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The Judge Rotenberg Center on Trial, Part 3

by Shain Neumeier

The trial over the restraint and electric shock of Andre McCollins at the Judge Rotenberg Center continued for a full day on 13 April, and included the conclusion of the plaintiff’s case alleging medical malpractice and the beginning of the defendants’ case to refute this claim.  In attendance were the plaintiff, Andre’s mother Cheryl, and defendants Dr. James Riley and current JRC Director Robert Von Heyn, with the third individual defendant, JRC founder Dr. Matthew Israel, still absent.  Dina Traniello, member of the disability rights organization TASH and long-time opponent of the JRC and its practices, was also present in support of Mrs. McCollins and Andre.

The cross examination of the plaintiff’s expert Dr. Marc Whaley continued, with attorney David O’Connor for the defense delving into Andre’s experiences at the residential programs that he attended before being placed at JRC.  The point of this, evidently, was to cast doubt on Cheryl McCollins with regards to her credibility and her effectiveness as an advocate for Andre.  Among other things, through the defense’s line of questioning, it attempted to show that Mrs. McCollins complained frequently; that she and her son were not all that close (as evidenced by the fact that he called her “Cheryl” while he called his grandmother “Mommy”); that she was unhelpful in establishing continuity in Andre’s treatment by bringing him home too often and refusing to discipline him as needed; and – oddly – that she was homophobic, in that she demanded that Andre be placed in dorms only with straight boys of his own age after he was molested by an older student at the first residential program he attended.

Andre’s sexual abuse at this facility, which is one of the Devereaux residential programs, was an issue that quite possibly cut against the defense in the end because of the connections that could be and were drawn between it and the events of 25 October 2002.  As Dr. Whaley told plaintiff’s counsel Benjamin Novotny and the jury on redirect, the position that Andre was restrained in was “very reminiscent” of sexual assault, especially with members of staff straddling him and, at one point, removing his pants in order to put him in a diaper.  This, according to the witness, put Andre at risk for retraumatization.  Furthermore, through cross-examination, it came out that, following his sexual assault at Devereaux, Andre began to speak incoherently as a result of the trauma he experienced there… a behavior that resumed after what happened to him at JRC, and has continued ever since.  While the intent of defense counsel in addressing Andre’s sexual assault was likely to cast doubt on whether the harm to Andre was actually caused by his experience at JRC, the plaintiff used this information to show how JRC may have in fact compounded his trauma when they should have known better.

Another issue that came up in both Dr. Whaley’s and Mrs. McCollins’ testimony in an attempt to discredit the latter was an incident where she complained to JRC about a number of marks on his arm that, at the time she believed to be burns from the use of the Graduated Electronic Decelerator (GED), but later described as bruises.  The defense’s take on this was that Mrs. McCollins, a registered nurse, should have been able to tell the difference, and that this was just another mark against her credibility as a witness.  While Mrs. McCollins did not remember, at this point, what that injury to Andre in fact had been, Dr. Whaley pointed out that a burn can, in some instances, look like a bruise, and could be confused with one.

The discussion of whether Andre was psychotic on the day that he was restrained and repeatedly shocked, and what, if any, effect this should have had on JRC staff’s decision to use aversives on him continued in the cross-examination of Dr. Whaley.  The witness maintained that, although Andre was only properly diagnosed at the end of the day, he had been psychotic, and thus unable to learn or benefit from the electric shocks, throughout the entirety of the incident.  Mr. O’Connor pointed out that it was inconsistent that he would criticize JRC staff for failing to effectively communicate to Andre why he was being shocked as he also maintained that Andre was not able to understand what was being told to him, which Dr. Whaley refused to give answer to when posed to him as a yes or no question.

In support of the treatment currently used at the JRC, Mr. O’Connor brought up literature on the use of aversives, authored by Drs. Israel and Von Heyn themselves.  By contrast, he pointed out, Dr. Whaley had never written nor published anything on the subject of behavioral modification, much less aversives in particular.  Mr. O’Connor also asked the witness whether any studies had been done that proved that psychotic patients could not, in fact, benefit from the use of aversives.  Dr. Whaley said that there had not been any credible recent literature on the subject – it would be cruel, to the point that no reputable organization would fund such research – to even find out if this were possible.  Furthermore, he said, the literature from one hundred and fifty years ago would tell you that such treatment was ineffective.  When asked by Mr. O’Connor whether we had advanced since then, he simply smiled and said, “I hope so.”

Many of the arguments that JRC brings up regularly in a more general defense of its methods and practices came up in the course of Mr. O’Connor’s cross examination.  Once again, the attorney referenced the serious and sometimes permanent side effects of psychotropic medication such as Risperdal, which Andre had been taking prior to and after his placement at JRC, as the only alternative means of addressing Andre’s severe behavioral problems.  He also referenced documents that showed that Andre had been subject to restraints in other residential facilities prior to his placement at JRC in response to his severely aggressive behaviors, which no other program had been able to address.  Furthermore, in an argument that mirrored that made in a number of JRC writings, Mr. O’Connor got Dr. Whaley to agree to the statement that, sometimes, doctors have to do things that harm their patients, and compared the use of aversives to procedures such as surgery and dental work.  “Sometimes, you have to go through a lot of pain” to get results, he argued, to which Dr. Whaley agreed in principle, if not to the actual application as it applied to this case.

During testimony, Dr. Whaley revealed that, after being strongly criticized the day before by Mr. O’Connor for not having watched all the video footage nor read all the relevant documents on Andre’s treatment at the JRC, he had in fact reviewed the entire record.  After doing so, he said, he had not changed his opinion on what had happened to Andre, and in fact he was if anything more convinced that JRC’s actions amounted to a “gross neglect of duty.”  At the close of the cross-examination, Mr. O’Connor asked whether his failure to review all the available information prior to the trial could similarly be considered such a gross neglect of duty, to which Dr. Whaley firmly answered no.

After cross examination, Mr. Novotny returned to the actual events of 25 October 2002 on redirect examination of the witness.  Through testimony, Dr. Whaley expressed that, at the time of the first shock, Andre was not a threat to himself or anyone else, and was in fact too unresponsive, too out of his senses, for the shocks to be justified on the basis of being either emergency measures or methods of behavioral modification.  In fact, when asked to remove his coat, Andre did not even outright refuse – he simply remained unresponsive to the request.  It was only once he was shocked that he moved, falling off the chair and hiding under his desk, in what Dr. Whaley characterized as attempts at “avoidance and survival,” as he “perceived – must have perceived – [staff] as attacking him.”  From there, JRC staff and the individual defendants made a series of bad decisions, which included not diagnosing his psychosis before the damage had already been done, not recognizing that his behavior may have been a result of medication withdrawal, and not realizing the potential for and taking steps to avoid retraumatizing Andre based on his sexual abuse history.  In particular, he said, putting Andre on the restraint board was a “terrible idea,” in that it committed them to a specific course of action that prevented them from effectively diagnosing and treating Andre.

The redirect also allowed for a brief exploration of Andre’s behavioral plan in JRC in general, which included the other behaviors for which he could be shocked.  In addition to aggressive behaviors, the GED could be used in response to “major disruptive behaviors” such as yelling, screaming and swearing; “noncompliant behaviors” such as one referred to as “blatant ‘no’”; and behaviors defined as inappropriate such as handclapping, talking out of turn, nagging and talking to himself.  When asked whether some of these behaviors were common in Autistic people, Dr. Whaley answered yes – “in spades.”

Mr. Novotny also attempted to delve into the issue of how informed the consent to the use of aversives truly could have been based on the information provided to parents and guardians of prospective JRC clients, which included questions on the permanent side effects of aversives and prior deaths at JRC.  The defense objected to this, which resulted in a sidebar discussion between the parties and the judge and then an open argument outside the presence of the jury over whether this evidence should be allowed in.  The defense argued that this informed consent argument was new to them, and had not been properly raised in prior documents leading up to the trial.  Plaintiff’s counsel, on the other hand, pointed to mention of it in the pretrial memorandum.  With regards to the substantive issues, the plaintiff insisted that it was incumbent on JRC, as the only program to use aversives in the way it does and thus the only real gatekeeper, to provide all relevant information, including that on deaths and injuries resulting from its treatment.  The defense countered that the deaths that had happened at the program had not been the result of aversives, and thus the information was irrelevant.  The judge tentatively, and then later permanently, prevented plaintiff’s counsel from exploring the issue any further.

In the very short recross examination, Dr. Riley’s defense attorney sought once more to establish that the use of aversives may have been appropriate on Andre, even if he had been psychotic at the time.  In particular, he pointed to a part of Dr. Whaley’s own deposition, which would seem to suggest that he found the use of shock and restraint to be appropriate, at least initially.  Dr. Whaley disagreed with this characterization of his response, saying instead that JRC’s staff of Andre had quickly gone from appropriate to being torture.

Following Dr. Whaley’s testimony, Mrs. Collins returned to the stand to offer further testimony from that she had provided on Tuesday.  Specifically, the jury heard about the days, months and years that followed Andre’s being restrained and shocked at the JRC.  When Mrs. Collins had showed up at JRC and watched the video, she asked Dr. Von Heyn why this had happened, to which he responded, as the defense has maintained throughout the trial, that Andre tensed up, which was a targeted behavior.  She told the jury that, in dealing with the aftermath of the incident, she felt as if the staff at JRC cared far more about paperwork than they did about Andre.

Mrs. McCollins went on to tell of how Andre was very scared, and frequently cried, while in the hospital following his being removed from JRC.  No one could use their cell phones around him, nor use the remote control for the television, because of their resemblance to the GED.  He would reportedly begin to cry and repeatedly say “no” if he so much as saw a phone.  He was unable to be left alone, as he wouldn’t eat, go to the bathroom or otherwise be able to take care of himself, and Cheryl and her sister stayed with him around the clock while he was at the hospital.  Even once he returned home, he required prompting to do anything, and largely stayed in bed, and would call out his mother’s name all night long for nights on end if she wasn’t present.  Since what happened to him at JRC, he has lost the ability to speak coherently, and has almost entirely lost interest in the many activities he used to enjoy, which included rollerblading, basketball and board games.

As far as his medical condition is concerned, following the incident he required treatment for an ulcer over a number of months, and saw a number of medical doctors and psychiatrists.  Whereas prior to attending JRC, he was on a single medication, the antipsychotic Risperdal, he has since been put on numerous others, including several additional antipsychotic and other psychiatric medications.  He has been in another residential program in Brooklyn since 2006, and at this point, according to Mrs. McCollins, has no prospect of living independently in the community.

On cross-examination, the lawyers for the defense focused more on what had happened before Andre’s placement at and removal from the JRC.  In part, this was used to show that Andre had in fact exhibited aggressive behaviors, which had included striking or attempting to strike Mrs. McCollins in the face at one point and assaulting members of staff.  According to testimony, Andre had also experienced hallucinations that ordered him to harm his mother, and had engaged in serious self-injurious behavior.

The defense specifically asked Mrs. McCollins about Andre’s last visit home from JRC before the incident, especially with regards to the behaviors he exhibited at the time and her response to them.  She admitted that his behaviors were bizarre – more bizarre, in fact, than they had ever been before in her estimation – but he had not been aggressive, and because of that, she had seen no reason to use the GED on him while he was home.  She refuted the defense’s assumption that she had made use of the JRC’s car service in order to transport him home from the JRC for her own protection, and maintained her position that using the GED at home was unnecessary when asked about an incident where the friend of the family had advised that she do so for both her and Andre’s protection.  She went further still, saying that she had noticed no improvement in his behavior after the GED treatment had began, even though JRC staff told her that it was making a difference.  In concluding the discussion of the home visit, she testified that she had not told Andre where he was going when she returned him to the JRC, and that the one shock he received on the home visit was on the trip back – for a behavior that JRC staff recorded as “inappropriate touching of self,” which Mrs. McCollins remembers as him having touched his own leg.

The defense also presented Mrs. McCollins with a number of documents and records of conversations from Andre’s placements both at earlier residential programs and at JRC.  This included documents based off of the complaints she made to Devereaux, documents that included information on how often Andre had been restrained at previous programs, and the various consent forms that she signed for the use of aversives at JRC.  In many cases, Mrs. McCollins could not recall the exact details of the documents, nor the surrounding circumstances.  She did, however, confirm going over the materials for consent to the use of the GED and other aversives with a member of JRC staff, and knowing that she could contact them with any further questions or concerns she had.  In spite of that, she maintained she felt misled, in particular by the promotional materials provided to her by JRC that had made her initially impressed by its program.

On the brief redirect by Mr. Novotny, Mrs. McCollins stated that her understanding of the consent she was giving for the use of the GED is that she could withdraw her consent anytime she wanted, but that this was not respected when it came to her request that the two electrodes placed on his arms be removed.  In fact, on 25 October 2002, Andre was shocked in five places, including on his arms.  Furthermore, when giving her consent, she had not been made aware of the permanent side effects of skin shock, including the kinds that Andre suffered, nor of any of the prior deaths or injuries of students at JRC.  When asked what the goal of Andre’s treatment at JRC was supposed to have been, she answered that it had been to make him more independent by giving him the skills he needed – a goal, she said, was not achieved.

Following the end of Mrs. McCollins’ testimony, Mr. Novotny offered the video footage of Andre at the JRC, Andre’s hospital records from after his time at JRC, and a report on the average lifespan of someone of Andre’s demographic into evidence, and rested the plaintiff’s case.  The jury was read a number of stipulations, namely concerning the fact that Drs. Von Heyn and Israel were both employees of the JRC and acting within the scope of their employment at the facility at the time of the incident at issue.  The defendants made no motion for a directed verdict, which would have asked the judge to declare them the winners by default after the plaintiff had made her case based on the fact that no reasonable jury could have found in her favor, before moving on to the first witness, Dr. Riley.

From talking to reporters from NBC and Fox, it would seem that there is a possibility that news of the trial could be broadcast nationally in the near future.  The reporter from Fox stated that news of the trial were already “all over Twitter,” suggesting that disability rights advocates and other interested individuals and organizations had been successful in spreading the word.

According to Mr. Novotny, the trial will likely reach the end of next week, given the amount of time Dr. Whaley’s testimony had taken.  When asked about the possibility of appeals by either party after the conclusion of the lawsuit, he said that it was unlikely.  Specifically, parties can only appeal the outcome of a lawsuit on matters of law, rather than a jury’s interpretations of the facts, and the law on medical malpractice cases in Massachusetts is rather settled.

Dr. Riley’s testimony, beginning on Friday afternoon and continuing into Tuesday, 17 April after a state holiday on Monday, will be covered in a subsequent post.

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