Free Exhibit List - District Court of Arizona - Arizona

Exhibit A to the Motion to Exclude Testimony of Phillip Esplin

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ) Plaintiff, ) ) vs. ) No. CIV 03-2343 PHX-DGC ) Corrections Corporation of ) America, Inc., and Bruno Stolc, ) ) Defendants. ) _________________________________)

Cheryl Allred,

Phoenix, Arizona May 10, 2005 10:00 a.m.

DEPOSITION OF PHILLIP W. ESPLIN, Ed.D.

LEA, SHERMAN & HABESKI Registered Professional Reporters 834 North First Avenue Phoenix, AZ 85003 (602) 257-8514 Fax: 257-8582 Reported by: Mary F. Vincelette, RMR Certified Court Reporter Certificate No. 50551

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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 EXHIBITS 1 EXAMINATION

I N D E X

PAGE

By Mr. Duke ............................................ 4

DESCRIPTION

IDEN'D ..... 4

March 15, 2005, letter report, Dr. Esplin to Halvorson

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DEPOSITION OF PHILLIP W. ESPLIN, Ed.D.,

taken at 9:55 a.m. on May 10, 2005, at the office of Dr. Esplin, 4242 North 56th Street, Phoenix, Arizona, before Mary F. Vincelette, RMR, a Certified Court Reporter in the State of Arizona.

APPEARANCES: For the Plaintiff: The Law Offices Of Brett Duke, P.C. by BRETT DUKE, P.C. 4157 Rio Bravo El Paso, TX 79902 For the Defendants: Jones, Skelton & Hochuli by DANIEL P. STRUCK, ESQ. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012-2703

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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. BY MR. DUKE: Q. A. Q.

PHILLIP W. ESPLIN, Ed.D., called as a witness herein, having been first duly sworn, was examined and testified as follows:

EXAMINATION

Would you please provide your full name. Phillip, P-h-i-l-l-i-p, W. Esplin, E-s-p-l-i-n. Was Cheryl Allred gang raped on November 28th,

2001, at Central Arizona Detention Center? MR. STRUCK: Object to form.

I don't believe that's a question for an expert I think that's an ultimate issue question for

to address.

the jury to decide. Q. test? A. I'm not familiar with any tests to determine BY MR. DUKE: Did you administer a gang rape

whether one's been gang raped or not. Q. I noticed in your letter dated March 15th, 2005,

to Rachel Love Halvorson -- I'd like to discuss this with you and I'd like to mark it as Exhibit A to your deposition. It's my understanding that a signed copy was provided to me this morning, and that is the only exception to the previous letter I have been provided; is

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that correct? A. That's correct. There were two depositions I

reviewed subsequent to writing this draft document. Q. A. Q. Two depositions? Correct. Let me ask you about that, because that's What depositions

knowledge to me or news, if you will.

did you review subsequent to this -- I guess one other difference I see is, one says, "Draft," the one I have been provided, and the one provided this morning does not. Is that the other difference? A. Q. Yes. What depositions did you review since my version,

if you will? A. It involved the executive director of that

halfway house and the lady that was -- I believe at the time she was the case manager. Q. A. Q. A. Q. Chris Costenada and Dan Judisek? Yes. Any other differences? No. I noticed in your letter that you reviewed the

plaintiff's original complaint or you indicated you did so. Did you actually do so? A. Yes.

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Q.

Based upon your review of the complaint, tell me

your understanding of this lawsuit. MR. STRUCK: A. Object to the form.

It's my understanding that she has reported that

she was raped by multiple individuals while she was at a correctional facility en route to Florida; that she has indicated that as a result of that sexual assault, she's had an onset of certain symptoms associated with trauma. Also is reporting symptoms that would suggest the possibility of a major depression. She reports being less

capable of concentration, attention as pre-assault. Q. And this is in the complaint or are you just

providing your understanding? A. Q. This is my understanding. Let me ask you the factual understanding. Would

it be her allegation of rape? A. Q. A. Q. Yes. And damages associated with it? Yes. And you indicated earlier that it would be a

question for a jury to decide whether or not she was gang raped? A. It wouldn't be for a psychologist to determine

whether or not she was raped. Q. In your same letter, you indicate you reviewed

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various other documents. you have listed? A. Q. A. Q. A. Yes.

Did you review those documents

Who provided you with those documents? Counsel. And you pointed at Dan Struck? Correct. I think he and there was another

co-counsel. Q. A. Q. Rachel Love Halvorson? Correct. In the first sentence of your letter, you

indicate that you "conducted a psychological evaluation of Cheryl Allred relative to the above-referenced matter." Are you referring to the lawsuit? A. Q. A. Q. letter? correct? A. No. I began the draft after I had seen her the I then made modifications after I saw her the Yes. And that's why you did your evaluation? Correct. In that same paragraph -- when did you draft this The date indicates March 15th, 2005; is that

first time. second time.

MR. STRUCK:

And, for the record, counsel, he's

referring to Cheryl Allred.

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response pattern under the section involving treatment considerations suggest that her interest and motivation for psychological intervention is below average in comparison to the comparison group. Her responses suggest

that she is satisfied with herself as she is and is not experiencing marked distress, and sees little need for motivation in her thoughts" and "behavior . . ." wrote that; correct? MR. STRUCK: MR. DUKE: A. Q. A. Q. Yes. When did the defendants hire you? October of '04. Prior to October, '04, had you had any thought or It says, "or behavior." Oh, excuse me. You

consideration of Cheryl Allred? A. Q. A. Q. No. When you were hired, who contacted you? Rachel Halvorson. And did she indicate for what purpose she wanted

to hire you? A. I believe she -- there were two issues: Whether

an evaluation would be necessary versus just a record review relative to the issues at hand. necessary or preferable. I felt it would be

And I believe I submitted an

affidavit on her request relative to that issue.

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Q. A. Q.

Okay. -- and the MMPI clinical and supplemental scales. Describe some of the variability besides the

depression in the different inventories. A. The reporting of traumatic stress symptoms, there

was some variability between her self-report and the way she answered the items on the TSI. There were some

differences on the Traumatic Stress Inventory from the PAI, MMPI, and TSI. I want to be a little bit cautious there because I don't believe -- they're correlated, but they're not identical. Q. A. Q. A. Q. A. Q. Cheryl? They're correlated, but not identical? Yes. The content items.

These are different tests; correct? Yes. That could account for this variability? To some degree, yes. What else besides factors that don't relate to Testing conditions in terms of fatigue or

non-fatigue? A. account. Q. That could account. Changes in mood state could

Diligence could account. And I want to be able to phrase this in a manner But is it my understanding that

that you would agree.

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you're making such conclusion that there are reservations about her reliability as an historian based upon the variability of different construct items in the personality assessments? A. Q. A. That contributed to it. What else? The discrepancies between her report to other

people about various circumstances and the records. Q. And you're talking about strictly factual

discrepancies in terms of what she has reported and what other people have reported; what she has reported to others, what she reported to you? A. Q. Yes. We're not using any psychological methods to

reach that conclusion, are we? MR. STRUCK: A. Object to the form.

That would be -- I would agree, yes, that there

isn't any litmus test to decide who's being more or less accurate. You would have to look at the totality of it.

Somebody has to make a decision. Q. BY MR. DUKE: And in that area right there

regarding those discrepancies, a jury could make such determination just as easily as you could? A. I don't believe that, in that I think some of the

information from me would be helpful in their

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determination. Q. What would be helpful to determine whether or not

she was providing factual discrepancies? A. Whether she could be classified as a reliable or

less reliable historian would be based upon some factors that are outside the common purview of the jury. Q. A. Isn't that for the jury to decide? I'm giving a road map, and I'm giving them

principles with which to weigh the information that comes in front of them. determination. Q. A. You're assisting them with factual discrepancies? No. With an understanding of what information I'm not answering their ultimate

was obtained relative to factors for them to consider when making that determination. Q. Okay. Going back to the original question, it What else leads

was variability, factual discrepancies.

you to make such statements, serious reservations arise about her reliability as an historian? A. The records indicated that, at times, she may

have interpreted circumstances or people's statements in ways that differed from what the records suggest were stated. Q. A. What else? Her claims at certain times of having an absolute

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positive recollection about historical events and the other times claiming to not have raised the question of the reliability of her as an historian. Q. I would place that under the category of factual

discrepancies; wouldn't you? A. Q. A. Q. A. Well, it's her -- it's her stating. Her own internal discrepancies? It's her own statement of certainty. Okay. What else?

Her statements compared to the number of

occasions where something at odds may have been reflected in the records. Q. A. Q. A. Give me some examples. Suicidal ideation. Okay. There's a reference that she had experienced

ideations commencing at about age four; that they had occurred periodically; that was secondary to the chronic struggle she had physically. There were records

indicating she had made suicidal threats on different occasions. There were denials of any history of suicidal

ideation or gesture. Q. Again, these are internal discrepancies

attributed to Cheryl; wouldn't you agree? A. Well, these are records that reflect what she

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said to someone depending then on whether that someone wrote down accurately what was said. so I don't know. Q. A. Q. The ultimate truth would decide what was -What I did look at was for patterns. Okay. And, obviously, ultimately, what's the So I wasn't there,

truth would decide those discrepancies? A. Q. That's correct. The basis we just discussed, is there a

particular method utilized to reach that conclusion; what you're telling me you reached such a conclusion based on? A. Q. A. Well, one example would be -An example of a method? Well, of what I would look at was the core

elements of the description of the event. Q. A. Would have been? Relative to the assault and a contextual

imbedding of the assault and whether or not the account across time was consistent with core elements, things that we know from studies of traumatic memory that people sustain pretty good recollections on. And if those vary

significantly, not with regard to minor details, but to core elements, it would raise a question of why do you have the discrepancy. Q. The same conclusion of yours regarding her

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reliability as an historian.

Are you making such

conclusion based on any perceived credibility you had of Cheryl? MR. STRUCK: A. Object to the form.

Well, I was looking at it from the standpoint of

how much can you rely on self-report versus looking through other types of corroboration as opposed to being a truth detector in that sense. Q. A. Q. You're not doing that; right? I'm not a truth detector. Obviously, the personality assessment inventory,

it doesn't measure or indicate whether or not a person was gang raped? A. Q. A. Q. That's correct. Doesn't prove or disprove a gang rape? That's correct. It does not measure an individual's reliability

as an historian, does it? A. It would contribute to the question of

reliability if -Q. A. I don't understand. If there was variability within items that were

measuring the same construct, it would raise the question about whether certain mood states would affect her recollection of surrounding events.

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Q.

But there were indicators of validity to her

personality assessment inventory; correct? A. Q. That's correct. And, again, obviously, the Minnesota Multiphasic

Personality-II doesn't measure or indicate whether or not a person was gang raped? A. Q. A. Q. Correct. Doesn't prove or disprove the gang rape? Correct. It doesn't measure an individual's reliability as

an historian, does it? A. It could contribute to an understanding or

classification of the reliability. Q. Based upon you considering what we discussed

earlier, your procedure and methods there? A. Q. Correct. And going back to the MMPI, it doesn't measure

authenticity of a person's report of gang rape, does it? A. Q. Correct. The validity indicator profile, it does not

measure or indicate whether or not a person was gang raped? A. Q. A. Correct. Doesn't prove or disprove a gang rape? Correct.

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you're doing crisis intervention where you are trying to stabilize the person that's presenting themselves to you. That's a little different of an issue than if you take them on as an ongoing patient or client. Q. from? A. BY MR. DUKE: What authority? Guidelines for people that are licensed to Where do you derive your opinion

evaluate and treat mental disorders. Q. A. What guidelines? I don't know that she's qualified to evaluate and I don't know the specific

diagnose, but she may be. statutes in New Mexico. Q.

What about in your profession?

You said

guidelines? A.

What guidelines are you talking about?

Oh, I think ethical and professional standards.

She's not a psychologist, so she wouldn't be subjected to those standards. I think there are professional

counseling standards that talk about the process of someone entering into treatment and the various -Q. A. What are those standards? I think you would conduct a mental status exam, I think you would develop some I think

which I think she did.

diagnostic impressions, which I think she did.

you would try to rule out alternative hypotheses, whether there was some kind of gain in terms of how the patient

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occurred? A. I didn't make a determination about the

truthfulness of the allegation per se. Q. Has it been tested that personality inventories

can prove or disprove prison gang rapes? A. No, I don't think they address the presence or I don't think that's the

absence of prison gang rapes. intention. Q. A. Q.

Personality inventories? Correct. I mean, I'm asking, though, in the psychological

field, have there been any tests to indicate such? A. Q. A. There are no litmus tests. Any actual tests? Correct, that I'm aware of, where you would test

someone for their historical accuracy other than by the use of corroboration. Q. So have there been any peer reviews regarding

personality inventories proving or disproving prison gang rapes? A. No. There may be studies that would look at

profiling evidence of rapists or may look at -- may relate to victimology that might look at are there certain features that would increase someone's risk. not a test for whether something occurred. But that's

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Q.

Like we were discussing earlier, such don't

indicate prison rape or not? A. Q. Correct. And, on that note, have there been any

publications that personality inventories can prove or disprove prison gang rapes? A. No. Well, let me just put a caveat to that. you had someone that was floridly psychotic and someone that was reporting delusions, that could contribute to your weighing heavily on corroborating evidence. Q. A. I don't think that -So the instruments could indicate a condition in If

which delusions may be quite prevalent, including a delusion or belief that there was an attempt to rape them when the evidence wouldn't support that contention. MR. DUKE: Q. Objection. Nonresponsive.

Are there any publications, is what I was asking,

something that's been published in the psychological field that indicates personality inventories can prove or disprove prison gang rapes? A. Q. Not as you stated it. Are there any statements, conclusions, or

opinions in your letter that were the result of research independent of this litigation?

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Q. A. Q. A.

Did you offer Cheryl any type of treatment? No. Strictly an evaluation? Correct. MR. DUKE: I have not been provided all the

documents that I requested regarding your involvement in this litigation, and I'm not saying it's from you. don't want to conclude this deposition, but at least suspend it for the time being. So what I'm doing is reserving my right to depose you again based upon receipt of certain documents. That's obviously something for the lawyers to discuss. But I have no further questions for the moment. THE WITNESS: MR. DUKE: with me. THE WITNESS: MR. STRUCK: THE WITNESS: Thank you. Do you want to read and sign? Yes. Okay. So I

And I appreciate you discussing this

(Exhibit A marked for identification.) (11:50 a.m.)

___________________________ PHILLIP W. ESPLIN, Ed.D.

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STATE OF ARIZONA COUNTY OF MARICOPA

) ) )

ss.

BE IT KNOWN that the foregoing deposition was taken before me, Mary F. Vincelette, RMR, a Certified Court Reporter in the State of Arizona; that the witness before testifying was duly sworn by me to testify to the whole truth; that the questions propounded to the witness and the answers of the witness thereto were taken down by me in shorthand and thereafter reduced by computer-aided transcription to print under my direction; that the deposition was submitted to the witness to read and sign; that the foregoing 69 pages are a true and correct transcript of all proceedings had upon the taking of said deposition, all done to the best of my skill and ability. I FURTHER CERTIFY that I am in no way related to any of the parties hereto nor am I in any way interested in the outcome hereof. DATED at Phoenix, Arizona, this 18th day of May, 2005.

____________________________ Certified Court Reporter Certificate No. 50551

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