Free Transcript - District Court of Federal Claims - federal

Case 1:05-cv-00186-FMA

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UNITED STATES COURT OF FEDERAL CLAIMS

LAVETTA ELK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) Docket No. 05-186L ) ) ) )

Pages: Place: Date:

272 through 521 Rapid City, South Dakota April 29, 2008

HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 [email protected]

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS LAVETTA ELK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) Docket No. 05-186L ) ) ) )

3rd Floor Courtroom U.S. Courthouse 519 9th Street Rapid City, South Dakota Tuesday, April 29, 2008 The above-entitled matter resumed for trial, pursuant to recess, at 9:30 a.m. BEFORE: HON. FRANCIS M. ALLEGRA Judge

APPEARANCES: For the Plaintiff: ADAM D. HOROWITZ, ESQ. Herman & Mermelstein, P.A. 18205 Biscayne Boulevard, Suite 2218 Miami, Florida 33160 (305) 931-2200 For the Defendant: STEVEN D. BRYANT, ESQ. SARA E. COSTELLO, ESQ. U.S. Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 LANNY ACOSTA, JR., ESQ. U.S. Army Legal Services Agency 901 North Stuart Street, Suite 400 Arlington, Virginia 22203 (703) 696-1636 Heritage Reporting Corporation (202) 628-4888

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C O N T E N T S WITNESSES: For the Plaintiff: Jerilyn Elk Jacqueline Randall Stephen Manlove Donald Frankenfeld Lea White Bear Claws For the Defendant: None -289 295 439 495 283 292 347 461 506 --426 -516 --438 491 516 DIRECT CROSS REDIRECT VOIR RECROSS DIRE

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E X H I B I T S PLAINTIFF'S EXHIBITS: PX-4 PX-21

IDENTIFIED (previously)

RECEIVED 505

DESCRIPTION Cangleska records, pages 3 and 4

(previously) (withdrawn) (Not furnished)

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E X H I B I T S DEFENDANT'S EXHIBITS: DX-5 DX-6C DX-21

IDENTIFIED

RECEIVED

DESCRIPTION

(previously) (withdrawn) Stephenson report (previously) (rejected) 399 -Cangleska record, page 1105 Manlove interview notes

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P R O C E E D I N G S (9:30 a.m.) THE CLERK: The United States Court of Federal The Honorable Francis M. Allegra

Claims is now in session. presiding.

Please be seated. THE COURT: I know we might have some preliminary

things, so let me just go through each of the attorneys. First, Mr. Horowitz, anything that we need to take up before we go back to the witness from you? MR. HOROWITZ: THE COURT: Yes.

Go ahead. I'm sorry?

MR. HOROWITZ: THE COURT:

I said, anything we need to take up

before we go back to the witness from you? MR. HOROWITZ: THE COURT: No, Your Honor. Mr. Bryant, you had talked

Okay.

about potentially dealing with some exhibits first thing here. Do you want to do that now, or do you want to wait

for some reason now? MR. BRYANT: THE COURT: you need to do. MR. BRYANT: First with respect to DX-6C, those We actually intend That's fine with me, Your Honor. Go ahead. Why don't you tell me what

are a portion of the medical records. to --

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Document 75 Filed 05/30/2008 Page 7 of 251 J. ELK - DIRECT (CONT'D) Why don't you go ahead and stay

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THE COURT:

seated, Mr. Bryant, so you'll be closer to the microphone. Go ahead. MR. BRYANT: Yes, Your Honor. We used a portion I'm going to

of those in the cross-examination of Ms. Elk.

admit more of those documents through our experts, so I thought it might be easier just to hold off on that till later. THE COURT: Okay. And I think that would make

And the pages that you're going to seek to admit

through the expert would allow you to be able to combine them up, both the two different uses? In other words, the

pages that you used with her cross-examination, together with what the expert is going to be using? MR. BRYANT: THE COURT: that way then. Yes, Your Honor. Okay. Well, let's wait and do it

There was a second exhibit then? There were a few. DX-9C was the

MR. BRYANT:

deposition of Ms. Elk, and we have a select number of pages that I can read off. THE COURT: What I want you to do is together

with me -- since they're in the book, I'm not worried about that, but I would like the reporter to get an exhibit that just includes the hard pages of the ones that you're going to include, rather than just reading them off, because

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that's the clearest way, making sure that we've got the right ones. MR. BRYANT: THE COURT: I will do that. And the thing, by the way, that Mr.

Horowitz needs to do is, depending upon the usage that you put to that deposition, he has the option of the rule of supplementing the -- to provide context, for example, to something, so what I think I want you to do on that one is pull the pages that you think are -- that you used, give him an opportunity to make sure that there's not like half a page before that or a half a page after that that he wants to add in to the exhibit, and then just go ahead and provide one copy of that to the reporter, and then, yes, you can read the pages into the record at the appropriate time. just want it as a double-check to make sure I have a physical copy that includes just the correct pages. MR. BRYANT: THE COURT: MR. BRYANT: Yes, Your Honor. Okay? And that same would apply to DX-9D, I

which is also -- that's the deposition of Noretta High Hawk. THE COURT: procedure there. All right. And let's use the same

So pretty much one copy that you can give

to the reporter that pulls the pages, but giving Mr. Horowitz the opportunity to make sure that he doesn't need to add -- and just to make sure, the way the rule talks

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about is to provide context so that -- so we're not talking about adding in page after page here. We're talking about

if he thinks a question right before that somehow provides context or a question right after provides context under the rule, he has the option of adding those in. So just give those pages to him at your earliest opportunity, which may be the lunch break. Figure out

whether or not he needs something from, you know, the page before, for example, and then that physical copy would be something that we would give to the reporter right at the start of the afternoon session, and then you can read the pages into the record at that point, and we'll admit those exhibits for that purpose. MR. BRYANT: Okay. The two documents that are

going to be going in in their entirety, Your Honor, are DX18, which is Ms. Elk's statement of January 7, '03, DEF 0096 through 97. THE COURT: I thought -- I had listed, I guess,

that that was already in, 15 through 20, I thought was in of your exhibits. MR. BRYANT: expert relying on them. THE COURT: I think for the purposes of our I think that was the -Well, I understand the caveat, but to

a certain extent, once a document's in the record, it can't be admitted a second time.

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Document 75 Filed 05/30/2008 Page 10 of 251 J. ELK - DIRECT (CONT'D) Fair enough. But your point is that you want to

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MR. BRYANT: THE COURT:

rely on 18 for more than the fact that it's being relied upon by the expert, essentially for impeachment purposes. Correct? MR. BRYANT: THE COURT: That's correct, Your Honor. All right. I think that with that

understanding, that helps us determine the appropriate use of that document. So that was 18. You said there was

another one like that? MR. BRYANT: DX-13 is the supplemental answers to

Defendant's interrogatories, and we would admit that entire document as well. THE COURT: All right. I had 13 already in. Was

that in for some other limited purpose previously? and 13 in. MR. BRYANT: Okay.

I had 12

It would be the same thing, It would be the same exact

for the reliance of our experts. question. THE COURT:

Well, did it come in with that

I didn't think it did. MR. BRYANT: It did not? I guess there just was

no objection, because it's an admission of the Plaintiff. Well, in any event, I have 13 already admitted, so I don't think we need to readmit it.

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Document 75 Filed 05/30/2008 Page 11 of 251 J. ELK - DIRECT (CONT'D) Fair enough, Your Honor.

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MR. BRYANT:

All right.

That just leaves 9C and 9D which we talked about, and DX-12 which is part of that, and you said those are already in as well, so I won't refer to those. So we'll deal with 9C and

9D at the break, and deal with 6C with our expert later on. THE COURT: All right. Sounds good, Mr. Bryant.

There's one other -- a PX, Your Honor, 21, that I believe Plaintiffs are withdrawing. We haven't received it, and

it's not in the exhibit binders, PX-21. THE COURT: 21 has been withdrawn? Well, I have

21 as being admitted, so -MR. HOROWITZ: THE COURT: It's withdrawn.

I'm sorry? It's withdrawn.

MR. HOROWITZ: THE COURT:

It's withdrawn. Yes. I think we --

MR. HOROWITZ: MR. BRYANT:

It was admitted yesterday, Your

We discovered it's not in the binder, so -THE COURT: All right. So 21 -- all right --

should not have been admitted, so basically then those numbers would have been 22 through 27 were admitted. right. Anything else housekeeping-wise, Mr. Bryant? MR. BRYANT: THE COURT: No, Your Honor. Okay. No. Anything else, Mr. Horowitz? But I think I was informed All

MR. HOROWITZ:

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that one of the experts was withdrawn by Defendants. that correct? MR. BRYANT: Oh, that's correct.

Actually Dr.

Stephenson we are not going to call to testify in light of Ms. Elk's testimony. THE COURT: coming either. All right. So Dr. Stephenson's not Thank you

All right.

So the -- all right.

for letting me know that. MR. BRYANT: And I guess what follows with that,

Your Honor, is DX-5, we won't be admitting that either. That's her expert report. THE COURT: All right. Well, it's not admitted

now, so I guess the answer is you're not going to attempt to. MR. BRYANT: THE COURT: It's withdrawn. Okay. All right. Mr. Horowitz,

anything we need to do before going back to the witness? MR. HOROWITZ: THE COURT: Nothing else.

Would you please go get her then? Certainly.

MR. HOROWITZ: Whereupon,

JERILYN ELK having been previously duly sworn, was recalled as a witness herein and was examined and testified further as follows: THE COURT: Whenever you're ready.

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Document 75 Filed 05/30/2008 J. ELK - CROSS CROSS-EXAMINATION

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BY MS. COSTELLO: Good morning, Ms. Elk. Good morning. I'm Sara Costello. Right? You live on the Pine Ridge

Reservation. A Q A Q A Q

Yes. And your children grew up on the reservation? Uh-huh. Yes.

Living conditions are hard on the reservation? Yes. I'd like to ask you a few questions about after

Lavetta's assault. A Q Uh-huh. After the assault, she visited the Pine Ridge Correct?

Hospital for psychological treatment. A Q Yes.

Lavetta told you she didn't like the treatment

and the medication prescribed by the doctors at the Pine Ridge Hospital. A Q Yes. There were rumors going around the reservation Right? Exceeds -Right?

that Lavetta was raped by Sergeant Kopf. MR. HOROWITZ: THE COURT:

Objection, Your Honor.

What's the relevance, Counsel?

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MS. COSTELLO:

I think it goes to the witness's

understanding of what happened and may -THE COURT: You need to be more specific. Why do

you need to pose that question? MS. COSTELLO: of this witness and how -THE COURT: Too anomalous. Sustained. I think it goes to the credibility

BY MS. COSTELLO: You testified that Lavetta was depressed when she Right?

was in Milwaukee. A Q Yes.

Other than the assault, are there other events

that had an impact on Lavetta? A Not as extreme as this one. Only that we had a

relative that passed away, a close relative. THE COURT: Can I ask you to stay just a little

bit closer to the microphone? THE WITNESS: THE COURT: Okay. Thank you.

BY MS. COSTELLO: In the past few years, Lavetta has had Right?

miscarriages. A Q A Yes.

More than one? Yes.

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Q

There was a burial service for Lavetta's Right? Yes. Objection to the relevance. I think that's relevant. Go

stillborn baby. A

Uh-huh.

MR. HOROWITZ: THE COURT: ahead. No.

Please ask the question. BY MS. COSTELLO:

Q A Q A Q A

Who attended the service? The family and Lavetta and the minister. Did Mr. Swallow, the medicine man, attend? No. And how did Lavetta appear at the service? She was sad. She lost a boy. We were all -- we

were devastated by it. Q miscarried? A Q

All of us were devastated by it.

And how far along was Lavetta when she

She was 14 weeks. And was she showing? MR. HOROWITZ: THE COURT: Objection. Relevance, Your Honor.

I think it's already been established

that this is relevant, and I would appreciate you not asking -- posing objections that you know I'm not going to sustain. BY MS. COSTELLO: Q Was she showing --

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Document 75 Filed 05/30/2008 J. ELK - CROSS Let me pause.

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THE COURT:

If you want to make a

continuing objection, you can do so for record purposes, but at this point, I think it's rather clear what I think about the relevance of this matter, and I don't want you interrupting the witness. MR. HOROWITZ: I understand, Your Honor. I'll

just leave a standing, continuing objection.

And we're also

at certain points exceeding the scope of the direct. THE COURT: I don't think we are, because I think

that since of scope of direct was talking about the nature of her depression and what caused it, that this is relevant as a theory for something that might be an alternative source. Continue with the questioning. BY MS. COSTELLO: Was Lavetta showing when she miscarried? No. The miscarriages caused Lavetta a lot of sadness.

Yes. Lavetta didn't seek any help from a psychologist Right? In our

or a therapist to deal with this sadness. A

She confided in family, mostly family.

culture, family, I or her aunties or her sisters, you know, so the female side of the family is what she confides in.

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Q

So she confided in family, but she didn't seek Right?

any help from a psychologist or a therapist. A Q A Q much later. A Q No.

Lavetta got married in January 2004. Yes.

Right?

And you didn't find out Lavetta was married until Right? Yes. In fact, you found out right after you gave your Right?

deposition in December 2006. A Q helped her. A Q Yes.

And Lavetta's relationship with her husband has Right? Yes. Very much.

In the past couple of years, Lavetta has had two Right?

A Q

Yes. And having these children has brought a lot of Right?

happiness to Lavetta's life. A Yes. MS. COSTELLO: THE COURT:

No more questions.

Any redirect? No redirect.

MR. HOROWITZ: THE COURT: Court.

You're excused with the thanks of the

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THE WITNESS:

Thank you.

(Whereupon, the witness was excused.) MR. HOROWITZ: Jackie Randall. THE COURT: MR. BRYANT: Go ahead. Thank you. The next witness is going to be

Just to let the Court know, this

witness was withdrawn and, I guess, is being added back in. THE COURT: I don't see it withdrawn on my list.

Is it something there was communication between the two of you? MR. HOROWITZ: No. It wasn't formally withdrawn.

I made a comment to opposing counsel that Jackie wasn't responding to the subpoena. withdrawn. It was never formally

I was sort of giving him a heads-up that she

might be withdrawn, but it was never formally withdrawn. THE COURT: Well, I don't have it as withdrawn,

so as far as I'm concerned she -MR. BRYANT: MR. HOROWITZ: MR. BRYANT: (Pause.) My mistake. I was extending him a courtesy. I appreciate that.

JACQUELINE JUANAMARIE RANDALL having been first duly sworn, was called as a witness herein and was examined and testified as follows:

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THE COURT:

Please take a seat. (Complying.) I'll have you start by please stating

THE WITNESS: THE COURT:

your full name for the record, and please spell it. THE WITNESS: Jacqueline Randall. My first name

is J-A-C-Q-U-E-L-I-N-E; middle name is J-U-A-N-A-M-A-R-I-E, Randall, R-A-N-D-A-L-L. THE COURT: And if I could ask you to get a

little bit closer to that microphone so we can hear you. THE WITNESS: THE COURT: (Complying.) Proceed, Mr. Horowitz.

All right.

DIRECT EXAMINATION BY MR. HOROWITZ: Can you please tell us where you live. In Kyle, South Dakota. Okay. And is that on the Pine Ridge Indian

Reservation? A Q Yes. Okay. And how is it that you're related to

Lavetta Elk? A Q A Q A Cousin. Okay. Is this first cousins or extended cousins?

Extended. Okay. Do you see Lavetta often?

Every so often.

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Q

Okay.

Can you give us an idea of how often you

see Lavetta? A Q Probably once or twice a year. Okay. Now, do you recall her coming to your

house on January 7? A Q A Q Yes. Okay. Who dropped her off that day?

Army recruiter. Okay. And when she came in the house, were you

in the home? A Q Yes. Okay. And were you the first person that saw

A Q

Yes. Okay. And what was her emotional state when she

walked in to your house? A Hysterical. She was crying. I couldn't figure

out what was wrong with her. Q A Q A Q Did you try and calm her down? Yes. How long did it take you to calm her down? About 20 minutes or so. And when you finally -- when she was a little bit

more calm, was she able to tell you bits and pieces of what took place?

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A Q

Yes. Okay.

Was it -- did you find it easy or

difficult to get the words out of her about what happened? THE COURT: I need you to speak as loud as you

THE WITNESS:

It was difficult.

BY MR. HOROWITZ: Q And what did you and Lavetta do after she finally

started telling you bits and pieces about what took place? A We went to a -- I asked her to repeat everything

she told me to my boyfriend, because I believed he was coming back, the Army recruiter, so I was scared for her, because I didn't want her to go. Q Did Lavetta appear scared that he was coming

A Q

Yes. And after she repeated her story to your

boyfriend, what happened next? A He got on the phone and called -- I can't

remember who he called. Q Okay. Did you subsequently go with Lavetta to

the police department? A Q A No. Okay. Yes. She went with somebody else? We had her call her mom.

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MR. HOROWITZ:

We have no other questions.

THE COURT:

Cross-examination? CROSS-EXAMINATION

BY MS. COSTELLO: Good morning, Ms. Randall. Good morning. I'm Sara Costello. You testified that you Right?

normally see Lavetta once or twice a year. A Q Yes.

And when you'd see Lavetta, she wouldn't talk

about personal matters with you. MR. HOROWITZ: Outside the scope of direct.

BY MS. COSTELLO: Lavetta told you bits and pieces of what happened Is that right?

with Sergeant Kopf. A Q Right? A Q A Q Yes.

And she didn't tell you exactly what happened.

More or less, yes, she did. She was vague about the details? When she first walked in the house. Yes.

You weren't the first person to see her when she Right? Then he brought

walked in the house. A

My boyfriend opened the door.

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her to me. Q After she left your house, you didn't see Lavetta Right?

again on January 7. A Q A Q January 7. A Q A No.

After she left the house, no.

You did see her again? After she left the house, no. And you didn't speak with Lavetta again on

After she left the house? After she left the house. No. MS. COSTELLO: THE COURT: No more questions.

Anything, Mr. Horowitz? No redirect.

MR. HOROWITZ: THE COURT: thanks of the Court.

Ms. Randall, you're excused with the

(Whereupon, the witness was excused.) THE COURT: Next, Mr. Horowitz? I next intend to call Lea White Let

MR. HOROWITZ:

Bear Claws, but I just want to check that she's here. me just check on that. (Pause.) MR. HOROWITZ:

Your Honor, my apologies to the

Court, but apparently Lea White Bear Claws is not here. She's having transportation issues.

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THE COURT:

Who's your next witness, Mr.

MR. HOROWITZ:

I'd like to be able to call Dr.

Manlove, but I hadn't anticipated him being called this early. THE COURT: Well, you need to call someone. Can we take a ten-minute recess,

MR. HOROWITZ:

and I can make a phone call? THE COURT: We can take a ten-minute recess. At

that point, I expect you to call a witness. MR. HOROWITZ: THE COURT: Certainly.

Ten o'clock.

(Whereupon, a short recess was taken.) THE COURT: Please be seated.

Next witness, Mr. Horowitz. MR. HOROWITZ: Next witness is Dr. Stephen

THE COURT:

All right.

Very good.

STEPHEN MANLOVE having been first duly sworn, was called as a witness herein and was examined and testified as follows: THE COURT: Please take a seat, sir. And could

you begin by stating your name for the record and then please spell it.

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Document 75 Filed 05/30/2008 MANLOVE - DIRECT Yes.

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THE WITNESS:

My name is Stephen, S-T-E-P-

H-E-N, Manlove, M-A-N-L-O-V-E. THE COURT: Okay. DIRECT EXAMINATION BY MR. HOROWITZ: Good morning, Doctor. Good morning. Can you start off by telling us a little bit

about your educational training? A Minnesota. I attended St. Olaf College, Northfield, I went to Harvard University Divinity School for

one year, from '77 till '78, University of Minnesota Medical School from 1978 until 1982. Then I went to the University

of Virginia where I did a residency -- I did two residencies simultaneously. in psychiatry. One was in internal medicine, and one was Since then, I have done the things that I

needed to do to get board certified in forensic psychiatry and done ongoing continuing medical education. Q A Q psychiatry? A Mexico. Q All right. And where is it that you actually I'm currently licensed in South Dakota and in New How long have you been practicing psychiatry? I've been out of residency since 1987. And where are you licensed to practice

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practice now? A Q A Q A Excuse me? Where do you practice now? I currently practice in Rapid City. Okay. And where is your office located?

It's 636 St. Ann Street, Suite 100, Rapid City, It's on the -- it's kind of the south side of

South Dakota. town. Q

All right.

And are you primarily a clinician or

an expert witness? A I spend about 80 percent of my time doing

clinical work, and about 20 percent of my time doing forensic work. Q And how many patients do you personally supervise

in, say, a year, or whatever time frame is easiest to describe it? A Yes. Well, I see about -- I think on the I

average, it's been about 600 new patients a year.

supervise nurse practitioners who are also seeing several hundred each themselves. And that's been pretty much the Before that, I

practice for the past three or four years. supervised a larger clinic. that time who I supervised. Q certified. All right.

We had about ten clinicians at

You mentioned that you were board

What year was that?

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A

Board certified in internal medicine in, I

believe it was, 1986, and in psychiatry in, I think it was, 1992, and in forensic psychiatry in 1996, and then I redid my boards in 2006. Q Okay. And have you held any professional

appointments? A Q Excuse me? Have you held any professional appointments? Do

you want to defer to your CV? A Well, I just want to be sure I'm understanding

what you're -- I -THE COURT: (Pause.) BY MR. HOROWITZ: Q A Have you worked in any hospitals? Yes. I've worked primarily at Rapid City Could I have you pause for a second?

Regional Hospital, which is a local hospital here in Rapid City. Q A Q A director. Q The copy of your CV was admitted into evidence. Okay. How long have you worked there?

I've worked there since 1989. And in what capacity? I've been both a staff psychiatry and the medical

Is that an accurate account of your professional activities?

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A Q

I believe so. Okay. In your practice, do you work with many

Native Americans? A Q A I do. Okay. Can you give us a context? In our

Well, there's three different settings.

hospital, I average -- in the past four years I've averaged admitting about 350 patients each year, and out of that group, about 50 percent of them are Native American, so approximately 175 per year in that setting. I also started and have been the medical director and clinical supervisor of a residential treatment center for adolescents. It's called Wellspring, and that is about

70 percent American Indian, and I see every child who goes through that program in the residential setting. see every one in the outpatient setting. who goes through the residential setting. I don't

I see every one So I've gotten to

know and gotten to interview many -- I suppose it's on the order of ten a month or so over the past ten years through that situation. In my private practice, I have a lesser percentage of American Indian folks. like 10 to 20 percent in that setting. It's probably more I also am a -- I

also do consultation at a facility called Black Hills Children's Home which is for younger children, and that is

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over 50 percent American Indian children.

Catholic Social Services, their clinical staff, which has offices in Pine Ridge and in Rosebud and in Eagle Butte, which are all reservation towns, so they do primarily Indian folks in those settings. Q Okay. And through your professional contacts

with Native Americans, have you become acquainted with their culture? A Yes. Q Okay. And did that assist you in formulating I think that I've obtained some acquaintance.

your opinions? A Q Yes. How many times have you been retained as an

expert witness? A Q A Q A per year. Q work? A Q About 20 percent. Okay. Have you been qualified as an expert And what percentage of your income is from expert It's -Say in the past two years. In the past three years? Two years. I think I've averaged doing about 25 or 30 cases

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before in court? A Q A Q A Q Yes. Okay. Yes. Here in South Dakota? Yes. Have you provided expert testimony in cases In federal court?

involving victims of sexual abuse? A Q A Q I have. Have you provided testimony in civil cases? I have. And have you been retained in this case to form

an expert opinion? A Q today? A Q I am. Okay. And on what subject matters were you asked I have. And are you being compensated for your time here

to form an opinion? A I was asked to form an opinion about the

psychological injuries that may have occurred as a result of the assault and to assess the damage caused by the assault. Q Okay. And did you -I'm sorry. I didn't hear the last

MR. BRYANT: part of that answer.

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THE COURT:

Please repeat.

THE WITNESS:

To assess the damage caused by the

BY MR. HOROWITZ: And did you form an opinion within a reasonable

degree of medical certainty on these matters? A Q I did. And what did you do to formulate your opinions on

these subject matters? A Well, I interviewed Lavetta Elk on a couple of I

different occasions, and I reviewed all the depositions. could list those for you if you'd like me to. helpful? Q A my report. Q A Are they the ones mentioned in your report?

Would that be

I think there are more than the ones mentioned in Would you like me to go through those? Yes. Why don't you go through those.

I reviewed the deposition of Lavetta Elk, Joseph

Kopf, Emerson Elk, Jerilyn Elk, Noretta High Hawk, and Carol Weston. Those are the depositions I reviewed. And then I

reviewed the legal briefs and so forth that were prepared in preparation for this case from you folks. I could review

those, if you want me to tell you which ones I saw. Q A That's okay. Yes. Anything else?

I reviewed Dr. Mills' report and his

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rebuttal letter, the report by Dr. Stephenson, some of the reports from the Army which concludes that there was a sexual assault that took place. MR. BRYANT: I'm sorry. THE WITNESS: I reviewed the MMPIs. Is it better I reviewed the MMPIs.

I didn't hear that last sentence.

if I -- well, it seems like it reverberates if I do that. THE COURT: THE WITNESS: THE COURT: It is reverberating. Yes. Yes. I'm sort of -I'm not sure about the

placement of the speakers, because I'm hearing him fine, so it must just be the way the courtroom is oriented. THE WITNESS: try to do better. I reviewed the cultural situation on the reservation. I think that that plays a significant role. If you'll let me know, then I'll

I've talked with many -- I've had the opportunity to interview, as I've said, thousands of Indian folks and seen their response to trauma and seen their response to similar situations to this. BY MR. HOROWITZ: Q And in your experience as an expert witness, are

these the types of methods you would use to normally go about forming an opinion? A They are.

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Q

And at the end of reviewing all these documents

and materials, what diagnosis did you give Lavetta Elk? A depression. Q Okay. And can you explain to us in the simplest Post traumatic stress disorder and major

terms that you can what post traumatic stress disorder is? A about it. Sure. I can tell you exactly what the DSM says The central feature of

That might be helpful.

post traumatic stress disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity. that's the central -- that's the first feature. And then the person's response to the event must involve intense fear, helplessness or horror. The So

characteristic symptoms resulting from the exposure to the extreme trauma include persistent reexperiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma, and numbing of general responsiveness, and persistent symptoms of increased arousal. The next group is the full symptom picture must be present for more than one month. The disturbance must

cause clinically significant distress or impairment of social, occupational or other areas of functioning. Those

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are the -- that is the definition of post traumatic stress disorder. Q PTSD? A Q She did. Now, if I heard you correctly, the first element And did Lavetta Elk meet all the elements of

of PTSD, the first one that you mentioned, is that there has to be an underlying event causing the trauma. A Yes. There has to be an extreme -- an event that

causes extreme fear. Q Okay. And does the fact that the United States

of America has admitted that the assaults occurred, is that significant in arriving at your diagnosis? A Q A Yes. Okay. Can you explain that?

Well, we don't need to question whether or not I understand that there's some

there was a trauma or not.

question about how extreme the trauma was, but there's no question that there was a trauma of some severity. Q Normally when we're trying to reach an evaluation

of -- a determine whether PTSD exists, do you have to consider the possibility that these events didn't occur or that they occurred in a manner different than the victim reported them? A Yes. Sometimes the -- whether the event occurred

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or not is disputed. Q A Q of you? A I do.

In this case, it's not disputed.

Now, did you prepare a report in this case? I did. Okay. Do you have a copy of the report in front

MR. HOROWITZ: Plaintiff's Exhibit 8.

Okay.

For the record, it's the

BY MR. HOROWITZ: Q A Q Do you have it in front of you? I do. Okay. Yes. With your report in hand, can you walk us

through each of your opinions as to the effects of the sexual molestation on Lavetta Elk? A I can. The first issue is the question of the In Ms. Elk's case,

trauma or the fear-invoking response.

there are several issues that contribute to the level of trauma that she occurred here -- that she experienced here. And I think to understand that, to understand her level of trauma, you need to understand to some degree the cultural situation that she comes out of. Ms. Elk lives on Pine Ridge Reservation. Ridge Reservation is about the size of Delaware. has 783,000 people. Pine

Delaware

Pine Ridge has 30,000 people, so I'm

just trying to help you understand how remote the

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situation -- how remote you can be in Pine Ridge. Lavetta Elk lives in Wounded Knee, and I don't know if people here understand the story of Wounded Knee, but it's important in this case, because Lavetta drove by Wounded Knee every day probably, where the Wounded Knee massacre occurred every day, and I think that that's important because just briefly to explain what happened, the Wounded Knee massacre occurred in 1890. And there was a group of Indians that had moved on to Pine Ridge Reservation who were doing what was called a ghost dance, and the U.S. military had said that they could no longer do the ghost dance. It was outlawed. And

this was kind of an apocalyptic, religious group that was doing -- that had gotten together and was doing this ghost dance. MR. BRYANT: Your Honor. I'm going to interpose an objection,

None of this was discussed in Dr. Manlove's

report, this discussion of the importance of the cultural history and the story of Wounded Knee and Pine Ridge Reservation. THE COURT: Give me a sense, Mr. Horowitz,

because the exact point doesn't have to be made, but is there subject matter in the report that talks about this? MR. HOROWITZ: Sure. And perhaps, Dr. Manlove, But I

you can sort of assist me as we go through this.

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think he touches on the cultural significance and the power imbalance, and perhaps that's where he's going. THE COURT: Can you give me a page reference? Sure. It's on page 9. It says that she

MR. HOROWITZ: THE WITNESS:

was with a man who was older than she who believed he was more powerful than she since he was an Army recruiter. He

held her future in his hands, and since he could choose to bring her into military or prevent that from occurring. THE COURT: Right. But I'm asking -- and I

actually want Mr. Horowitz to answer this question -- which part of the report is making references to the basic subject matter that the doctor is now talking about. (Pause.) MR. HOROWITZ: directly where it goes to. THE COURT: So basically it factors into the I think the bottom of page 9 is

evidence that he was considering in terms of how she would perceive the recruiter? MR. HOROWITZ: Exactly. Both the power imbalance

and by virtue of his position in the military and being a non-Native American, and simply the struggle between Native Americans. THE COURT: the questions. Okay. Overruled. Go ahead and ask

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THE WITNESS:

Should I just proceed?

BY MR. HOROWITZ: I think you were telling us a brief account of

sort of the history of that location. A So, anyway, what occurred was -- and just briefly

synopsizing it -- was that the -- this band of Indians was kind of rounded up to an area by Wounded Knee Creek, and there was 350 Indians. There was 500 American cavalrymen, A gun went off, and And this It was in

and they decided to disarm the Indians.

there was a massacre of about 200 Indians.

occurred on, interestingly, December 29, 1890. the winter.

That is a cultural background that every Indian child grows up with, and particularly if you grow up in Wounded Knee where you drive by that every day, and the mass burial grave is at the church right by Wounded Knee also. So in my mind, that would -- and I think that this is a fair conclusion. This might make Indian children and Indian

people somewhat suspicious of the motives of Army people. I was trying to think of an analogy, and I think it's pertinent of the situation. If you don't want me to do

it, then, I guess, tell me not to, but I was thinking about when I was a young man and I traveled to East Germany, and I was sitting on a -- getting ready to get on a railroad -- in a railroad station, and I was going to get on a train, and

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there was an authoritative German voice that said, you know, If you -- basically, if you mess up, you're in big trouble, you know. And here I'm a Caucasian young man, and I'm thinking -- this kind of scared me. going to throw me into jail. What if I was Jewish. then. I thought they were

And at the time I thought,

You know, how would that affect me And I

I think it would have been quite frightening.

think there's an analogy here.

There was a cultural --

there's a history that Lavetta took with her into this, that comes out of this Wounded Knee experience that the Native community, especially the Pine Ridge community, always carries with them. So -THE COURT: point? Mr. Horowitz, I don't want a narrative answer, so you're going to need to take him through this report piece by piece. I don't want him just going through the entire Could I get you to pause at that

report, because it deprives, among other things, Mr. Bryant opportunities to object, so you're going to need to walk him through it. MR. HOROWITZ: Okay.

BY MR. HOROWITZ: Q Dr. Manlove, with this report in hand, can you

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walk us through the first of the opinions, and then -A Q Sure. -- I may stop you, but if I don't, we'll just

sort of -- tell us when you're moving on to the next one. A Okay. So the trauma was that she was with a man

who was older, who she believed was more powerful than she, since he was an Army recruiter. He held her future in his

hands since he could choose to bring her in to the military or prevent that from occurring. He took her to a remote

part of Pine Ridge Reservation and made comments which made Ms. Elk feel that he might be planning to kill her and abandon her in that remote area where no one could find her. Q A her -THE COURT: Can I get you to pause? I don't Okay. And the next one? I'm sorry.

Then he proceeded to make sexual advances toward

really need you to read the report in the record, because it's already in the record, so I'm going to ask you to summarize here today basically the essence of your opinion, but I don't need you to read the report back into the record. THE WITNESS: Okay. Well, okay. So she -- that

is pretty much the trauma. threatened her.

He took her back -- he

She felt that her life was threatened, and

this is something that she would be aware of, living in Pine

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Ridge.

There's a lot of history of people being driven to And then he proceeded to attempt

remote areas and killed.

to sexually assault her, molested her, and she -- he finally stopped after she cried and she, through her protestations, got him to stop. BY MR. HOROWITZ: Q On page 7, you start talking about the effects of

the molestation. A Q A Q Page 7? Yes. Okay. I just want to turn your attention there. Can We'll go back to earlier.

you tell us sort of that paragraph? THE COURT: hearing you. Mr. Horowitz, I'm having trouble

You need to really keep your voice up. Certainly.

MR. HOROWITZ:

BY MR. HOROWITZ: Q Paragraph (a), you talk about frequent memories.

Can you talk about how that manifested itself for Lavetta? A Yes. She explained that, you know, throughout

many days, most days, she has memories of a sexual molestation. She told me that at those times, she sometimes

feels paralyzed, like she did at the time that she was molested, and she feels short of breath, anxious. Q And is that a classic symptom for a sexual abuse

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victim? A Q Yes. And is that consistent with one who's been

diagnosed with PTSD? A Q It is. And when you said she has frequent memories of

the molestation, did she report to you having frequent memories with regard to any of the other stressors in her life? A Q No, she did not. You report that she told you she felt paralyzed

and short of breath. MR. BRYANT: THE COURT: Object to leading again. You really are, Mr. Horowitz.

BY MR. HOROWITZ: Q Okay. The next paragraph is paragraph (b). What

did Lavetta tell you about her sleep habits and what were your findings? A She said that she was often unable to sleep In these

because of nightmares, and they would wake her up. nightmares, she was often raped or injured, and

interestingly, she indicated that often the nightmares ended up worse than the actual event. Q Is that common, that the nightmares and the

recollections will be --

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THE COURT: is it common.

Mr. Horowitz, how common, not

I mean, if you're producing a yes-or-no One

answer, you're doing two things that are problematic. is leading. Two, even if it's not objected to, the All right.

evidentiary value of the answer is limited. stop leading questions. Okay?

So

BY MR. HOROWITZ: How often does that happen in your experience to

sexual abuse victims? A abuse. That's a common symptom of PTSD from sexual I think it is less common that people actually

experience more trauma in their nightmares than they did in real life, but nightmares after traumatic events are common. Q Okay. And did Lavetta acknowledge to you that

the nightmares were worse than the event itself? A Q Yes, she did. Okay. Paragraph (c), can you tell us what

Lavetta reported to you about her -- whether she cried. A Yes. She said that she was frequently sad and

cried a lot. Q Okay. And do victims of sexual abuse often cry

for long periods of time? MR. BRYANT: THE COURT: Objection. Sustained.

BY MR. HOROWITZ:

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Q

Can you tell us whether sexual abuse victims cry

for long periods of time? A I mean, depression is a common aftermath of It goes along with PTSD frequently. Can you tell us the difference between

traumatic events. Q Okay.

sadness and depression? A Sure. You know, depression has all kinds of

meanings, even using our standard nomenclature in psychiatry. You know, there are what we call major

depressive episodes which have to have a certain number of specific kinds of symptoms. They need to be prolonged, kind

of -- there are different levels of severity. And there are people who have depression that are adjustment disorders with a depressed mood. In that

situation, somebody's had some kind of stressful event and has had some depression afterward, but it's not the level that one would expect from a major depressive episode. There's the dysthymia where people have chronic, low-level depression. There are depressions that we

attribute to biological causes. Q A Did Lavetta report any intimacy issues? Yes, she did. She told me that frequently sexual

experiences would remind her of the assault and would -- and she would, therefore, become upset and not be able to continue with the sexual experience.

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Q

Okay.

And how often do you see that in your

practice with sexual abuse victims? A Q That's common. Okay. And how often in your practice among

PTSD -- persons with PTSD diagnosis do you see that? A It's a common problem with PTSD particularly from

a sexual trauma. Q Can you tell us a little bit about whether you

formed an opinion as to whether Sergeant Kopf's assault of Lavetta had an effect on her self-worth? A Yes. I mean, she told me that she had feelings

of guilt about the event, which is paradoxical but common in assault victims or sexual trauma victims particularly. She

indicated that she had a sexual experience shortly after the assault that was sort of prompted by a need for affirmation, to be affirmed by another person in a cleaner way, so she had a sexual experience with a friend. She has had a lot of problems from the aftermath of this assault that have made it difficult for her to function, you know, in work situations, family, with her children, that sort of thing, which has made her feel bad about herself also. Q Why do innocent victims sometimes feel guilty

about their events? A You know, I don't know that I can tell you

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exactly why.

We can hypothesize about that, but probably

it's kind of related to a sense of somehow they did something stupid, that they could have gotten out of it in some manner if they would have just, you know, done the right thing or said the right thing. It's very common,

though, for people to blame themselves for an event, even when they have no real control over it. Q Okay. You heard Lavetta talk about -- and her

family members talk about Lavetta's ambition to join the military. What impact did it have that the perpetrator of

this act was a member of the military? A Well, I think there's a fairly obvious direct

connection between this act occurring from a member of the military and her decision to, you know, choose not to pursue that career. She didn't want to be near the military

anymore after this event. Q Okay. You heard Lavetta testify about the

remoteness of the location, and you have some familiarity with that yourself. What impact does it have that this

occurred, this act occurred in such a remote part of the reservation? A Well, as I mentioned before, the Pine Ridge

Reservation has some areas that nobody goes to ever, and there are known abductions and assaults that have occurred in those areas over the years. There's one that's coming to

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trial right now that's very well known from the Wounded Knee of 1972 in which a lady named Anna Mae Aquash was taken out to a remote part of the reservation, was murdered, and her body was left. This is well known in this -- in western

South Dakota and in the Pine Ridge community. So whenever somebody in Pine Ridge is taken against their will to a remote area, most people -- and I've asked 20 people this question who are in that -- in the Pine Ridge area, who live in the Pine Ridge area or who have lived there, what would be the significance -MR. BRYANT: THE COURT: THE WITNESS: THE COURT: THE WITNESS: Object. This is beyond the -Overruled.

I don't think it is. What would be the --

Repeat the last statement, please. Excuse me? Oh, I've asked perhaps,

you know, 20 people who have lived on the Pine Ridge or who live there now, what they would think is happening if somebody takes them against their will to a remote part of Pine Ridge, and every one says they would be concerned that they would be beaten, raped or killed. So that's an

important other sort of piece of the background to this case. BY MR. HOROWITZ: Q Would you expect an assault victim in a remote

part of the reservation might be more substantially impacted

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than someone in a less remote location? A Q Well, certainly, because there's no way to tell. Lavetta and her family testified that Lavetta Did you draw any connection

oftentimes wants to be alone.

between this assault and Lavetta wanting to be alone and distant from family members? A Well, certainly withdrawal is a symptom of

depression, and we -- you know, I certainly believe she's been depressed since that assault, and I think her depression has been worse since that assault. I think that

if you look at the internal experiences that Lavetta Elk has been having, the flashbacks, the hallucinations, the anxiety, and so forth, I think that probably makes her feel like she's a person who shouldn't be around other people. You know, she feels odd and unusual and would try to isolate herself because of that. Q You mentioned the word "flashbacks." Did she

indicate any particular trigger points for flashbacks? A Yes. She told me certainly sexual relationships, She also indicated

as we talked about, created flashbacks.

that certain kinds of experiences, like certain smells, certain -- being in certain situations with men, those kinds of things, would cause flashbacks. Q And were these trigger points specific to just

Kopf, or were they sort of more general trigger points?

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MR. BRYANT:

This is leading and

MR. HOROWITZ: and ask it differently.

I'm going to withdraw the question

BY MR. HOROWITZ: Did you find that these trigger points were What did you attribute these

related -- strike that. trigger points to? A

Well, they weren't an issue before the assault.

There's nothing in the records that suggests that these were a problem before the assault, so -- and then the fact that we know that sexual assaults cause these kinds of things commonly and then -- and her description of these flashbacks are specifically about Sergeant Kopf, I can't hardly come to another conclusion but that they were caused by this event with Sergeant Kopf. Q Stated differently, could any other stressors in

Lavetta's life have caused those flashbacks in your opinion? A I don't see -- I'm not aware of other stressors

that would have done that. Q I'd like to assume for the moment that other

events in Lavetta's life prior to the assault caused her some distress. How would that impact how much she is

affected by the assault? A Well, people who have had past traumas tend to be

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more vulnerable to subsequent traumas, but I don't hear that she's had really serious past traumas. The question or the

issue of some depression around -- during the second half of her senior year in high school has come up. In my mind, any

kind of depression or other psychological experience that suggests some difficulty coping with your environment probably suggests that a person is at least suddenly more susceptible to PTSD. Q Stated differently, if someone has preexisting

issues before a trauma, are they more likely to suffer more harm than someone who has no preexisting issues? A Yes. It depends on the issues and a host of

other factors, but probably all things being equal, considered equally, yes, perhaps. Q Okay. Lavetta testified that she moved around a

lot after the assaults to different parts of the country. What significance, if any, did you attach to that? A I think I heard her say that she just couldn't You know, everywhere -- she tried Go somewhere else and I think

get comfortable anywhere.

sort of a geographic cure, you know.

see if she'd feel better, and it wasn't working.

she felt like she needed to get away from Pine Ridge Reservation, because that was -- there were too many reminders of the event there. And finally after traveling around to several

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different places, she ended up coming back to Pine Ridge Reservation. It's kind of an interesting sort of circuit

that brings her back home to where it began, and, you know, I guess I'm attributing the return home to that's where really her support system was. Q You heard testimony that Lavetta has had changes

in appetite, at times bingeing, at times not wanting to eat at all. A Did you attach any significance to that? Well, those could be depressive symptoms. They

are, you know, sort of coping strategies that people use sometimes to deal with feeling bad, bingeing or conversely not eating. Q In arriving at your conclusions, did you take

into account other events in her life preceding the assaults? A Q I attempted to as well as I could. Okay. And how do we factor those in? I mean,

how do they come into play in assessing her injuries from this assault? A Well, the other events that have been noted have That's one

been deaths of what are called grandparents. group. others. Miscarriages.

It seems like there was a couple of

Her weight back in entering the military; her

difficulty finding a job; relationship problems with her husband at times, those are all certainly things that would

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be stressors in most people's lives. They are things that would cause dysphoria for most of us. They aren't things that would cause post Most people deal

traumatic stress disorder for most people.

with those kinds of things over a fairly short period of time and move on with their lives. life events. I mean, you know, kind of looking at those different groups, first, the deaths of the grandparents, I think you may have picked up that grandparent means something more than my mother's or father's parent in Pine Ridge. It means any elderly person in the community that They're kind of normal

you're related to are considered grandparents, so great uncles, great aunts. And you probably also picked up from David Swallow's testimony that everybody is related to everybody else on Pine Ridge Reservation. I mean, there's a lot of So there

interconnectedness if you track out blood lines.

are lots of people who are related to you who are dying at any given time. I mean, also people die young in Pine

Ridge, and so it's not uncommon for -- it wouldn't be at all uncommon for Lavetta Elk to have been -- have dealt with many deaths of people that she considered grandparents in her life span. Q Okay.

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A

It is always a big deal.

People are always very

concerned about it, but there are cultural ways of dealing with that that seem to work well for that community. Q Okay. Along those lines, ordinarily speaking, is

the loss of a grandparent when one's a teenager, is that ordinarily a traumatic event that may cause PTSD? A No. I don't think that would be considered the

kind of event that would cause PTSD. Q Okay. In your experience, are suicides -- how

common are they on the reservation? A Suicide is common on the reservation. It is

approximately three times what it is in the general population in the United States and three times what it is in the rest of the state of South Dakota. 30 per 100,000 people per year. Q Okay. Given that, as you said, suicides are The rate is about

common, in your experience, do you find that those who live on the reservation are equipped differently to deal with those types of events? A I think people are kind of -- are sort of used to

it in a way, a little bit numbed to the event, because it's so -- it's not an uncommon experience. Q Okay. And on the reservation, how common or how

often do you come across miscarriages as being a trauma that might cause PTSD?

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A Q A know that.

Well, I think that was a few questions. Yes. I can't tell you the miscarriage rate. I don't

I can tell you that the infant mortality rate is

about -- it's a couple of magnitudes of order above the average population in the United States. cause PTSD? How often does it

I would say -- I'm not sure I've ever run into

that, and I've seen many -- I mean, I do a sexual history on every person I interview, and they tell me if they have had miscarriages or not, and certainly shortly after a miscarriage, there might be an issue, and I can recall one person who it's been an ongoing issue in therapy for out of approximately 25,000 people that I've had ongoing work with. So I don't think it is a -- I think it is considered a natural event that people adjust to and work through generally well in that setting. Q Okay. And do you find a distinction between --

any distinction between early-term miscarriages and lateterm miscarriages? A would be. Q Okay. And in your review of the records, when Sure. I mean, the later, the more traumatic it

did Lavetta's miscarriages occur, or when did she report that they occurred? A They appeared to be fairly early for the most

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part. Q And in your experience, when a woman successfully

delivers a child after having had a miscarriage, does she often think about the miscarriages anymore? MR. BRYANT: THE COURT: it's not leading. MR. HOROWITZ: Okay. Objection. I think you need to reframe it so

BY MR. HOROWITZ: Q In your experience, what effect does the

miscarriage have after a mother successfully delivers a child? THE COURT: Horowitz. MR. HOROWITZ: THE COURT: louder. MR. HOROWITZ: THE COURT: this. Louder. Okay. I'm sorry. Getting softer? You need to be You're getting soft again, Mr.

Getting softer, yes.

I'm not sure why I keep telling you

If you can't hear your voice being projected, then

you're not loud enough. MR. HOROWITZ: THE COURT: I can hear my voice. Okay.

Ask the question again. Sure.

MR. HOROWITZ:

BY MR. HOROWITZ:

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Q

What sort of effect do the miscarriages have

after a child is successfully delivered, in your experience? A I think a successful delivery diminishes the

effect of a miscarriage to some degree. Q Can you talk in a more general