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The Judge Rotenberg Center on Trial, Part Two

by Shain Neumeier

The medical malpractice case against the Judge Rotenberg Center (JRC) continued on Thursday with the continued cross-examination of the McCollins family’s expert witness, psychiatrist Dr. Marc Whaley.  Edward Hinchey, the attorney representing JRC employee Dr. James Riley, was questioning the witness for most of the day, but another attorney who represented Dr. Matthew Israel, Dr. Robert Von Heyn and the JRC itself, also cross-examined him later in the day.  Though Andre McCollins himself could not be in attendance, his mother, Cheryl McCollins, was.  Two of the defendants, Riley and Von Heyn, were also present, though Israel, the JRC’s founder, was noticeably absent.

As part of cross-examination, the defense did its own walkthrough of the videotape showing Andre being restrained and repeatedly shocked over the course of 25 October 2002, attempting to show that JRC staff and directors had not been negligent in their decisions and actions.  In particular, Mr. Hinchey showed parts of the video in which Dr. Riley entered the room, consulted with staff and checked in with Andre.  This was done in part to undermine Dr. Whaley’s assertion that no one had tried to communicate with Andre over the course of the day and in part to show that Dr. Riley had done what was needed in assessing him in order to approve the use of further shocks and mechanical restraint.  He also, through his line of questioning, tried to argue that, since an Autistic person would likely be stressed out by being touched by several people at once in the course of a physical restraint, the use of mechanical restraints (and skin shock) was both necessary to protect staff against aggression, and better for Andre, who would ostensibly be able to calm down while on the restraint board.  Dr. Whaley agreed that the restraint could be justified, at least as an emergency procedure, and even agreed that, if Andre’s tensing up had been an antecedent to aggression, skin shock may have been justified.  However, the witness still insisted that, based on what he had seen in the video and through other parts of the record, Dr. Riley had made “terrible decisions” in handling the situation.

The defense’s walkthrough of the video also allowed the jury and other observers to see more of the video in sequence, which, in some ways, did not help the defense’s case.  In particular, while the staff was in the process of strapping Andre onto the four-point restraint board, there is a point at which one of them can be heard saying “give me the sheet” – apparently, according to the defense attorney, asking for equipment used as part of administering a shock.  Immediately after hearing this, Andre starts repeatedly apologizing, saying, “I’m sorry, I won’t do that again” – “that” referring to tensing up his entire body.  A buzz sounds, signaling that the staff has activated the GED, and Andre begins to scream.  The defense, in showing this, argued that “this is how a behavior modification program works,” and that refraining from shocking him because he apologized would undermine the effectiveness of the program.  It even went so far as to say that the fact that Andre was able to make the connection between the staff’s statement and the coming GED application means that he was, in fact, able to connect actions and consequences enough that day to learn from the shocks, contrary to Dr. Whaley’s testimony.

Both Mr. Hinchey and the attorney David O’Connor, representing Dr. Israel, Dr. Van Heyn and the JRC as a whole, pointed out things through the videotape and other parts of the record to show that, contrary to what Dr. Whaley had said on direct examination, staff had attempted to communicate with Andre and give him what he needed.  For instance, Dr. Hinchey pointed out that, after every shock was administered, a female voice could (with some effort, due to sound quality) be heard telling Andre “no full-body tense-ups” – going against what Dr. Whaley had said earlier, that no one had attempted to tell Andre what targeted behaviors he was being punished for.  In addition, in order to call into question the credibility of testimony that JRC staff had offered Andre no bathroom breaks and no food or water, attorney O’Connor questioned Dr. Whaley about parts of the video tape that he had not reviewed.  These parts of the footage included instances where staff asked Andre verbally if he wanted to use the bathroom or have water, to which Andre was nonresponsive, as well as instances where staff began to remove him from the restraint board for the purposes of using the bathroom only to stop when Andre started to become (more) agitated.  However, during that time, Andre was never actually allowed to use a bathroom, and was put into a diaper while still in restraints.  Furthermore, he was only successfully given any kind of food or drink, in the form of juice, at the end of the day, after being in restraints for hours – “After the damage was done,” as Dr. Whaley put it.

The cross-examination by Mr. O’Connor and Dr. Whaley got particularly contentious around the issue of what parts of the record, especially the video tape, the latter had not reviewed in preparing for the trial, and how this new information was to be interpreted.  It came out in testimony that, out of the more than six hours of video footage recorded of the incident, Dr. Whaley had watched three, in part selected by Mr. Novotny, the plaintiff’s attorney, and in part based on what he himself had wanted to see.  Dr. Whaley was insistent on the facts that this had not given him a less-than-complete understanding of the situation, and that JRC staff and doctors had still been negligent in their handling of it and of Andre.  The judge reprimanded Dr. Whaley numerous times for elaborating on what Mr. O’Connor had intended to be yes or no questions, and, eventually, reprimanded the attorney as well when it became apparent that he was becoming frustrated with Dr. Whaley’s refusal to back down.

Mr. O’Connor also touched on one of JRC’s most famous defenses of its use of aversives – the fact that the alternative would be psychotropic medication, which, according to the program, is far more harmful than the use of aversives.  In particular, he focused on the side effects of the antipsychotic Risperdal, the only medication that Andre had been on prior to attending JRC… side effects that can include permanent neurological problems related to movement in the form of a condition called tardive dyskinesia.  He also used the fact that psychotropic drug manufacturing companies put out promotional materials in an attempt to show that JRC’s promotional video, which the plaintiff had argued had misled her in her decision to place Andre at the facility, was, if not acceptable, than at least not out of the ordinary.  Finally, O’Connor used the discussion of psychotropic medication to call into question Dr. Whaley’s qualifications to speak about the use of aversives.  Medications, argued the attorney through his questioning, were what a psychiatrist such as Dr. Whaley used in his practice, and Dr. Whaley was not trained or experienced in the use of aversives such as those at the JRC.  Dr. Whaley rebutted this, stating that prescribing medication was only part of what he did as a psychiatrist (which included using behavioral methods in counseling and prescribing a medication that served as an aversive to people with alcoholism), while still insisting that taking Andre off Risperdal while he was at JRC had been a “terrible idea.”

The day ended with a shift in the discussion, away from the actual incident at JRC and Dr. Whaley’s expert opinion on it and onto Andre’s history, including the time period leading up to what happened.  Specifically, one of the defense’s last questions of the day elicited the fact that, on Andre’s last home visit from the JRC before his removal from the program, Andre’s mother had refused to use the GED on him in response to target behaviors that he could be shocked for under his behavioral program.  Attorney’s follow-up question, as to whether it was true that “giving in to the temptation not to use aversives has serious consequences,” implied that the defendants were trying to shift the blame for what happened to Andre not only onto him for his allegedly aggressive behaviors, but onto his mother for refusing to actively participate in the program’s use of aversives on her son.  This line of questioning would continue in the next day’s testimony, which will be covered in the next post.

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