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Wisconsin 2011, Johnson v. Phillips - Attorney Smoler’s Closing Arguments

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1 STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY
    Branch 11  
2      
  ----------------------------------------------------------------------------------------------------------------------------------
3      
  CHARLES JOHNSON and    
4 KAREN JOHNSON,    
       
5   Plaintiffs,  
       
6 vs.   Case No. 96 CV 1228
       
7 KAY PHILLIPS,    
  JEFF HOLLOWELL, TIM REISENAUER,    
8 and WISCONSIN PATIENTS    
  COMPENSATION FUND,    
9      
    Defendants.  
10      
  ----------------------------------------------------------------------------------------------------------------------------------
11      
  DATE: January 22, 2011  
12      
       
13 BEFORE: The Honorable DANIEL R. MOESER  
       
14      
  PROCEEDINGS: Jury Trial - Partial Transcript  
15   (Closing Argument and Rebuttal  
    Closing by Attorney Bill Smoler)  
16      
       
17 APPEARANCES: WILLIAM SMOLER, Attorney at  
    Law, Madison, Wisconsin, appeared  
18   on behalf of the Plaintiffs.  
       
19   DAVID McFARLANE and JOOST KAP,  
    Attorneys at Law, Madison,  
20   Wisconsin, appeared on behalf of  
    Kay Phillips, Ph.D.  
21      
    BRADWAY LIDDLE, Attorney at Law,  
22   Madison, Wisconsin, appeared on  
    behalf of Jeff Hollowell and  
23   Tim Reisenauer.  
       
24      
       
25   ANN M. ALBERT, RMR, CRR  
    Court Reporter  
       
1
1 P R O C E E D I N G S
   
2 (Partial Transcript of January 22, 2011 Jury Trial -
   
3 Attorney Bill Smoler’s Closing Argument and Rebuttal
   
4 Closing Argument.)
   
5 * * * * *
   
6 MR SMOLER: Good morning. It seems like only
   
7 yesterday.
   
8 The -- I think all of us need most of all to
   
9 express our thanks to you. And let me be the first to
   
10 do that. I’m sure the other attorneys will do that as
   
11 well. This has been two fairly grueling weeks, and
   
12 you guys showed up every single day on time, and
   
13 sometimes I imagine having some difficulty with snow
   
14 or having difficulty with cold. And I truly thank you
   
15 and thank you for what appeared to be a tremendous
   
16 amount of attention that you were giving to this. And
   
17 I know that the Johnsons very much appreciate that.
   
18 And I’m certain that the defendants in the case
   
19 appreciate that as well.
   
20 Two weeks is a long time to be sitting here.
   
21 And I’m sorry to the extent that I contributed to the
   
22 length of that. But I hope that you learned enough
   
23 and heard enough that perhaps it’s something you might
   
24 share at some point in the future.
   
25 I was honored to have the privilege of
   
2
   
1 representing the Johnsons in this case, and I’m
   
2 hopeful that I accomplished for them what it was that
   
3 they were hoping when they hired me.
   
4 The Court has just read you the jury
   
5 instructions. In my opening, I intend -- or in my
   
6 discussion, I do intend to highlight a few of those as
   
7 we are going through as well as talking about the
   
8 evidence that I believe relates to your answers to the
   
9 questions that the Judge just discussed with you at
   
10 the verdict, regarding the verdict.
   
11 The first instruction that I wish to highlight
   
12 to you -- and I don’t know that I need this to -- can
   
13 you guys hear me? Okay. Let’s not use that. And if
   
14 you’re having a problem, just raise your hand. I’ve
   
15 never been accused to being soft spoken.
   
16 The first instruction that I do want to
   
17 highlight for you -- if you could put it on there,
   
18 please -- is the Judge told you the burden of proof.
   
19 And you may recall that in the opening, we discussed
   
20 -- or in the voir dire, we discussed are you aware of
   
21 the difference between the criminal and the civil
   
22 burden. The criminal burden is beyond a reasonable
   
23 doubt. The civil burden is whichever weight is, you
   
24 know, every so slightly in someone’s favor. And that’s
   
25 the burden that I believe we have easily proven in
   
3
   
1 this case.
   
2 But I want to highlight something else that’s on
   
3 here. Okay? And in fact, it’s in a couple different
   
4 places in the instructions.
   
5 What the Court told you is in considering the
   
6 evidence, when you’re weighing the evidence, credible
   
7 evidence means evidence you believe in light of reason
   
8 and common sense. Okay? You get to bring to your
   
9 decision here today common sense. And I suspect you
   
10 know that I would suggest to you that perhaps at other
   
11 points in this case, common sense didn’t prevail. I’m
   
12 lucky enough to have the Judge instruct you that you
   
13 get to bring common sense to what went on here and try
   
14 to decide this case based on looking at the evidence
   
15 with that in mind.
   
16 I believe that the evidence establishes that,
   
17 mixed with common sense, that Charlotte’s memories
   
18 were plain and simply not real. If you believe they
   
19 are real, if you believe that Dr. and Mrs. Johnson
   
20 sexually abused Charlotte, or if you believe that they
   
21 were members of a cult, or if you believe that
   
22 Charlotte was abused by the array of people that she
   
23 claims, find for the defense.
   
24 This case is about whether or not things went
   
25 wildly astray when common sense wasn’t used. And
   
4
   
1 instead of dealing with legitimate issues that
   
2 Charlotte had, this therapy went off into who knows
   
3 where. I believe that the records in this case make
   
4 that very clear.
   
5 You know that I probably bored you to death by
   
6 putting record after record up that demonstrated to
   
7 you the kinds of things that were going on in the
   
8 therapy.
   
9 You have now heard from others that perhaps the
   
10 records aren’t what really went on, but they have
   
11 other interpretations of what went on not based on
   
12 things that are in the records, but based on looking
   
13 back on these things 20 years later.
   
14 Well, indeed, it has been 20 years. And during
   
15 those years, I suspect Dr. Johnson lost some hearing
   
16 and Mrs. Johnson lost some eyesight. All of the
   
17 participants in this case that was filed 15 years ago
   
18 are a little, well, 15 years older and perhaps a
   
19 little less hair and that which they have a little
   
20 grayer.
   
21 But certainly, as you learned about memory in
   
22 this case, and as you learned that memory is
   
23 reconstructive, and as you learned that people
   
24 sometimes reconstruct memory based on what they want
   
25 to believe or what they’ve heard from others, I hope
   
5
   
1 you will join my view in this in saying let’s look at
   
2 the records. Let’s look at what happened during the
   
3 therapy as it was written down and not what somebody
   
4 is reconstructing from whatever they’re saying from
   
5 what they believe may or may not be helpful to them at
   
6 this point in time.
   
7 Similarly, you will hear in this case about what
   
8 Charlotte said in a deposition 11 years after the
   
9 therapy began, and -- it was in 2002, and six years
   
10 after this lawsuit was filed. I trust that, again,
   
11 you’ll bring common sense to this because you know, as
   
12 it’s been expressed, that Charlotte was not in favor
   
13 of this lawsuit.
   
14 But Charlotte’s attitude obviously was displayed
   
15 in some of the comments that she made that were read
   
16 to you in that deposition. And once again, I believe
   
17 that you can rely on the records as opposed to what it
   
18 is that you’ve heard from Charlotte, although in many
   
19 ways, much of it was quite favorable to the
   
20 plaintiffs.
   
21 We’ll never know why Charlotte’s memories began.
   
22 I have not in this case tried to say to you that
   
23 Charlotte, whatever it was that she had in early
   
24 October is the result of something of the defense. I
   
25 don’t believe we will ever know what that was.
   
6
   
1 I suspect you know what my suspicions are. I
   
2 suspect that you know that she obviously had Courage
   
3 to Heal, as the very first entry on Kay Phillips’
   
4 records on October 16, 1991, she enters "Got Courage
   
5 to Heal." You’ll also know and remember that she
   
6 recommended it to her mother.
   
7 You’ll also know that in her testimony and also
   
8 in the testimony of some of the defense experts,
   
9 particularly Dr. Smith, that it was agreed that, yeah,
   
10 Courage to Heal got discussed in 12-step programs.
   
11 And we know that Charlotte was in those 12-step
   
12 programs.
   
13 But you also know that -- excuse me one
   
14 second -- that it’s one of those things, if it walks
   
15 like a duck, if it quacks like a duck, it’s probably a
   
16 duck.
   
17 And we put in front of you item after item that
   
18 was both in Courage to Heal and in Charlotte’s
   
19 therapy. Confrontation. Journaling. Body memories.
   
20 Stop talking to your family. Anger release with a
   
21 bat. Sue your parents. Develop an alternative
   
22 family. Work in groups. Survivor groups. Change
   
23 your name. Recommend the book to others. Often there
   
24 are numerous abusers. Deal with your inner child.
   
25 And by the way, in Courage to Heal, we find out
   
7
   
1 that there’s satanic ritual abuse.
   
2 Do I think that book played a significant role
   
3 in whatever it was that Charlotte was developing?
   
4 Yes.
   
5 Do I think a psychologist acting within the
   
6 standard of care should have understood that? I’m not
   
7 a psychologist. I never played one on TV. I didn’t
   
8 stay at a Holiday Inn last night. But it wasn’t
   
9 difficult to figure out that exactly what was going on
   
10 here was modeled after Courage to Heal, whether that’s
   
11 because Charlotte insisted it or because all of the
   
12 defendants, each of whom acknowledged some dealing
   
13 with the book Courage to Heal, that somehow what
   
14 happened here matched exactly what was going on there.
   
15 And as you know, Courage to Heal is a popular
   
16 press book written by two nonprofessionals that were
   
17 bringing it from a woman’s perspective and that
   
18 obviously in the minds of many was quite influential.
   
19 If not Courage to Heal, well, then perhaps the
   
20 groups. You’ve heard plaintiff’s experts describe the
   
21 fact that putting somebody in a survivor group
   
22 contaminates it. It’s contagion. And as soon as
   
23 Charlotte gets to Rogers, despite their claims that,
   
24 gosh, they were on different floors -- this is a small
   
25 community. The parties are together in a variety of
   
8
   
1 groups, one of which is a survivor group. And I
   
2 believe we made -- we identified to you that in one of
   
3 the Rogers records, there was an absolute statement
   
4 that said, "Put her in the survivors of abuse group."
   
5 You would find that indeed it may have, if not began
   
6 there in the 12-step programs, certainly took on a
   
7 mushroom effect.
   
8 Third, maybe it came from dreams. I mean, do
   
9 you think it’s unusual that in the very first -- in
   
10 one of the very first entries -- do you have that one
   
11 -- Charlotte describes a dream of mom coming after her
   
12 with a knife and mom trying to drown her. And then
   
13 later on in the records, what do we find? It’s not a
   
14 dream. Charlotte reports a memory of mom trying to
   
15 stab her. Charlotte reports a memory of mom trying to
   
16 drown her.
   
17 Do you really think that that’s a coincidence?
   
18 We don’t. We think that simply identified that
   
19 Charlotte was getting this from somewhere at the
   
20 start.
   
21 And you know what? It’s our position that it
   
22 doesn’t matter. It’s our position that when you go to
   
23 a doctor and you say, "I’ve got chest pain," the
   
24 doctor doesn’t say to you, "Well that’s nice. What do
   
25 you think it’s from?" "Well, I think it’s from -- I’m
   
9
   
1 sure I need open heart surgery," and dive in and do
   
2 open heart surgery.
   
3 The doctor says, "Let’s do some tests. Let’
   
4 start trying to figure out what’s going on here
   
5 because, gosh, it could be an ulcer, it could be
   
6 cancer, it just could be anxiety. Who knows?" And
   
7 questions are asked.
   
8 And you’ll notice that nowhere in any of the
   
9 records, despite my repeated questioning, did we ever
   
10 hear about a differential diagnosis. What’s the
   
11 possibility of what’s going on here? Might it be
   
12 something other than truthful memories? Never was
   
13 that looked at throughout this entire therapy.
   
14 And I hope you recall I invited the defendants
   
15 time after time to identify where are the notes that
   
16 say you sat down and tried to think about this? Where
   
17 is the time where you list the possibilities?
   
18 But regardless of what it was coming from, what
   
19 we do know is that it took off. It took off in an
   
20 explosive direction with these memories, outrageous as
   
21 they were, just mushrooming into extraordinary
   
22 memories.
   
23 Now, why do we think and why do we indicate to
   
24 you what we believe you should find? We believe it’s
   
25 because recovered memory therapy was going on. It was
   
10
   
1 happening in other places.
   
2 And, you know, we started to play the semantic
   
3 game with the defendants and with some of their
   
4 witnesses. Plaintiffs’ experts say, "Of course it
   
5 occurred." Defendants say, "We don’t really do -- we
   
6 never really did recovered memory therapy."
   
7 But I hope you noticed that when the defense
   
8 experts were on the stand that we would talk about
   
9 memory processing instead. So if we change the words
   
10 to "memory processing" instead of "recovered memory
   
11 therapy," they -- all of the defense experts said,
   
12 "Yeah, there was memory processing that was going on."
   
13 And they couldn’t deny it.
   
14 And the reason they couldn’t deny it is
   
15 because the repeated references that we showed them
   
16 from the therapy records -- let’s go to Rogers
   
17 Memorial Hospital records.
   
18 November 8, 1991, just a few days after
   
19 Charlotte arrived there. "Plan: Support patient.
   
20 Talk and share feelings of abuse."
   
21 Three days later, November 11, 1991. "Plan:
   
22 Support patient in remembering history and acceptance
   
23 of past" -- "of past." Excuse me.
   
24 Two days later: "Patient is encouraged to keep
   
25 sharing and talking about her abuse."
   
11
   
1 That was what went on in the first Rogers
   
2 hospitalization.
   
3 And what does Kay Phillips say about that when
   
4 she writes to the Disability Board to try to help
   
5 Charlotte get Disability? And this would have been in
   
6 May of 1992. Kay Phillips writes: "During her stay
   
7 at Rogers Memorial Hospital November 4, ’91 to
   
8 December 7, ’91, she began recovering memories of
   
9 childhood sexual abuse."
   
10 As much as the defense would like to hear that
   
11 whatever that event was that occurred in early October
   
12 where we don’t have a real -- we don’t know who a
   
13 perpetrator is, we don’t know what the event is; all
   
14 we know is there’s some body feeling -- despite their
   
15 claims repeatedly in this trial, what we do know is
   
16 what was written to the State of Wisconsin, and that
   
17 is that the memories came forward during Rogers.
   
18 I’m sorry. And we can then go -- by the way, if
   
19 there’s any question about mixing Charlotte with
   
20 groups involving survivors, here it is in the
   
21 Discharge Summary on November 11, 1993. "It was
   
22 recommended the patient attend regular meetings of
   
23 Overeaters Anonymous and AA and Narcotics Anonymous
   
24 and Survivors of Abuse Anonymous."
   
25 So regardless of what the defendants said when
   
12
   
1 they stood up, when they testified in the last couple
   
2 of days, it’s simply not correct that Charlotte wasn’t
   
3 involved with survivors of abuse while at Rogers.
   
4 It’s also clear what a mess this all made of
   
5 Charlotte. You will recall -- let me take you back to
   
6 my examination of Kay Phillips when I went through and
   
7 said she wanted -- she wanted to say, "Wait a second.
   
8 Charlotte got better." Well, she’d love to do that
   
9 because by 2002 all this nonsense had stopped and
   
10 Charlotte indeed did get better.
   
11 But let’s talk about from October of ’91 when
   
12 she first went to Kay Phillips to the end of ’94 when
   
13 she stopped going to Kay Phillips because she moved to
   
14 Sedona. Was she better?
   
15 Well, let’s see. She had never been
   
16 hospitalized psychiatrically prior to October of ’91.
   
17 By the end of ’94 she had six or more psychiatric
   
18 hospitalizations. Prior to October of ’91 she had no
   
19 memories of sexual abuse. By the end of ’94 she had
   
20 -- was consumed by those memories, including memories
   
21 of satanic ritual abuse.
   
22 Beginning in October of ’91, she had never
   
23 attempted suicide. By the end of ’94, she had a
   
24 suicide attempt that Doctor -- I think it was
   
25 Dr. Clagnaz, either him or Dr. Kluft, said an
   
13
   
1 extraordinary, very significant suicide event where
   
2 she overdosed on trazodone or some drug that he
   
3 referred to, as well as a variety of hospitalizations,
   
4 I think we said six or seven hospitalizations where
   
5 she was put on suicide watch.
   
6 She was employable or in school prior to October
   
7 of ’91. Kay Phillips suggested she was disabled,
   
8 unable to be employed by the end of 1994.
   
9 She had a family. She had a family, a loving
   
10 family of two sisters, a brother, and her parents when
   
11 she went to Kay Phillips. And by the end of ’94 she
   
12 was lamenting that she couldn’t spend Christmas with
   
13 them, which was something that was one of her favorite
   
14 things.
   
15 She was financially doing fine. Dad was
   
16 supporting her, as he had all of the siblings. It
   
17 allowed her to go to school and would continue to pay
   
18 for that. Instead, through the suggestion of or
   
19 through her efforts to get a restraining order, she
   
20 was told wait a second, you can’t have it both ways.
   
21 You can’t have a restraining order and also be writing
   
22 and getting money from them. And so indeed, she went
   
23 bankrupt. You can understand that. She couldn’t
   
24 work, and she wasn’t allowed to get money from her
   
25 parents.
   
14
   
1 She had -- when she went to Kay Phillips, maybe
   
2 she had, maybe she didn’t have psychiatric diagnoses.
   
3 We know if she did, it was an eating disorder and it
   
4 was depression, but it sure wasn’t PTSD, and that PTSD
   
5 is what came forward during Ms. Phillips’ therapy and
   
6 the therapy at Rogers. It was diagnosed for the first
   
7 time in mid November of 1991.
   
8 It’s also clear that there was an alternative to
   
9 what was going on. This took a while to develop
   
10 during the trial, as I’m sure you watched. But
   
11 remember, Kay Phillips did therapy between October of
   
12 ’91 and she says August of ’94. It turned out, you
   
13 may recall, that she actually continued through
   
14 December. And there were notes in there where Kay
   
15 Phillips mentions, "yes, Charlotte is leaving tomorrow
   
16 to go to Sedona." So it’s actually the end of ’94.
   
17 But in my discussion with Ms. Phillips, we allowed it
   
18 to go just there. And that included the massive
   
19 overdose in February of ’94.
   
20 Now, in ’95 she goes to Sedona. And in ’95 she
   
21 comes back and she’s doing okay. And then she goes to
   
22 see Kay Phillips and the beginning of a memory comes
   
23 forward.
   
24 But first Kay Phillips had heard dad and mom
   
25 might be taking action here. And so what does Kay
   
15
   
1 Phillips do? Now she shifts it to here and now
   
2 therapy. And you bet that’s what should have been
   
3 going on all along -- the here and now therapy, the
   
4 dealing with boyfriends, whatever the issues are, and
   
5 none of this searching for memories. And suddenly
   
6 Charlotte is doing fine.
   
7 What’s the impetus to that? It was the
   
8 indication that a lawsuit was going to be filed. And
   
9 in fact it was, as you know, four months later.
   
10 Dr. and Mrs. Johnson could not have contact with
   
11 Charlotte. They knew that. But the person who gets
   
12 credit or people who get credit for saving Charlotte’s
   
13 life are not the therapists in this case. It’s her
   
14 parents. They stopped this phenomena by going to
   
15 court so that at least as of the lawsuit, the kind of
   
16 nonsense that was going on before had to stop and real
   
17 therapy, here and now stuff, began. And that’s what
   
18 saved her life.
   
19 Defendants -- well, let me skip that.
   
20 I do note -- and I apologize ’cause I had meant
   
21 to pull this, and I had forgotten to do that -- but
   
22 right before Charlotte left, one of the entries --
   
23 left for Sedona, one of the entries that was in the
   
24 record was Charlotte in fact saying, "I may never" --
   
25 "I may" -- I’m sorry -- "Charlotte may never return.7quot;
   
16
   
1 And I’m saying this poorly; I apologize. Charlotte
   
2 indicated that she was fearful about losing her life.
   
3 Now, Charlotte may never return to see Dr. and Mrs.
   
4 Johnson before they die. And that’s tragic. But at
   
5 least they know they saved her life.
   
6 Another thing that I wish to bring to your
   
7 attention is the Court gave you the -- an instruction
   
8 just now that says, "The weight you give to the
   
9 evidence is not decided merely according to the number
   
10 of witnesses on each side."
   
11 You heard me ask the defense witnesses -- I
   
12 mean, they’ve got five experts. They all happen to be
   
13 from all around the country, none really from this
   
14 area. The plaintiffs were able to bring you Dr. Van
   
15 Rybroek from this area, about as credentialed as you
   
16 can be when you’re running Mendota here because of
   
17 that; Ms. Wakefield, who, like the rest of us,
   
18 unfortunately has aged since this lawsuit began, but
   
19 from Minnesota, each of whom said obviously this is
   
20 negligence.
   
21 The defense, and I did point out that each of
   
22 these witnesses had billed in the $20,000 range, times
   
23 five witnesses, and obviously had a treasury of
   
24 $100,000 or more to bring you these witnesses.
   
25 But please don’t decide this case either because
   
17
   
1 of the number of witnesses that the defense could
   
2 bring or because they simply at the end of their
   
3 testimony would say, "Yep, I think it was standard of
   
4 care, whatever was done here." Because I hope you
   
5 recall that as we went through with them and asked
   
6 them certain propositions, it turns out that many of
   
7 the things that they say agreed with exactly the
   
8 position that we were advancing in this case. It was
   
9 only the conclusion that they disagreed with.
   
10 Now, the Court has already handed you the
   
11 verdict. I’m not gonna put that up. I was planning
   
12 on it, but obviously, you’ve had a chance to look at
   
13 it. And three of those questions ask was -- were any
   
14 of the defendants individually negligent?
   
15 You heard the plaintiffs’ experts and their
   
16 explanations. I want to go through those with you.
   
17 We believe they are negligent because they
   
18 never considered where these memories were coming
   
19 from. They never considered Courage to Heal, survivor
   
20 groups, 12-step, or whether their therapy might be the
   
21 problem as opposed to the solution.
   
22 Defense experts tried to -- a couple of them
   
23 tried to get up and say, "Yeah, you know, we did learn
   
24 later on that there were some issues about this
   
25 recovered memory therapy stuff" or what some of them
   
18
   
1 chose to call memory processing, "but we didn’t really
   
2 know it back then."
   
3 Except that’s not true. I hope that you
   
4 remember because I was careful in my examinations of
   
5 them. Dr. Chu, we had him produce his article from
   
6 1988 that raised exactly that issue. Dr. Kluft, the
   
7 same thing. He wrote an article saying there’s a
   
8 problem with this therapy. There may be false
   
9 memories that are coming forward. And the only way
   
10 way they could answer that was by saying, "Gosh, you know,
   
11 maybe our publications weren’t well read." But they
   
12 couldn’t -- they couldn’t explain that Dr. Loftus and
   
13 others who were out there who were nationally renowned
   
14 were writing the same things.
   
15 They also couldn’t explain -- remember Ken
   
16 Lanning. These memories of satanic ritual abuse were
   
17 being reported here as well as some other places. And
   
18 I think the interesting one was with Dr. Kluft where I
   
19 asked him when the Lanning article was, and I think at
   
20 first he said 1991. And then I asked him weren’t
   
21 there a couple more before that. And we got all the
   
22 way back to 1989. And then his fallback was, "But,
   
23 you know, this guy isn’t really a therapist."
   
24 And then the question was, but wasn’t this
   
25 picked up by mainstream psychological literature
   
19
   
1 and reference? And the answer, of course, was yes,
   
2 which was exactly what Ms. Wakefield told you.
   
3 And if there’s any question about that, again,
   
4 look to defense witness Brown, Laura Brown. In 1988
   
5 she testified in -- in a case on behalf of somebody
   
6 who was suing a therapist, saying, "Yeah, false
   
7 memories are being produced. This therapist was
   
8 negligent in producing false memories." How could she
   
9 possibly testify to that in 1988 and to say that that
   
10 therapist was beyond the standard of care if it wasn’t
   
11 known by then?
   
12 The defense also ties the date to 1992 when they
   
13 say that’s when the False Memory Syndrome Foundation
   
14 was created. And that is, of course, true.
   
15 But you will recall that the False Memory
   
16 Syndrome Foundation included people like Elizabeth
   
17 Loftus, one of the hundred best psychologists in the
   
18 20th century who was publishing at that time and
   
19 before that time about the problems with memory. It
   
20 included Martin Orne, who had been publishing that
   
21 hypnosis and other kinds of things like that created
   
22 false memories. And it included the most -- I don’t
   
23 think Dr. Chu admitted he would be in the most
   
24 renowned position, but he certainly agreed it would be
   
25 one of very high esteem, Dr. Paul McHugh, the chairman
   
20
   
1 of John Hopkins Department of Psychiatry.
   
2 Now, one of the plaintiffs’ criticisms, as I
   
3 said, was that they simply didn’t recognize that or
   
4 look to where these memories could be coming from.
   
5 And, you know, the response to that by the defense
   
6 was, as I said, "Gosh. Well, literature wasn’t really
   
7 out there then."
   
8 You know what? Even if that were true, you
   
9 heard from all the defendants. They weren’t reading
   
10 the literature. They were a generalist or something
   
11 like that.
   
12 Well, how are you a generalist when you work at
   
13 Rogers Memorial Hospital treating survivors of abuse,
   
14 where you’re treating eating disorders and addictive
   
15 disorders? You’re not a generalist. And you sure
   
16 ought to have known about this literature that indeed
   
17 was out there.
   
18 And all three of the defendants said they didn’t
   
19 know who Elizabeth Loftus was. Well, you couldn’t be
   
20 reading the literature about working with memories
   
21 without knowing who Elizabeth Loftus was.
   
22 The second point of negligence was that the
   
23 defendants failed to recognize the need for
   
24 corroboration. And there was a little bit of gaming
   
25 going on here perhaps by both sides about what the
   
21
   
1 records were. I’m not suggesting they should have
   
2 gotten records of college scores or college grades.
   
3 The records were Charlotte was reporting being raped
   
4 at age three. My gosh. Medical records at that time
   
5 probably would have been able to demonstrate whether
   
6 or not there were any injuries. School records might
   
7 have been able to demonstrate whether Charlotte was
   
8 manifesting any kind of psychological issue.
   
9 But even without the records, you know, a phone
   
10 call to sister, to brother, to other sister, or mom
   
11 and dad probably would have yielded some information.
   
12 What’s the defendant’s response to that?
   
13 Privilege. "Gosh, we couldn’t possibly do
   
14 that." I’m sorry that we bored you to death about
   
15 going through place after place where Charlotte
   
16 allowed permission. The first and most important one,
   
17 no matter how the defense tried -- can you widen that
   
18 a little bit, please? Thank you.
   
19 No matter how the defense tried to say that
   
20 verbal communication or that this X, rather, related
   
21 to treatment plan, ultimately, they had to agree that
   
22 Charlotte had said that at the time of the
   
23 confrontation that there could be verbal communication
   
24 about anything up to the date of communication and
   
25 that the authorization was effective for one year
   
22
   
1 unless otherwise stated. And it wasn’t otherwise
   
2 stated as it was in a different authorization that she
   
3 had given earlier. It’s very clear that there could
   
4 have been discussions with the family.
   
5 It’s also clear that it happened. In the Kay
   
6 Phillips records that we displayed to you, "Tim
   
7 Reisenauer got through to sister Jenny, tried to set
   
8 up something to talk about money." Well, you can’t --
   
9 you can’t get permission to talk to Jenny without
   
10 having some violation of privilege there that would
   
11 have allowed at least for questions.
   
12 And then Kay Phillips’ records, February of ’92.
   
13 "Talk with dad." I’m sorry. "General release to talk
   
14 to dad." Obviously, Charlotte allowed a conversation
   
15 with dad at that point.
   
16 February 13th of ’92 in Kay Phillips’ records.
   
17 "Gave me verbal release to talk to dad about her
   
18 condition and general progress."
   
19 March 12th. Go up a little bit, please.
   
20 Well, this was identified as a telephone
   
21 conversation with Karen, Mrs. Johnson. "Doesn’t
   
22 believe her husband raped Charlotte."
   
23 So we can talk about this game of privilege or
   
24 we can look at the records that demonstrate very
   
25 clearly that there were conversations with parents and
   
23
   
1 family members. And yet the question was never asked
   
2 what’s going on here? What might be going on here?
   
3 Defendants also claim that, gosh, it would harm
   
4 the therapeutic alliance if we questioned these things
   
5 or if we tried to go somewhere. But this is one of
   
6 those places where plaintiff and defense experts
   
7 absolutely agreed. They agreed it’s not enough to
   
8 simply have a therapeutic alliance. You gotta
   
9 accomplish something. Something has to get done.
   
10 And it’s our position the only things that got
   
11 done here were negative things.
   
12 Defense experts also agreed with the plaintiffs’
   
13 experts that at times, the standard of care requires a
   
14 therapist to inform a patient that something is not
   
15 historically accurate. You should recall that I asked that
   
16 of Dr. Smith, I asked that of Dr. Chu, and I asked
   
17 that of Dr. Kluft, all three of whom agreed the
   
18 standard of care at times requires a therapist to
   
19 inform a patient that something doesn’t jive here.
   
20 They also agreed, the same three, Dr. Smith,
   
21 Chu, and Kluft, that it was within the standard of
   
22 care regardless of the therapy to raise the accuracy
   
23 of the memories. And Doctors Smith and Chu indicated
   
24 it does not help the patient to work on things that
   
25 simply didn’t happen.
   
24
   
1 Now, you were shown PTSD during the defense
   
2 examination. Excuse me one second. And you’ll recall
   
3 that we talked about, you know, there are different
   
4 parts to this, to a diagnosis of PTSD. But after A,
   
5 B, C, all the other things are referring to A. And A
   
6 is the trauma. Okay? And then B, the trauma, the
   
7 traumatic event, is reexperienced this way or that way
   
8 or persistent symptoms associated with the trauma.
   
9 But the key here is the trauma. Okay?
   
10 And what A is, the trauma, the person has
   
11 experienced an event that is outside the range of
   
12 usual human experience, and it would be markedly
   
13 distressing to almost anyone. And then they give
   
14 examples. Serious threat to one’s life and physical
   
15 integrity. Serious threat or harm to one’s children,
   
16 spouse, close relatives. Sudden destruction of one’s
   
17 home. Seeing another person who has recently beenor
   
18 is being seriously injured or killed.
   
19 PTSD was a diagnosis that was discussed by the
   
20 experts, something that came forward in combat
   
21 circumstances. It’s now being adapted to other kinds
   
22 of experiences in life, these kinds of things. No
   
23 quarrel with that.
   
24 But it’s interesting there was a division
   
25 between the experts. Plaintiffs’ experts and I
   
25
   
1 believe two of the defense experts say it is only
   
2 diagnosable if there’s a real event. And what that
   
3 tells you then is despite the defendants’
   
4 protestations of, "Gosh, we were just listening to her
   
5 and we were allowing her to emote, and we weren’t
   
6 really saying what’s true or not true," that’s wrong.
   
7 You don’t diagnose PTSD if you’re a believer in that,
   
8 if you accept what at least four of the experts said,
   
9 which is it has to be a real event.
   
10 They’re, of course, taking the position -- you
   
11 heard Charlotte say, or you heard, I’m sorry,
   
12 Dr. Clagnaz say Charlotte liked to look at her records
   
13 and wanted to know what was going on. If she looked
   
14 at her records, she found she was diagnosed with PTSD.
   
15 And if you subscribe to what the experts say, that
   
16 tells Charlotte, yep, this isn’t just a fantasy. It
   
17 isn’t a dream. It’s rather something terrible
   
18 happened back there.
   
19 If that isn’t reinforcing, if that isn’t demand
   
20 characteristics as we’ve talked about, I don’t know
   
21 what is.
   
22 There’s another possibility, of course. And
   
23 that is that PTSD can come forward by an imagined
   
24 event. A couple of the experts said that. PTSD --
   
25 perhaps if it was such a significant, terrible image,
   
26
   
1 maybe it could be the same as a PTSD or a PTSD-like
   
2 phenomena.
   
3 But you know what? I asked the defendants, and
   
4 I hope that you will remember, during the time they
   
5 were on the witness stand, will they acknowledge the
   
6 fact that these things didn’t happen?
   
7 "No."
   
8 "I asked you that in your deposition years ago.
   
9 Could you -- will you agree these events didn’t
   
10 happen?"
   
11 "No."
   
12 "Could you come up with any facts that would
   
13 suggest these things didn’t happen?
   
14 "No."
   
15 "Well, how about the number of abusers?"
   
16 "No."
   
17 "How about the images, the satanic ritual abuse
   
18 memories?"
   
19 "No, that wouldn’t be consistent."
   
20 "How about the testimony of the other daughters
   
21 who say this never happened, it never happened to them
   
22 or to Charlotte?"
   
23 "No."
   
24 Well, you know, it’s kind of like if the only
   
25 tool you have is a hammer, everything looks like a
   
27
   
1 nail.
   
2 If the way that the defendants are looking at
   
3 this is with the assumption that it must be abuse, of
   
4 course, they can’t acknowledge that there’s some
   
5 problems with these memories. And in that case, maybe
   
6 they’re right. Maybe they, in convincing Charlotte
   
7 that indeed it was abuse, maybe they are who caused
   
8 the PTSD.
   
9 The third area of negligence that I wish to
   
10 discuss is the failure to adjust therapy. And you
   
11 know what? It was universal. We were seven for seven
   
12 among the experts. That is a therapist acting within
   
13 the standard of care has a duty to adjust the therapy
   
14 if the patient is not getting better.
   
15 Charlotte was not getting better from here to
   
16 the end of ’94. She was getting worse by all accounts
   
17 as when we went through the difference between her
   
18 before and her after this therapy. Charlotte didn’t
   
19 improve. In fact, she worsened. Let me refer you to
   
20 some of the records related to that.
   
21 Rogers Memorial Hospital, November 14, 1991.
   
22 "Recalls sexual abuse and is suffering from
   
23 Post-Traumatic Stress Disorder." That’s where that
   
24 enters the equation.
   
25 November 15th. "Charlotte" -- this is on a
   
28
   
1 treatment plan. "Charlotte is recalling episodes of
   
2 intense childhood sexual and physical abuse. Patient
   
3 currently on suicide precautions."
   
4 She goes to Kay Phillips, who does not think
   
5 it’s necessary to have a no harm contract, to not
   
6 check in with her other than a week or two later.
   
7 None of that. And now she goes to Rogers, and within
   
8 ten days she’s on suicide precautions.
   
9 A few days after that, Charlotte is found on
   
10 November 18th. "Patient was curled into herself while
   
11 sitting at the table and kept saying ‘I’m going to
   
12 die, I’m going to die.’" That’s not someone getting
   
13 better.
   
14 Let’s go to near the end of the Rogers
   
15 hospitalization. This is, again, a treatment plan
   
16 review. "Patient’s condition has deteriorated more.
   
17 Increased frequency in recollections of childhood
   
18 sexual abuse and appearance of dissociation during
   
19 these episodes."
   
20 At the end of the Rogers admission at the
   
21 hospital December 5th, "Patient attended a one-hour
   
22 program. She curls into a fetal position" -- sorry --
   
23 "and proceeds recollecting sexual abuse. She reports
   
24 physical flashbacks equals significant pain."
   
25 I mean, this is what brought her to Kay
   
29
   
1 Phillips. And now is it going away? No. It’s coming
   
2 back while she’s doing the therapy.
   
3 At the -- while she’s still -- or right after
   
4 she’s at Rogers, December 24th, "Talked with Jeff."
   
5 Hollowell, that would be. "Charlotte needed a safe
   
6 place." This is in Kay Phillips’ records. Excuse me.
   
7 "Only psychiatrist could readmit Charlotte. He
   
8 refused." We’re talking about Dr. Otto saying
   
9 Charlotte’s treatment plan had failed. "Jeff
   
10 disagrees."
   
11 So now we’re talking about almost immediately
   
12 after she gets done at Rogers, Kay Phillips believes
   
13 she needs to be hospitalized. And yet the records,
   
14 Dr. Otto says, "No. Why do that? She didn’t get
   
15 better here."
   
16 You go two months later to Charlotte’s words in
   
17 Kay Phillips’ records in February of ’92. "Very angry
   
18 at people at Rogers. Feels prior to that she felt she
   
19 could be effective. Now feels sick."
   
20 Down near the bottom. "Feels she can never have
   
21 a normal life with recovery, work and family." And
   
22 shortly after that there’s a series of no harm
   
23 contracts.
   
24 In fact, Kay Phillips again in her -- in her
   
25 letter to or information to the State of Wisconsin on
   
30
   
1 the Disability application says the following:
   
2 "During Charlotte’s stay at Rogers, she began
   
3 recovering memories. As these memories surfaced, she
   
4 experienced debilitating attacks of anxiety and panic.
   
5 In connection with these memories, Charlotte has had
   
6 several episodes of suicide, suicidal ideation, three
   
7 of which required hospitalizations to ensure her
   
8 safety."
   
9 And by the way, we know that to be so because we
   
10 know she was admitted after Rogers to Waukesha
   
11 Hospital on December 27th, admitted to Waukesha again
   
12 on January 29th of ’92, and admitted to St. Mary’s on
   
13 February 3rd of ’92.
   
14 "Charlotte frequently" -- if you can continue on
   
15 down there -- "Charlotte" -- this is, again, Kay
   
16 Phillips -- "Charlotte frequently feels overwhelmed by
   
17 the memories she’s recovering of her childhood abuse
   
18 which includes physical and emotional as well as
   
19 sexual abuse. These memories bring great feelings of
   
20 fear, shame, and anger, which often leave Charlotte
   
21 emotionally drained and unable to function."
   
22 And then Kay Phillips, if there’s any question
   
23 about getting better, "Prior to the beginning of her
   
24 recall of memories, Charlotte was actively interested
   
25 in sports, creative writing and intellectual
   
31
   
1 pursuits." How much more evidence could there be of
   
2 deterioration in this record?
   
3 What do the defendants say now? You know, we
   
4 heard something new at the trial. "We are Rogerian
   
5 therapists." You’ll note that they never mentioned
   
6 anywhere in the records, never mentioned in their
   
7 depositions, but, gosh, now they are Rogerian
   
8 therapists, which means we just listen.
   
9 But not only was it not mentioned in the records
   
10 or the depositions. There’s nobody who said
   
11 regardless of whether they’re a Rogerian or something
   
12 else, the approach means you do nothing if Charlotte
   
13 gets worse or doesn’t get better.
   
14 So in answer to the jury questions that say was
   
15 Kay Phillips negligent, I believe the answer is yes.
   
16 Was John -- was Jeff Hollowell negligent? yes. Was
   
17 Tim Reisenauer negligent? You bet.
   
18 The next questions that you’re going to be
   
19 asked, the Court referred you to, are the cause
   
20 questions. Okay. We understand that something
   
21 started with Charlotte shortly before she saw Kay
   
22 Phillips. We understand this played a role in what
   
23 happened here.
   
24 But let’s go to the Court’s instruction once
   
25 again because it’s important. "In answering those
   
32
   
1 questions" -- and those are the cause questions --
   
2 "you must decide whether defendants’ negligence caused
   
3 damage." And the underlined part. "This question
   
4 does not ask about the cause, but, rather, a cause
   
5 because damage may have more than one cause."
   
6 You are not being asked by this Court to say the
   
7 defendant -- the plaintiff -- I’m sorry -- the
   
8 defendants’ actions were the one and only cause.
   
9 ’Cause we know that’s not so. We know something
   
10 happened, whether it’s Courage to Heal or 12-step
   
11 groups or what that at least began this. But as to
   
12 the cascading destruction of Charlotte, you bet the
   
13 defendants’ therapy was a cause. You bet.
   
14 And so in answer to that, we believe that as to
   
15 each of those cause questions, the answer should be
   
16 yes.
   
17 The next question is how do you apportion the
   
18 causal negligence between the three -- the three
   
19 parties?
   
20 Do you want to put that up for me, please.
   
21 I believe that’s Question 10, but it’s also
   
22 Question 11.
   
23 At some point you’re asked how do you divvy this
   
24 up. Okay. If all three of ’em caused it, how do you
   
25 divide it up? Okay.
   
33
   
1 Well, we’ve got a little bit of a problem here.
   
2 Okay? And I’m gonna suggest to you that it be divided
   
3 essentially equally. Okay?
   
4 Who was in this the longest? Kay Phillips. No
   
5 question about it. She was participating in the
   
6 therapy during the time that there wasn’t a
   
7 hospitalization, when Charlotte wasn’t in Rogers. She
   
8 continued after the second hospitalization when
   
9 Charlotte was done at Rogers on November 1st of ’93.
   
10 Kay Phillips continued to the end of ’94.
   
11 But, you know, we’ve got a problem here. And
   
12 that’s not a problem of Kay Phillips’ making. That’s
   
13 a problem of two people’s making. The problem is we
   
14 don’t know what Jeff Hollowell and Tim Reisenauer did
   
15 after Charlotte left Rogers the first time. And why
   
16 don’t we know that? Well, somehow those records are
   
17 gone.
   
18 You know, I simply don’t believe when I hear
   
19 somebody say "I wish we had the records" when the
   
20 other records were as damaging as they were. I wish
   
21 we had those records. I’d like to know what Tim
   
22 Reisenauer and Jeff Hollowell did with Charlotte from
   
23 January until sometime she -- in the summer of 1992.
   
24 But we’ll never, never know that. And we don’t know
   
25 that because Dr. Reisenauer claims he destroyed the
   
34
   
1 records after a year ’cause that’s the rule in the
   
2 state of Washington, disregarding entirely the rule in
   
3 Wisconsin therapy records. And Dr. Hollowell says,
   
4 "Gosh, I just left those records in my desk."
   
5 Well, permit me to question whether or not
   
6 that’s true. Permit me to question whether
   
7 Dr. Hollowell, who is testifying about Charlotte’s
   
8 grave concern about information about her getting out,
   
9 that he would somehow just leave them in the Rogers --
   
10 in his Rogers desk. And who knows what happened to
   
11 them at the time he left?
   
12 So how do I say this should be divided? I
   
13 suggest you give 33 percent to Kay Phillips, you give
   
14 33 percent to Tim Reisenauer, and you give 34 percent
   
15 to Dr. Hollowell.
   
16 Those records should have been here.
   
17 Then we get to damages. Okay? The Court has
   
18 instructed you on damages. I trust that you heard
   
19 that the damages aren’t -- that there aren’t as -- the
   
20 evidence standard is not quite the same. It’s
   
21 difficult to prove emotional distress. And so you
   
22 have to simply listen and try to judge that.
   
23 Let me say at the outset I have no idea what the
   
24 damage amount should be in this case. I have no idea.
   
25 That’s why we hired you guys at $16 a day -- sorry --
   
35
   
1 or whatever it is that you’re paid. That’s your job.
   
2 I can’t presume to know how what you think what
   
3 happened here, what that’s worth. I’m gonna suggest
   
4 something. But please neither accept what I say as
   
5 being right nor accept what I say as somehow being
   
6 wrong and punish my clients because of it. This is
   
7 the collective wisdom of 12 jurors of Dr. and Mrs.
   
8 Johnson’s peers. And I have done this long enough to
   
9 know that your wisdom will be far greater than mine or
   
10 anybody else’s. And so I trust whatever you come up
   
11 with. But let’s talk about that.
   
12 Let’s talk first about Karen.
   
13 What Karen endured was a restraining order
   
14 entered in a public forum in Wisconsin against her,
   
15 letters from a lawyer hired by Charlotte accusing her
   
16 and her husband of sexual abuse and her of sitting by,
   
17 a confrontation where she has to listen to this kind
   
18 of stuff, called to -- to what she thought was to see
   
19 her daughter, and instead gets run over by a
   
20 steamroller telling her all the terrible things that
   
21 happened.
   
22 And she also had to live with the fear of what
   
23 might happen -- and we’ll talk a little bit more about
   
24 that when we talk about Chuck -- but what might happen
   
25 to her and her husband, who might be knocking on their
   
36
   
1 door with a summons to say, "We’re suing you for
   
2 everything you have on behalf of your daughter," or a
   
3 police officer knocking on the door saying, "Oh, by
   
4 the way, let’s come talk to you. We’re booking you
   
5 for child sexual abuse." She has lived with this for
   
6 20 years since 1991 when Chuck was confronted.
   
7 What do I think that’s worth? I think -- I
   
8 suggest to you between a million and two million
   
9 dollars. And I’m going to give you a different
   
10 number. I’m going to tell you where I think that goes
   
11 at some point.
   
12 But what is she confronted with in this case
   
13 now? Not only did they humiliate her by bringing her
   
14 to a confrontation. Not only did they humiliate her
   
15 by having her go out in public, never knowing if
   
16 somebody has heard through a grapevine that she and
   
17 her husband were satanists or were incest
   
18 perpetrators. But she gets called a liar here.
   
19 That’s what happened.
   
20 If there’s any question about that, on the way
   
21 home from the confrontation, Karen makes these notes.
   
22 The notes include the image of exactly what she saw on
   
23 the wall.
   
24 And Dr. Hollowell says, "Oh, no, that would
   
25 never have happened."
   
37
   
1 She gets told -- she reports that he said, "You
   
2 are an angry" -- and obviously she wrote at one point
   
3 -- "frightening," crossed that out and put "terrifying
   
4 woman."
   
5 And Dr. Reisenauer says, "Well, Dr. Hollowell
   
6 would never say that."
   
7 Another way of saying that is Karen is a liar.
   
8 Despite the fact that she wrote this note before any
   
9 lawsuit, before anything, on the day and within almost
   
10 immediately after the confrontation. Why would she
   
11 make that up?
   
12 Let’s talk about Chuck. You heard Chuck was a
   
13 stoic Norwegian. He seemed that way to me. He --
   
14 I’ll accept that, that he’s a stoic. I can’t speak to
   
15 the Norwegian.
   
16 But I want you to consider the kind of damage
   
17 that occurred here for Chuck. Recall that he worked
   
18 for St. Mary’s Hospital, which was the mother
   
19 institution in St. Louis for the St. Mary’s Hospital
   
20 here in Madison. Remember he was on the U.W. faculty.
   
21 Some of the people he taught ended up being at St.
   
22 Mary’s, U.W. residents.
   
23 Remember what he said -- and I suspect that some
   
24 of you know this or will be able to attest to it --
   
25 that in a workplace, even though something is private
   
38
   
1 and kind of ought to be, there’s a grapevine. There’s
   
2 a grapevine in law firms. There’s a grapevine in
   
3 hospitals. There’s a grapevine in a variety of
   
4 places. Doesn’t mean people take it out of there.
   
5 But what it does mean is that every time Chuck walked
   
6 into work, he had to think to himself has someone been
   
7 down to our institution in Madison and heard that
   
8 grapevine that, you know, the chief of staff there in
   
9 St. Mary’s in St. Louis, you know what we heard about
   
10 him?
   
11 You’ll also note that Chuck had exactly the
   
12 fears we talked about -- a threatening letter from
   
13 Attorney Atterbury saying, yeah, we’re gonna sue you.
   
14 But more than that, you know, in our country,
   
15 people who are serious offenders go to prison. And
   
16 people who go to prison are often thought by most to
   
17 kind of be the lower echelon, as least those who are
   
18 in prison for a long time. They’ve done something
   
19 heinous. You don’t go to prison for a first offense
   
20 drunk driving or second offense or perhaps even more
   
21 than that. You don’t go to prison for having a bar
   
22 fight. You go to prison for something very, very
   
23 serious.
   
24 And do you know who’s the worst in prisons? You
   
25 know who’s the lowest echelon in prisons? I submit to
   
39
   
1 you that among a prison population, the worst of the
   
2 worst are the child abusers.
   
3 From being the chief of staff at St. Mary’s
   
4 Hospital, Charles Johnson, Dr. Charles Johnson, was
   
5 said to be and potentially could have ended up in a
   
6 situation where he would go to prison and be the
   
7 lowest of the low. Talk about a drop.
   
8 What do I think that’s worth for Dr. Johnson?
   
9 Once again, I defer to the collective wisdom of the 12
   
10 of you, 14 right now. It’ll end up being 12. But I
   
11 submit to you it’s somewhere between four and eight
   
12 million dollars for him to walk into whatever meetings
   
13 he had to walk into -- he was a reviewer of
   
14 hospitals -- to go to a hospital review in the fear
   
15 that somebody there is going to say, "You know, he’s
   
16 telling us that we got problems. Have you heard about
   
17 him?" For meeting somebody new where he’s chief of
   
18 staff at St. Mary’s and introducing them and not
   
19 knowing if perhaps they had heard, "Watch out for this
   
20 guy, don’t let your daughters near him," he has
   
21 carried that around for 20 years. That’s why I’ve
   
22 told you what I believe the damages are.
   
23 I wish now to talk a little bit about what I
   
24 think you’re going to hear and what I want you to
   
25 consider as you hear it.
   
40
   
1 I believe that you are going to hear because we
   
2 heard it for two weeks, "It’s not my fault.
   
3 Dr. Otto." Nonsense. That’s nonsense.
   
4 You saw in every -- every time Dr. Otto’s name
   
5 is there, Dr. Hollowell is right below him. You saw
   
6 the division of responsibilities. Dr. Otto, who would
   
7 make -- I forget the term again -- you know,
   
8 occasional visits to the area, um, was not actively
   
9 involved in the treatment. Dr. Hollowell was
   
10 supervising the therapy. That’s exactly what he was
   
11 told, exactly the design and the treatment plan. And
   
12 each time it was reviewed, Dr. Hollowell’s signature
   
13 was right below Dr. Otto.
   
14 And not only that. Dr. Otto said, "Gosh, this
   
15 whole approach failed." You can attack Dr. Otto.
   
16 He’s an easy target ’cause he’s not around to answer
   
17 those things. But you don’t have to believe that when
   
18 you hear that. And what you can believe is Dr. Otto
   
19 was an honest man. He was an honest man because he
   
20 was prepared to say the treatment plan failed. He
   
21 isn’t trying to sell you a bill of goods.
   
22 Man up, defendants. Man up, Dr. Hollowell.
   
23 This was your job.
   
24 You may hear Dr. Israelstam is somehow
   
25 responsible for this. And you heard the defense talk
   
41
   
1 about, you know, how much Dr. Israelstam from Ms.
   
2 Phillips was overseeing this.
   
3 Well, the reality was we read you
   
4 Dr. Israelstam’s testimony where he said, "I was the
   
5 supervising psychiatrist for a number of groups in
   
6 town, including the group that she," meaning Kay
   
7 Phillips, "was a part of called Heartland Counseling.
   
8 I did that from ’89 to ’95."
   
9 "What does that mean you did?"
   
10 "To the best of my recollection, it was once a
   
11 month for an hour, and we all met in a room with four
   
12 or five other people." And then he named all of the
   
13 individuals who worked at Heartland. He talked about
   
14 the array of cases that he dealt with. And he also
   
15 talked about what his duties were.
   
16 "Doctor, what were your duties as a part of
   
17 supervising these individuals at Heartland? Would you
   
18 -- I understand that you would have signed off on the
   
19 diagnosis. Would you have also been a participant in
   
20 the treatment plan?"
   
21 "I don’t recall that. It’s more like I would
   
22 listen through a filter of am I hearing something
   
23 where this person should be seen for a medical
   
24 evaluation or because medication might be useful in
   
25 this case."
   
42
   
1 "So that was your primary role?"
   
2 "Correct, as well as serving as a person for
   
3 whom they requested" -- I’m sorry -- "a person that
   
4 when requested would hospitalize people for the group
   
5 when there were issues of safety."
   
6 That’s what Dr. Israelstam did. Don’t try and
   
7 blame him for this.
   
8 Who else is the defense going to blame?
   
9 Charlotte. Remember we heard about Charlotte.
   
10 Just one minute. Can you put both of them on?
   
11 There’s Charlotte, Charlotte at three and
   
12 Charlotte as she’s getting a little older. Charlotte,
   
13 this supposed victim of rape.
   
14 But, you know, remember in my opening I said
   
15 you’re going to hear cases are kind of like a story.
   
16 You heard Charlotte’s story. Unfortunately, Charlotte
   
17 wasn’t here to give it. But you heard it.
   
18 Charlotte was an honor student both in high
   
19 school and in college. Charlotte was an
   
20 Olympic-caliber swimmer. Charlotte was an honor
   
21 student in geology. Charlotte did field work in other
   
22 countries around the world. And Charlotte was primed
   
23 to start her graduate education just like her sisters
   
24 had when they became engineers or ultimately doctors
   
25 to follow in their father’s footsteps.
   
43
   
1 She wasn’t the only cause here. Yes, Charlotte
   
2 went to Kay Phillips with what we know, some body
   
3 feelings. But she wasn’t the only cause here. Not
   
4 this kid.
   
5 You know, defendants say, "Gosh, we never should
   
6 have -- we shouldn’t really have talked to Charlotte
   
7 about maybe these things are wrong or anything, the
   
8 memories are wrong." But yet they also say Charlotte
   
9 was quite inquisitive. She’d ask about her treatment.
   
10 She’d want to question it. She’d look at her records.
   
11 Well, you know, if we know there were false
   
12 memories, do we really believe that this daughter in
   
13 this family didn’t want to know that all this stuff
   
14 was false memories?
   
15 Is she a cause? Yeah. Are the defendants a
   
16 cause? You bet.
   
17 Man up.
   
18 The last one you’re going to hear about are Dr.
   
19 and Mrs. Johnson. They took shots during this trial.
   
20 Unforgivable. They have lived with this case for 20
   
21 years. They never lost their desire to help their
   
22 daughter. They love their daughter. And they hope
   
23 she comes home. They didn’t sue Charlotte. They
   
24 brought a lawsuit to try to stop the brainwashing that
   
25 was going on here. And thank God they were
   
44
   
1 successful. But now, instead of that going on, they
   
2 endured during this trial the kind of stuff that we
   
3 heard because the defendants want to hold them
   
4 responsible.
   
5 What’s Mrs. Johnson’s real story? If someone
   
6 were to write about her, what would they write?
   
7 They’d write that she gave up her profession as a
   
8 psychiatric nurse, or as a nurse, a head nurse, so
   
9 that she could raise four wonderful children. Jenny,
   
10 engineer and psychiatrist. Christy, engineer and
   
11 radiologist working on the space program as an
   
12 engineer and now a radiologist. Charlotte, geologist
   
13 and an Olympic competitor. And Peer, the artist
   
14 photographer in the family.
   
15 What do we hear in the trial? "Gosh, she’s a
   
16 liar. She’s overbearing." I’m sure many of us would
   
17 like to have a parent like Karen who is so overbearing
   
18 that somehow her kids ended up the way they ended up.
   
19 Supposedly she was someone who didn’t care about
   
20 Charlotte enough to try to call the therapists.
   
21 That’s not true. We know that a restraining order got
   
22 entered against her. We know that she came to the
   
23 confrontation and said this is a false premise. And
   
24 we also know that when Chuck tried to talk to Kay
   
25 Phillips, the police visited him.
   
45
   
1 What’s Dr. Johnson’s story?
   
2 Again, he calls himself a stoic Norwegian born
   
3 to a father who worked at Gisholt and Oscar Mayer, who
   
4 began in humble beginnings on the east side of
   
5 Madison, who made his way through medical school,
   
6 residency, became a plastic surgeon, chief of staff,
   
7 caring primarily for cancer victims, burn victims;
   
8 reviewer of hospitals, who provided for four wonderful
   
9 children their entire educations. Combined with
   
10 Karen, they were a wonderful family.
   
11 But what do we hear during this trial? He’s a
   
12 wife beater. Dr. Clagnaz: He’s guilty of assault and
   
13 battery. And we know exactly the facts of that
   
14 incident. Karen and Chuck had one year of a rocky
   
15 time in their marriage. They were arguing. At one
   
16 point he pushed Karen, and unfortunately, she fell
   
17 into a piece of furniture and did injure her rib.
   
18 Every single witness, the children and the parents,
   
19 admit to that and agree that’s it.
   
20 No one is trying to excuse this behavior. Chuck
   
21 isn’t saying that that was right. But it’s not an
   
22 assault and battery. He’s not a wife beater. And not
   
23 only that. He went to therapy to make sure that there
   
24 was no repeat of that.
   
25 How many people do we know who have a perfect
   
46
   
1 marriage of 48 years without a rocky area? How many
   
2 people do we know who have only one incident in their
   
3 entire background that could be brought before a jury
   
4 and paraded to try to suggest that they are the
   
5 problem in this situation?
   
6 During the 15 years that this lawsuit has been
   
7 pending, the defendants had every opportunity to dig
   
8 up whatever dirt they could dig up. And they found
   
9 one, one incident.
   
10 Even now, defendants come to this court, Dr.
   
11 Hollowell, Dr. Reisenauer, and Kay Phillips, and are
   
12 unwilling to admit that Dr. Johnson is not a pervert.
   
13 Man up.
   
14 So when you realize what the Johnsons have gone
   
15 through these 20 years, where do I think you should
   
16 put it between one million and two million for Karen?
   
17 Two million.
   
18 Where do I think you should put it between four
   
19 million and eight million for Chuck? Eight million.
   
20 But I defer to your wisdom, and I thank you for
   
21 listening to me.
   
22 THE COURT: Thank you. We’ll take a 15-minute
   
23 break. Please don’t discuss the case. And when
   
24 you’re ready to come back in, we’ll come back in and
   
25 hear the defense arguments.
   
47
   
1 Please keep an open mind. And see you in about
   
2 fifteen minutes.
   
3 (Jury excused at 11:27 a.m.)
   
4 * * * * *
   
5 (Closing Arguments of Mr. McFarlane and Mr. Liddle are
   
6 not included herein.)
   
7 * * * * *
   
8 (Jury enters courtroom at 1:52 p.m.)
   
9 THE COURT: Be seated.
   
10 And we’ll have the final rebuttal argument.
   
11 Mr. Smoler.
   
12 MR. SMOLER: Thank you, your Honor.
   
13 I’ve got some good news and some bad news. The
   
14 bad news is I’ve still got a voice. The good news is
   
15 the stack is really pretty thin, so I’ll try not to
   
16 spend too much time here with you.
   
17 I’m not going to try to respond to everything
   
18 that was said. I just have to rely on the fact that
   
19 you and I know that you guys were attentive during the
   
20 trial and that you’re going to be able to separate the
   
21 wheat from the chafe and figure out from your notes
   
22 and other ways what the evidence did or didn’t say.
   
23 I am going to remind you of a couple of things.
   
24 But let me first, perhaps trying to hold back the
   
25 sarcasm as much as I can, say that when I heard that
   
48
   
1 the Johnsons must not have been damaged because they
   
2 never went to a therapist afterwards, I thought to
   
3 myself could there be a different reason why they
   
4 didn’t go to a therapist after all of these memories
   
5 came forth when Charlotte went to a therapist? I
   
6 don’t know. Maybe it’s me.
   
7 I heard Mr. Liddle say that no one on his behalf
   
8 has asserted the memories are true. That’s just not
   
9 what I heard during the trial because I was very
   
10 careful to ask the defendants themselves are they
   
11 prepared to say the memories aren’t true. And they
   
12 weren’t. I don’t think it matters. I think we’ve
   
13 established our case. But I must respectfully
   
14 disagree.
   
15 I also -- and I can’t tell you how much I didn’t
   
16 want to have to go back through this and how I’m going
   
17 to try and shortcut it -- but I heard Mr. Liddle say
   
18 that I admitted now that there were memories before
   
19 Charlotte ever went to Rogers. And, I mean, I’m sure
   
20 you guys understand it.
   
21 Charlotte had something she called a body memory
   
22 that some people say means something. Some people say
   
23 it doesn’t. It didn’t have a specific vision, I mean,
   
24 a specific perpetrator, a specific act. It was simply
   
25 a feeling. And it was only after she got into Rogers
   
49
   
1 with a diagnosis or bulimia and depression without a
   
2 statement of a history of childhood sexual abuse that
   
3 after four days in the care of Rogers did she actually
   
4 start having memories of sexual abuse that were
   
5 specific and that in fact were from her father.
   
6 The body memory that she said she thought she
   
7 had in early October was -- she attributed it as
   
8 physical abuse to her mother, and then parentheses,
   
9 question mark, sexual.
   
10 So, I mean, that’s what the facts are. And I
   
11 guess we can each try and characterize them any way we
   
12 want. But that’s -- plaintiff doesn’t admit that
   
13 there was actual sexual abuse memories before
   
14 Charlotte got into Rogers.
   
15 And then I think Mr. Liddle said, "And
   
16 plaintiffs agree that defendants didn’t cause the
   
17 memories." And I -- again, I suspect that you heard
   
18 when I said in my opening, I mean, in my first
   
19 closing, there’s no question something started this
   
20 that defendants had nothing to do with. And I agree
   
21 with that. And I propose that perhaps it’s Courage to
   
22 Heal.
   
23 But whatever it is, okay, it was pretty vague
   
24 kind of stuff. And had it been ignored and here and
   
25 now therapy had been used, as it should have been, we
   
50
   
1 wouldn’t be here, and none of this would have
   
2 happened.
   
3 Instead, by the questioning, the term you heard
   
4 was demand characteristics, that by the questioning by
   
5 the defendants and by looking at the memories,
   
6 suddenly they expanded and expanded.
   
7 And now I’m going to throw Pauline a curve here.
   
8 I’m sorry about that. But we heard them say at
   
9 Rogers, or we heard Mr. Liddle say at Rogers they
   
10 never dealt with memories, or nobody said that
   
11 Dr. Hollowell had dealt with memories. And Pauline,
   
12 if I can find it, I’ll direct you to it. Or if you
   
13 can find it, I’ll take direction from you.
   
14 Oh, here it is. If you could put up there
   
15 Rogers 172. You’re way ahead of me; aren’t you?
   
16 Okay. Can we go down to the bottom of that and
   
17 widen it a little bit so that there’s no question
   
18 about the signature.
   
19 The signature on this note is Dr. Hollowell.
   
20 And so Mr. Liddle was suggesting somehow that, yes,
   
21 there’s something in the Rogers records, but it really
   
22 is from other people. It’s from nurses and such.
   
23 In fact, Dr. Hollowell’s note -- and if you can
   
24 just shift it a little bit so we can see the date,
   
25 it’s -- it would be 11-26-91. And now back so we can
   
51
   
1 read the entry. "Patient reports need for in-patient
   
2 structure while she continues to work on her
   
3 management of powerful and painful recollections of
   
4 childhood abuse." Signed by Dr. Hollowell.
   
5 You know, we can talk about the records, or you
   
6 can see the records. I hope that you saw throughout
   
7 this case that we produced the records. We physically
   
8 showed you what was in them. And in most instances,
   
9 not all, defendants would say here’s what the records
   
10 said without actually showing it to you.
   
11 I want to now turn to the whole thing about
   
12 experts, if we can.
   
13 Mr. McFarlane seemed to stress the fact that
   
14 they have two experts for Kay Phillips -- that was
   
15 Dr. Smith and Dr. Clagnaz -- and we had two experts
   
16 for the plaintiff -- Dr. Van Rybroek and Ms. Wakefield
   
17 -- and that somehow the weight needed to extend to the
   
18 defense experts because of their experience.
   
19 Well, in fact, what the instruction that you
   
20 have already been given, and it will be handed to you,
   
21 it says as to expert testimony: "A witness with
   
22 expertise in a specialty may give an opinion. In
   
23 determining the weight to be given to that opinion, we
   
24 should consider the qualifications and credibility of
   
25 the expert" -- and what I think the defense is
   
52
   
1 suggesting is boy, oh boy, do they have
   
2 qualifications, and we’ll talk about that in a minute
   
3 or two -- but more importantly, "and whether reasons
   
4 for the opinion are based on facts in the case." And
   
5 that’s where the problem is.
   
6 This isn’t a question about, you know, did the
   
7 defense experts have some experience in these areas or
   
8 such. The problem is they were -- what they came in
   
9 to say to you is, yeah, the standard of care was
   
10 followed.
   
11 And incidentally, if there’s any question about
   
12 whether I’m suggesting that they are hired guns, the
   
13 answer is yes, I am. These are individuals brought
   
14 from the far reaches of the country to try and talk
   
15 about it.
   
16 While Dr. Clagnaz was with Dean, he I think told
   
17 you that he lives in North Carolina. But indeed, with
   
18 the kind of resources that was available where they
   
19 could spend $100,000 on experts, they could find
   
20 people somewhere who were willing to say the things
   
21 that they wanted.
   
22 Nonetheless -- by the way, I don’t concede that
   
23 what the experts said actually supports their
   
24 position. The only thing that supported their
   
25 position was the conclusions that they got to, which
   
53
   
1 was, yeah, everybody is in the standard of care. But
   
2 the actual testimony that they gave would not be
   
3 consistent with that.
   
4 But more importantly, um, please, I trust your
   
5 notes are good on this. I trust you know that I went
   
6 through this with these experts sometimes rather
   
7 tediously, and I apologize for that. But some of
   
8 these experts said the memories began before -- before
   
9 the therapy. They’re just plain wrong. Okay?
   
10 Some of their experts said, oh, yes, they were
   
11 using the Rogerian approach, despite the fact there’s
   
12 no reference anywhere to that.
   
13 Some of them said that Charlotte was better
   
14 after therapy. And we know what this says. I mean,
   
15 it’s just plain wrong.
   
16 And so, yes, if you look to 2001 after this
   
17 therapy had stopped for five years, sure, Charlotte
   
18 got better. But she sure didn’t get better during the
   
19 time that the kind of therapy, including the memories,
   
20 was being pursued.
   
21 And in that regard, can we go to the GAF,
   
22 please.
   
23 And you’ll remember -- I mean, it couldn’t be
   
24 clearer -- that when on the standard that is used for
   
25 psychiatric evaluation, the functional standard, how
   
54
   
1 is someone doing, she came in with at 50. Now, this
   
2 is on a scale of 0 to 90. She came in at a 50. And
   
3 the best she ever got to after all of this therapy was
   
4 a 51. We’re not talking about getting better. And we
   
5 saw her plummet at other times into the 40s. So
   
6 insofar as the experts are saying, yes, indeed, she
   
7 got better, that just isn’t the case. I mean, there’s
   
8 nothing in the record that says that. Not during the
   
9 time this kind of therapy was going on.
   
10 You can take that down.
   
11 They also said Charlotte was incredibly
   
12 suicidal. You know, boy, oh, boy, they saved her
   
13 life. But remember this with Dr. Clagnaz. Here are
   
14 the levels of how you treat somebody based on
   
15 suicidality. The most invasive when there’s the
   
16 largest concern is involuntary commitment. Didn’t
   
17 happen to Charlotte until after the therapy had gone
   
18 for quite some time. Next is a voluntary
   
19 hospitalization. That didn’t happen when Charlotte
   
20 went to Kay Phillips for two and a half weeks. So
   
21 Charlotte couldn’t have been suicidal at that point.
   
22 No harm contract. Didn’t happen until deep into
   
23 the therapy.
   
24 Intensive outpatient everyday care. Didn’t
   
25 happen until she gets to the hospitalization.
   
55
   
1 And outpatient. That’s what Kay Phillips
   
2 believed was the necessary treatment for this supposed
   
3 incredible suicidality.
   
4 And so I don’t believe the facts bear this out.
   
5 By the way, as we’re talking about experts,
   
6 please recall that when I asked Dr. Clagnaz, "Doctor,
   
7 you were in charge of quality care at Dean in the
   
8 psychiatric department?"
   
9 "Yes."
   
10 "What would you have done if you had found out
   
11 someone was doing recovered memory therapy?"
   
12 "Would have red-flagged it."
   
13 "Was anybody doing it?"
   
14 "Nope. At least not at Dean" is what he said.
   
15 Which brings me to the claim by Mr. McFarlane
   
16 that my gosh, their experts must be better because
   
17 they worked with patients with recovered memory
   
18 therapy, or at least implied that.
   
19 Well, the truth of the matter is the couple of
   
20 ’em who did testify about what they had published,
   
21 they published things entirely favorable to us. They
   
22 were writing this is dangerous stuff, and watch out.
   
23 Okay? You could be creating false memories. Both
   
24 Dr. Chu and Dr. Kluft said that.
   
25 But, you know, might there be a reason why
   
56
   
1 Doctors -- why Ms. Wakefield and Dr. Van Rybroek
   
2 didn’t do recovered memory therapy? I mean, yeah.
   
3 It’s because there was a small group of people out
   
4 there who were doing it who were getting red-flagged
   
5 by people like Dr. Clagnaz because it was bad therapy.
   
6 It was written about as bad therapy. So don’t think
   
7 that Ms. Wakefield and Dr. Van Rybroek say, "Oh, my
   
8 gosh, I don’t have -- I don’t have the experience with
   
9 that." They wear that as a badge of honor. It’s not
   
10 -- it’s not a plus to say, "I did recovered memory
   
11 therapy."
   
12 But what did for -- specifically Ms. Wakefield
   
13 had. She explained to you that what she did, she
   
14 became actively involved in the nurse -- the nursery
   
15 school cases that I think some of you I’m sure are
   
16 familiar with where people who worked in nursery
   
17 schools were being charged with the same kind of
   
18 bizarre stuff, an array of sexual abuse followed by
   
19 some satanic memories, and she -- she got involved in
   
20 that testifying, she learned about this phenomena,
   
21 which was that people can easily be convinced of
   
22 things depending on the suggestions that are being
   
23 given to them. And that transfers completely into
   
24 exactly this area, which is where she became involved
   
25 and where she started publishing related to it. Did
   
57
   
1 she do recovered memory therapy? Of course not ’cause
   
2 she knew exactly what it meant, and she knew exactly
   
3 what the kind of outcome would be.
   
4 By the way -- this is such a trivial point, I
   
5 apologize for even spending a second on it. But that
   
6 doesn’t stop me; does it?
   
7 You remember that Mr. McFarlane said something
   
8 about and Dr. -- and Dr. Clagnaz had some recognition
   
9 of or awareness of somebody who had reported childhood
   
10 sexual abuse and then later on was confirmed. Well,
   
11 that’s where this Williams study comes into play.
   
12 Okay? When I cross-examined Dr. Kluft, who tried to
   
13 say this was a definitive study, the truth of the
   
14 matter is only a few people don’t remember. Those who
   
15 don’t remember, frequently it’s they remember the
   
16 abuse. They don’t remember the target event. And
   
17 further, other people don’t remember or don’t remember
   
18 because of infantile amnesia. And most important from
   
19 the Femina study that I cross-examined Dr. Kluft on, a
   
20 large chunk of people simply don’t report it because
   
21 it’s really none of your business and I don’t want to
   
22 talk about it. And that doesn’t mean anything about
   
23 whether there’s in fact recovered memories or isn’t.
   
24 That’s an issue we’ll probably never got resolved.
   
25 But this doesn’t resolve that. And neither does
   
58
   
1 Dr. Clagnaz saying, "Hey, I am aware of somebody who
   
2 said they were abused, and then later on we found out
   
3 that they were." There’s any number of reasons why
   
4 that could be.
   
5 Mr. McFarlane says this case is not about truth.
   
6 It is, of course, about truth. It is, of course,
   
7 about truth. I’m telling you if those memories are
   
8 true, find for the defense in every way. Find in
   
9 every way they aren’t negligent because if those
   
10 memories are true, then I’m sorry that I’ve
   
11 represented Dr. and Mrs. Johnson. So it is, of
   
12 course, about truth.
   
13 But if those memories are false, then that’s
   
14 what’s caused the kind of calamity that occurred here.
   
15 And for that to have occurred for the period of time
   
16 that it did, that’s at the core of this case.
   
17 Mr. McFarlane also told you and I think perhaps
   
18 expanded beyond the evidence about Charlotte’s
   
19 objection to this lawsuit. There’s no question that
   
20 Charlotte objected to this lawsuit. There is also no
   
21 question about every place where you see that is where
   
22 she’s talking about it in Kay Phillips’ records.
   
23 Let’s see. Might there be some reason why in a
   
24 conversation with Kay Phillips Charlotte would say,
   
25 "Hmmmm, you know, I’m troubled by this lawsuit, I’m
   
59
   
1 really bothered by this lawsuit"? I mean, it could be
   
2 that perhaps it’s, again, the demand characteristics.
   
3 Perhaps it’s that she is completely troubled. And
   
4 frankly, she was. And I’m not saying there wasn’t any
   
5 trouble with that. And could it also be that she’s
   
6 protecting Ms. Kay Phillips? Any of those -- any of
   
7 those things are possibilities.
   
8 But the fact of the matter is the last time we
   
9 have actually heard something from Charlotte in terms
   
10 of any testimony or information on this was in 2002
   
11 when she gave her deposition where she gave
   
12 information that we all know is not accurate, and
   
13 there’s no question but that she was trying to protect
   
14 somebody when she did that.
   
15 Mr. McFarlane also said, by the way, Kay
   
16 Phillips wasn’t doing recovered memory therapy. She
   
17 was always dealing with the here and now.
   
18 I’ve gotta bring some of these back. Sorry
   
19 about it.
   
20 Kay Phillips’ record of November 10, 1992.
   
21 "Charlotte remembered an incident at college when the
   
22 members of the swim team jumped on her and ‘smashed me
   
23 into the floor.’ Charlotte is afraid she may have
   
24 been sexually molested at that time."
   
25 Kay Phillips’ record June 9, 1992. "Also
   
60
   
1 reported active" -- is that -- I’m sorry. "Also
   
2 reported" -- do I have this? I’m not sure if we’re in
   
3 the same place.
   
4 Is that the June 9th record, Pauline?
   
5 MS. CLEVINGER: Yep.
   
6 MR. SMOLER: Oh, "Retrieving another memory of"
   
7 -- I’m sorry -- "Retrieving another memory of a man’s
   
8 erect penis coming at her; feels it may be her
   
9 grandfather."
   
10 July 21, ’92. "New memory of being in
   
11 grandfather’s house. In room with bed and dresser."
   
12 October 8, 1992. "Memories of abuse when she
   
13 was two years old."
   
14 March 28, 1994. This is just a smattering. I
   
15 mean, I’m not going to bore us all with these. "New
   
16 memory."
   
17 1-11. "Parents had her kill three-year old."
   
18 August 23, 1994. This is where she’s giving her
   
19 treatment synopsis. "Over time in treatment, she
   
20 recovered further memories of ritual abuse." It’s
   
21 just not what the records say. You can call it
   
22 something. But that doesn’t make it true.
   
23 It was also represented to you that Dr. Van
   
24 Rybroek said, well, if the patient doesn’t give you
   
25 the record, you fire the patient. Well, it’s not
   
61
   
1 really quite like that. It’s like first you start out
   
2 and I think what that is, you say, "Hey, this would be
   
3 helpful to us. Let me get your school records or your
   
4 past medical records."
   
5 "Nope."
   
6 Perhaps the next session. "For us to get
   
7 further, it would really be helpful to me, I kind of
   
8 need that."
   
9 "No."
   
10 "Well, you know, this is gonna interfere with
   
11 our ability to communicate here. I kinda need you to
   
12 do that."
   
13 "No."
   
14 "All right. We’re coming to a crossroads here.
   
15 You’re gonna either have to let me get some of this
   
16 more information so I can give you the best care I
   
17 can, or I really don’t know that I can treat you
   
18 because I need more information."
   
19 "No."
   
20 Then you gotta tell the patient to move on, the
   
21 same way the doctor would tell a patient to move on
   
22 who reports with "I’ve got chest pain, and oh, my
   
23 gosh, I’m sure it must be a heart problem. Please do
   
24 open heart surgery."
   
25 "No. We’re gonna get some tests first."
   
62
   
1 "No. Do open heart surgery."
   
2 "No. We’re gonna do some tests first."
   
3 That’s what Dr. Van Rybroek was advocating. And
   
4 that’s what I believe is proper.
   
5 Mr. McFarlane also showed you -- I’m going to
   
6 come around here for this -- showed you what he claims
   
7 is the AMA report, which, of course, doesn’t really
   
8 apply to psychologists, but that doesn’t bother me.
   
9 That’s fine. And he made some reference to, you know
   
10 there are cases with accusations of childhood sexual
   
11 abuse based on recovered memories, and they can’t be
   
12 proved or disproved, things of that nature.
   
13 But what’s -- what’s also in that report is due
   
14 diligence -- "Under such circumstances, therapists
   
15 should exercise care in treating their patients,
   
16 maintaining an empathic and supportive posture, but
   
17 due diligence for and reference to the principles of
   
18 medical ethics."
   
19 Well, we don’t have the principles of medical
   
20 ethics in this case. But we sure do have the
   
21 principles of psychological ethics that were in force
   
22 at the time that that summary of the Council of
   
23 Scientific Affairs of the AMA was introduced. And
   
24 that principle says in their professional actions,
   
25 psychologists must weigh the welfare and rights of
   
63
   
1 their patients, clients, students, supervisee,
   
2 research participants, and other affected persons. In
   
3 other words, Dr. and Mrs. Johnson.
   
4 So if the AMA is referring to you gotta be
   
5 ethical, well, I would submit to you that’s not what
   
6 the defendants in this case did.
   
7 It was also suggested to you by Mr. McFarlane
   
8 that, you know, maybe these were -- the satanic ritual
   
9 abuse memories, maybe these were screen memories for
   
10 something else. And I believe I asked Dr. Kluft --
   
11 and I believe it was Dr. Kluft who made that
   
12 statement, and I believe I asked him if he could tell
   
13 us what that was about. And he said no, but there is
   
14 such a thing as screen memories.
   
15 And then do you remember that I was careful to
   
16 ask Dr. Clagnaz that same question. "Dr. Clagnaz, do
   
17 you think these are -- the satanic ritual abuse
   
18 memories are screen memories for something?"
   
19 Huh-uh. He was clear as a bell. That’s not his
   
20 view.
   
21 So the defendants’ own experts seem to disagree.
   
22 I now need to address a couple things that were
   
23 raised by Mr. Liddle. One of those things is he said
   
24 there was no memories of ritual abuse at Rogers. He
   
25 said he didn’t know what Dr. Hollowell and Reisenauer
   
64
   
1 were doing. Well, I’m sorry. No. So he said there
   
2 was no record at Rogers of ritual abuse.
   
3 Well, it turns out that, again, Charlotte was
   
4 admitted on October 25th of ’93. Now, remember that
   
5 she was discharged from Rogers in December of ’91. So
   
6 somewhere between December of ’91 and October of ’93,
   
7 it appears that ritual abuse memories started coming
   
8 forward. And we know that because when she gets to
   
9 Rogers, she starts reporting that. We saw the general
   
10 statement. And we also saw the statement that was
   
11 displayed to you, and this was from October 27, ’93.
   
12 "Complaint of rectal itching. Might be related to
   
13 flashbacks. Talked about her mother doing enemas" --
   
14 I’m having trouble with the word, I’m sorry -- but
   
15 "mother doing enemas. Patient made a model from clay
   
16 of an angry person next to a laying-down baby. The
   
17 baby is younger than three. It’s ritual stuff."
   
18 Well, they sure were talking about ritual abuse
   
19 on that second hospitalization at Rogers.
   
20 But more importantly, if the claim is that there
   
21 wasn’t ritual abuse stuff being done by Doctors
   
22 Hollowell and Reisenauer, you know, I wonder what
   
23 would be in those records from after the discharge up
   
24 to this point when ritual abuse is being reported. I
   
25 wonder what would be in those records that just
   
65
   
1 somehow we don’t have. It’s easy to say that when the
   
2 records get lost or destroyed.
   
3 I’m getting there. I promise.
   
4 There is also, again, a very important area that
   
5 we continue to have to talk about. And that is all
   
6 experts agree you must do something if the patient
   
7 isn’t getting better. You can’t just sit back. This
   
8 isn’t a standard of care related to recovered memory.
   
9 This isn’t a related -- standard of care related to I
   
10 choose Rogerian therapy. This is a standard of care
   
11 that pervades all therapy. And the bottom line was
   
12 Charlotte wasn’t getting better, and they didn’t
   
13 change anything.
   
14 When I was a kid, um, I will admit it was during
   
15 some of the earlier times of TV. I suspect that I’m
   
16 older than most of you. And I will admit that I was
   
17 somebody who liked to watch Superman and The Lone
   
18 Ranger and all of those kind of old, you know, heroic
   
19 figures.
   
20 And there’s a show that I’ve mentioned to some
   
21 people, and I’ve yet to find somebody who actually
   
22 remembers it. It was called "The Texas Rangers." And
   
23 there’s a chance that, um, Michael Douglas’s father --
   
24 oh, no; I’m sorry -- Jeff Bridge’s father -- God, I
   
25 can’t even come up with his name now -- was in there,
   
66
   
1 but I may be wrong and it could be a false memory.
   
2 But anyway, the show starts out with -- every
   
3 week the show would be -- you’d see this, ah --
   
4 there’d be a theme in the background -- I guess I’m
   
5 telling the story again -- but a theme and a
   
6 background of, you know, Texas was this wild place and
   
7 people are killing each other and there was no law and
   
8 order.
   
9 And then, ah, somebody -- I don’t remember --
   
10 you know, came to, who knows, Houston, Austin, and you
   
11 see this Texas Ranger, just one guy, um, by himself
   
12 walking forward. And then as the song continues --
   
13 and this is the opening scene -- you see another, and
   
14 then you see a third and a fourth and a fifth. And
   
15 suddenly you see a troop of Texas Rangers.
   
16 And I always liked that. I always liked the
   
17 feeling that somehow people came together to stop
   
18 injustice.
   
19 I like that when I watch the show "What Would
   
20 You Do" and they show people who see something on the
   
21 streets that really bothers them. And there are some
   
22 who are willing to step forward and say it’s not
   
23 right.
   
24 And when I think about this phenomena, that’s
   
25 what comes to mind, that somehow somewhere Dr. Johnson
   
67
   
1 and Mrs. Johnson and others got accused of the worst
   
2 thing in the world, and thank God Elizabeth Loftus
   
3 came forward and Martin Orne came forward and Paul
   
4 McHugh came forward and the False Memory Syndrome came
   
5 forward and said we’re gonna stop this phenomena.
   
6 We’re not gonna let people like Dr. Johnson have the
   
7 kind of experience that they had.
   
8 And it’s the first time in my life that I can
   
9 say I realized there are some genuine heroes out
   
10 there. I believe those are the heroes of the 1990s
   
11 when they stepped forward and said we’re not gonna let
   
12 Salem witch trials happen here.
   
13 I believe that Charlotte Johnson was raped. I
   
14 believe that Charlotte Johnson to her core pictures
   
15 herself being raped or did picture herself being
   
16 raped. And I believe that Charlotte Johnson was
   
17 essentially driven almost insane by daily dealing with
   
18 those kind of memories. And I believe that we know
   
19 who the rapist was.
   
20 (Attorney Smoler writes "THE RAPIST" on display board.)
   
21 Thank you.
   
22 THE COURT: Thank you.
   
23 * * * * *
   
24  
   
25  
   
68
     
1 STATE OF WISCONSIN )
    ) ss:
2 COUNTY OF DANE )
     
3    
     
4 I, ANN M. ALBERT, Court Reporter, do hereby  
     
5 certify that I reported in stenographic machine  
     
6 shorthand the hearing held in the above-entitled  
     
7 matter before the Honorable DANIEL R. MOESER, on the  
     
8 22nd day of January, 2011, and that the foregoing is  
     
9 an accurate and complete partial transcript of my  
     
10 shorthand notes.  
     
11 Dated this 14th day of March, 2011.  
     
12    
     
13    
  (Signed)  
14 Ann M. Albert  
Court Reporter  
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