Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 1 of 32

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1 Exhibit A to the Motion to Exclude Testimony of Phillip Esplin Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 1 of 32

2 1 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF ARIZONA 3 4 Cheryl Allred, ) ) 5 Plaintiff, ) ) 6 vs. ) No. CIV PHX-DGC ) 7 Corrections Corporation of ) America, Inc., and Bruno Stolc, ) 8 ) Defendants. ) 9 ) Phoenix, Arizona May 10, :00 a.m DEPOSITION OF PHILLIP W. ESPLIN, Ed.D LEA, SHERMAN & HABESKI 22 Registered Professional Reporters 834 North First Avenue 23 Phoenix, AZ (602) Fax: Reported by: Mary F. Vincelette, RMR 25 Certified Court Reporter Certificate No Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 2 of 32

3 2 1 I N D E X EXAMINATION PAGE 5 By Mr. Duke EXHIBITS DESCRIPTION IDEN'D 11 1 March 15, 2005, letter report, Dr. Esplin to... 4 Halvorson Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 3 of 32

4 3 1 DEPOSITION OF PHILLIP W. ESPLIN, Ed.D., 2 3 taken at 9:55 a.m. on May 10, 2005, at the office of 4 Dr. Esplin, 4242 North 56th Street, Phoenix, Arizona, 5 before Mary F. Vincelette, RMR, a Certified Court Reporter 6 in the State of Arizona. 7 8 APPEARANCES: 9 For the Plaintiff: The Law Offices Of Brett Duke, P.C. 10 by BRETT DUKE, P.C Rio Bravo 11 El Paso, TX For the Defendants: Jones, Skelton & Hochuli 13 by DANIEL P. STRUCK, ESQ North Central Avenue, Suite Phoenix, Arizona Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 4 of 32

5 4 1 PHILLIP W. ESPLIN, Ed.D., 2 called as a witness herein, having been first duly sworn, 3 was examined and testified as follows: 4 5 EXAMINATION 6 BY MR. DUKE: 7 Q. Would you please provide your full name. 8 A. Phillip, P-h-i-l-l-i-p, W. Esplin, E-s-p-l-i-n. 9 Q. Was Cheryl Allred gang raped on November 28th, , at Central Arizona Detention Center? 11 MR. STRUCK: Object to form. 12 A. I don't believe that's a question for an expert 13 to address. I think that's an ultimate issue question for 14 the jury to decide. 15 Q. BY MR. DUKE: Did you administer a gang rape 16 test? 17 A. I'm not familiar with any tests to determine 18 whether one's been gang raped or not. 19 Q. I noticed in your letter dated March 15th, 2005, 20 to Rachel Love Halvorson -- I'd like to discuss this with 21 you and I'd like to mark it as Exhibit A to your 22 deposition. 23 It's my understanding that a signed copy was 24 provided to me this morning, and that is the only 25 exception to the previous letter I have been provided; is Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 5 of 32

6 5 1 that correct? 2 A. That's correct. There were two depositions I 3 reviewed subsequent to writing this draft document. 4 Q. Two depositions? 5 A. Correct. 6 Q. Let me ask you about that, because that's 7 knowledge to me or news, if you will. What depositions 8 did you review subsequent to this -- I guess one other 9 difference I see is, one says, "Draft," the one I have 10 been provided, and the one provided this morning does not. 11 Is that the other difference? 12 A. Yes. 13 Q. What depositions did you review since my version, 14 if you will? 15 A. It involved the executive director of that 16 halfway house and the lady that was -- I believe at the 17 time she was the case manager. 18 Q. Chris Costenada and Dan Judisek? 19 A. Yes. 20 Q. Any other differences? 21 A. No. 22 Q. I noticed in your letter that you reviewed the 23 plaintiff's original complaint or you indicated you did 24 so. Did you actually do so? 25 A. Yes. Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 6 of 32

7 6 1 Q. Based upon your review of the complaint, tell me 2 your understanding of this lawsuit. 3 MR. STRUCK: Object to the form. 4 A. It's my understanding that she has reported that 5 she was raped by multiple individuals while she was at a 6 correctional facility en route to Florida; that she has 7 indicated that as a result of that sexual assault, she's 8 had an onset of certain symptoms associated with trauma. 9 Also is reporting symptoms that would suggest the 10 possibility of a major depression. She reports being less 11 capable of concentration, attention as pre-assault. 12 Q. And this is in the complaint or are you just 13 providing your understanding? 14 A. This is my understanding. 15 Q. Let me ask you the factual understanding. Would 16 it be her allegation of rape? 17 A. Yes. 18 Q. And damages associated with it? 19 A. Yes. 20 Q. And you indicated earlier that it would be a 21 question for a jury to decide whether or not she was gang 22 raped? 23 A. It wouldn't be for a psychologist to determine 24 whether or not she was raped. 25 Q. In your same letter, you indicate you reviewed Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 7 of 32

8 7 1 various other documents. Did you review those documents 2 you have listed? 3 A. Yes. 4 Q. Who provided you with those documents? 5 A. Counsel. 6 Q. And you pointed at Dan Struck? 7 A. Correct. I think he and there was another 8 co-counsel. 9 Q. Rachel Love Halvorson? 10 A. Correct. 11 Q. In the first sentence of your letter, you 12 indicate that you "conducted a psychological evaluation of 13 Cheryl Allred relative to the above-referenced matter." 14 Are you referring to the lawsuit? 15 A. Yes. 16 Q. And that's why you did your evaluation? 17 A. Correct. 18 Q. In that same paragraph -- when did you draft this 19 letter? The date indicates March 15th, 2005; is that 20 correct? 21 A. No. I began the draft after I had seen her the 22 first time. I then made modifications after I saw her the 23 second time. 24 MR. STRUCK: And, for the record, counsel, he's 25 referring to Cheryl Allred. Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 8 of 32

9 20 1 response pattern under the section involving treatment 2 considerations suggest that her interest and motivation 3 for psychological intervention is below average in 4 comparison to the comparison group. Her responses suggest 5 that she is satisfied with herself as she is and is not 6 experiencing marked distress, and sees little need for 7 motivation in her thoughts" and "behavior..." You 8 wrote that; correct? 9 MR. STRUCK: It says, "or behavior." 10 MR. DUKE: Oh, excuse me. 11 A. Yes. 12 Q. When did the defendants hire you? 13 A. October of ' Q. Prior to October, '04, had you had any thought or 15 consideration of Cheryl Allred? 16 A. No. 17 Q. When you were hired, who contacted you? 18 A. Rachel Halvorson. 19 Q. And did she indicate for what purpose she wanted 20 to hire you? 21 A. I believe she -- there were two issues: Whether 22 an evaluation would be necessary versus just a record 23 review relative to the issues at hand. I felt it would be 24 necessary or preferable. And I believe I submitted an 25 affidavit on her request relative to that issue. Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 9 of 32

10 33 1 Q. Okay. 2 A. -- and the MMPI clinical and supplemental scales. 3 Q. Describe some of the variability besides the 4 depression in the different inventories. 5 A. The reporting of traumatic stress symptoms, there 6 was some variability between her self-report and the way 7 she answered the items on the TSI. There were some 8 differences on the Traumatic Stress Inventory from the 9 PAI, MMPI, and TSI. 10 I want to be a little bit cautious there 11 because I don't believe -- they're correlated, but they're 12 not identical. 13 Q. They're correlated, but not identical? 14 A. Yes. The content items. 15 Q. These are different tests; correct? 16 A. Yes. 17 Q. That could account for this variability? 18 A. To some degree, yes. 19 Q. What else besides factors that don't relate to 20 Cheryl? Testing conditions in terms of fatigue or 21 non-fatigue? 22 A. That could account. Changes in mood state could 23 account. Diligence could account. 24 Q. And I want to be able to phrase this in a manner 25 that you would agree. But is it my understanding that Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 10 of 32

11 34 1 you're making such conclusion that there are reservations 2 about her reliability as an historian based upon the 3 variability of different construct items in the 4 personality assessments? 5 A. That contributed to it. 6 Q. What else? 7 A. The discrepancies between her report to other 8 people about various circumstances and the records. 9 Q. And you're talking about strictly factual 10 discrepancies in terms of what she has reported and what 11 other people have reported; what she has reported to 12 others, what she reported to you? 13 A. Yes. 14 Q. We're not using any psychological methods to 15 reach that conclusion, are we? 16 MR. STRUCK: Object to the form. 17 A. That would be -- I would agree, yes, that there 18 isn't any litmus test to decide who's being more or less 19 accurate. You would have to look at the totality of it. 20 Somebody has to make a decision. 21 Q. BY MR. DUKE: And in that area right there 22 regarding those discrepancies, a jury could make such 23 determination just as easily as you could? 24 A. I don't believe that, in that I think some of the 25 information from me would be helpful in their Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 11 of 32

12 35 1 determination. 2 Q. What would be helpful to determine whether or not 3 she was providing factual discrepancies? 4 A. Whether she could be classified as a reliable or 5 less reliable historian would be based upon some factors 6 that are outside the common purview of the jury. 7 Q. Isn't that for the jury to decide? 8 A. I'm giving a road map, and I'm giving them 9 principles with which to weigh the information that comes 10 in front of them. I'm not answering their ultimate 11 determination. 12 Q. You're assisting them with factual discrepancies? 13 A. No. With an understanding of what information 14 was obtained relative to factors for them to consider when 15 making that determination. 16 Q. Okay. Going back to the original question, it 17 was variability, factual discrepancies. What else leads 18 you to make such statements, serious reservations arise 19 about her reliability as an historian? 20 A. The records indicated that, at times, she may 21 have interpreted circumstances or people's statements in 22 ways that differed from what the records suggest were 23 stated. 24 Q. What else? 25 A. Her claims at certain times of having an absolute Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 12 of 32

13 36 1 positive recollection about historical events and the 2 other times claiming to not have raised the question of 3 the reliability of her as an historian. 4 Q. I would place that under the category of factual 5 discrepancies; wouldn't you? 6 A. Well, it's her -- it's her stating. 7 Q. Her own internal discrepancies? 8 A. It's her own statement of certainty. 9 Q. Okay. What else? 10 A. Her statements compared to the number of 11 occasions where something at odds may have been reflected 12 in the records. 13 Q. Give me some examples. 14 A. Suicidal ideation. 15 Q. Okay. 16 A. There's a reference that she had experienced 17 ideations commencing at about age four; that they had 18 occurred periodically; that was secondary to the chronic 19 struggle she had physically. There were records 20 indicating she had made suicidal threats on different 21 occasions. There were denials of any history of suicidal 22 ideation or gesture. 23 Q. Again, these are internal discrepancies 24 attributed to Cheryl; wouldn't you agree? 25 A. Well, these are records that reflect what she Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 13 of 32

14 37 1 said to someone depending then on whether that someone 2 wrote down accurately what was said. So I wasn't there, 3 so I don't know. 4 Q. The ultimate truth would decide what was -- 5 A. What I did look at was for patterns. 6 Q. Okay. And, obviously, ultimately, what's the 7 truth would decide those discrepancies? 8 A. That's correct. 9 Q. The basis we just discussed, is there a 10 particular method utilized to reach that conclusion; what 11 you're telling me you reached such a conclusion based on? 12 A. Well, one example would be Q. An example of a method? 14 A. Well, of what I would look at was the core 15 elements of the description of the event. 16 Q. Would have been? 17 A. Relative to the assault and a contextual 18 imbedding of the assault and whether or not the account 19 across time was consistent with core elements, things that 20 we know from studies of traumatic memory that people 21 sustain pretty good recollections on. And if those vary 22 significantly, not with regard to minor details, but to 23 core elements, it would raise a question of why do you 24 have the discrepancy. 25 Q. The same conclusion of yours regarding her Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 14 of 32

15 38 1 reliability as an historian. Are you making such 2 conclusion based on any perceived credibility you had of 3 Cheryl? 4 MR. STRUCK: Object to the form. 5 A. Well, I was looking at it from the standpoint of 6 how much can you rely on self-report versus looking 7 through other types of corroboration as opposed to being a 8 truth detector in that sense. 9 Q. You're not doing that; right? 10 A. I'm not a truth detector. 11 Q. Obviously, the personality assessment inventory, 12 it doesn't measure or indicate whether or not a person was 13 gang raped? 14 A. That's correct. 15 Q. Doesn't prove or disprove a gang rape? 16 A. That's correct. 17 Q. It does not measure an individual's reliability 18 as an historian, does it? 19 A. It would contribute to the question of 20 reliability if Q. I don't understand. 22 A. If there was variability within items that were 23 measuring the same construct, it would raise the question 24 about whether certain mood states would affect her 25 recollection of surrounding events. Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 15 of 32

16 39 1 Q. But there were indicators of validity to her 2 personality assessment inventory; correct? 3 A. That's correct. 4 Q. And, again, obviously, the Minnesota Multiphasic 5 Personality-II doesn't measure or indicate whether or not 6 a person was gang raped? 7 A. Correct. 8 Q. Doesn't prove or disprove the gang rape? 9 A. Correct. 10 Q. It doesn't measure an individual's reliability as 11 an historian, does it? 12 A. It could contribute to an understanding or 13 classification of the reliability. 14 Q. Based upon you considering what we discussed 15 earlier, your procedure and methods there? 16 A. Correct. 17 Q. And going back to the MMPI, it doesn't measure 18 authenticity of a person's report of gang rape, does it? 19 A. Correct. 20 Q. The validity indicator profile, it does not 21 measure or indicate whether or not a person was gang 22 raped? 23 A. Correct. 24 Q. Doesn't prove or disprove a gang rape? 25 A. Correct. Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 16 of 32

17 51 1 you're doing crisis intervention where you are trying to 2 stabilize the person that's presenting themselves to you. 3 That's a little different of an issue than if you take 4 them on as an ongoing patient or client. 5 Q. BY MR. DUKE: Where do you derive your opinion 6 from? What authority? 7 A. Guidelines for people that are licensed to 8 evaluate and treat mental disorders. 9 Q. What guidelines? 10 A. I don't know that she's qualified to evaluate and 11 diagnose, but she may be. I don't know the specific 12 statutes in New Mexico. 13 Q. What about in your profession? You said 14 guidelines? What guidelines are you talking about? 15 A. Oh, I think ethical and professional standards. 16 She's not a psychologist, so she wouldn't be subjected to 17 those standards. I think there are professional 18 counseling standards that talk about the process of 19 someone entering into treatment and the various Q. What are those standards? 21 A. I think you would conduct a mental status exam, 22 which I think she did. I think you would develop some 23 diagnostic impressions, which I think she did. I think 24 you would try to rule out alternative hypotheses, whether 25 there was some kind of gain in terms of how the patient Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 17 of 32

18 61 1 occurred? 2 A. I didn't make a determination about the 3 truthfulness of the allegation per se. 4 Q. Has it been tested that personality inventories 5 can prove or disprove prison gang rapes? 6 A. No, I don't think they address the presence or 7 absence of prison gang rapes. I don't think that's the 8 intention. 9 Q. Personality inventories? 10 A. Correct. 11 Q. I mean, I'm asking, though, in the psychological 12 field, have there been any tests to indicate such? 13 A. There are no litmus tests. 14 Q. Any actual tests? 15 A. Correct, that I'm aware of, where you would test 16 someone for their historical accuracy other than by the 17 use of corroboration. 18 Q. So have there been any peer reviews regarding 19 personality inventories proving or disproving prison gang 20 rapes? 21 A. No. There may be studies that would look at 22 profiling evidence of rapists or may look at -- may relate 23 to victimology that might look at are there certain 24 features that would increase someone's risk. But that's 25 not a test for whether something occurred. Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 18 of 32

19 62 1 Q. Like we were discussing earlier, such don't 2 indicate prison rape or not? 3 A. Correct. 4 Q. And, on that note, have there been any 5 publications that personality inventories can prove or 6 disprove prison gang rapes? 7 A. No. 8 Well, let me just put a caveat to that. If 9 you had someone that was floridly psychotic and someone 10 that was reporting delusions, that could contribute to 11 your weighing heavily on corroborating evidence. 12 Q. I don't think that A. So the instruments could indicate a condition in 14 which delusions may be quite prevalent, including a 15 delusion or belief that there was an attempt to rape them 16 when the evidence wouldn't support that contention. 17 MR. DUKE: Objection. Nonresponsive. 18 Q. Are there any publications, is what I was asking, 19 something that's been published in the psychological field 20 that indicates personality inventories can prove or 21 disprove prison gang rapes? 22 A. Not as you stated it. 23 Q. Are there any statements, conclusions, or 24 opinions in your letter that were the result of research 25 independent of this litigation? Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 19 of 32

20 69 1 Q. Did you offer Cheryl any type of treatment? 2 A. No. 3 Q. Strictly an evaluation? 4 A. Correct. 5 MR. DUKE: I have not been provided all the 6 documents that I requested regarding your involvement in 7 this litigation, and I'm not saying it's from you. So I 8 don't want to conclude this deposition, but at least 9 suspend it for the time being. 10 So what I'm doing is reserving my right to 11 depose you again based upon receipt of certain documents. 12 That's obviously something for the lawyers to discuss. 13 But I have no further questions for the moment. 14 THE WITNESS: Okay. 15 MR. DUKE: And I appreciate you discussing this 16 with me. 17 THE WITNESS: Thank you. 18 MR. STRUCK: Do you want to read and sign? 19 THE WITNESS: Yes. 20 (Exhibit A marked for identification.) 21 (11:50 a.m.) PHILLIP W. ESPLIN, Ed.D. Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 20 of 32

21 70 1 STATE OF ARIZONA ) ) ss. 2 COUNTY OF MARICOPA ) 3 4 BE IT KNOWN that the foregoing deposition was 5 taken before me, Mary F. Vincelette, RMR, a Certified 6 Court Reporter in the State of Arizona; that the witness 7 before testifying was duly sworn by me to testify to the 8 whole truth; that the questions propounded to the witness 9 and the answers of the witness thereto were taken down by 10 me in shorthand and thereafter reduced by computer-aided 11 transcription to print under my direction; that the 12 deposition was submitted to the witness to read and sign; 13 that the foregoing 69 pages are a true and correct 14 transcript of all proceedings had upon the taking of said 15 deposition, all done to the best of my skill and ability. 16 I FURTHER CERTIFY that I am in no way related to 17 any of the parties hereto nor am I in any way interested 18 in the outcome hereof. 19 DATED at Phoenix, Arizona, this 18th day of May, Certified Court Reporter 23 Certificate No Case 2:03-cv DGC Document 141 Filed 01/04/2006 Page 21 of 32

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5 Plaintiff, 6 Vs. 7 WILLIAM DAVISON, 8 Defendant. 9 / 13 * * * * * * * * 14 DEPOSITION OF MARLIN KNAPP 15 TAKEN AT THE INSTANCE OF THE DEFENDANT

5 Plaintiff, 6 Vs. 7 WILLIAM DAVISON, 8 Defendant. 9 / 13 * * * * * * * * 14 DEPOSITION OF MARLIN KNAPP 15 TAKEN AT THE INSTANCE OF THE DEFENDANT Page: 1 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT 2 IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 10 CA 002652 (AW) 3 U.S. BANK NATIONAL ASSOCIATION 4 AS TRUSTEE FOR RALI 06QS2 5 Plaintiff,