Free Motion in Limine - District Court of Federal Claims - federal

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 1 of 9

el k(1) (2) .TXT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 APPEARANCES: 15 Representing the Plaintiff: 16 17 18 19 20 21 22 23 24 25 RAPID REPORTING (605) 343-0066 Representing the Defendant: ADAM HOROWITZ Herman & Mermelstein 18205 Biscayne Boulevard suite 2218 Miami, FL 33160 KEVIN WEBB SARA E. CULLEY united States Department of Justice PO BOX 663 Washington, D.C. DATE: PLACE: BEFORE: VS. THE UNITED STATES OF AMERICA, Defendant. IN THE UNITED STATES COURT OF FEDERAL CLAIMS LAVETTA ELK, Pl ai nti ff,

)
) )

05-186L

) )
) ) Deposition of: LAVE1-FA ELK

)
)

) )

Jean M. Carlson Court Reporter and Notary Public Rapid city, South Dakota December 12, 2006; 9:30 - 2 50 p.m. 201 Federal Building 515 Ninth St. Rapid city, South Dakota

INDEX Page 1

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 2 of 9

el k(1) (2) .TXT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RAPID REPORTING (605) 343-0066 EXHIBITS: 1 Notice 2 Subpoena 3 Answers to Interrogatories 4 Answers to First Set of Interrogatories MARKED ON PAGE 7 8 46 64 WITNESS : Lavetta El k Examination by Ms. culley PAGE

LAVETTA ELK, called as a witness, being first duly sworn, testified as follows: MR. HOROWITZ: Lavetta, you need to answer all the Page 2

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 3 of 9

elk(l) (2) .TXT 25 I wouldn't talk to anybody el se. RAPID REPORTING (605) 343-0066 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A

Q You wouldn't talk to anyone else but sergeant Kopf? A Yes. Q what made you interested in joining the Army? A Like I said, I had a lot of family members that were in the military, and none of them were female, so I would have been the first. Did you see Sergeant Kopf in any social settings? A Q A Q A Social settings as in-Did you go to the movies with sergeant Kopf? He asked a few times, but I refused. Did you see Sergeant Kopf at a volleyball game? Yes, for Lakota Nation Invitationals, he watched a few of my games. Q A Did you talk to him at these games? Yeah. Noticing that he was there, he waved me over, so I went over to talk to him. Q what did you talk about? A He told me that he had other people, a lot of people invited him to go see their matches, but he said he heard they were playing, so he tried to make every game. Q Did you enjoy seeing Sergeant Kopf? MR. HOROWITZ: Object to the form.
I really

wouldn't call it enjoying, seeing him. It

would be just like seeing a person along the way. It's not like -- I didn't look forward to seeing him. RAPID REPORTING (605) 343-0066 Page 19

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 4 of 9

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q A

elk(l) (2) .TXT didn't have any place else to go. He told me that he was going to see my brother in Kyle at the high school, so I got in with him. Q which brother is that? A Emerald. Q A
HOW many

brothers and sisters do you have?

I have four brothers and two sisters. what are their names? Daverine, Lloyd, Emmaline, Jeremy, Emerald and Jeffrey. And the order of siblings where do you fit in at? There's Daverine, Lloyd, Emmaline, Jeremy, me and then Emerald and Jeffrey. Did you ask sergeant Kopf to leave you at the convenience store? No, because I didn't have any place to go. I didn't know what to do. After you got back in the suburban, what's the next stop you made? RAPID REPORTING (605) 343-0066 68

1 2 3 4 5 6 7 8 9 10

A Q

My cousin Jackie's house. How long had you been driving before you stopped at Jackie's house?

A Q A Q A

About ten minutes. where does Jackie live? She lives south of Kyle, and I don't know roads. Does she live in the town of Kyle? NO. The College Center is, she lives by the college Center, and it's about ten miles south of Kyle.

Q

Did you have any conversations with sergeant Kopf while Page 61

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 5 of 9

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q A Q

elk(l) (2) .TXT I don't know what M.H. is. Does that look like what's written on this page? I can't tell. I'll represent to you that that's what it says. Does M.H. sound familiar to you?

A Q

No. Do you remember requesting a new counselor at the end of April?

A Q

No.

I don't remember.

were there any counselors that you would have been seeing during that period?

A

I don't remember any names. Like I said, there was a male and then there was a female.

Q A

At Pine Ridge? Yes. RAPID REPORTING (605) 343-0066 9O

1 2 3 4 5 6 7 8 9 10 11 12 13

Q Indi an Hospital ? A Yes. Q Lavetta, could you describe your expenses that resulted from the incident that happened on January 7, 2003? MR. HOROWITZ: Object to the form. A Q Expenses? How much did you spend on going to the doctors as a result of the incident on January 7, 2003? A Q I don't know. Do you know if you spent any money seeing a therapist as a result of this incident? A Q I don't know. Did you spend any money on medications as a result of Page 81

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 6 of 9

14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q

elk(l) (2).TXT this incident? NO. I don't think so.

Did you spend any money on going to counseling as a result of this incident? MR. HOROWITZ: I object to the form. No. DO yOU have any additional costs or expenses because of the incident on January 7th of 2003? MR. HOROWITZ: I object to the form. THE WITNESS: Additional costs? Is there anything else you spent money on because of this incident on January 7, 2003? RAPID REPORTING (605) 343-0066 91

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

A Q

NO. I know that you met with Dr. Mills, have you been examined by any other experts as part of this I i ti gati on?

A Q A Q

Experts? Any other doctors or psychiatrists or psychologists? All I go to is just my uncle and medicine man. I am going to turn to your symptoms again a little bit. was there any change in your symptoms in the years 2000 through 2005? MR. HOROWITZ: THE WITNESS: I object to the form. No.

Q A Q A

Actually I mean 2004, 2005? NO. They stayed the same? Yes. Page 82

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 7 of 9

elk(l) (2) .TXT 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q Q A A A Q No. were the doctors able to determine why you miscarried those times? They kept telling me it was stress. And with every pregnancy I was put on bed rest. But they just kept telling me I was stressed. Did they recommend you do anything to feel less stress? They wanted me to go -- they asked me what I was stressed about, and I didn't want to go into detail. Like I said, it was a new place, and I wanted to start over new, and so I really didn't go into detail. Did they recommend you take any medication to help you with that? No. They just wanted me to get better, to take care of myself and start eating right. what was the cause of your stress during those pregnancies? They kept asking me what I was stressed out about, and RAPID REPORTING (605) 343-0066 107 like I said, I didn't want to go into too much detail Page 96 A Q A Q mi scar ri age? Yes. And when is your sixth miscarriage? It was just five, because this was my sixth pregnancy. Did your personality change at all after your miscarriages? MR. HOROWITZ: Object to form.

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 8 of 9

el k(1) (2) .TXT about this case. Q Is it correct you said you didn't have any -It's 2:00 o'clock, and we will go ahead and go off the record. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q A Q A Q A Q (A break was taken from 2:00 to 2:10.) MS. CULLEY: Back on record. Lavetta, you mentioned that stress was causing your miscarriages, what was the source of that stress? MR. HOROWITZ: I object to the form. The case. Everything. what do you mean by everything? I feel happy and safe with my husband, but at the same time I'm fighting remembering stuff that he said, or remembering his smell. when you say "he" -Sergeant Kopf. Were there any other sources of stress in your life? MR. HOROWITZ: I object to form. The stress of wanting to move on with my life, but being held back, so it's hard to talk about it. It's hard to try and move on. Are you trying to move on? Yes. what are you doing to help yourself move on? RAPID REPORTING (605) 343-0066 108 A Q well, I have my son. Is there any source of stress unrelated to your encounter with sergeant Kopf? MR. HOROWITZ: I object to the form. Page 97

Case 1:05-cv-00186-FMA

Document 52-2

Filed 02/22/2008

Page 9 of 9

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q Q A A Q A Q A Q A Q Q A

elk(l) (2) .TXT THE WITNESS: NO. After your miscarriages, did you feel emotional? Yes. But each time I got pregnant again, you know, I'd be happy, and then when I finally had my son, it was the greatest. How did you feel after you finally had your son? Complete. Really happy? Yes. After your miscarriages, did you cry often? Yeah. Yes. who woul dn' t? Did you feel like your miscarriages impacted your self-esteem? A little. Like I said, I felt like a failure, then again it kind of made me want to try harder. Do you feel anxious after your miscarriages? NO. Like I said, I have my husband to help me, and he's always talking me through everything. Do you feel depressed after your miscarriages? Yes. Did you have a hard time sleeping after your RAPID REPORTING (605) 343-0066 109

1 2 3 4 5 6 7 A Q Q A

miscarriages? After January of '03 I've always had a hard time sleeping. After your miscarriages, did you have any loss of appetite? No. After your miscarriages did you feel angry at all? Page 98