getting better as far as the supervisory notes and certainly 13as far as the report card goes. 14 Q Do you think report is a good indication in how a

15child is doing? 16 A Teachers are the best diagnosticians of childrens Theres good literature on that.

17problems. 18 Q

Now, you said Dr. Newberger and Dr. Silberg indicated

19that Max was in decline? 20 21 22 23 A Q A Q Yes. How do you know that? Because they said so. Did you have conversation with Dr. Newberger and Dr.

24Silberg? 25 26 27 3 A Q A Yes. When did you speak with Dr. Newberger? On May 2, 2011.

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81 Q A Q A Did he call you or did you call him? I called him. Why did you call him? Ms. Kelley asked me to. And since I knew he was

1 2 3 4

5involved, I felt it was important to gather information from 6him. 7 8 Q A What did he say to you? He said to me that he believed that Max was being He said that - I asked him about the I asked him about

9abused by his father. 10overstimulation.

He made light of it.

11the family bed and nudity.

He didnt account for that at

12all, that is he gave it no importance and ended up by saying 13that in his opinion Max was at terrible risk, high danger, 14and that it wasnt appreciated by others and it should be 15because he had been doing this work for many years and knew 16what he was talking about. 17 18 19 20 Q A Q A Did he offer you any advice? Yes, he did. And what advice was that? Well, he suggested that father be observed with a And he urged me not to be He had

21supervisor present more.

22hoodwinked by prior evaluations, including Yale.

23spoken to the had of the Yale Sexual Abuse program who is a 24colleague of his, and apparently he said to Dr. Newberger 25that one interview wasnt sufficient to rule out sexual 26abuse. So Dr. Newberger was quite adamant that Max was in a

27terrible situation and was in grave danger. 3

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82 Q A Q Do you share his opinion? No, I do not. Did Dr. Newberger indicate that he wanted to meet the

1 2 3

4child? 5 A He - I believe he had seen Max very briefly on one He didnt say anything more about wanting to

6occasion.

7evaluate him further I dont believe. 8 Q He didnt tell you he thought it would be important

9that he was able to evaluate the child? 10 11 A Q I dont recall honestly. He may have.

Now, when you said he made light of your concerns of

12the child being over stimulated, what do you mean made light 13of? 14 A Well, I asked him what he thought of the fact that

15Max had shared a family bed for five years plus, that the 16parents had been nude at least part of the time. 17nonplussed by that information. And he was

It didnt mean anything to

18him, nor did Maxs behavior with mother as documented by the 19supervisors. 20staggered me. 21 22 23 24 Q A Q A Staggered you? Yeah. Why? Well, I cant imagine anyone with partial vision, That didnt mean anything to him. That

25glaucoma or cataracts, who wouldnt take seriously the 26information from the supervisors. 27 3 Q Well, what did Dr. Newberger indicate he was relying

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83

1on? 2 3 A Q I guess his experience and his judgment. Did he indicate he was relying upon any of the facts

4in this case? 5 6 7 8 A Well, I dont ATTY. SMITH: THE WITNESS: THE COURT: Objection. I was Sustained.

9BY ATTY. EISENHANDLER: 10 11 12 13 14 15 16 17 18 19 Q A Q A Q A Q A Q A Now, do you think youve been hoodwinked? Im sorry? You described being hoodwinked? Yes. Do you think youve been hoodwinked in this case? Well, I dont believe so. Did - what did you tell Dr. Newberger? I didnt tell him anything. Why not? Because that wasnt his right to hear my opinions. I

20was gathering information from him. 21 22 23 Q A Q You didnt have an opinion at that time? Whether I did or not, it wasnt for him to hear. But its your testimony that he had a definitive

24opinion that Max was currently being abused? 25 26 27 3 A Q A Yes. Did he say it was Mr. Liberti Yes.

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84 Q A Q A Q - doing that? Yes. I just want to Yes. Dr. Newberger said to you that it was his

1 2 3 4 5

6professional judgment that Mr. Liberti was sexually 7molesting his child? 8 9 10 11 12 13 14 15 16 A Q A Q A Q A Q A Yes. Now, you spoke to Dr. Silberg? Yes. When did you have that conversation? April 27, 2011. Did you call her or did she call you? I called her. And why did you call her? Because she was involved in developing an opinion

17about the allegations and 18 19 20 21 22 23 24 25 26 27 3 Q A Q A Did Ms. Kelley ask you to call her? She did. And what did she say to you? Well, she was more alarmed than Dr. Newberger. ATTY. SMITH: THE WITNESS: ATTY. SMITH: THE WITNESS: THE COURT: Was more what? Alarmed. Alarmed? Yes. Yes. She felt Max was being subjected

THE WITNESS:

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85 to clever criminal methodologies of sexual abuse, that his life was at stake, and that it was a very urgent matter. When I told her asked her what she thought about the supervisory notes and all of the sexual groping of Max, she said thats not relevant, thats not characteristic of sexual abuse. not. it. It is sexual abuse. Indeed, its

1 2 3 4 5 6 7 8 9

But she made nothing of

10BY ATTY. EISENHANDLER: 11 Q What was - what did she say to you was her reason for

12alarm? 13 A She said that I had not appreciated that Ms. Kelley

14was a sweet, thoughtful mother trying to protect her child 15from dangerous levels of male predatory abuse. 16 Q Did she specifically say to you that she thought that

17Mr. Liberti was sexually abusing the child? 18 A I dont believe she said she was certain that Mr. But she was certainly suspicious of his being She was certain Max was being abused.

19Liberti was.

20the perpetrator. 21 22 Q A

But didnt name who she felt was the perpetrator? She named who she thought was probably the

23perpetrator. 24 25 26 27 3 Q A Q A And who was that? Mr. Liberti. What else did she tell you? She told me that the prior examinations of Max meant

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86

1nothing, that they were all mistaken, that she was convinced 2that Max was being anally manipulated, and that the scene in 3Dr. Collins office represented posttraumatic eruption when 4Max vomited that confirmed all that Max was saying, that he 5had been gagged, anally penetrated, and orally given feces, 6and so on, that all of that she believed. 7 Q And did she believe that Max was subject to those

8horrific events? 9 10 11 A Q A Yes. What was her belief based on? Did she tell you?

Her experience and her she had read some of the But I think she she gave

12information that all of us read.

13her own experience and training to the opinion the same way 14Dr. Newberger did. 15 Q But did she apply the facts as she perceived them to

16be in this case to her conclusion? 17 18 ATTY. SMITH: THE COURT: Objection. Sustained.

19BY ATTY. EISENHANDLER: 20 Q Did she indicate any specific facts in this case

21which lead to her conclusion? 22 A Well, as I mentioned, Max vomiting in Dr. Collins

23office but the 24 25 Q A The situation in Dr. Collins office? But the information that I brought up to her that

26concerned me she discounted. 27 3 Q Such as what?

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87 A Q A Such as all of the supervisory observations. Anything else that you brought up to her? The whole issue of overstimulation. And the issue of

1 2 3

4false allegations of abuse.

But truly I had the impression And

5that Dr. Silberg had a passionate opinion about Max.

6she trained in a very good place, and shes affiliated with 7a very find institution. 8 9 Q A Frankly, it took me by surprise.

What were you surprised about? That she having really not been involved in all the

10other data recall when I said - to me an allegation of 11sexual abuse requires a vast amount of information to be 12appreciated. I had the impression that her view was very

13narrow and that she took a small amount of data and made 14from it an absolute opinion that was unshakable. 15the sense that it was passionate which worried me. 16 17 Q A Why did that worry you? Because people who evaluate sexual abuse who are And I had

18passionate about it often have other reasons for being 19passionate than objectively reviewing data. 20 Q Did you discuss any concerns with Dr. Silberg

21regarding her opinion? 22 23 24 25 26 27 3 A Q A Q A Q No, I did not. And why is that? It wasnt my business to do that. Did she express for Maxs future? She did. And what was her recommendation to you that should

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88

1happen? 2 A Well, she felt strongly that father should be

3supervised and observed and that Max should be with his 4mother. 5 6 7 Q A Q Do you think thats a good idea? Which? Dr. Silbergs suggestion, that the father be

8supervised and Max go back to the mother? 9 A Well, there might have been a few more sessions in I do

10fathers home than there were with somebody observing. 11think that might have been more balanced. 12it would have been revelatory. 13

But I doubt that

I do not think that Max should be with mother, no. I

14believe that Max loves his mother and she loves him. 15dont mean that they should have no relationship. 16mean that at all. 17 Q

I dont

What are your recommendations in this matter, Dr.

18Robson? 19 20 21 22 23 24 25 26 27 3 ATTY. SMITH: I know theyre in his report. Im going to explore them

ATTY. EISENHANDLER: and ask him. THE COURT:

I didnt hear your objection. My objection was they are in his

ATTY. SMITH: report. THE COURT:

Well, hes allowed to allowed then

to inquire because theyre all ready in evidence. ATTY. SMITH: Im okay with his inquiring. Just

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89 to restate them, I notice that were a whole morning here on this one and I thought it was going to be short. Here we go again. I thought yesterday was

1 2 3 4 5 6 7 8 9

ATTY. EISENHANDLER: going to be short too. THE COURT:

All right, counsel.

Take him

through any questions you have rather than a mere recitation, if you would. ATTY. SMITH: Thats all Im saying.

10BY ATTY. EISENHANDLER: 11 12 13 14 15 16 17 Q A Doctor, you made some recommendations in this case? Yes, I did. ATTY. SMITH: are 64 and 65. The recommendations in the record

I dont know where they are in

Attorney Eisenhandlers. ATTY. EISENHANDLER: THE COURT: I got them.

Thank you.

18BY ATTY. EISENHANDLER: 19 Q Your first recommendation is sole custody with the Why do you think thats in Maxs best interest? I am concerned that mothers judgment with regard to And I believe that for

20father. 21 A

22Maxs safety is seriously flawed.

23Max to be - Maxs care to be significantly designed by 24mother is a risk. 25 And I would go so far to say that flight may be a

26risk given the degree of her preoccupation with Max being 27abused and her conviction that he was and is being abused. 3

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90 Q A Q When you say flight, what are you suggesting? I mean her taking Max out of state. Number two, you indicate supervised access for the

1 2 3

4mother and supervision should take on a therapeutic role in 5Ms. Kelleys life. 6 A What does that mean?

Well, I think that all ready has begun to happen at What I mean is that the supervisor

7least from what I read.

8takes on a teaching role with mother when its necessary and 9appropriate. 10 For example, I made a good deal this morning of Ms. I think she does

11Kelleys not anticipating Maxs behaviors.

12better with that now than she did six months ago from what I 13read in the supervisory notes. 14something. I think shes learned

Whether its an inner conviction that that is a

15sensible way to parent or whether its compliance with the 16system, I dont know. 17 But therapeutic supervision is a kinder, gentler way

18of teaching useful information to any parent. 19 Q But how would you ensure or can you ensure that this

20flight risk is not something that will happen six months, a 21year from now? 22 23 24 25 26 27 3 How do you do that? Objection. Sustained. Lack of foundation that

ATTY. SMITH: THE COURT:

he has the credentials for that. I think well take our lunch recess now. (The Court recessed.) (The Court resumed.)

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91 THE COURT: I need Attorney Murphy.

1 2 3 4

(Brief pause in the proceedings.) ATTY. MURPHY: THE COURT: I apologize, Your Honor. Take a seat, Dr.

Thats all right.

5Robson. But we have to do some things to interrupt your 6testimony for about two minutes before Ms. Franchi, my case 7flow person leaves for the day. 8 (This portion of the proceedings was not requested to be

9transcribed.) 10BY ATTY. EISENHANDLER: 11 Q Do you think its important, doctor, that Max see Dr.

12Collins? 13 14 A Q Yes, I do. Does it concern you if Ms. Kelleys not bringing Max

15to Dr. Collins? 16 17 18 A Q A Yes, it would. Why? Because a child takes their cues from a parent. And

19if a parent is in a conflicted relationship with a 20therapist, that child cant use that therapist. 21 Q Doctor, I have on question. Are you suffering from

22Alzheimers? 23 A Not to the best of my knowledge unless Ive forgotten

24about it. 25 26 27 3 Q Thank you. ATTY. EISENHANDLER: I have nothing further.

(This portion of the proceedings was not requested to be

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92

1transcribed.) 2CROSS-EXAMINATION BY ATTY. SMITH: 3 Q Doctor, bear with me. Im going to put some papers

4up here or down here. 5 Doctor, you said something about Dr. Collins and you

6said that the child takes cues from the parent; and if the 7parent has problems with the therapist, then there needs to 8be a different therapeutic relationship between the child 9and the therapist; is that what you said? 10 A Well, no. What Im saying is in general if a parent

11is negatively inclined toward a childs therapist, that 12child has a difficult time profiting from that therapist. 13 Q Thats what okay. So perhaps that therapeutic

14relationship, if thats the case, would not be an 15inappropriate one; isnt that accurate? 16 17 A Q Its possible, yes. Now, doctor, you testified that Max may be a risk for What data that you have - strike that. Has there been any action on my clients part

18flight. 19

20specifically to support that opinion specifically? 21 22 23 24 25 A Q A There hasnt been any action. Okay. Theres been attitude. ATTY. EISENHANDLER: THE WITNESS: Im sorry, doctor?

Theres been attitude.

26BY ATTY. SMITH: 27 3 Q Attitude. And so shes represented to you she

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93

1intends to flee? 2 3 4 A Q A No. No.

So what do you mean by attitude? What I mean is she continues to hold to the opinion

5that her son has been and is being abused and that 6notwithstanding the negative findings of many other sources 7of 8 Q How do you know holds the opinion that her son is

9being abused right now? 10 A I dont know that right now. I know it only from my

11last contacts with her. 12 Q Okay. So when you talk about - when your statements

13relate to the present time, its accurate, isnt it, doctor, 14that that relates up until the time of you report on May 5, 152011? 16 17 A Q Thats correct, Attorney Smith. Okay. And so by holding the opinion that Mr. Liberti

18is - has sexually abused Max and was up until that point in 19time, that is the sole basis for your opinion that there may 20be a flight risk; isnt that accurate? 21 A Well, its not the only source of worry. I worry

22that the two specialists that she engaged share her 23conviction. And I think its difficult it makes it more

24difficult for her to waiver in her own opinion. 25 26 27 3 Q A Q Is that the only other concern about flight risk? Yes. Okay. Now, well talk about some of that later. But

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94

1I want to try to do this in somewhat of an organized way. 2 You also testified at the end - and I go backwards.

3Thats how I work, so I take the last and I kind of thats 4my method. 5 6 A Q You may be Jewish, you know, you dont know. Well, I am, but thats a whole different issue.

7Thats a whole different point. 8 Lets start with process. She does - you said she

9does better now than before; right? 10 11 A Q Yes. Okay. Than six months ago. So what did you base

12that on? 13 14 15 16 A Q A Q Mainly on the supervisory notes. On what supervisory notes? The more recent ones. And how did you review those notes, under what

17circumstances? 18 19 20 21 22 A Q A I read them. Up to what point? I think June maybe.

(Brief pause in the proceedings.) A I believe Saturday, May 7, 2011 is the last note that

23I have. 24 Q So the last note you have is May 7, 2011. And you

25said at that point in time she does better - I believe your 26testimony was she does better than she did six months ago. 27 3 So how - when did she in terms of your analysis start

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95 Lets try to put some kind of time reference

1doing better? 2on that. 3 4 5 6

(Brief pause in the proceedings.) A Q A Do you want an answer? Yeah. I would say by the time of my home visit to her which

7was April 14, 2011 I felt she was doing better. 8 Q Okay. And lets - if I could - do you have a copy of

9your report up there? 10 11 12 13 A Q A Q Yes, I do. Could youd go to page 19? Yes, I could. Im sorry. I was giving you the wrong reference. It

14may be - the home visit. 15 16 17 18 A Q A Q Thats page 19. Is it page 19? Yes. Thats what I thought. It is page 19. Okay. And on

19page 19, you - you say Max appears to have a warm and loving 20relationship with his mother, and youve testified that 21there is a loving relationship? 22 23 A Q Yes, I did. And is it fair to say that there is a connection

24between the two? 25 26 A Q Yes, it is. Doctor, when you sever that connection, ultimately

27doesnt that cause harm for a child? 3

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96 A Q Yes. The wild and excessive behaviors were generally not You said that too?

1 2

3in evidence during the visit. 4 5 A Q I did.

And you also talk about when Max talked about hitting

6himself, with minimal intervention Ms. Kelley stopped the 7train of thought and those impulses? 8 9 10 11 A Q A Q Thats correct. Do you see that on page 19? Thats correct. So I assume she was acting appropriately at that

12time? 13 14 A Q I think she was. Okay. And when he - there was an issue about telling

15him he could not play in his room and he was starting to act 16out and became angry, whined, and tried to force his way by 17her, you say she was firm and physically restrained him and 18he did not touch her. 19wasnt it? 20 21 A Q It was. And so you also talk about him playing calmly and That was certainly quite appropriate,

22Sunny joining in and sustained calm Max was sustained calm 23and I supposed in concentration for 20 minutes; is that fair 24to say? 25 26 A Q Yes, it is. Okay. And he was not frantic or agitated during a

27greater part of the visit and Sunny seemed to be effectively 3

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97

1 those are your words - in charge of him; correct? 2 3 A Q That is correct. Was that the only time you actually saw Sunny Kelley

4with Max? 5 6 A Q Yes, it is. And you actually interviewed Sunny Kelley on how many

7occasions, one or two? 8 9 10 11 12 13 14 A Q A Q A Q Two. And is the total approximately three hours together? Maybe four, between three and four. Between three and four? Yes. So between three and four instead of three. In your practice, doctor, do you know what the

15difference between a diagnosis and a working diagnosis is, 16dont you? 17 18 A Q No. No. In your practice, generally speaking. how long

19do you take before you form a diagnosis of a patient? 20 21 22 23 A Q A Q Somewhere between half an hour and an hour. Really? Yes. And after that point in time, you actually treat them

24for that diagnosis? 25 26 27 3 A Q A I actually do. So does your diagnoses ever change over time? Yes.

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98 Q A Q And how often does that happen? I cant give you statistics. So it does, in fact, change over a course of time and

1 2 3

4a course of treatment? 5 6 A Q Sometimes it does, yes. And in the particular - in terms of the process that

7you go through, is there some kind of methodology that you 8have in your office to form a diagnosis of a patient in the 9half hour or one hour period? 10 11 12 A Q A Yes. What is that methodology? It varies some. But I initially want to get a sense

13 I start my diagnosis when I meet the patient in my waiting 14room. I make certain assumptions or raise questions in my

15own mind simply by looking at them, where they sit, how they 16move, how they talk, how they greet me, how theyre dressed, 17the condition of their personal hygiene, whether theyre a 18Red Sox fan or a Yankee fan which I determine quickly, their 19age, whose with them, how they relate to that person, how 20they enter the space in my office, what they tell me 21initially because I want to establish contact with them 22which I try and do in the first minutes. 23 At some point in that half hour or hour, I ask

24systematic questions about mental status but not presented 25as such. For example, I ask about the details of sleep, the

26details of energy, the details of mental process if Im 27concerned its off base. 3 You can tell a lot of things

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99

1without needing to ask any questions, just from listening to 2somebody talk. 3 I trust the turgor of their skin in their face, the

4color of their skin in their face, the speed with which they 5speak, their affective emotional tone, their cognitive 6intactness. 7 And then I ask a number of specific questions about

8unusual sensitivities in childhood, drinking, drugs, 9sexuality, family structure and function and history. 10then Im done. 11 Q And in an hour or half hour you get all the info and And

12the form of DSM diagnosis? 13 A I do. Once in a while, I dont. But for the most

14part, I do. 15 Q Okay. And there doesnt have to be a rapport

16developed or some 17 18 19 20 21 22 A Q A Q A Q Yes, there does. - in a psychiatric process? Oh, yes. Does this take place in a half hour or an hour? It takes place in three minutes. Three minutes. And in three minutes, your patients

23open up to you, right, to the deepest parts of themselves? 24 25 26 27 3 A Q A Q Not all of the, but most of them. So that you can form a diagnosis? I can form a connection. I didnt ask that. Diagnosis?

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100 A Q I cant do that in three minutes. You testified that the last report you had was on May And its fair to say that you spent a considerable

1 2

37th.

4amount of time studying supervisory notes in this case? 5 6 A Q Yes. And much of the material that you gleaned in terms of

7 certainly in terms of what you call stimulating or 8orgiastic behavior you gleaned from these notes? 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 you. ATTY. SMITH: on - May 5th on. THE COURT: ATTY. SMITH: THE COURT: May now or May May to now. Thank you I want the doctor to have those Id just like him to have from May A Q Thats correct. Now ATTY. SMITH: THE COURT: ATTY. SMITH: THE COURT: Could I have the notes? Are we going to the notes? Yeah. Just so I get them ready. Thank

ATTY. SMITH: notes. ATTY. MURPHY: ATTY. SMITH:

Do you want me to give them? Please.

25BY ATTY. SMITH: 26 Q Doctor, Id just like you to take a look at these

27notes, having in mind in particular sexualized behavior 3

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101

1towards - Maxs sexualized behavior towards my client, okay? 2 3 A Q Yes. And when there is sexualized behavior, Im talking

4about the groping you mentioned lets be more specific. 5Groping, touching of breasts, of vagina area, of buttocks, 6or whatever with my client, could you take a look in terms 7of that and take a look in terms if it occurs and my 8clients response? 9 10 11 12 A Yes. Could you take a look at those notes?

(Brief pause in the proceedings.) A Q Do you want me to comment, Attorney Smith? When you get to some place that you think is

13appropriate, please give me that date and time. 14 15 16 17 A Q A Q May 8th. Okay. What time, please?

12:36 p.m. Okay. Again, Im asking you to talk about my client. You can talk about Ada if you want. I

18But thats fine.

19really want to talk about Sunny Kelley. 20 21 A Q Well, Sunny doesnt say anything. Okay. So thats your position. So Max lays on Ada,

22tells her funny sentences.

I see Max rest his hand on left

23breast for a second or two then moves it, goes back outside. 24 25 26 27 3 A Q A How do you know Sunny doesnt say anything? Well, its not indicated. Its not indicated she does or she doesnt, does it? No.

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102 Q A Q Okay. Can you continue on?

1 2 3

5:40 p.m. All right. Okay. Max lays on Sunny while moving

4around being silly, squeezes Sunnys breast twice. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A Q A Q A Again, she doesnt say anything? Theres nothing indicated. Okay. Anything else?

Not on that one. Keep going, doctor. I will.

(Brief pause in the proceedings.) Q A Q A Q How about May 17, 5:12? Well, Im still on May 12. Okay. Sorry.

I went to public school. So did I, doctor.

(Brief pause in the proceedings.) ATTY. EISENHANDLER: physical? ATTY. SMITH: THE COURT: Either. No. I took down the question please Is the question sexual or

22be mindful of Maxs sexualized behavior towards 23 24 25 ATTY. SMITH: THE COURT: ATTY. SMITH: I apologize. Okay. Im just wrote the question.

It was sexual.

26BY ATTY. SMITH: 27 3 Q Doctor, if you find physical so we dont waste time -

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103 THE COURT: ATTY. SMITH: THE WITNESS: Physical too now. Okay. Well, hes certainly scratching

1 2 3

4his crotch a lot.

And I dont see any comments about that.

5Maybe there are some, but he seems to be busy scratching his 6crotch. 7BY ATTY. SMITH: 8 Q I understand that. Im talking about groping, I

9think was the question I said, groping, touching, some kind 10of physical contact. 11 12 A All right. ATTY. EISENHANDLER: Hes testifying that that

13includes under the doctors understanding scratching his 14crotch. 15 16 17 18 19 20 21 22 23 24 25 26 27 3 ATTY. SMITH: THE COURT: question. I dont think hes saying that. Are you its his right to ask the

Are you asking him about any sexualized

behavior or only sexualized behavior foisted upon your client? ATTY. SMITH: THE COURT: ATTY. SMITH: THE COURT: sorry. ATTY. SMITH: reaction. Its towards my client and her Towards my client. Okay. Or hitting towards my client. Right. Physically behavior, Im

I think that was part of the question too.

(Brief pause in the proceedings.)

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104 THE WITNESS: THE COURT: May 22, 6:16 p.m. What about May 17, 5:12?

1 2

3BY ATTY. SMITH: 4 Q May 17, 5:12, doctor, can you take a look at that

5first? 6 7 8 (Brief pause in the proceedings.) A Q Oh, right. I think I said that before the Court. Do you see

9that? 10 11 12 13 A Q A Q I do. Was my clients behavior appropriate? Yes. Okay. Now, can we go to May 22nd, please? Im sorry. I didnt catch it. You said 6:16?

14what time, doctor? 15 16 17 18 A Q Yes. Okay. Okay.

I think it continues onto 6:27.

(Brief pause in the proceedings.) Q Do you see the interaction between Sunny and my

19client on 6:27? 20 21 22 23 24 25 26 A Q At 6:27? Yes.

(Brief pause in the proceedings.) Q A Q A Do you want to talk about the first one first? Yes. Okay. Go ahead. I dont want to interrupt you.

Max says to Sunny youre my puppet and puts his hand

27up the back of her shirt like a puppet master then pauses 3

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105

1resting his head on Sunnys breasts for a few moments, go 2inside, put on the rest of Karate Kid III. 3 But I dont hear any comments between 6:16 and 6:27 And my

4is almost is 11 minutes, and thats a long time.

5question is how quickly did Sunny respond to Maxs hand 6starting to grope her. 7 Q Okay. I dont know the answer.

So you think that was groping, not some kind

8of puppet control process? 9 A I dont think whether it was puppet or not, it was

10sexual. 11 12 13 14 15 A Q A Q You think that was sexual? Yes. Okay. 6:27. If you or I did that to an adult woman, she would Im just trying to understand.

16slap us most likely. 17 18 Q A Is that how you gage whether its sexual or not? No. But if its taken as a threat or some kind of

19aggressive act on ones part. 20 Q So if a child does that to their mother and they

21speak about puppets, thats a sexual act? 22 A In the context of the overall fabric of these notes,

23in my opinion its an erotized act, yes. 24 25 26 27 3 Q A Q A Its erotized? Yes. Doesnt have to deal with power or control? Well, sex has a lot to do with power and control.

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106 Q A Q A Q Lets look at 6:27. Sunny stops Max. Is that good? I think it is. She starts talking to him about what hes saying and

1 2 3 4 5

6doing? 7 8 9 10 11 12 A Q A Q Yes. Is that good? Yes, it is. Keep going, doctor.

(Brief pause in the proceedings.) A Well, again, on June I wont stop here. It has to

13do with Ada, not your client. 14 15 16 17 18 19 Q A All Im talking about is my client. All right.

(Brief pause in the proceedings.) A Q A 3:26 p.m., June 5th. Okay. What happened?

Max wipes his hand on Sunnys shirt in between her

20breasts a few times and then says youre my napkin. 21 22 Q A And then what happens? Im not concerned about what happens then. I wonder

23why he gets to wipe his hands between her breasts a few 24times. 25 26 Q A That was my point this morning. Well, doesnt it say Sunny stops Max? But after hes wiped his hand between her breast a If Im suspecting that its a problem for my

27few times. 3

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107

1child, I dont wait for a few times. 2 3 Q So she shouldnt have let him - strike that. She should - it should have been once and then she

4should have stopped? 5 6 7 8 9 10 11 A Q A Q It should have been not even once. And she has that kind of control? She should. I see. Lets keep going, doctor.

(Brief pause in the proceedings.) A Q Sunday, July 2nd, 6:15 p.m. Sunday, July 2nd, 6:15 p.m. Okay. You dont know

12really what that game is? 13 A Well, sure. Slapping butts. Its a well known old

14English jousting. 15 16 17 18 19 20 21 2223 24 THE COURT: THE WITNESS: Thank you. - note I have. Q Okay. See if you can find anything else, doctor.

(Brief pause in the proceedings.) Q A Anything else, doctor? Not that I could find. THE COURT: ATTY. SMITH: THE WITNESS: What date did you complete, please? The last date. August 8th, Your Honor, is the last

25BY ATTY. SMITH: 26 Q And doctor, when Max - well, you saw in August -

27strike that. 3

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2

108 If you take a look at August 2nd and 4th, the first I think its

2paragraph of August 2nd and 4th. 3 4 A Q I did that. You did that.

And it says Maxs behavior has

5improved? 6 7 A Q Yes. And he seems to have settled down and has more

8respect for personal boundaries? 9 10 11 12 13 14 A Q A Q A Q Yes. Thats a term you used? Yes, it was. Thats progress; isnt it? Yes, it is. And mom has sharpened hand in hand with this Thats

15improvement mom has sharpened her parenting skills. 16positive; isnt it? 17 18 A Q Yes, it is.

When Max is out of line, she steps in and reprimands

19him there and then? 20 21 22 A Q A Mostly. Thats what the supervisor said? Well, but theres still for example, this boy

23spends half of every page with his hand on his crotch. 24 25 Q A Right. One would think that mother would address that

26masturbatory behavior. 27 3 Q Wouldnt mother sometimes ignore that and that be a

1
2

109 In other words, doctor, isnt it possible

1positive thing?

2that Max is seeking some kind of attention through that 3sexual activity and mothers ignoring of it could have a 4positive effect? 5 6 7 8 A Q A Q It doesnt seem to. Well, because he doesnt stop; is that what you mean? Yes. Okay. But if mother made inquiry about it and asked

9him about it and discussed it, wouldnt you call that 10sexualized or stimulating behavior? 11 A No. Because might say, Max, I dont think the living

12room or the front yard is a place to touch your privates; if 13youre going to do that, you should do that in the privacy 14of your own room. 15 Q Okay. So she should tell him not to do that. Now,

16you know before she expressed concern to Max that he had 17some type of irritation. 18 19 A Q Yes. You remember that. And you talked about her There was a balanitis issue?

20manipulating his foreskin at certain points in your report; 21right? 22 23 A Q I did. Yes.

So the point is she shouldnt get over inquisitive

24but should be more of a reprimanding tone; is that fair to 25say? 26 27 3 A Q I would say she should be more sensible. Okay. Sensible?

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110 A Q A Yeah. All right. And do what you just said? Its not going to help Max

1 2 3

Or some version of that.

4to go through life grabbing his crotch at a business 5meeting. 6 7 8 Q A Q Well, hes 7; isnt he? Yes. But he has to learn.

And hes had some what you call pretty significant

9sexualized behavior; right? 10 11 A Q Right. This is a boy who you said slept in the same bed with

12his parents up until the age of 5? 13 14 15 16 A Q A Q Thats right. Which obviously is pretty serious to you; right? Yes. When you said that, isnt - arent both parents

17responsible for that? 18 19 A Q Yes. And if I told you that, indeed, Mr. Liberti reflected

20that not only did they sleep in the bed, but that they had 21sexual intercourse in the bed while Max was there up until 22the age of 3 23 24 25 26 27 3 A Q Oh, I believe that. And thats on page 71 of the report. ATTY. SMITH: Could I just show him? Hes all ready said he

ATTY. EISENHANDLER: believes it.

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111 THE COURT: Its his report.

2BY ATTY. SMITH: 3 4 5 Q That was reported by ATTY. SMITH: THE COURT: No. I know. This is from Dr. Smith. But he incorporated.

6BY ATTY. SMITH: 7 8 Q A And do you remember that in your report? I asked both parents about that because I assumed

9that was the case. 10 Q But its Dr. Smith who reflects this on page 71;

11isnt it? 12 A I understand. Thats enough to account for Maxs

13behaviors. 14 Q Right. And both parents are responsible for that,

15arent they? 16 17 A Q Indeed. Now, you wrote this report on the 5th of May and its

18accurate that Max and Ms. Kelley and Mr. Liberti were not 19seen by Dr. Carlson until May 13th; isnt that right? 20 21 A Q That is right. And you wrote your report before getting Dr.

22Carlsons report; right? 23 24 A Q Yes, I did. I think Dr. Carlsons report was submitted well, I

25dont know exactly, but certainly after May 13th; right? 26 27 3 A Q Yes. And you think fairly highly of Dr. Carlson, dont

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112

1you? 2 3 A Q Yes, I do. Now, Dr. Carlson recommended here that - do we have

4another one or is that the only one? 5 6 ATTY. SMITH: THE WITNESS: If I could give it to him and I have Dr. Carlson.

7BY ATTY. SMITH: 8 9 10 Q A I have one handy. Yes. ATTY. SMITH: Its our Exhibit 3. You have one?

11BY ATTY. SMITH: 12 13 14 15 16 Q So in terms of her recommendations, page 7

(Brief pause in the proceedings.) Q A Q Do you have that, doctor? I do. Now, just for the record, you never evaluated Max

17yourself; right? 18 THE COURT: For what?

19BY ATTY. SMITH: 20 Q Did you ever perform any kind of evaluation on Max

21yourself anywhere? 22 23 24 25 26 27 3 A Q A Q A Q I made a clinical first swipe at him. And how did you do that? With my senses. By seeing him? Yes. Did you ever have a - and where did you do that?

1
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113 A Q In my office and in mothers home. Okay. From seeing him interact with mother, we just

1 2

3talked about that, and in your office, that was with Mr. 4Liberti, wasnt it? 5 6 A Q Correct. Did you form a diagnostic of Max from your clinical

7swipe? 8 9 A Q In terms of a definitive diagnosis, no. Okay. Now, on page 7, you see that Dr. Carlson who

10is a psychiatrist; correct? 11 12 13 14 15 16 A Q A Q A Q Correct. Same as you? Correct. And as skilled as you, perhaps? Shes more skilled than me. Okay. And she says diagnosis, under final diagnosis Do you see that?

17undiagnosed psychiatric disorder. 18 19 20 21 22 23 A Q A Q A Q Im sorry.

Under the term final diagnosis Oh, yes. - it says undiagnosed psychiatric disorder? Yes. Okay. And she also says attention - ADHD

24predominantly hyperactive impulsive subtitle; right? 25 26 A Q Subtype. Subtype, sorry. And then she says bipolar and

27turrets disorder cant be ruled out but inadequate evidence 3

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114

1was given; right? 2 3 A Q Correct. So it seems like Dr. Carlson thinks more things need

4to be done with Max; right? 5 6 A Q Some, yes. Some. In fact, she talks about having a therapeutic

7session - setting strike that - observation of Max in a 8therapeutic setting, for example, the psychiatric hospital. 9She suggests that in her third recommendation, doesnt she? 10 11 12 13 14 A Q A Q A Yes. Do you agree with that? No. Why not? I dont think Max needs to be in a psychiatric I think he could be in a school setting if there

15hospital.

16were trained observers present and they could probably gain 17the information. 18 Q So there should be some trained observers in a school

19setting? 20 21 A Q Experienced clinical consultants. Okay. And what about her recommendation that I would

22ask him to spend few days at Mr. Libertis home doing rating 23scales of his observations of Mr. Liberti? 24 25 A Q That might be useful. Youve read the supervised visitation notes with

26respect to Mr. Liberti, have you not? 27 3 A Yes, I have.

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115 Q And you know that Dr. Carlson suggests that the

2sexualized behaviors occurs in both places both homes? 3Thats what she says, doesnt she? 4 5 6 7 A Q A Q She surmises that. Does she say it? She surmises that. She says here, page 6, quote, I do not believe for a

8second that Max is and thats the fourth or fifth line 9down from diagnostic impression. I do not believe for a

10second that Max is behaving outrageously only with his 11mother. 12 13 A Q Do you see that? Yes. And we know most about his behavior thee because mom

14describes it and a witness from Sarno and Company spends a 15lot of time there observing it, however, similar behavior 16was observed at least once at dads house. 17 18 19 20 21 A Q A Q Is that what you mean by surmise, doctor? Well, Dr. Carlson has strong opinions about things. Well, is that surmising? Well, I dont think its based on much data. Well, then lets go back to the data that she used.

22And I think you find that on page 3 of the report. 23 24 (Brief pause in the proceedings.) Q In particular, right in the middle of the page starts

25with although it appears ninety-five of the observations, 26theres one about an observation of December 15, 2010? 27 3 (Brief pause in the proceedings.)

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116 THE COURT: Would somebody tell me what Just explain it. Its like a bowl,

2beyblades are? 3

Ill have you do it.

ATTY. MURPHY:

Its a game.

4and then you have these theyre almost like spinning tops 5that you theres a little mechanism 6 7 8 THE COURT: Okay. - by which you spin it. Okay. I just could

ATTY. MICKELSON: THE COURT:

Thats enough.

9not figure it out. 10 11 12 13 14 15 16 ATTY. MURPHY: THE COURT: They hit each other.

Thank you.

(Brief pause in the proceedings.) THE COURT: sorry. ATTY. SMITH: THE COURT: I asked the doctor to read that. Okay. Is there a question, Mr. Smith? Im

17BY ATTY. SMITH: 18 Q We were talking about data. And I think the question

19was there was - its fair to say that thats the data that 20Dr. Carlson relied on; isnt it? 21 22 A Q I guess. And during this particular incident of 12/15, its This is 12/15

23fair to say that - 6:05, if I can go to that. 24in Exhibit 3. 25 26 ATTY. BORDIER: ATTY. SMITH: 2. 2 Sorry.

27BY ATTY. SMITH: 3

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117 Q Would you like me to approach, doctor, and THE COURT: Yes.

1 2

3BY ATTY. SMITH: 4 Q - what Im taking back is the Sarno notes. Do you see 6:05? And if I

5could show you 6:05, please. 6 7 A Q Yes.

And there was testimony from an individual that this

8rubbing by Mr. Liberti took place over a ten minute period. 9That certainly would be highly orgiastic or stimulating as 10you would say, wouldnt it, doctor? 11 12 13 A Q A It might be. Would it be appropriate? Well, it depends on the history of that habit. It might be. With

14Max, it might not be. 15 Q

Do you think - you testified about the massaging

16earlier, didnt you? 17 18 A Q The massaging of his thighs. Oh, his thighs. Its a different part of the body

19here; is that what youre talking about? 20 21 A Q Well, I believe hes massaging his feet. Feet are farther from the erogenous zones so it makes

22it different? 23 24 25 26 27 3 A Q A Q A It might, yes. Is that the basis of what youre talking about? Its part of it. Is that a majority of it? Well, that depends, as I said, on the history of it.

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118

1A parent who rubs a childs back for ten minutes doesnt 2have to do that in an erotic manner at bedtime, so 3automatically it isnt erotic. 4 Q Does it strike you as unusual that somebody would

5crawl under a desk while a child is doing homework and rub 6their feet? 7 8 9 10 11 12 A Q A Q A Q Yes. And isnt that what Mr. Liberti did? Yes. Okay. Could I have that back?

You sure can. Thank you. Could I have while were in December,

13lets take a look at December 5, 2010 and Im going to 14direct your attention to 7:35 and then 7:43. 15 16 17 18 19 20 21 22 23 A Q A Q A Q December? 5. I have one, doctor, if its easier.

All right. Could I give that to you to save some time? Sure. 7:43, just take that one first. THE COURT: ATTY. SMITH: THE COURT: This one is the missing one. Thats in the new Yes. I just have that packet

24elsewhere because it fell out. 25 26 ATTY. SMITH: THE COURT: New section, Judge. Yes. Go it.

27BY ATTY. SMITH: 3

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119 Q So 7:43 is the reference. THE COURT: Go ahead.

1 2

3BY ATTY. SMITH: 4 Q Do you see mom rocked him there? That was mother at

57:43, do you see that? 6 7 8 9about. A I believe its father. THE COURT: ATTY. SMITH: 7:43 is father. 7:35 is mom. 7:35. Thats the one Im talking

10BY ATTY. SMITH: 11 12 13 14 15 16 17 18 19 20 Q A Q A Q A Q A Q A 7:35, do you see that? Yes. Were those - do you call that sexualized, orgiastic? No, dont. Okay. I did. Okay. Now, what do you feel about that? 7:43, take a look at that.

I think probably its not a good idea. Where wasnt it a good idea? The excessive rubbing of Max, the rubbing the outside

21of Maxs thighs, rubbing Maxs feet a long time. 22 23 24 25 26 27 3 that. ATTY. SMITH: There was testimony. Q A Q I think I dont know how long. If it goes on for 20 minutes ATTY. EISENHANDLER: Objection. He didnt say

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120 THE COURT: Overruled.

2BY ATTY. SMITH: 3 Q If it goes on for 20 minutes, would it be

4appropriate? 5 6 A Q I think not. Okay. And I think theres some other parts of the

7body there as well, calves as well? 8 9 10 A Q Yes. Okay. Could I have that back?

Would you describe that type of behavior in the over

11stimulating process or orgiastic? 12 13 A Q I think I probably would. Okay. Im just trying to understand. Now, lets

14take a look at February 15, 2011.

And again, doctor, to

15things quicker - go faster, Im going to direct your 16attention to 8:20, 8:23, and 8:43. 17 18 19you on? 20 21 22 23 24 25 26 27 3 THE COURT: ATTY. SMITH: 2/15. 2/15 Thats the hospital one? We just did A Thank you. ATTY. EISENHANDLER: Im sorry. What date are

ATTY. EISENHANDLER: THE COURT: the first. ATTY. SMITH: Eisenhandler. ATTY. EISENHANDLER:

The other hospital one.

Hospital number two, Attorney

Thank you.

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121

1BY ATTY. SMITH: 2 3 4 5 Q A Q A Do you have an opinion about that type of behavior? I think its on the borderline of orgiastic. Okay. And assuming it goes on for 20 minutes? Im sure Max was in a very anxious

It depends.

6state. 7 Q

It may be more soothing than stimulating. So this one is on the borderline; right? Those are

8your words? 9 10 A Q Yes. Okay. I want you to take a look at April 3, 2011 at

111:29. 12 13 14 15 A Q A Q

Is that type of behavior appropriate? I dont think so. Would that be orgiastic? I think so. And doctor, if I told you that there was evidence

16that the belly rubbing was above and below the belly button, 17would that be consistent with being orgiastic? 18 19 20 21 22 23 24 A Yes. ATTY. EISENHANDLER: THE COURT: Objection.

Well, the testimony just so the

question is accurate is it was above and below because it was around the belly button with a hand making like a clock wise or counter clock wise motion.

25BY ATTY. SMITH: 26 27 3 Q A Would that be orgiastic? It might well be.

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122 Q And doctor, if that went on - doctor, while youre on Id like

2that one, I have one other question on this one.

3for you to take a look at the 2:26 - just 2:26 through - up 4to this point here. 5 So Up to what point? Im sorry.

THE COURT:

6BY ATTY. SMITH: 7 8 9 10 11 12 13 14 Q From 2:26, just on this first page. THE COURT: ATTY. SMITH: To end of first page. Just the first page. Is that 2:26 p.m.?

ATTY. EISENHANDLER: THE COURT:

Are still on 4/3? Still on the April 3rd? P.m.

ATTY. EISENHANDLER: ATTY. SMITH: THE COURT: Yes. Yes.

15BY ATTY. SMITH: 16 17 18 19 20 Q Take a look at that.

(Brief pause in the proceedings.) Q A Q Doctor, you talked about Nash before? Yes. I dont know if youve read this one. But do you

21have an opinion about Maxs interaction with Nash and the 22appropriateness of 23 24 25 26 27 3 THE COURT: In this instance, Mr. Smith? Based on this instance is what Im

ATTY. SMITH:

going to talk about. (Brief pause in the proceedings.) THE WITNESS: Do I have an opinion about?

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123

1BY ATTY. SMITH: 2 Q Maxs interaction with Nash based on what you read in

3there? 4 A Partly its typical boy stuff. Partly its a little

5bit too much. 6 7 8 Q A Q What do you mean by too much? A little bit too intense. Now, Im going to direct your attention to your own

9report - may I have this back - in Dr. Smiths section, page 1087. 11 12 13 (Brief pause in the proceedings.) A Q Yes. Now, I want you to go to paragraph in Dr. Smiths It starts with Do you

14report here - the fourth paragraph down.

15when asked if anyone has ever pulled down his pants. 16have that, doctor? 17 18 19 20 21 A Q I do.

Would you please read that paragraph to yourself?

(Brief pause in the proceedings.) A Q Yes. So again, Im going to ask you the same question.

22Based on what Dr. Smith obtained from Max in this clinical 23interview, does Maxs relationship with Nash trouble you? 24 25 A Q For this boy, it does. Okay. And it says that his - Nash pulls down his I think those were the term; right? Yes.

26pants a lot? 27 3 A

Thats correct.

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124 Q A And why does that trouble you? I think its orgiastic for this little boy who has

1 2

3had too much of this all ready, though Dr. Carlson addresses 4it in a different way. 5 6 7 8 9 10 Q A Q A Q Im asking you what you think. I think it wouldnt be a game Id recommend. Could I have this back? Thats my copy. I dont want that. Now, we - while you have your report, okay, you

11talked about Dr. Silberg; right? 12 13 A Q Yes. Okay. And I asked you earlier if you performed an Did you ever perform an evaluation of

14evaluation of Max.

15Max - did you ever personally evaluate Max to determine if 16he was sexually abused? 17 18 A Q No. Okay. Is it accurate the only sexual abuse

19evaluation that was performed on Max that you took into 20consideration to do your report was based on Dr. Smith? 21 22 A Q No. Who other - who else performed a sexual evaluation of

23Max? 24 25 26 27 3 A Q A Q I did. You did? Yeah. You performed a sexual evaluation of Max?

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125 A Q In accordance with these guidelines, I did. I didnt ask you that. I asked you if you

1 2

3performed 4 5 6 A Q You asked me what I did. And Im telling you.

I asked if you personally I think a THE COURT: Wait a minute. The record has just

7got to be clear because the I just realized the witness is 8holding up 63 full exhibit when he refers to these 9guidelines. Go ahead. Im sorry, Mr. Smith.

10BY ATTY. SMITH: 11 Q Okay. Lets doctor, I didnt ask you about

12records.

I asked you if you ever personally evaluated Max

13to determine if he was sexually abused. 14 15 A Q In a way, did. Okay. May I show you your deposition page 11,

16Exhibit 38? 17 18 19 ATTY. SMITH: THE COURT: May I approach the witness? Yes. I remember the question.

ATTY. WILSON:

20BY ATTY. SMITH: 21 Q I just want to show you your deposition, and Id ask You can read that

22you page 11, you read line 17 through 19. 23one out loud. 24 A Okay. Thank you.

Did you ever personally evaluate Answer, no.

25Max to determine if he was sexually abused? 26 Q Okay.

Now, you testified in your deposition you

27didnt do it; that is, you never personally evaluated Max to 3

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126 You said no then and

1determine if he was sexually abused. 2then 3 4 5 6 7 8 9 10 THE COURT: ATTY. SMITH: THE COURT:

He said no today too. He did? Yeah. He answered no. You said did

you ever personally evaluate Max to determine if he was sexually abused. He said no. He then later

responded he performed a sexual abuse evaluation of Max in accordance with these guidelines. the two different answers. Those are

11BY ATTY. SMITH: 12 Q You acknowledge that your process for reviewing

13sexual abuse in your own report on at least two occasions is 14crude, dont you? 15 16 17 18 A Q A Q Im sorry? Is crude.

Crude, C-R-U-D-E. Yes. And you said that twice on page 61, if Im not

19mistaken? 20 21 22 23 A Q A Q Yes. Okay. Now -

Thats honest. And did you do your evaluation from a forensic

24perspective or a clinical perspective? 25 26 A Q Forensic. So your evaluation wasnt done in a clinical from a

27clinical perspective? 3

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2

127 A Q It wasnt done with a clinical motive, no. And its true that your evaluation really focused on

1 2

3the parents, not the child, yours? 4 5 A Q No, thats not true. Now, you testified that the only thing you can do in

6sexual evaluation is come up with probabilities; isnt that 7accurate? 8 9 A Q Short of specific data. Short of a confession, direct eye witness Anything else? Convincing, fresh physical evidence. Those three;

10observation. 11 12 A Q Yes.

Convincing, fresh physical evidence.

13right? 14 15 A Q Yes. And the majority of times, certainly in sexual abuse

16evaluations you testified, was based on probability? 17 18 A Q Thats correct. Now, you talked about my clients orgiastic behavior, In terms of

19and I want to make sure I say this properly.

20what you gleaned, first of all, from supervisor notes; 21correct? 22 23 24 25 A Q A Q Yes. And weve just been through some; correct? Yes. And certainly the orgiastic behavior my client in the

26past four to five months has been minimal; isnt that 27accurate? 3

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128 A Q Its diminished. Well, has it been minimal in terms of your grading

1 2

3system? 4 A I would say its diminished. I wouldnt say its

5minimal. 6 Q How many instances did you just testify to that she

7was orgiastic in her behavior? 8 9 10 11 12 13 14 15 A Q A A A Q A Q Six or eight. Really? And

When you asked me to go through the Yes. Yeah. If I told you it was three, would that surprise you? No. I dont think thats correct. I asked you. And you say thats six or eight?

And a lot of the orgiastic behavior youre talking

16about I take it, doctor, is not the fact that she corrects 17but the fact that she doesnt anticipate? 18 19 A Q Or interdict. Okay. So it can be non anticipation or non

20interdiction; correct? 21 22 A Q Yes. Okay. Out of the six or eight, how many of those is

23none anticipation? 24 25 A Q Six or eight. So the majority of her orgiastic behavior now at this

26point in time is that she doesnt appropriately anticipate? 27 3 A Its not a change.

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129 Q I didnt say that. I just said a statement. Its

2either a yes or no.

The majority of her problems currently

3is that she doesnt anticipate his behavior? 4 5 6 7 8 9 10 A Q A Q A Q A Thats part of it. Is that the majority or not? Its part of it. Is it a big part of it? Its an important part of it. Its a substantial part of it? I think youre playing with words, Attorney Smith.

11Im not. 12 THE COURT: Why dont we talked our afternoon Thank you.

13recess for 15 minutes. 14 15

(The Court recessed.) (The Court resumed.)

16BY ATTY. SMITH: 17 Q Doctor, could you go to page 70 of the report? Its

18in Dr. Smiths clinical interview with Mr. Liberti, page 70. 19 20 A Q Yes. And doctor, would you review its the last Why dont you take a look at that? ATTY. EISENHANDLER: Smith? ATTY. SMITH: When asked if it was possible he Whats that start with, Mr.

21paragraph. 22 23 24 25 26 27 3

may have brushed up against Maxs genitals, and its a paragraph that goes on from page 70 to 71. THE WITNESS: Yes.

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130

1BY ATTY. SMITH: 2 3 4 5 6 7 it? ATTY. EISENBERG: ATTY. SMITH: Im right on the same page. Q A Okay. I have. ATTY. SMITH: Attorney Eisenhandler, do you have So youve read that paragraph?

Okay.

8BY ATTY. SMITH: 9 Q So the crotching reference in dads house by Max, do

10you see that? 11 12 13 14 A Q A Q Yes. Thats certainly in the orgiastic area, isnt it? Yes. And when it says at the bottom he also noted there

15was one time when it appeared Max was trying to move Mr. 16Libertis forearm across Maxs genital area thats the 17opposite person - that would be pretty orgiastic; right? 18 19 A Q Right. Okay. And then it goes onto say, the last two lines,

20Mr. Liberti explained that Max has said it feels good to 21touch his privates. 22 23 A Q Yes. Yes. He said - dad Do you see that on page 71?

And do you see dads explanation?

24explained to him this was okay and that he could try to use 25pillows, comforters, etcetera to help get that good feeling. 26Do you see that? 27 3 A Yes, I do.

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131 Q Now, is that appropriate recommendation to make to a

26 year old? 3 4 5 6 A Q A Q Partly. Partly? Yes. So if a 6 year old talks about masturbating or

7touching himself, thats an appropriate comment? 8 9 10 A Q A Partly it is. In what way is it? Well, he doesnt say dont ever touch yourself there Its

11which is not helpful because it does feel good. 12natures antidepressant. 13massaging your genitals. 14it does feel good. 15appropriate way. 16pillows.

You cant feel bad when youre Thats how we were designed. So

But its important that it be done in an Im not sure I would recommend cushions or

But I think its an effort to move away from the

17manual stimulation using his fathers hand or his brushing 18his fathers I think all of this probably came from the 19bed. 20 21 22 23 Q A Q A Came from what? The family bed. It came from the family bed? I would think so, yes. Dont you think there was a

24lot of groping going on during the night? 25 Q Well, what I think is not the most important thing

26here. 27 3 But I will tell you, doctor - so this is appropriate

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132

1to tell a 7 year old? 2 3 4 A Q A Partly. How is it partly not? Well, I might have added some editorial comments

5about restricting that kind of stimulation, as I said 6earlier to you, to a private place so that its not in 7public, that its not a good idea to get that good feeling 8when youre with other people, but its something to do in 9the privacy of your own room. 10 11 12 Q A Q Thats an appropriate thing to tell Max? I think so. Okay, doctor. All right. Now, you testified that

13amongst the orgiastic behaviors of my client was to wipe the 14child when he defecates; is that correct? 15 16 17 18 19 20 21 22 23 24 THE COURT: Can I interrupt? So is what youre And if

saying there and I want to summarize it.

Im summarizing it inaccurate, please let me know. You have a child thats all ready exhibiting interest in masturbation type conduct and youre saying the parents have a duty to imprint some boundaries on it rather than totally repress it? THE WITNESS: my opinion. THE COURT: Thank you. Thats right, Your Honor. Thats

25BY ATTY. SMITH: 26 Q By the way, isnt there a problem with over

27masturbation? 3

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133 A Q A Q A Q A Q A It can make you blind. Huh? What did you say?

1 2 3 4 5 6 7 8 9

I said it can make you blind. It can make you blind. Besides that?

Is there a problem with it? Yeah. Yes. What is the problem? Ordinarily children who masturbate to excess are

10either retarded, over stimulated, or depressed. 11 Q Well, we know according to you Max is over

12stimulated; isnt he? 13 14 A Q Yes. So isnt this the kind of thing that would trouble

15you? 16 17 18 19 20 21answered. 22 23 24permissible. 25 THE WITNESS: Partly. THE WITNESS: THE COURT: Well, I said Well, in light of this answer, its A Q A Q It does. Okay. So the advice may not be the best advice?

Well, I dont my advice? Dads advice? ATTY. EISENHANDLER: Objection. Asked and

26BY ATTY. SMITH: 27 3 Q Partly?

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134 A Q A Q A Q A Q A Q Yeah. And how partly is it not good. I tried to answer that a moment ago. Because it has to be done in a private space? Yes. Max we know is over stimulated; right? Masturbation is Max is over stimulated? Max is over stimulated. And Max could certainly masturbate an awful lot;

1 2 3 4 5 6 7 8 9 10

11right? 12 13 14 15 16 17 18 19 A Q A Yes. That wouldnt be good, would it? No. The cause would be more worrisome. ATTY. EISENHANDLER: you repeat that? THE WITNESS: The cause of his masturbating Im sorry, doctor. Could

would be more worrisome than the behavior. ATTY. EISENBERG: Thank you.

20BY ATTY. SMITH: 21 22 23 Q A Q You talked about the family bed, didnt you? I did. And you still feel thats pretty much a significant

24cause in this case, dont you? 25 26 27 3 A Q A Well, yes. Im sure it was part of it.

Well, would you say its part of the etiology? Yes.

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135 Q All right. Now, so I think I was talking about

2wiping him when he defecated? 3 4 A Q Yes, you were. I think thats where I was. And would it surprise

5you that Max didnt become potty trained until 5 years old? 6 7 8 9 10 11 ATTY. EISENHANDLER: not the testimony. earlier. Objection. Thats actually

The testimony was he was trained

He had a set back. Theres a variety of pieces of

THE COURT: testimony.

He certainly wasnt permanently trained

until in excess of his 5th birthday.

12BY ATTY. SMITH: 13 Q And would it also surprise you that Max at least in

142009 was encouraged - so he would be 4 going on 5 at least 15was encouraged by both of his parents to wear a diaper? 16 17 18 19 A Would it surprise me did you say? ATTY. EISENHANDLER: encouraged. THE COURT: Sustained. Im going to object to the

20BY ATTY. SMITH: 21 Q Well, Max - both parents did not find it

22inappropriate for Max to wear a diaper? 23 24 25 26 27 3 ATTY. EISENHANDLER: testimony. THE COURT: The testimony is both parents put Objection. Thats not the

him in a diaper at various times in 2009. ATTY. SMITH: Thank you.

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136 THE WITNESS: Im not sure what the question is.

2BY ATTY. SMITH: 3 Q The question is does Mr. Liberti share some

4responsibility for the issue of the lack of potty training? 5 6 A Q Perhaps he does. If I told you that Mr. Liberti testified that he was

7in charge of potty training 8 9 10 ATTY. EISENHANDLER: he was in charge it. THE COURT: Objection. He didnt say

He said -

Sustained.

11BY ATTY. SMITH: 12 Q If I told you that Mr. Liberti was the parent who

13instructed Max in potty training and that its part of the 14instructions he would go into the bathroom and hold Maxs 15hands while Max sat on the toilet so Max would feel, quote, 16safe, is that orgiastic behavior? 17 A Probably not because Max previously had become

18frightened of the toilet. 19 Q Is it - you called it - Mr. Liberti at one point

20infantilizing? 21 22 23 A Q A Yes. Is that infantilizing if the child is 3 or 4? Well, it depends on the history. As I said a moment

24ago, Max had become phobic of the toilet. 25 26 27 3 Q A Q Of the toilet or somebody coming into the toilet? I dont understand Somebody come into the bathroom and watching him

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137

1while he was urinating or defecating? 2 3 4 5 A Q A Q I believe he became phobic of the toilet. Is that anywhere in your report? Its no. You read it. But I read it. And do you remember the source of that

6one? 7 A One of the narratives, either mothers or fathers, I

8believe. 9 Q So the information came from - could have come from

10Mr. Liberti; correct? 11 12 13 14 15 16 17 A Q A Yes. And you accepted that at face value; correct? Yes. THE COURT: THE WITNESS: THE COURT: THE WITNESS: Do you want water? No. Okay. Thank you. Ive got a half of glass.

18BY ATTY. SMITH: 19 20 Q Now THE WITNESS: I dont need gin yet.

21BY ATTY. SMITH: 22 23 24 25 26 27 3 Q A Q A Q A Pardon? Nothing. You want a little gin? No. Is that what you said? I said I dont need it yet.

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138 Q A Q How about later, doctor? Later Ill take it. All right. We have to wait until Friday, though,

1 2 3

4because I have to be sharp tomorrow. 5 Anyway, doctor, you said that one of - so - one of

6the orgiastic concerns you had was that my client was 7manipulating Maxs foreskin? 8 9 A Q Yes. Do you remember that? And what was the source of

10that information that you had? 11 12 A Q It was Dr. Whelans records. And where in Dr. Whelans records do you have Dr.

13Whelans records - does it reflect that Max - that my client 14was manipulating his foreskin? 15 16 17 18 A Q A Q She was asked to. She was asked to by whom? By Dr. Whelan. And are you referring to a place are you referring

19in your you have made reference in your own report to - on 20page 21 in a note dated 6/10/04. 21 22 ATTY. EISENHANDLER: ATTY. SMITH: 21 of what?

Of your report I said.

23BY ATTY. SMITH: 24 25 26 Q A Q Take a look, doctor, that might refresh. Yes. So thats what youre testifying about from Dr. Theres a record from 6/10/04, okay, which

27Whelans record. 3

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139

1you took from doctor you took this from this note. 2 3 ATTY. SMITH: THE COURT: If I could approach the doctor? Sure.

4BY ATTY. SMITH: 5 Q Is this where you took it from just to make sure that

6were on the same page, 6/10/04? 7 8 A Q Yes. Okay. And its fair to say that that was a

9recommendation that was made by Dr. Whelans office when Max 10was approximately six months old? 11 12 A Q Right. But doctor, you dont know whether or not my client

13actually did that, do you? 14 15 A Q No. Okay. So you assumed because Dr. Whelans office

16recommended that, that she did? 17 18 A Q Thats right. And if she didnt, then your position about

19manipulating foreskin would not be accurate? 20 21 A Q Not necessarily. What other source of information do you have that my

22client manipulated this childs foreskin? 23 A Well, I know that Jennifer Bourne, as I commented

24earlier today, was impressed with how preoccupied your 25client was with Max not having a circumcision. 26 Q Okay. So she was preoccupied with it; is that what

27you said? 3

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140 A Q A Q Thats what Jennifer Bourne said. Are those her words or yours words? I believe theyre hers. Could you take a look at your notes?

1 2 3 4 5 6 7 8 9 10 11 12 13 14

(Brief pause in the proceedings.) Q A Q Doctor, you must have Massachusetts binders? Im sorry? Its just a joke. THE COURT: All binders in Massachusetts weve Probably left

decided are problematic to work with. handed. (Brief pause in the proceedings.) THE WITNESS:

Sunny saw the lack of circumcision

as, quote, natural and was very preoccupied with it.

15BY ATTY. SMITH: 16 17 18 19 Q A Q A Okay. Anything else she said?

About that? Yeah. When Max was 2 or 3 years of age, he went naked and Sunny said this was natural

20would play with his genitals.

21and didnt do anything about it. 22 Q Okay. And from there you determined that my client

23manipulated the childs foreskin; right? 24 A It was an inference from the different sources of

25data. 26 Q Well, what other source of data than the ones we just We talked about

27talked about? 3

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141 A The balanitis. What she claimed was balanitis. She

2put cream on his glands 23 days in a row. 3 4 5 6 7 8 9 10 11 12 Q A Q A Q A Q Okay. And you dont think there was balanitis.

Dr. Whelan didnt think so. He didnt? Thats what it said in the record. It did? Yes. Okay. Lets find Dr. Whelans notes. THE COURT: Somebody help me with the number. I

didnt read his notes on the last one because I had them -

13BY ATTY. SMITH: 14 Q By the way, how did she get a prescription cream to

15put on the balanitis if she didnt - if there wasnt a 16diagnosis? 17 18 19 20 21 22 23 24 25 26 27 3 A Q I imagine she got it from the doctor. Okay. And can I ATTY. MURPHY: are Exhibit 9. THE COURT: I found them. Thank you. Your Honor, Dr. Whelans records

ATTY. EISENHANDLER: ATTY. SMITH: THE COURT: 8/11.

I think its 8/11.

Of what date? 2010.

I mean what year?

ATTY. EISENHANDLER: THE COURT:

Im sorry.

I was in 2004.

What

year are you suggesting I should look in?

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2

142 ATTY. EISENHANDLER: My notes say 8/11,

2concentration of penis. 3 THE WITNESS: I think there are two entries

4germane to this diagnosis. 5 ATTY. EISENHANDLER: 8/18.

6BY ATTY. SMITH: 7 8 9 10 Q Okay. Let me first show you 8/11/2010. ATTY. EISENHANDLER: 10/11 I think is the one

that youre thinking about the 23 days. THE COURT: Okay. Im at 8/11.

11BY ATTY. SMITH: 12 Q Doctor, what date was that, please, that I just made

13reference to? 14 15 16 17 A Q A Q 8/11/10. 8/11. Yes. So there was a reflection that the child had Okay. Do you see balanitis there next to A?

18balanitis, wasnt there? 19 20 21 A Q A Yes. Okay. Thank you.

I think theres a second entry regarding this

22diagnosis. 23 24 25 Q A Q What does it say? I think Oh. Youre talking about another entry other than

26the one you just talked about? 27 3 A Yes.

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143 Q Okay. So let me have the notes, please. Are you

2talking about 10/11? 3about? 4 5 6 7 A Q A Q Yes.

Doctor, is this the one youre talking

Does the doctor ever say he didnt have balanitis? Well, in effect, he says normal genitals. Im talking about the diagnosis. You said the doctor

8never said 9 A He says theres no evidence of trauma. He says its

10normal genitals. 11 12 13 14 out. Q A Doesnt he reflect balanitis on two occasions? Not in this note. THE COURT: The doctor testified RU means rule

I took notes on what Dr. Whelan testified.

15BY ATTY. SMITH: 16 17 18 19 20 21 22 23 24 25 26 27 3 Q And doctor ATTY. SMITH: Could we just have this document

since its not in the exhibits for some reason marked for identification? THE COURT: ATTY. SMITH: THE COURT: Whats that? Im sorry?

Its a document Go ahead and mark it for ID. I just

dont know what it is. ATTY. EISENHANDLER: I may not object to it.

(Brief pause in the proceedings.) ATTY. EISENHANDLER: THE CLERK: No objection.

Number 64.

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144 ATTY. EISENHANDLER: This is a hospital visit.

1 2 3 4

What date is that, Mr. Smith? ATTY. SMITH: 8/6/2010. This is a hospital visit dated

5BY ATTY. SMITH: 6 Q Im going to show you a visit if I could have those

7back, Ill put them back where they should go. 8 Im going to show you a hospital visit at the Milford

9Hospital dated 8/6/2010 shortly before the 8/11 visit with 10Dr. Whelan. 11 12 13 14 15 THE COURT: before; right? Okay. So weve never seen these

Or Ive never seen them before? Youve never seen them. But my

ATTY. SMITH:

client testified about this. THE COURT: I know she went to a walk in. Im

16assuming this is it. 17 18 19 20 21 22 ATTY. SMITH: THE COURT: This is the walk in. Yes. Whether hes seen them or not, I Its hard for I dont know. Thats all.

ATTY. SMITH: dont know, Judge. THE COURT: ATTY. SMITH:

You can inquire. Ill ask him.

23BY ATTY. SMITH: 24 25 26 27 3 Q A Q A Doctor, have you reviewed the document? Yes. What was the diagnosis? Balanitis.

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2

145 Q A Q A Q And Dr. Whelans notes still stands. You read his notes from the 11th Yes. - which was shortly after he had a diagnosis of

1 2 3 4 5

6balanitis on the 11th? 7 8 A Q No. The second entry.

I asked you about the 11th, August 11th, the first one

9I showed you? 10 11 A Q The first one he made that diagnosis. So he made a diagnosis Dr. Whelan made a diagnosis

12on August 11th of balanitis; correct? 13 14 A Q Correct. And youre telling us he didnt make diagnosis - the

15same diagnosis in October 11th; correct? 16 17 18 19 20 21 22 23 24 25 26 27 3 A Q Im not sure. I believe that was the date.

Im just trying to understand your testimony. ATTY. SMITH: THE COURT: Thats 64. Thats up there.

Can I ask him a question unrelated,

if you dont mind? ATTY. SMITH: THE COURT: Sure. Dr. Whelan has a shorthand. And if

its his own, you cant answer. every doctor writes, you can.

But if its what

After he talks about urine to lab for CX, it goes SXRX, baking soda baths pending CX results. What are the SX?

1
2

146 THE WITNESS: THE COURT: THE WITNESS: THE COURT: Symptoms. RX? treatment. And CX? Complications.

1 2 3 4 5 6 7 8 9

ATTY. WILSON: THE COURT:

Thank you. Whats CX, Im sorry?

ATTY. EISENBERG: ATTY. SMITH: THE COURT:

Complications. Complications.

10BY ATTY. SMITH: 11 Q Doctor, any other data to support the opinion of -

12that you had that my client manipulated the childs foreskin 13other than what youve testified? 14 15 16 17 A Q A Q Maxs little game on the train tracks. Maxs game on the train tracks. Hm-hmm. Maxs game on the train tracks. Does that show up in

18your report? 19 20 A Q I believe so. Okay. Do you want to show me what youre talking

21about because I really dont know what youre talking about? 22I honestly dont. 23 A Max used to play a game pulling the head of his penis

24in and out as a game saying, mom, here come the train. 25 Q Where does it show that? Where does it say that in

26your report? 27 3 A Its not in my report. Its in my notes.

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147 Q A Q A Q A Q A Q A Q Its not in your report? Its in Sunnys notes. Its in Sunnys notes? Yes. That mom said that? What? Youre telling us mom said that? I think so. Yes.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Well, can we go to Sunnys notes? Yes. And show me where she said thats what they did. THE COURT: He didnt say she said they did it.

He said she said Max did it. ATTY. SMITH: THE COURT: ATTY. SMITH: THE COURT: Right. Okay. Whatever Whatever it is, right.

18BY ATTY. SMITH: 19 20 21 22BY ATTY. SMITH: 23 Q Doctor, you said its not in your report. Its in Q Please show me in your notes because THE COURT: I just have to keep track thats why

24your notes. 25 26 27 3

I want to make sure I got that one right. ATTY. EISENHANDLER: I think he said its in

Sunnys notes. THE COURT: Right.

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148 ATTY. SMITH: But the reference was in his notes

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

in information that he got from Sunny which is why I asked him to go to his notes. (Brief pause in the proceedings.) THE COURT: Im sorry Dr. Robson has to do this,

but its the most relaxing ten minutes Ive had all day. ATTY. SMITH: I know. Its

(The proceedings were not requested to be transcribed.) THE COURT: If Dr. Robson for sure I coming back

tomorrow, maybe a better use of time would have him to look this up in his evening and then go onto something else right now. ATTY. SMITH: THE COURT: Robson? THE WITNESS: THE COURT: Yes, Your Honor. Thank you. Okay. Are you all right with that, Dr.

19BY ATTY. SMITH: 20 Q While youre there, doctor, is there any other data

21from which you concluded that my client manipulated this 22boys foreskin? 23 24 25 26 A Q A Q Not at the moment. Okay. No. Okay. So you also testified that my client had Not at the moment?

27orgiastic behavior based on the fact, if Im not mistaken, 3

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149

1that you said Max saw her put a tampon in her vagina; is 2that correct? 3 A I didnt say that was orgiastic. I said he observed

4that. 5 6 7 Q A Q So thats not orgiastic? It may or may not. Okay. Im just trying to get all of the orgiastic And you also testified, if Im not

8behaviors down.

9mistaken, that there was a statement made that Max lifted my 10clients nightgown, spread the cheeks of her butt apart, and 11wanted to penetrate her? 12 13 A Q Yes. Okay. I just want to make sure I got it right. And Is that what you said?

14you testified certainly theres a lack of anticipation; 15right? 16 17 A Q Right. Well, isnt it true that my client told you she was

18sleeping when this happened? 19 20 A Q Yeah. Okay. So if she said she was sleeping, how could she

21have anticipated? 22 A It doesnt take long if youre attuned to your child I

23to know theyre climbing into your bed, touching you.

24would think mother would be hyper alert to any potential 25approach before it ever happened. 26 27 3 Q A Okay. If she was asleep, you know, it takes quite a while Thats what Im saying.

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150

1to lift up a nightie, spread a mothers I mean, were not 2talking about a 200 pound man. 3boy. 4 5 6 7 Q A Q A Well, it could be about a second or two, couldnt it? Im sorry? Couldnt it take about a second or two? Well, it depends I guess how fast he moves and Were talking about a little

8whether mother was covered up 9 10 11 Q A Q Right. - with a blanket or whatever. Right. And its also true that we know Max darts You said that before, hyper

12around?

Hes got ADHD.

13activity disorder. 14doesnt he? 15 16 A Q

Hes kind of moving around a lot,

But thats not relevant I dont think to this issue. Okay. All right. Now, the other thing about that is

17Max didnt say penetrate, did he? 18 19 20 21 22 A Q A Q A Stick it in. He said stick it in? I dont know what exactly his Well, didnt he say pee pee? I dont remember exactly what he said, Attorney

23Smith. 24 Q Well, pee pee is a lot different than stick it in;

25isnt it? 26 27 3 A Q Not really. Not really?

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151 A The point is the same. If its a urinal or its a

2vagina, its inappropriate. 3 Q Well, its certainly inappropriate. But is my client

4orgiastic is the question? 5 A To the extent she didnt anticipate or interdict that

6behavior, yes. 7 8 9 10 11 12 13 14 15 16 17 Q A Q A Q A Q A Q A Q Even if she was sleeping? Yes. And you knew she was sleeping? Im sorry? And you knew she was sleeping? She said she was sleeping. But you didnt tell us on direct that, did you? Im sorry? You didnt tell us on direct, did you? I didnt withhold it. Now, you say in your report - you also said, if I

18have this testimony correct, that orgiastic behavior 19consisted of when Max said he wanted to lie on top of her, 20it feels good, is that - do I have that right? 21 22 23 24 A Q That was one episode, yes. Okay. And thats cited in your report?

(Brief pause in the proceedings.) Q Now, isnt it accurate - cited in your report on page Why dont you go to 42 at

2550 - strike that 42; isnt it? 26the bottom of the page? 27 3

(Brief pause in the proceedings.)

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152 Q A Q Do you see that, doctor? Yes, I do. Now, in terms of the - you took this from a

1 2 3

4visitation note, did you not? 5 6 7 8 9 10 A Q A Yes. And its the note of 12/24/2010; isnt it? Im not sure.

(Brief pause in the proceedings.) A Q Yes, 12/24/10. Okay. And where is it in the note, at what time, Where does it say that, doctor? Well, do you have the note pulled

11wanted to lay on him? 12 THE COURT:

13out or does he need one? 14BY ATTY. SMITH: 15 16 17 18 19 20 21 22 23 him. ATTY. EISENHANDLER: ATTY. SMITH: THE COURT: Okay. Got it. 151. Its 151, Judge. Q A Q A Do you need one, doctor? Supervision note? Yeah. Yes. ATTY. SMITH: Im going to try to locate it for Do you need the note?

24BY ATTY. SMITH: 25 26 27 3 Q Okay. Could you review 151 on that date?

(Brief pause in the proceedings.) A Yes.

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153 Q A Q A Q A Okay. So how is that orgiastic?

1 2 3 4 5 6

Well, apparently mother does lie on him. Is that what you gleaned from that? Well, it says Max asked Sunny to lay on him. Hm-hmm. He says hes a little cold and it feels good when

7theres a lot of weight on him. 8 9 Q A Hm-hmm. Sunny asks if hed like a blanket and Max says please

10for Sunny to lie on him a few more times. 11 Q She asked him to lie on him a few more times? What

12are you saying? 13 A Im saying that Max said wont you lie on me a few

14more times. 15 Q Are you telling me Sunny actually laying on him

16during that time period? 17 18 19 20 A Q Well, I read the same thing as you do. I know. Why does Sunny say no? Objection.

ATTY. EISENHANDLER: THE WITNESS:

Apparently she comes to the

21recognition that its not a good idea. 22BY ATTY. SMITH: 23 24 25 Q A Q So you actually read that that she lay on top of him? Well, how would you read it? That he asked her a few mores and she wouldnt lay on

26top of him. 27 3 A Will you do it a few more times, doesnt that suggest

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154

1shes all ready done it? 2 3 4 Q A Q Not necessarily it. Well, I dont know He said it a few more I dont want to get into an

5argument with you, doctor. 6 7 8 9 10 11 12 13 14 15 THE COURT: The other way that the good attorney

is suggesting you could read it, doctor, is that asks please, please for Sunny to lay on him a few more times. So is the a few more times attached to the

having lied on him or attached to asking a few more times? And thats the distinction in the way that

the reading is going on. ATTY. SMITH: THE WITNESS: Thats what were talking about. I dont know how we resolve that

without William Sapphire.

16BY ATTY. SMITH: 17 Q I wouldnt quote William Sapphire, but thats another

18issue. 19 Okay. So whatever, doctor. I understand your point.

20You understand mine; right? 21 22 A Q Yes. Anything else - lets go along. You said that Max

23hit my client in a sexual - hit my client when she was on 24the computer; right? 25 26 27 3 A Q A I said that was reported to me. Okay. And who reported that?

Joseph Doherty and Ms. Bourne.

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155 Q A Q Ms. Bourne. Jennifer Bourne. And if Im not mistaken, you called that action was, It had a

1 2 3

4if Im not mistaken, chronic overstimulation? 5sexual connotation to it? 6 7 A Q I dont think so. Okay.

So the hitting of her has no sexual

8connotation? 9 10 11 12 13 14 15 16 17 18 19 20 ATTY. EISENHANDLER: he testified. Objection. Thats not what

He testified Well, allow him to answer it. Im asking a question. He can correct it if its wrong. What I testified this morning was

THE COURT: ATTY. SMITH: THE COURT:

THE WITNESS:

that that habit began, perhaps, between 3 and 4 years of age as it was reported to me and had originally no sexual content to it. It was around mother not What I said

paying attention or responding to Max.

was over time it evolved into a sexual it took on a sexual coloring later as he got older.

21BY ATTY. SMITH: 22 23 24 25 26 27 3 A Q Both. Both. Q A Q In terms of the groping or hitting? Yes. Are we talking about hitting or groping? Im trying

Well, is hitting when you - in what sense when Max

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156 Thats what Im not

1hit my client was that sexualized? 2understanding. 3 A

Well, if you walk up to someone and you clap them on

4the butt multiple times or clap them on the breast multiple 5times or clap them on the crotch multiple times, that 6certainly has a sexual flavor to it. 7 Q Okay. I understand that. But how - when Max hits,

8so thats a form of hitting youre talking about? 9 10 A Q Im not clear what youre asking. Okay. Well, Im trying to understand what you mean Its honestly, doctor, thats all Im

11by Max hitting. 12trying to get at. 13

When Max hits somebody, are we talking about a

14physical whack to something? 15 16 A Q Yeah. Okay. And you know how its reported Max slaps

17himself in the face? 18 19 20 A Q A Right. Is that what youre talking about? But a slap on the face is different than a grope in

21crotch 22 23 24 Q A Q Okay. - or a slap on the butt. Okay. So the hitting youre talking about is not It means a groping on a part

25necessarily a violent hitting.

26of the body; is that what youre talking about? 27 3 A Theyre more like what in my era they used to call

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157

1love taps. 2 3 Q A Well, I dont know what that means. Well, it means a hit that has erotic content. And

4you know and we all know that sex and aggression especially 5in little children that age are very closely aligned. 6 Q Well, Im trying to differentiate them a little bit And Im trying to

7for the purposes of this discussion.

8understand where they are in terms of your analysis. 9 10might. 11notes 12 13 14 (Brief pause in the proceedings.) Q Could you go to 17 - strike that. Its your deposition. Im sorry. Exhibit 38, page All right. Doctor, so and I want to move along, if I

While we have the report, doctor, you have in his

1517, and Id like to show you lines 7 and 8 for the record. 16Id like you to read that out loud. 17 18 19 20 ATTY. EISENHANDLER: THE COURT: 17. 17. Thank you. Its just one line.

What page?

ATTY. EISENBERG: ATTY. SMITH: 17.

21BY ATTY. SMITH: 22 23 Q A Just read it out loud, please? I did none. Okay. Please give me okay. What

24child behavior does the professional literature 25 26 27 3 Q Doctor THE COURT: ATTY. SMITH: Wrong line? Yeah, wrong.

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158

1BY ATTY. SMITH: 2 3 4 5 6 7 8 9 10 11 Q A Q A Q Let me help you. Line 17 you said. 7 and 8. Oh. Page 17, lines 7 and 8. THE COURT: ahead. THE WITNESS: I dont believe Mr. Liberti was Its a good thing its almost 5. Go

massaging the groin area so I cant answer your question.

12BY ATTY. SMITH: 13 Q So you dont believe that Mr. Liberti massaged Maxs

14groin area? 15 16 17 18 19 A Q A Q A I think thats partly incorrect on my part. On your part? Yes. Okay. So where is that incorrect?

Its incorrect because Max tells Dr. Smith that

20father touched his penis in massaging him and it felt good. 21 22 Q Okay. Thats where Im going.

And you know that Dr. Smith had seven, perhaps, six,

23seven interviews with Max? 24 25 26 27 3 A Q A Q She had four, I believe. Four was it? Four or five, yes. Four or five. But more than one?

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2

159 A Q Oh, yes. And in fact, Id like to take a look at Maxs It starts on page 82.

1 2

3clinical interview with Dr. Smith. 4Do you mind? 5 6 7 8 A Q A Q Okay.

Now, on the first - do you see it, doctor? Yes, I do. And in the first line, first sentence, Max talks Do you see that, doctor?

9about himself feeling lonely. 10 11 A Q Yes.

And if I told you that the father - that there was

12evidence that the father allows Max to watch television five 13hours a day and play watch television or play video games 14five hours a day 15 16 17 A Q Yes. - per day ATTY. EISENHANDLER: Im going to object. Its

18not five hours of television and play video games.

Its

19five hours a combination of video games and television. 20 21 22 23 THE COURT: ATTY. SMITH: THE COURT: video. On average On average. - five hours a day of TV and/or

24BY ATTY. SMITH: 25 26 27 3 Q TV and/or video, five hours ATTY. EISENHANDLER: Video games. I want to be

accurate because were talking about games that

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160 youre dancing and moving around. sitting there. THE COURT: Five hours of TV and/or video games Youre not just

1 2 3 4 5 6

on average per day. ATTY. SMITH: Per day. Thank you.

ATTY. EISENBERG:

7BY ATTY. SMITH: 8 9 10 11 Q A Q A Is that an appropriate thing for Max? I dont think so. Why not, doctor? Well, the first head of the FCC said that television

12is a vast wasteland. 13 Q Right. And if a child was - if Mr. Liberti testified

14that he was present during his son watching TV or playing 15video games for five hours a day, that wouldnt be 16appropriate behavior on his part either, would it? 17 18 19 A Q A I wouldnt recommend it. Why is that, doctor? I dont think its helpful developmentally for a

20child to spend that much time in front of television or 21video games. 22 23 24 25 26 27 3 Q A Q A Q What about a child like Max? Im sorry? What about a child like Max? Any child. Lets assume ATTY. SMITH: Could I have 59?

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161 (Brief pause in the proceedings.) ATTY. SMITH: THE COURT: Can I show this him? Sure.

1 2 3

4BY ATTY. SMITH: 5 Q Doctor, if I told you that Max habitually watches or

6plays games like this, is that appropriate? 7 8 9 A Q A I dont think so. Tell us why it isnt, doctor. Because these are precisely the behaviors that Max

10acts out in his mother and sometimes his fathers presence. 11 Q Okay. And if hes watching this type of activity

12that you have in your hand at his fathers house over this 13five hour period on a daily basis 14 15 16 ATTY. EISENHANDLER: the testimony is. THE COURT: Sustained Objection. Thats not what

17BY ATTY. SMITH: 18 19 20 Q A Q So its not appropriate; right? No, I dont think so. Doctor, have you seen drawings made by Max in this

21particular case? 22 23 24 25 26 27 3 A I dont think so. ATTY. SMITH: Okay. Could I have 32, please,

32A and I think I dont know if theyre still separated? THE CLERK: ATTY. SMITH: Do you want the originals? Id like to see the originals.

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162 ATTY. EISENHANDLER: My concern, Your Honor, is

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

that apparently these were - if he hasnt seen them, they werent a basis of his report. And hes asking

the doctor to look at them right now at quarter of 5 THE COURT: Is it that worried that its so late

in the day or is it an objection, Mr. Eisenhandler? ATTY. EISENHANDLER: THE COURT: Its an objection.

Well, he can look at them at 9 in

the morning, then he can certainly look at them at 4:30 in the afternoon. Overruled. ATTY. EISENHANDLER: hes asking him to look at give an opinion. THE COURT: do with them yet. ATTY. EISENHANDLER: THE WITNESS: Im premature. I dont know what hes asking him to But what

My visual acuity improves after 4,

Attorney Eisenhandler. ATTY. EISENHANDLER: THE COURT: Im sorry?

Hi visual acuity improves after 4.

21BY ATTY. SMITH: 22 Q All right. Doctor, Ive got two sets here. Ill

23bring them over to you.

I just want to show you the ones 32, lets

24that are right now labeled Im sorry its 32. 25take a look at these here. 26 27 3 A No. THE COURT: I just have to

Have you seen these before?

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163 ATTY. SMITH: THE COURT: Theyre the orange ones. Okay. Right. Thank you.

1 2

3BY ATTY. SMITH: 4 5 6 Q A Q The orange ones. Yes. And could you look at all of the orange ones, please, Ill move the thing for you if youd like. And Do you see those?

7doctor.

8also the red one, not that one, just this one and those. 9Take a look at these. 10 11 12 13 14 15 (Brief pause in the proceedings.) THE COURT: We are going to stop at ten of so

that you have time to take care of your own things because we have other people. ATTY. SMITH: Yes.

(Brief pause in the proceedings.)

16BY ATTY. SMITH: 17 18 Q A Doctor, what do you see in those pictures? Well, theres - in the first picture, an unhappy He looks miserable or angry or both. Theres a Its The

19person.

20Rube Goldberg machine in the middle of the first one. 21whirring and turning just like Maxs favorite toy does. 22second hard to say. 23 Q Its a phallic object.

Hold on a second.

Which one are you talking about,

24the phallic object? 25 THE COURT: Its the hammer heart one.

26BY ATTY. SMITH: 27 3 Q Okay.

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164 A These are a variety of faces. And theres a picture

2on the lower left corner that looks like a child, a girl 3with a braid and theres it looks like an erect male penis 4with some ejaculate or something coming from it. 5 6 7 Q A Q Okay. And this last one Okay. Could you look at the red one first and this

8one and then the last one? 9 10 11 12 A Q A Q well, this one looks like the one back here. That you described as a phallic object? Yes. Okay. Theyre quite similar. Now, could you take a look, please, at what we Could you take a

13had originally 32A and its this one here? 14look and tell us what you see? 15 16 17 A Q A Two human figures. Okay.

And one it looks like a man with an erect penis,

18and its shoving against the abdomen of what looks like a 19smaller person, a child, or woman. 20 Q Cant tell. I cant tell.

You cant tell the gender of the second

21one, can you? 22 23 24 A Q A Well, it looks like a dress. Okay. But theres no hair or other identifying

25characteristics. 26 27 3 Q A Okay. I would say if I had to guess more female than male.

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165 Q A Q A Okay. What else do you see in the picture?

1 2 3 4

The man is smiling. What about - whats between them? Well, thats what I said. It looks like a man with

5an erect penis. 6 (No further proceedings were requested to be

7transcribed.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3

1 1NO: FA09-4037658-S 2 3SUNNY LIBERTI 4 5 6 v. 7 8 9ROBERT LIBERTI 10 11 12 13 14 15 16 17 18 19 20

: :

SUPERIOR COURT JUDICIAL DISTRICT OF MIDDLESEX

: AT REGIONAL FAMILY TRIAL DOCKET : AUGUST 25, 2011

C E R T I F I C A T I O N

I hereby certify the foregoing pages are a true and correct

21transcription of the audio recording of the above-referenced case, 22heard in Superior Court, Judicial District of Middlesex, 23Middletown, Connecticut, before the Honorable Lynda B. Munro, 24Judge, on the 25th day of August, 2011. 25 26 27
Dated this 30th day of August, 2011 in Middletown,

28Connecticut. 29 30 31 32 33 34

________________________________ Danielle Levine Court Recording Monitor