Preview
FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018
FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018
VOLUME II SHELLEY A. McMINDES-WOJDAN
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
____________---______________-----------------___-
TIMOTHY WOJDAN,
Plaintiff,
-vs-
ERIE COUNTY MEDICAL CENTER CORPORATION, I
WILLIAM DICE, I M.D.,
ANDREW J. ECKERT, / M.D., ~
TATIANA V. BOYKO, g M.D.,
CHARLES WILES, ~ M.D.,
. .
Defendants.
-------__________________________-----------------
(i
(.i Examination Before Trial of
SHELLEY A. McMINDES-WOJDAN, taken pursuant to Notice under
Article 31 of the Civil Practice Law and Rules, in the law
offices of HOGAN WILLIG, 2410 North Forest Road, Suite 301,
Amherst, New York, taken on August 10, 2017, commencing at
WHITE,'
11:08 A.M., before VALERIE WHITE, Notary Public .
Sue Ann Simonin Court Reporting
421 Franklin Street -courasomas (716) 882-8059
Buffalo, New York 14202 Fax (716) 8828099
k. T
sascr.com
4 5 5 OC I ATI0 N
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33
..
1 INDEX TO WITNESSES
2
3
4 Witness: SHELLEY A. McMINDES-WOJDAN Page
5 Examination By:
6 Ms. Miceli 37
7 Ms. Altshiler 109
8 Ms. Miceli 123
9 Ms. Altshiler 149
10 Ms. Miceli 152
11 Ms. Altshiler 183
( I 12
13
14
15
16
17
18
19
20
21
22
23
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1 INDEX TO EXHIBITS
2
3
4 Exhibits For Identification
entitled Tim'
5 1 Document s 37
Accident Journal May 6th,
6 2014
7 2 two pages of Handwritten 45
Notes dated May 6, 2014
8
3 629 Pages of Documents 109
9 Produced by Plaintiff's
Counsel
10
11
(, . 12
13
14
15
16
17
18
19
20
21
22
23
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1 INDEX TO DOCUMENT REQUESTS
'. 2
3
4 Page, Line Description
5 41, 14 Notes after April 15, 2017.
6 44, 11 Copy of Power of Attorney.
7 122, 20 Copy of notes from year 2017.
8 192, 3 Copy of retainer.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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36
t
1 APPEARANCES:
2 HOGAN WILLIG,
By STEVEN M. COHEN, ESQ.,
3 2410 North Forest Road,
Suite 301, .r
4 Amherst, New York 14068,
Appearing for the Plaintiff.
5
ROACH, BROWN, McCARTHY & GRUBER, P.C.,
6 By KAIT R. MICELI, ESQ.,
1920 Liberty Building,
7 424 Main Street,
Buffalo, New York 14202,
8 Appearing for Defendants
Erie County Medical Center Corporation,
9 Andrew J. Eckert, M.D. and Tatiana V. ~ Boyko, M.D.
P'
10 SMITH, ~ SOVIK, ~ KENDRICK & SUGÑET, g ~
P.C., ~
By COLLEEN K. MATTREY, ESQ.,. s-
11 500 Rand Building,
. 14 Lafayette Square,
(, : 12 Buffalo, New York 14203,
Appearing for Defendant
13 William Dice, M.D.
14 RUSSO & TONER, LLP,
By FLORINA ALTSHILER, ESQ.,
15 12 Fountain Plaza,
Suite 600,
16 Buffalo, New York 14202,
Appearing for Defendant
17 Charles Wiles, M.D.
18
19 (The following stipulations were entered
20 into by all parties.)
21 It is hereby stipulated by and between counsel
22 for the respective parties that the oath of the
23 Referee is waived, that filing and certification
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37
1 of the transcript are waived, and that all
2 objections, except as to the form of the
3 questions, are reserved until the time of trial.
4
Read'
5 MR. COHEN: and sign, forty-five days.
6
7 (Whereupon, a Document entitled Tim's
8 Accident Journal May 6th, 2014 was then received
9 and marked as Exhibit 1, for identification.)
10
11 S H E L L E Y A.
I
M c M I N D E S - W 0 J D A
12 N,
13 31 Long Avenue, Cheektowag.a, New York 14225,
14 after being duly called and sworn,
15 testified as follows:
16
17 EXAMINATION BY MS. MICELI:
18
19 Q. Mrs. Wojdan, we met back in March when we
20 previously attempted to take your testimony, but
21 again, for the record my name is Kait Miceli and
22 I represent Erie County Medical Center
23 Corporation, Dr. Eckert and Dr. Boyko in this
Sue Ann Simonin Court Reporting
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1 action that was commenced by Timothy Wojdan.
2 Like last time, I'll be asking you questions
3 today regarding general background, about your
4 husband's accident as well as subsequent medical
5 care and treatment. Same grounds rules as last
6 time apply. Just as a refresher, I know you will
7 know where I'm going with my question before I
8 complete it, but for the sake of our
9 stenographer, please let me get out my entire
10 question before you answer and I'll do the same
11 for you. Okay?
(,) 12 A. Yes.
13 Q. If at any time you do not understand what I'm
14 asking you, please tell me and I will either
15 clarify it or rephrase it. Okay?
16 A. Yes.
17 Q. If you do so, I'll assume you understood my
18 question. Is that fair?
19 A. Yes.
Q. you' great but the
20 Again, re doing a job, court
21 reporter can't record ah-huh or uh-uh or shaking
22 of the head, so all your responses need to be
23 verbal.
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1 A. Yes.
:
2 Q. Lastly, if you need
-need a break at any time, let me
3 know. As long as there's not a question pending,
4 we can do that. Okay?
5 A. Yes.
6 Q. Since the last time we were here back in March of
7 2017, did you review any documents regarding your
8 husband's medical care and treatment?
9 A. Yes.
10 Q. What did you review?
11 A. My notes.
( 12 Q. We have a bunch of notes in front us. ~ When you
13 say you reviewed your notes, what specifically
14 are you referring to or are you referring to all
15 of that?
16 A. Yes. .
17 Q. All of that?
18 A. Yes.
19 Q. For the record, we are getting a pile of notes
we'
20 made by Mrs. Wojdan, B.ates stamped, so we'll
21 clarify that later on once that's completed.
22 Other than what you have. in front of you and
23 what's being Bates stamped, did you review
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1 anything else in preparation:for your testimony?
2 A. For today?
3 Q. Correct. . . .
4 A. I read over the last thing when we were here the
last time.
6 Q. What's called a deposition transcript?
7 A. Yes.
8 Q. You reviewed your testimony?
9 A. Yes.
10 Q. Did you review your husband's testimony?
11 A. Yes.
12 Q. Is there anything else you reviewed?
13 A. No.
14 Q. Other than what you have in front of you, and I'm
15 going to ask you again later to clarify when we
16 have the Bates stamped copy, is this a true and
17 complete copy of all the notes, diaries and
18 calendars you maintained regarding your husband's
19 medical care and treatment?
20 A. Yes. .
21 Q. You have no other notes at home?
22 A. No.
23 Q. When did you last take a note or a journal
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41
!
1 regarding your husband's medical care and
2 treatment?
3 A. I document stuff and then I was away so I really
4 didn't document anything from June or July
5 because I was -- grandson had heart
my surgery
6 and when I got back on the 28th, then I restarted
7 documenting again on paper.
8 . Q. So the last note I have in this journal is April
9 15, 2017. Did you document notes after that
10 date?
11 A. In May, yes. Just some dates, not major.
I
12 Q. Is it in that yellow notebook?
13 A. No, I just got that back.
14 Q. I ask that you preserve those, do not alter those
15 in any way and provide them to Mr. Cohen. Okay?
16 I'll follow up with that request in writing.
17 Just as a reminder, that is a continuing
18 demand, so if Shelley is going to continue to
19 make notes of that kind, we would like those, a
20 standing demand for that.,
21 MR. COHEN: I'll ask Miss White if you put a
22 discovery section in the deposition. Appreciate
23 that.
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1 BY MS. MICELI:
2 Q. Shelley, when did you become Power of Attorney
3 for your husband?
4 A. I believe 2012.
particular --
5 Q. Was there a
6 MR. COHEN: Do you have something you want to say?
7 THE WITNESS: I was kind of calculating the years
8 before the accident, so it was before the
9 accident so I want to say 2012.
10 BY MS. MICELI:
11 Q. And the accident was in May of 2013, correct?
please'
12 A. Again, please?
13 Q. When was the accident?
14 A. May 6, 2014.
15 Q. Was there a particular reason you became Power of
16 Attorney in 2012?
17 A. Yes. . .
18 Q. What was that?
19 A. Because he didn't have anybody to do anything for
20 him, so I was with him and he asked if I wanted
21 to do it.
22 Q. When you say he didn't have anyone to do anything
23 for him, what do you mean by that?
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1 A. Family members.
2 Q. What did he need done that he could not do
3 himself?
4 MR. COHEN: Object to the form.
5 THE WITNESS: I don?t understand.
6 BY MS. MICELI:
7 Q. Was there a particular reason he thought he
8 needed someone to be Power of Attorney over him?
9 MR. COHEN: Object to the form. You can answer if
10 . you know the answer.
11 THE WITNESS: I just said, he didn't have family and
12 he wanted something documented for him.
13 BY MS. MICELI:
14 Q. Was he experiencing medical problems in 2012?
15 A. No. We both did ours together.
16 Q. He has Power of Attorney over you?
here'
17 A. No. We did it together here for POA. Mine --
18 it's not a POA.
19 Q. A healthcare proxy?
20 MR. COHEN: Living Will?
21 THE WITNESS: Yes, Living Will. He did a Living Will
22 too. We did it altogether the same day. We just
23 decided to go one day and do it.
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I
44
I
1 BY MS. MICELI:
2 Q. That was in 2012?
3 A. I·think that was .it.
it. If I'm wrong, it could be
4 2013. I can get back to you on that.
5 Q. Was it sometime before his motor .vehicle
6 accident?
7 A. Oh, yes.
8 Q. Is your Power of Attorney over your husband
9 limited in any way?
10 A. I don't understand.
11 MS. MICELI: I'll just make a copy or I'll just ask
( ' 12 that we are provided a of the Power of
copy
13 Attorney.
14 MR. COHEN: I'll take it under advisement.
15 BY MS. MICELI:
16 Q. Shelley, I'm going to show you what's been marked
17 as Exhibit 1 with today's date, August 10, 2017.
18 You have a copy, the original copy in front of
19 you. . Okay?
. .
20 A. Yes. .
21 Q. I'm going to look at my copy and you can look at
we'
22 yours and re going to go through this. When
23 was the first entry in that notebook created?
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1 A. This book personally?
2 Q. Correct.
3 A. Probably the second week of May, but notes were
4 done on the 6th of May, then I decided to do a
. .
5 journal.
6 Q. Can you explain what you mean by that?
7 A. I documented notes on the day of the accident,
8 and then from there I kept notes every time I go
9 to the hospital, I had notes. I documented
10 stuff, and then I said, you know, too much bits
11 of paper so I got a composition book and
( 12 transferred over, and that's the best thing for
13 me to do, do a journal. So if I wrote notes, I
14 transferred stuff, and as I went, I did it on a
15 daily basis or every other day or whatever was
I
16 severe.
17 MS. MICELI: Can you mark this. .
18
19 (Whereupon, two pages of Handwritten Notes
20 dated May 6, 2014 was then received and marked as
21 Exhibit 2, for identification.)
22
23 BY MS. MICELI:
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1 Q. Shelley, I'm going to show you what's been marked
2 as Exhibit 2 with today's date of 8/10/17. It is
3 a two-page document. I'm going to show this to
4 you.
5 A. I'm ready.
6 Q. You indicated that you would take notes on scrap
7 paper, for lack of a better term, and then. you
8 transferred it to a notebook. Is this one of the
9 scrap papers that you used?
10 A. I don't remember.
11 Q. Why are there two pages of notes with respect to
(" 12 May 6th, if you know?
13 A. Can you restate that again?
14 Q. Sure. Do you know why there's two entries with
15 respect to May 6th?
16 A. I'll have to read it to answer it. Is that okay?
17 Q. Sure.
18 A. Okay.
19 MR. COHEN: You can answer.
20 THE WITNESS: Can you repeat the question, please?
21 BY MS. MICELI:
22 Q. Sure. Why are there two entries for May 6, 2014?
23 A. This is what I did when I went home that morning,
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47
l
1 then I jotted this down on my copy, printing
2 paper so I have a memory of this.
3 Q. And then you transferred what the information
4 contained?
5 A. Well, I didn't go any further than this page.
6 This is information on the day of the accident.
7 What occurred through that time frame all the
time was there o'
8 I until four or five clock in
9 the morning. When I went home, I wrote this
10 down. Whether I transferred it here or not, I
11 don't know because I really have to look at it.
I'
12 Q. I want you to look at it.
13 A. This too?
\
14 Q. Correct.
15 A. Okay, then hold on. Okay. This, I'm not sure if
16 this is in there or not. This is me doing this
17 for remembering so I wouldn't forget.
18 This --
19 MS. ALTSHILER: Just for the record, she's referring
20 to Exhibit 2.~
21 BY MS. MICELI:
22 Q. Exhibit 2.
23 A. This is my memory writing stuff down on that day.
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I
1 Q. Meaning Exhibit 1, the entry.on May 6, 2014?
'
2 A. It's mine.
3 Q. It's an exhibit?
4 A. Okay. This is the journal, two different things.
5 This is what my memory had given me so I didn't
6 forget what happened through that twenty-four
7 hour period, actually longer. This is what I
8 wrote down on my own as I was writing in my book.
9 This was a remembering of my mind, what was
10 happening.
11 Q. So is it fair to say that Exhibit 2 was written
12 down within -- the day,on
during May 6, 2014,
13 correct?
14 A. It would be the 7th.
I
15 Q. The information contained in Exhibit 2 was
16 written down on May 7, 2014, correct?
17 A. Yes. ~
18 Q. And earlier you indicated that you started the
19 composition notebook, which .is
is Exhibit 1, about
20 two weeks after the accident?
21 A. I think I said a week.
22 Q. Okay. A week after the accident, correct?
23 A. Yes. ~
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1
1 Q. So the first entry in Exhibit 1 was written about
2 a week after the accident?
over thi
Preview
FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 VOLUME II SHELLEY A. McMINDES-WOJDAN STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE ____________---______________-----------------___- TIMOTHY WOJDAN, Plaintiff, -vs- ERIE COUNTY MEDICAL CENTER CORPORATION, I WILLIAM DICE, I M.D., ANDREW J. ECKERT, / M.D., ~ TATIANA V. BOYKO, g M.D., CHARLES WILES, ~ M.D., . . Defendants. -------__________________________----------------- (i (.i Examination Before Trial of SHELLEY A. McMINDES-WOJDAN, taken pursuant to Notice under Article 31 of the Civil Practice Law and Rules, in the law offices of HOGAN WILLIG, 2410 North Forest Road, Suite 301, Amherst, New York, taken on August 10, 2017, commencing at WHITE,' 11:08 A.M., before VALERIE WHITE, Notary Public . Sue Ann Simonin Court Reporting 421 Franklin Street -courasomas (716) 882-8059 Buffalo, New York 14202 Fax (716) 8828099 k. T sascr.com 4 5 5 OC I ATI0 N FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 33 .. 1 INDEX TO WITNESSES 2 3 4 Witness: SHELLEY A. McMINDES-WOJDAN Page 5 Examination By: 6 Ms. Miceli 37 7 Ms. Altshiler 109 8 Ms. Miceli 123 9 Ms. Altshiler 149 10 Ms. Miceli 152 11 Ms. Altshiler 183 ( I 12 13 14 15 16 17 18 19 20 21 22 23 Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 34 1 INDEX TO EXHIBITS 2 3 4 Exhibits For Identification entitled Tim' 5 1 Document s 37 Accident Journal May 6th, 6 2014 7 2 two pages of Handwritten 45 Notes dated May 6, 2014 8 3 629 Pages of Documents 109 9 Produced by Plaintiff's Counsel 10 11 (, . 12 13 14 15 16 17 18 19 20 21 22 23 Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 35 1 INDEX TO DOCUMENT REQUESTS '. 2 3 4 Page, Line Description 5 41, 14 Notes after April 15, 2017. 6 44, 11 Copy of Power of Attorney. 7 122, 20 Copy of notes from year 2017. 8 192, 3 Copy of retainer. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Sue Ann Sirnonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 36 t 1 APPEARANCES: 2 HOGAN WILLIG, By STEVEN M. COHEN, ESQ., 3 2410 North Forest Road, Suite 301, .r 4 Amherst, New York 14068, Appearing for the Plaintiff. 5 ROACH, BROWN, McCARTHY & GRUBER, P.C., 6 By KAIT R. MICELI, ESQ., 1920 Liberty Building, 7 424 Main Street, Buffalo, New York 14202, 8 Appearing for Defendants Erie County Medical Center Corporation, 9 Andrew J. Eckert, M.D. and Tatiana V. ~ Boyko, M.D. P' 10 SMITH, ~ SOVIK, ~ KENDRICK & SUGÑET, g ~ P.C., ~ By COLLEEN K. MATTREY, ESQ.,. s- 11 500 Rand Building, . 14 Lafayette Square, (, : 12 Buffalo, New York 14203, Appearing for Defendant 13 William Dice, M.D. 14 RUSSO & TONER, LLP, By FLORINA ALTSHILER, ESQ., 15 12 Fountain Plaza, Suite 600, 16 Buffalo, New York 14202, Appearing for Defendant 17 Charles Wiles, M.D. 18 19 (The following stipulations were entered 20 into by all parties.) 21 It is hereby stipulated by and between counsel 22 for the respective parties that the oath of the 23 Referee is waived, that filing and certification Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 37 1 of the transcript are waived, and that all 2 objections, except as to the form of the 3 questions, are reserved until the time of trial. 4 Read' 5 MR. COHEN: and sign, forty-five days. 6 7 (Whereupon, a Document entitled Tim's 8 Accident Journal May 6th, 2014 was then received 9 and marked as Exhibit 1, for identification.) 10 11 S H E L L E Y A. I M c M I N D E S - W 0 J D A 12 N, 13 31 Long Avenue, Cheektowag.a, New York 14225, 14 after being duly called and sworn, 15 testified as follows: 16 17 EXAMINATION BY MS. MICELI: 18 19 Q. Mrs. Wojdan, we met back in March when we 20 previously attempted to take your testimony, but 21 again, for the record my name is Kait Miceli and 22 I represent Erie County Medical Center 23 Corporation, Dr. Eckert and Dr. Boyko in this Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 38 1 action that was commenced by Timothy Wojdan. 2 Like last time, I'll be asking you questions 3 today regarding general background, about your 4 husband's accident as well as subsequent medical 5 care and treatment. Same grounds rules as last 6 time apply. Just as a refresher, I know you will 7 know where I'm going with my question before I 8 complete it, but for the sake of our 9 stenographer, please let me get out my entire 10 question before you answer and I'll do the same 11 for you. Okay? (,) 12 A. Yes. 13 Q. If at any time you do not understand what I'm 14 asking you, please tell me and I will either 15 clarify it or rephrase it. Okay? 16 A. Yes. 17 Q. If you do so, I'll assume you understood my 18 question. Is that fair? 19 A. Yes. Q. you' great but the 20 Again, re doing a job, court 21 reporter can't record ah-huh or uh-uh or shaking 22 of the head, so all your responses need to be 23 verbal. Sue Ann Sirnonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 39 1 A. Yes. : 2 Q. Lastly, if you need -need a break at any time, let me 3 know. As long as there's not a question pending, 4 we can do that. Okay? 5 A. Yes. 6 Q. Since the last time we were here back in March of 7 2017, did you review any documents regarding your 8 husband's medical care and treatment? 9 A. Yes. 10 Q. What did you review? 11 A. My notes. ( 12 Q. We have a bunch of notes in front us. ~ When you 13 say you reviewed your notes, what specifically 14 are you referring to or are you referring to all 15 of that? 16 A. Yes. . 17 Q. All of that? 18 A. Yes. 19 Q. For the record, we are getting a pile of notes we' 20 made by Mrs. Wojdan, B.ates stamped, so we'll 21 clarify that later on once that's completed. 22 Other than what you have. in front of you and 23 what's being Bates stamped, did you review Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 40 1 anything else in preparation:for your testimony? 2 A. For today? 3 Q. Correct. . . . 4 A. I read over the last thing when we were here the last time. 6 Q. What's called a deposition transcript? 7 A. Yes. 8 Q. You reviewed your testimony? 9 A. Yes. 10 Q. Did you review your husband's testimony? 11 A. Yes. 12 Q. Is there anything else you reviewed? 13 A. No. 14 Q. Other than what you have in front of you, and I'm 15 going to ask you again later to clarify when we 16 have the Bates stamped copy, is this a true and 17 complete copy of all the notes, diaries and 18 calendars you maintained regarding your husband's 19 medical care and treatment? 20 A. Yes. . 21 Q. You have no other notes at home? 22 A. No. 23 Q. When did you last take a note or a journal Sue Ann Sirnonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 41 ! 1 regarding your husband's medical care and 2 treatment? 3 A. I document stuff and then I was away so I really 4 didn't document anything from June or July 5 because I was -- grandson had heart my surgery 6 and when I got back on the 28th, then I restarted 7 documenting again on paper. 8 . Q. So the last note I have in this journal is April 9 15, 2017. Did you document notes after that 10 date? 11 A. In May, yes. Just some dates, not major. I 12 Q. Is it in that yellow notebook? 13 A. No, I just got that back. 14 Q. I ask that you preserve those, do not alter those 15 in any way and provide them to Mr. Cohen. Okay? 16 I'll follow up with that request in writing. 17 Just as a reminder, that is a continuing 18 demand, so if Shelley is going to continue to 19 make notes of that kind, we would like those, a 20 standing demand for that., 21 MR. COHEN: I'll ask Miss White if you put a 22 discovery section in the deposition. Appreciate 23 that. Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 42 1 BY MS. MICELI: 2 Q. Shelley, when did you become Power of Attorney 3 for your husband? 4 A. I believe 2012. particular -- 5 Q. Was there a 6 MR. COHEN: Do you have something you want to say? 7 THE WITNESS: I was kind of calculating the years 8 before the accident, so it was before the 9 accident so I want to say 2012. 10 BY MS. MICELI: 11 Q. And the accident was in May of 2013, correct? please' 12 A. Again, please? 13 Q. When was the accident? 14 A. May 6, 2014. 15 Q. Was there a particular reason you became Power of 16 Attorney in 2012? 17 A. Yes. . . 18 Q. What was that? 19 A. Because he didn't have anybody to do anything for 20 him, so I was with him and he asked if I wanted 21 to do it. 22 Q. When you say he didn't have anyone to do anything 23 for him, what do you mean by that? Sue Ann Simonin CoUrt Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 43 1 A. Family members. 2 Q. What did he need done that he could not do 3 himself? 4 MR. COHEN: Object to the form. 5 THE WITNESS: I don?t understand. 6 BY MS. MICELI: 7 Q. Was there a particular reason he thought he 8 needed someone to be Power of Attorney over him? 9 MR. COHEN: Object to the form. You can answer if 10 . you know the answer. 11 THE WITNESS: I just said, he didn't have family and 12 he wanted something documented for him. 13 BY MS. MICELI: 14 Q. Was he experiencing medical problems in 2012? 15 A. No. We both did ours together. 16 Q. He has Power of Attorney over you? here' 17 A. No. We did it together here for POA. Mine -- 18 it's not a POA. 19 Q. A healthcare proxy? 20 MR. COHEN: Living Will? 21 THE WITNESS: Yes, Living Will. He did a Living Will 22 too. We did it altogether the same day. We just 23 decided to go one day and do it. Sue Ann Simonin Court'Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 I 44 I 1 BY MS. MICELI: 2 Q. That was in 2012? 3 A. I·think that was .it. it. If I'm wrong, it could be 4 2013. I can get back to you on that. 5 Q. Was it sometime before his motor .vehicle 6 accident? 7 A. Oh, yes. 8 Q. Is your Power of Attorney over your husband 9 limited in any way? 10 A. I don't understand. 11 MS. MICELI: I'll just make a copy or I'll just ask ( ' 12 that we are provided a of the Power of copy 13 Attorney. 14 MR. COHEN: I'll take it under advisement. 15 BY MS. MICELI: 16 Q. Shelley, I'm going to show you what's been marked 17 as Exhibit 1 with today's date, August 10, 2017. 18 You have a copy, the original copy in front of 19 you. . Okay? . . 20 A. Yes. . 21 Q. I'm going to look at my copy and you can look at we' 22 yours and re going to go through this. When 23 was the first entry in that notebook created? Sue Ann Sirnonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 45 1 A. This book personally? 2 Q. Correct. 3 A. Probably the second week of May, but notes were 4 done on the 6th of May, then I decided to do a . . 5 journal. 6 Q. Can you explain what you mean by that? 7 A. I documented notes on the day of the accident, 8 and then from there I kept notes every time I go 9 to the hospital, I had notes. I documented 10 stuff, and then I said, you know, too much bits 11 of paper so I got a composition book and ( 12 transferred over, and that's the best thing for 13 me to do, do a journal. So if I wrote notes, I 14 transferred stuff, and as I went, I did it on a 15 daily basis or every other day or whatever was I 16 severe. 17 MS. MICELI: Can you mark this. . 18 19 (Whereupon, two pages of Handwritten Notes 20 dated May 6, 2014 was then received and marked as 21 Exhibit 2, for identification.) 22 23 BY MS. MICELI: Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 46 1 Q. Shelley, I'm going to show you what's been marked 2 as Exhibit 2 with today's date of 8/10/17. It is 3 a two-page document. I'm going to show this to 4 you. 5 A. I'm ready. 6 Q. You indicated that you would take notes on scrap 7 paper, for lack of a better term, and then. you 8 transferred it to a notebook. Is this one of the 9 scrap papers that you used? 10 A. I don't remember. 11 Q. Why are there two pages of notes with respect to (" 12 May 6th, if you know? 13 A. Can you restate that again? 14 Q. Sure. Do you know why there's two entries with 15 respect to May 6th? 16 A. I'll have to read it to answer it. Is that okay? 17 Q. Sure. 18 A. Okay. 19 MR. COHEN: You can answer. 20 THE WITNESS: Can you repeat the question, please? 21 BY MS. MICELI: 22 Q. Sure. Why are there two entries for May 6, 2014? 23 A. This is what I did when I went home that morning, Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 47 l 1 then I jotted this down on my copy, printing 2 paper so I have a memory of this. 3 Q. And then you transferred what the information 4 contained? 5 A. Well, I didn't go any further than this page. 6 This is information on the day of the accident. 7 What occurred through that time frame all the time was there o' 8 I until four or five clock in 9 the morning. When I went home, I wrote this 10 down. Whether I transferred it here or not, I 11 don't know because I really have to look at it. I' 12 Q. I want you to look at it. 13 A. This too? \ 14 Q. Correct. 15 A. Okay, then hold on. Okay. This, I'm not sure if 16 this is in there or not. This is me doing this 17 for remembering so I wouldn't forget. 18 This -- 19 MS. ALTSHILER: Just for the record, she's referring 20 to Exhibit 2.~ 21 BY MS. MICELI: 22 Q. Exhibit 2. 23 A. This is my memory writing stuff down on that day. Sue Ann Sirnonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 48 I 1 Q. Meaning Exhibit 1, the entry.on May 6, 2014? ' 2 A. It's mine. 3 Q. It's an exhibit? 4 A. Okay. This is the journal, two different things. 5 This is what my memory had given me so I didn't 6 forget what happened through that twenty-four 7 hour period, actually longer. This is what I 8 wrote down on my own as I was writing in my book. 9 This was a remembering of my mind, what was 10 happening. 11 Q. So is it fair to say that Exhibit 2 was written 12 down within -- the day,on during May 6, 2014, 13 correct? 14 A. It would be the 7th. I 15 Q. The information contained in Exhibit 2 was 16 written down on May 7, 2014, correct? 17 A. Yes. ~ 18 Q. And earlier you indicated that you started the 19 composition notebook, which .is is Exhibit 1, about 20 two weeks after the accident? 21 A. I think I said a week. 22 Q. Okay. A week after the accident, correct? 23 A. Yes. ~ Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 02/02/2018 49 1 1 Q. So the first entry in Exhibit 1 was written about 2 a week after the accident? over thi