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RULING ON DIRECTED VERDICT MOTIONS

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RULING ON DIRECTED VERDICT MOTIONS Powered By Docstoc
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 1                             IN THE CIRCUIT COURT OF THE
                               NINTH JUDICIAL CIRCUIT IN AND
 2                             FOR ORANGE COUNTY, FLORIDA

 3   LAWRENCE M. DESTEFANO,

 4         Plaintiff,

 5   vs.                       CASE NO.:   48-2000-CA-007265-O

 6   ADVENTIST HEALTH SYSTEM
     SUNBELT HEALTHCARE
 7   CORPORATION; ADVENTIST HEALTH
     SYSTEM/SUNBELT, INC.: ROLLINS
 8   BEDFORD CORPORATION, d/b/a
     Sunbelt Healthcare & Subacute
 9   Center; SHCC SERVICES, INC.,
     and ORLANDO REGIONAL
10   HEALTHCARE SYSTEM, INC.,

11         Defendants.

12   ------------------------------------------------------

13                             VOLUME XVIII

14         The transcript of the proceedings held on

15   Thursday, October 27, 2005, beginning at 8:45 o'clock

16   a.m., at the Orange County Courthouse, Orlando, Florida,

17   Courtroom 19-D, before the Honorable Renee A. Roche,

18   Judge of the Circuit Court.

19
     A P P E A R A N C E S:
20
           WILLIAM G. OSBORNE, ESQUIRE
21         538 East Washington Street
           Orlando, Florida 32803
22
                 For the Plaintiff.
23

24

25
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 1   A P P E A R A N C E S: - CONT.

 2        BRADLEY CONWAY, ESQUIRE
          390 North Orange Avenue, Suite
 3        Orlando, Florida 32801

 4               For the Plaintiff.

 5        TRACY MARSHALL, ATTORNEY and
          DYANA PETRO, ATTORNEY of
 6        Gray Robinson, P.A.
          301 East Pine Street, Suite 1400
 7        Orlando, Florida 32801

 8              For the Defendant/Adventist.

 9        LARRY J. TOWNSEND, ESQUIRE and
          DAVID EVANS, ESQUIRE of
10        Mateer and Harbert, P.A.
          225 East Robinson Street, Suite 500
11        Orlando, Florida 32801

12               For the Defendant/ORHS.

13

14

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 1                    I N D E X - VOLUME

 2   RULING ON DIRECTED VERDICT MOTIONS                2412

 3   TESTIMONY OF DANIELLE DALEY

 4        Direct Examination by Ms. Marshall           2416
          Cross Examination by Mr. Osborne             2424
 5        Redirect Examination by Ms. Marshall         2437

 6   TESTIMONY OF ALEXA PARKER CLARK

 7        Direct Examination by Ms. Marshall           2440
          Cross Examination by Mr. Osborne             2461
 8        Redirect Examination by Ms. Marshall         2468

 9   TESTIMONY OF DR. WILLIAM ANDERSON

10        Direct Examination by Ms. Marshall           2471
          Voir Dire Examination by Mr. Osborne         2478
11        Direct Examination by Ms. Marshall - Cont.   2481
          Cross Examination by Mr. Osborne             2503
12        Redirect Examination by Ms. Marshall         2531

13

14                      E X H I B I T S

15        Plaintiff's Exhibit No. 27                   2511

16

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 1        THE COURT:   Okay.   Couple of things.   The

 2   first is that I guess I would ask the -- Deputy

 3   Cordray indicates that apparently the Jury has sent

 4   a message through him to the Court saying that they

 5   all -- it's very important that they talk to me.

 6   Of course, you know, I wasn't going to do that

 7   without your consent.

 8        It can either be that way, or if you would

 9   consent to me going back there and at least finding

10   out what they wanted.     It may be that they're

11   worried about going late tonight or going late

12   tomorrow night, I don't know, or we can ask them to

13   write it down and/or we can bring them in here.

14   What do you want to do?

15        MR. OSBORNE:    Judge, I think perhaps the Jury

16   saw Mr. Destefano being taken away by the deputies

17   yesterday.   He thinks they might have been in the

18   hallway when he was taken by four deputies in

19   handcuffs.

20        THE COURT:   Well, what do you want me to do

21   here, Mr. Osborne?    Do you want me to go back and

22   see what they want to talk to me about, and do I

23   have your permission to do that, to at least

24   investigate their concern and then advise you of

25   what that is to the best of my ability?    You have
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 1   no objection to that?

 2          MR. OSBORNE:    I have no objection to that,

 3   Judge.

 4          MS. MARSHALL:    I have no objection to that.

 5   Are you going to bring the court reporter?

 6          THE COURT:   No.   Do you have any objection to

 7   me going back there under those circumstances?

 8          MS. MARSHALL:    I have no objection.

 9          MR. TOWNSEND:    No objection, Your Honor.

10          THE COURT:   Okay.   Court will then be in brief

11   recess.

12          (Whereupon a brief recess was had.)

13          THE COURT:   The only concern of the Jury is

14   when we're going to finish.      And they just want to

15   know how they need to plan for next week, and I

16   told them -- Mr. Destefano, nice to see you this

17   morning.

18          MR. DESTEFANO:     Nice to see you, Your Honor.

19          THE COURT:   I told them that I had to be -- I

20   didn't expect to go next week.      I didn't think that

21   was realistic and we hope they have -- and we

22   thought it was realistic to finish

23   today -- tomorrow, finish the Defense case.      And

24   all we discussed was scheduling, nothing further at

25   all.
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 1        MR. OSBORNE:    Mr. Destefano does say that when

 2   he came up the elevator yesterday at the end of

 3   lunch, that the Jury was standing where they

 4   usually stand up there and there were like eight

 5   deputies.   And Mr. Destefano says the Jury saw him

 6   being handcuffed and taken away.

 7        THE COURT:   What are you asking me to do about

 8   that, Mr. Osborne?

 9        MR. OSBORNE:    Judge, I'd like you to

10   individually voir dire the -- which is like we did

11   before, to see if they saw anything and it would --

12   that would affect their judgment.

13        THE COURT:   That's going to take so much time.

14   I have a problem doing that.    What's your position?

15        MS. MARSHALL:    Your Honor, well, my position

16   is the case should be dismissed with prejudice.       I

17   have a motion and the case law that I've given

18   opposing counsel.    I would like to present that to

19   the Court, if I may.

20        THE COURT:   I need to read this.   I don't have

21   time to read this.

22        MS. MARSHALL:    I understand.

23        THE COURT:   It's an extreme sanction.   I'm not

24   going to do that without due and careful

25   consideration.    I guess what I'm asking you is what
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 1   you would like for me to do.    What's your position

 2   on Mr. Osborne's suggestion?

 3        MS. MARSHALL:    I don't mind you doing that.

 4   From a scheduling standpoint, we have three

 5   witnesses and then the videotapes.    I'm not sure

 6   what Mr. -- if we do the full version --

 7        THE COURT:    Here's the --

 8        MS. MARSHALL:    I think we're going to get done

 9   today, though, no matter what.

10        THE COURT:    My recommendation is bring them

11   all in here, ask them if any of them saw anything

12   yesterday involving any parties in this case or any

13   lawyers outside of this courtroom.    And if they

14   did, if any of them say yes, then I will excuse

15   them and voir dire those individuals one at a time.

16   Because it's been reported to me that no one

17   observed this.    So let's just see if any of them

18   say they saw it.

19        MR. OSBORNE:    And I do have the copy of the

20   transcript if you'd like that the motion -- this is

21   what was said -- what I had typed up last night

22   about what was said by Mr. Destefano that's the

23   subject matter of this motion to --

24        THE COURT:    Oh, okay.

25        MS. MARSHALL:    It's attached to the motion,
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 1   too.

 2          THE COURT:   Okay.   All right.   Let's -- so

 3   what we should do then is bring the Jury in, I'll

 4   inquire, and then in a few minutes you'll be ready

 5   to get started?

 6          MS. MARSHALL:    Correct, Your Honor.

 7          THE COURT:   Okay.   Bring the Jury.

 8          (Whereupon the Jury entered the courtroom.)

 9          THE COURT:   Be seated.    Ladies and Gentlemen

10   of the Jury, thank you for your concern about the

11   scheduling.     And I actually think we're doing

12   pretty well here on scheduling.       And again, we all

13   hope to finish this trial on Friday.

14          Let me ask you all a different question.      In

15   the course of the proceedings yesterday and during

16   your lunch break, did any of you have any

17   encounters at all or any observations at all of any

18   of the lawyers or litigants in this case?

19          Did any of you see anything involving any

20   party, Plaintiff, Plaintiff's counsel, Defense,

21   Defense counsel during your lunch break?

22          JUROR:   Just when coming back in.

23          THE COURT:   Just raise your hand and indicate.

24   Two?    Anybody else?    Okay.   All right.    I'm going

25   to ask all of you then to step out, except for you,
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 1   ma'am, first and then you, sir, and we'll inquire.

 2        (Whereupon the remainder of the Jury exited

 3   the courtroom.)

 4        THE COURT:    Okay.   Ma'am, you want to tell us

 5   what you saw?

 6        JUROR:    I really don't think it was much of a

 7   concern.    I mean, it was just walking back into the

 8   building and -- I'm sorry, I don't know his name.

 9        MR. CONWAY:     Mr. Conway.

10        JUROR:    When I was coming through downstairs,

11   that was it.

12        THE COURT:    You saw -- that is all you saw?

13        JUROR:    Yeah, that's all I saw.

14        THE COURT:    Any other questions of this juror?

15        MR. OSBORNE:    No, ma'am.

16        THE COURT:    Thank you.    You're excused.   Would

17   you bring the gentleman in the red shirt in,

18   please?    Have a seat, sir.    Do you want to tell us

19   what you saw here?

20        JUROR:    All I saw yesterday was just the

21   Plaintiff's lawyers as we were all waiting

22   downstairs together, some of the members were in

23   the restroom.   And I saw them coming through

24   talking.    Didn't hear anything they were discussing

25   and -- but I did see them as we were departing.
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 1        THE COURT:    Is that all you saw?

 2        JUROR:   That is all I saw.     I didn't see

 3   anything else involved.

 4        THE COURT:    Any other questions?

 5        MR. OSBORNE:    No, Your Honor.

 6        MS. MARSHALL:    No, Your Honor.

 7        THE COURT:    All right, sir.   You're excused.

 8        (Whereupon the remaining Juror exited the

 9   courtroom.)

10        THE COURT:     Anything else on that?

11        MR. OSBORNE:    No, Your Honor, I think you

12   covered it well.

13        MS. MARSHALL:    No, Your Honor.

14        THE COURT:    All right.   Let me address one

15   thing, and that is the remaining Motion for

16   Directed Verdict on the conspiracy count.      After

17   reviewing the case law and giving consideration to

18   the evidence that has been presented, the Court is

19   prepared to grant the Motion for Directed Verdict

20   on the conspiracy count and -- by both Defendants.

21        With respect to the Motion of the Defendant

22   ORHS for Directed Verdict on the defamation count,

23   that motion will be denied.     Let's take a

24   five-minute restroom break and then we'll get

25   started.
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 1        (Whereupon, there was had a recess from 9:05

 2   o'clock a.m., to reconvene at 9:10 o'clock a.m.)

 3        THE COURT:   Please be seated.     Nothing further

 4   before we bring in the Jury?

 5        MS. MARSHALL:    No, Your Honor.

 6        MR. OSBORNE:    No, Your Honor.

 7        MR. EVANS:   Could we talk a little bit about

 8   scheduling so that we'll know when the closings are

 9   going to be?   We had spoken yesterday afternoon

10   and -- among counsel, and we were hoping that we

11   would be able to start closings tomorrow instead

12   of, if we should finish a little earlier today,

13   splitting them up.

14        THE COURT:   We're not going to split up

15   closings.

16        MR. EVANS:   I'm sorry?

17        THE COURT:   We're not going to split up

18   closings.   The only way we would start closings

19   today is if the presentation of the evidence

20   concluded early enough in the afternoon if you

21   reasonably thought you could get it done by, you

22   know, 5:30, 6:00 o'clock, something like that.

23        So I'm not going to split up your closings.     I

24   don't think that's appropriate.    It doesn't give

25   them really the flavor of the whole case.
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 1        MR. OSBORNE:    And one other thought we had,

 2   Judge, is that just -- I just learned now, as the

 3   rest of us did, what the status of the parties are

 4   in the DVs.   And I would ask that we start at 9:00

 5   o'clock, or whatever time tomorrow morning you want

 6   to start regardless, because I need to prepare, I

 7   think as other counsel do, given the status of the

 8   pleadings we just now learned.    And I think --

 9   given the fact that we will have time tomorrow,

10   just as a concession.

11        THE COURT:   So regardless of when we finish

12   today, you'd ask to start tomorrow -- close

13   tomorrow?   I think that's reasonable.    I don't want

14   undue pressure on you.

15        MR. OSBORNE:    Thank you.

16        MR. EVANS:   Thank you, Your Honor.

17        MS. MARSHALL:    Just also for scheduling, what

18   is your position on the -- we gave them the edited

19   version of the videotapes.

20        MR. OSBORNE:    I do not agree that the edited

21   version -- and there are six tapes.      We've got them

22   all here, and they should all be played if they

23   want to play them.

24        THE COURT:   If we do all --

25        MS. MARSHALL:    All six of them, I don't know.
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 1          THE COURT:   No, she doesn't have to play all

 2   six.

 3          MS. MARSHALL:    There's three of them that I

 4   would want to play.

 5          THE COURT:   As long as they were on the list,

 6   she can play whatever unedited portions she wants

 7   to play, and then you can play whatever you'd like

 8   to play.

 9          MR. OSBORNE:    All right, Judge.

10          THE COURT:   We're not going to sit through all

11   six of them.

12          MS. MARSHALL:    I think that'll take about two

13   hours with the three unedited ones that we wanted

14   to play.

15          THE COURT:   And then do you have portions that

16   you would play in response?

17          MR. OSBORNE:    No, Your Honor.

18          THE COURT:   Okay.   Do you think you might have

19   rebuttal testimony?

20          MR. OSBORNE:    Not at this time.

21          THE COURT:   Okay.   All right.    Well, that's

22   fine.   If you change your mind, that's fine.         And

23   it's still the position of ORHS that you do not

24   intend to call any witnesses?

25          MR. TOWNSEND:    No, Your Honor.    We would
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 1       probably seek to publish some stipulations and some

 2       Interrogatories.     Other than that, no.

 3            THE COURT:    Okay.

 4            MS. MARSHALL:     That is one thing that we need

 5       to do because we have stipulations that the parties

 6       agreed to.     And we do need to read those either

 7       with the jury instructions or at the end of the

 8       case.

 9            THE COURT:    Okay.   Anything else?   Bring in

10       the Jury, please.

11            (Whereupon the Jury entered the courtroom.)

12            THE COURT:    Please be seated.   Ladies and

13       Gentlemen of the Jury, the Plaintiff having rested,

14       at this point in time, it is now the opportunity --

15       the Defense now has the opportunity to present

16       their case.    And I would ask the Defense to call

17       their first witness.

18            MS. MARSHALL:    We call Danielle Daley.

19                         DANIELLE DALEY

20     having been first duly sworn testified as follows:

21                       DIRECT EXAMINATION

22   BY MS. MARSHALL:

23       Q    Good morning.

24       A    Good morning.

25       Q    Could you please state your name?
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 1        A      Danielle Daley.

 2       Q       And what is your occupation?

 3       A       I'm a licensed practical nurse.

 4       Q       Are you currently employed?

 5       A       Yes.

 6       Q       And where is that?

 7       A       Life Care of Orlando.

 8       Q       And have you worked in the past at Vitas?

 9       A       Yes, I did.

10       Q       What is Vitas?

11       A       It's a Hospice.   It provides Hospice care for

12   patients.

13       Q       And where, where did they physically operate

14   out of?

15       A       I operated out of Winter Park Hospital.   It

16   was a Hospice unit.

17        Q      Okay.   Did they -- what was the Vitas' -- did

18   they have any affiliation with the Winter Park Hospital?

19       A       No, they leased space.

20       Q       Okay.   And how long did you work at Vitas?

21        A      I worked for Vitas -- I don't remember exact

22   dates.    Meaning specifically for just the unit or for

23   the entire time?    I did more than just work at the unit,

24   you know, it was --

25       Q       Do you recall how long you were with that
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 1   employer, just in general how long?

 2       A    I don't recall specifically.

 3       Q    Okay.

 4       A    It's too long ago, I'm sorry.

 5       Q    Were you there in November of 1999?

 6       A    Yes.

 7       Q    Okay.   And when -- while you were there in

 8   November of 1999, what were your job duties and

 9   responsibilities?

10       A    At that time I was on the unit, working at the

11   unit, basically it was kind of set up the same way as a

12   hospital floor would be set up.   You had a certain

13   amount of patients that you took care of.   It was set

14   up, like I said, the same way as a hospital floor would

15   be set up.

16       Q    And did you take care of patients?

17       A    Yes.

18       Q    Okay.   Do you remember Carolina Destefano?

19       A    Yes, I do.

20       Q    Okay.   And did you take care of Carolina

21   Destefano?

22       A    Yes, I did.

23       Q    Do you remember how many days that she was in

24   Vitas?

25       A    No, I don't remember exact days.
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 1       Q    Okay.     Do you recognize Mr. Destefano?

 2       A    Yes, I do.

 3       Q    Okay.     I'm going to show you what's already

 4   been marked as Exhibit -- Defendant's Exhibit No. 1, if

 5   you would take a moment to review.

 6            THE COURT:    Excuse us, Ms. Marshall, we have

 7       to replenish our yellow pads here.

 8            MS. MARSHALL:     Oh, I'm sorry.

 9            COURT DEPUTY:    We need one more.

10            THE COURT:    We'll call upstairs or downstairs

11       and have it brought over.     Thank you, we got one.

12   BY MS. MARSHALL:

13       Q    Are those the records from Vitas for

14   Mrs. Destefano?

15       A    Yeah.

16       Q    And do you recognize those documents?

17       A    They look like typical notes that we use and

18   they have her name on it but, yeah.   I recognize them,

19   yeah.

20       Q    Okay.     Does the note appear in your

21   handwriting with your signature, in-patient nursing note

22   dated November 9th, 1999?

23       A    That's what I was looking for actually.

24       Q    Let me just -- to speed things up, I think I

25   have it -- single page of it that's in the back.
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 1       A       Yeah, this is mine.   Yes.

 2       Q       Now, do you remember -- I have it blown up for

 3   the Jury.    Do you remember caring for Mrs. Destefano

 4   that day?

 5       A       I remember -- I remember caring for, you know,

 6   Ms. -- you know, the patient.     I remember this

 7   situation, yes.

 8       Q       Okay.   Can you tell us what you remember?

 9       A       Okay.   I remember that, you know, there was a

10   video camera in the room.    I remember coming into the

11   room.

12       Q       Coming into Mrs. Destefano's room?

13       A       Yeah, coming into the patient's room.   The

14   son, you know, was laying in the bed with the patient.

15   The -- I had put the body language, you know, anger and

16   despair because of the way he was laying in the bed with

17   the patient.

18       Q       Can you tell us how he was laying in bed with

19   the patient?

20       A       It was in the way of almost what you would

21   describe as a fetal position beside the patient,

22   stroking her hair, and the video camera was taping him.

23       Q       Did you know -- the video camera, do you know

24   whether it was on or not?

25       A       The red light was flashing so I would assume
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 1   that it was on, but can I say for 100 percent?    No.

 2         Q   Okay.

 3         A   You know, he -- that was the body language

 4   that I got when I spoke with him, so that's why I tried

 5   to put it that way.

 6         Q   Did you say anything to Mr. Destefano upon

 7   observing him in bed with his mother?

 8         A   No, I didn't speak of it.

 9         Q   And was there a reason for that?

10         A   There was no reason simply because -- you

11   know, had it been -- you know, I wasn't going to say

12   anything to him about it.   If that was the way he wanted

13   to handle his emotions then, you know, so be it.

14         Q   Okay.   Did -- in your line of working at

15   Hospice, was that an unusual situation?

16         A   Yes.

17         Q   Had you ever seen a grown man in bed with his

18   mother in -- while you worked at the Hospice unit?

19         A   Not in that type of manner, no.    I had seen,

20   you know, different family members come in and sit

21   straight up in the bed and, you know, like lay -- put

22   their legs on the bed.   But they'd be sitting up in the

23   bed, you know, kind of talking with their family member

24   in the final stages.   But not in that type of manner,

25   no.
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 1       Q     Okay.     Do you know Rachel Bean?

 2       A    I knew her from the Hospice unit, yes.

 3       Q    Okay.     Do you know when she came to work for

 4   the Hospice unit?

 5       A    Recollection would serve me that she came

 6   shortly after the passing of this particular patient.      I

 7   don't specifically recall when she came.

 8       Q    Okay.

 9       A    You know --

10       Q    There's been testimony that she left Sunbelt

11   in December and started working at Vitas in February.

12   Does that comport with your memory?

13       A    Possibly, you know.

14       Q    You just don't recall dates?

15       A    I don't recall specific dates.        It was so long

16   ago, you know.    Her employment record, you know, would

17   have to be pulled or whatever.    I really don't recall.

18       Q    Okay.     And prior to Rachel Bean coming to work

19   at Vitas, did you know her?

20       A    No.

21       Q    So --

22       A    No.

23       Q     -- the first time you met her was when she

24   started working at Vitas?

25       A    Yes.
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 1             MR. OSBORNE:    Object, leading.

 2             THE COURT:   Sustained.

 3   BY MS. MARSHALL:

 4       Q     Well, when was the first time you met Rachel

 5   Bean?

 6       A     Was when she started working at Vitas.

 7       Q     Okay.    And did you know Mary Thornton?

 8       A     No, I did not prior to her working at Vitas.

 9       Q     So Mary Thornton worked at Vitas as well?

10       A    Yes.

11       Q    And do you recall when she started working

12   there?

13       A    No, I don't recall her -- when she initially

14   started working either.

15       Q    Do you know whether it was before or after

16   Mrs. Destefano was there?

17       A     I don't recall.    I honestly don't recall.    I

18   mean, my recollection would say that it was after.

19       Q    Okay.     Do you recall -- did you ever have any

20   discussions with Mary Thornton about Mrs. Destefano?

21       A    Not that I recall.

22       Q    Okay.     Were you friends with Rachel Bean after

23   she started working at Vitas?

24       A    I was associates with her.     We, we never did

25   anything outside of work.
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 1            MS. MARSHALL:     Okay.   I have no further

 2       questions.

 3             THE COURT:   Just hold on a second.    Do you

 4       have any questions for this witness?

 5            MR. EVANS:    We have no questions of the

 6       witness.

 7            THE COURT:    Go ahead, Mr. Osborne.

 8                            - - - - -

 9                       CROSS EXAMINATION

10   BY MR. OSBORNE:

11       Q    Good morning, Ms. Daley.

12       A    Good morning.

13       Q    You are an LPN?

14       A    Correct.

15       Q    And the first time you saw Mrs. Destefano was

16   on the 8th of November, 1999?

17       A    The very first time that I took care of her

18   would be the first time I saw her.

19       Q    Were you still at Vitas when Florida Hospital

20   acquired the Vitas unit?

21       A    Yes, I was.

22       Q    Now, let's talk about Mrs. Destefano and her

23   stay there.    You were told by your supervisor in regard

24   to Mrs. Destefano to write down anything abnormal,

25   weren't you?
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 1       A     Correct, I was.

 2       Q     And this was the only abnormal thing that you

 3   say you observed, Mr. Destefano lying in bed with his

 4   mother, correct?

 5       A     Correct.

 6       Q     And you only worked two shifts while she was

 7   there, didn't you?    Do you recall?

 8       A     If that's what my documentation shows,

 9   then --

10       Q     And to your knowledge, during the entire 12

11   days that Mrs. Destefano was there, you only made two,

12   two notations for two different shifts, correct?

13       A     You'd have to look at my documentation.   I

14   don't recall.

15       Q     Okay.    Mr. Destefano would call and check on

16   Mrs. Destefano and would speak to you, wouldn't he,

17   during these shifts?

18       A     I know that we did speak while I was there.

19       Q     And to your knowledge, there's no other nurse

20   that wrote anything down about anything being, quote,

21   abnormal other than you, correct?

22       A     I have not looked at their documentation so I

23   could not tell you.

24       Q     Isn't it a fact that Rachel Bean did work with

25   you on this very Hospice unit that Mrs. Destefano was
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 1   in?

 2          A    We did work in that unit together, yes, we

 3   did.

 4          Q    In fact, your testimony previously was that

 5   she was working there -- that Rachel Bean was working

 6   there when Mrs. Destefano was admitted on October 30th

 7   of 1999, wasn't it?

 8          A    I believe that it was.    You know, the time, it

 9   was so long ago back when the -- when it happened and

10   when my deposition was given.      And, you know, like I

11   said, her employment record would have to be pulled.       I

12   don't -- I don't recall dates.

13          Q    Let me ask you this.     Do you recall when you

14   were under oath on July 31st of 2003?

15          A    Yes, I do.

16          Q    And do you recall testifying then that you had

17   a recollection that she was there when Carolina

18   Destefano was there?

19          A    Yes, I do recall saying that.

20          Q    And it's only after you were shown some

21   records by these lawyers that you're changing your

22   testimony here today, isn't it?

23          A    No.

24               MS. MARSHALL:   Objection, Your Honor.   If he's

25          going to inquire about her testimony, he needs to
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 1       show her the page and exactly what she said.

 2               THE COURT:   Overruled.

 3       A       No, in all actuality I was given a copy of my

 4   own deposition.     And because I was told that I was

 5   actually being called to court, I decided to read over

 6   my deposition myself.

 7       Q       Okay.   So you haven't seen any records of

 8   anything other than your deposition?

 9       A       Correct.

10       Q       So if you're going by your deposition, your

11   recollection was that Rachel Bean was there at the time

12   of Carolina Destefano's staying there, correct?

13       A       Correct.   I, I don't -- I can't say for sure

14   whether or not Rachel was there at the time she was

15   there so I'm not going to give a definite.

16       Q       All right.   Let me see if you remember this

17   question and answer on page 16, line 18.      Question,

18   "There was something else that I wanted to ask you,

19   okay?   Uh-huh.     Just hear me out.   So just -- yeah,

20   that's fine.   So she would have been there -- let me ask

21   you this.    Was she there at the time", and talking about

22   Rachel Bean, "That Carolina Destefano was there?"

23               Answer, "I know she must have been because of

24   talk, you know, of things that were going on.      So she

25   must have been there.     My recollection is that she was
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 1   there."

 2               Is that still your testimony?

 3       A       Um-hum.    That was --

 4       Q       Ma'am, is that still your testimony?

 5       A       I don't recall whether or not she was there at

 6   the time.

 7       Q       You knew that Rachel Bean had been the

 8   director of nursing for Sunbelt, correct?

 9       A       Correct.

10       Q       Everybody knew that, didn't they, at that

11   facility?

12       A       I can't speak for everybody.

13       Q       You remember that because when Mrs. Destefano

14   was admitted, there was a big meeting with management

15   and attorneys from Vitas and the staff regarding

16   Mrs. Destefano coming there, wasn't there?

17       A       There was a big meeting with management,

18   correct.

19       Q       And some higher-ups in management came up and

20   spoke to the entire team, didn't they?

21       A       Yes, they did.

22       Q       And that's when you were told by your

23   supervisor, because of this big meeting with management

24   and attorneys, to write everything down that would be

25   abnormal about Mrs. Destefano, correct?
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 1       A      She had told us that prior to, but the big

 2   meeting with management came down when Rachel was told

 3   to leave the unit.

 4       Q      Okay.    The big meeting occurred.   Mrs.

 5   Destefano is there, correct, was a patient there during

 6   the time of this big meeting, correct?

 7       A      No.   I believe my testimony was that the

 8   meeting came down when Rachel was told to leave.

 9       Q      Right.   And Rachel was told to leave the

10   facility because of Mrs. Destefano being in the facility

11   at the same time as her, it might cause a problem,

12   correct?

13       A      No.

14              MS. MARSHALL:   Objection, Your Honor.

15       A      It was --

16              THE COURT:   Excuse me just a --

17              MS. MARSHALL:   I may approach?

18              THE COURT:   Yes.

19              (Whereupon there was had a discussion at the

20       Bench outside the hearing of the Jury.)

21              MS. MARSHALL:   Your Honor, these --

22              THE COURT:   Just a minute.

23              MS. MARSHALL:   This line of questioning is in

24       violation of Florida Bar rules that say that

25       attorneys should not try to elicit testimony that
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 1   he knows is inaccurate.     There is -- out of the

 2   employment records he knows that she was not -- she

 3   was not working at Vitas, and he is trying to

 4   confuse --

 5         THE COURT:   He knows who was not working?

 6         MS. MARSHALL:   Rachel Bean did not work at

 7   Vitas until February, the employment records show

 8   that.   There is -- and this is an intentional

 9   misleading of the Jury, and his client knows that

10   because the video that we're going to present,

11   which was on November 23rd, 1999 --

12         THE COURT:   What are you asking me to do?

13         MS. MARSHALL:   Not allow them to present this

14   because I think it's a Bar violation.    And I can

15   get the rule for you if you want.

16         THE COURT:   Overrule your objection.    If you

17   want to point out that in your redirect, argue it

18   to the Jury and take whatever action you feel is

19   appropriate under the Bar rules, then you may do

20   so.

21         MS. MARSHALL:   Thank you, Your Honor.

22         (Whereupon the discussion at the Bench was

23   concluded, after which the following proceedings

24   were had.)

25         MR. OSBORNE:    Would you read back last
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 1          question, please?

 2               (The record was read back as requested.)

 3   BY MR. OSBORNE:

 4          Q    Isn't it true, ma'am, that the management

 5   there removed Rachel Bean when Mrs. Destefano was

 6   admitted?

 7               MS. MARSHALL:    Objection, asked and answered.

 8               THE COURT:   Overruled.

 9          A    No.   As I recall, that wasn't the reason that

10   she was told to leave.

11          Q    Let me ask you if -- this question and answer

12   starting at page 16, line 25 of your deposition.

13   Question, "Tell me -- when you say talk, tell me about

14   that."     Answer, "We all knew that she had been a DON for

15   Sunbelt, and we really didn't know all the details of

16   it.    I just recall -- what I recall was that our lawyer

17   team from Vitas had her removed from the unit because of

18   something to do with Sunbelt.      So that was really --"

19   Question, "You say your lawyer?"      Answer, The Vitas,

20   yes.    The Vitas lawyer had her removed?"   Answer, "Yes,

21   from Vitas, from the in-patient unit."

22               That's your answer.

23               MS. MARSHALL:    I would like for him to

24          continue to read.

25               MR. OSBORNE:    I will, I wasn't stopping.
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 1   BY MR. OSBORNE:

 2       Q      Question, "From the in-patient unit because of

 3   something she had done at Sunbelt or allegedly done?"

 4   Answer, "No, not that she had done anything.     It is what

 5   we were told as being -- because we were questioning

 6   what was going on.    We were told it was for -- due to

 7   harassment from Mr. Destefano to Rachel."

 8              Do you recall those --

 9       A      Right.    It wasn't -- it wasn't that she was

10   removed.   You asked me if she was removed when the

11   patient was admitted, and I said no.

12       Q      But she was removed at the time Mr. Destefano

13   was on the premises visiting his mother, correct?

14       A      Not that I recall.   She was -- she -- my

15   recollection was that her being removed did not have

16   anything to do with the patient herself.    My

17   recollection was that Rachel was removed from the

18   premises because of the patient's son.

19       Q      Okay.    That's --

20       A      It didn't have anything to do with the patient

21   herself, that the involvement with Rachel in this

22   particular situation had absolutely nothing to do with

23   the patient.   It had -- it was whatever transpired

24   between Rachel and the son, that was -- that was what

25   the entire situation was about, had absolutely nothing
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 1   to do with the patient.

 2       Q       Okay.   I accept that, ma'am.   I just wanted to

 3   ask you who -- this big meeting then dealt with

 4   Mr. Destefano, the concern about Mr. Destefano on the

 5   premises is why you had the big meeting with management

 6   about writing anything that might be, quote, abnormal,

 7   correct?

 8       A       The management had told us that there was a

 9   DCF case, so that we were told that we -- you know, we

10   needed to, you know, write anything that was abnormal or

11   whatever.    So it was just doing what we were told to do.

12   You know, whether or not -- you know, when -- whether or

13   not there was a DCF case or what was going on, whatever,

14   you know, the only -- our only concern at the time was

15   taking care of the patient, making sure the patient was

16   comfortable, doing whatever.    And then whatever had

17   transpired between Rachel and the son, that was the

18   problem.

19       Q       I understand, ma'am.   My question is really

20   very simple.   The reason that the Vitas lawyer had

21   Rachel Bean removed was because of concern that while

22   Mr. Destefano was there seeing his mother, that there

23   might be some harassment that he would give to Rachel?

24   That was the concern according to your testimony,

25   correct?
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 1            MS. MARSHALL:     Objection, mischaracterization

 2       of testimony.

 3            THE COURT:    Sustained.

 4   BY MR. OSBORNE:

 5       Q    I just published in your deposition that you

 6   were told that Rachel was removed more due to harassment

 7   from Mr. Destefano to Rachel.   Do you remember that?

 8       A    That was at the time --

 9       Q    No.     Do you remember that that's the question?

10            MS. MARSHALL:     Your Honor, I'd ask that he let

11       the witness answer.

12            THE COURT:    Sustained.

13   BY MR. OSBORNE:

14       Q    Do you remember stating that Rachel Bean was

15   removed because of -- due to harassment from

16   Mr. Destefano to Rachel?

17       A    Are you asking me if I remember stating that,

18   that's what's stated in the deposition?

19       Q    Yes, ma'am.

20       A    Okay.    That's what's -- that would have been

21   what I had stated.

22       Q    Okay.    And the only -- and the concern there

23   in terms of your testimony was that -- the concern was

24   that while Mr. Destefano was on the premises visiting

25   his mother, that you didn't want -- they didn't want to
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 1   have Rachel Bean on premises at the same time, is that

 2   true?

 3               MS. MARSHALL:   Objection, it's a

 4          mischaracterization of her testimony.

 5               THE COURT:   Sustained.

 6          A    Okay.   The problem is is that --

 7          Q    There's no pending question, ma'am.     Thank

 8   you.

 9               You got along well with Rachel Bean, didn't

10   you?

11          A    We got along fine.

12          Q    And at the time that Mrs. Destefano was

13   admitted, Mary Thornton was also working there at Vitas,

14   wasn't she?

15          A    I don't recall Mary Thornton's employment

16   dates.     I don't recall whether she was there at the time

17   or not.

18          Q    Okay.   You weren't as close with Mary Thornton

19   as you were with Rachel Bean, were you?

20          A    I was just as close with Mary as I was with

21   Rachel.     We were work associates.   None of us did

22   anything outside of work together.

23          Q    Let me ask you if you remember this question

24   and answer at page 21, line 18.       "And how would you

25   describe your relationship with Mary?"       Answer, "I
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 1   wasn't as close with Mary as I was with Rachel, but

 2   again, we got along."

 3              Is that your testimony?

 4       A      Probably because I didn't work as much -- as

 5   close with Rachel -- I mean with Mary as did I with

 6   Rachel.

 7       Q      Okay.   Ms. Daley, let's talk about the note

 8   you did.   You never saw anything sexual about what

 9   Mr. Destefano was doing, did you?

10       A      No.

11       Q      You never saw anything that you would consider

12   to be abuse, did you?

13       A      No.

14       Q      You didn't say anything to him, did you?

15       A      No, I did not say anything.

16       Q      You didn't see any behavior that you felt you

17   should intervene to stop?

18       A      No.

19       Q      You did not report this to your supervisor?

20       A      No.

21       Q      And as far as you were aware, during this time

22   period Mr. Destefano did nothing wrong regarding his

23   mother either, did he?

24       A      No.

25       Q      And but for your supervisor telling you to
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 1   write down regarding Mr. Destefano's mother anything

 2   abnormal, you wouldn't have written this down at all,

 3   would you?

 4          A   No, I probably would have still written it

 5   down, yes.

 6          Q   Okay.    As near as you could tell, his emotions

 7   at the time you saw him were consistent with other

 8   situations when someone is coping with the impending

 9   death of a loved family member, correct?

10          A   Correct.

11          Q   Because it's one of those situations where

12   there's nothing you can do except just wait for it to

13   come to an end in terms of your loved one?

14          A   Right.

15          Q   And when you wrote anger with despair, that

16   was a very typical response that one -- that you would

17   expect under the circumstances when a son is with a

18   dying mother, correct?

19          A   Yes.

20          Q   Okay.    No further questions, ma'am.   Thank

21   you.

22              THE COURT:   Redirect?

23                             - - - - -

24                       REDIRECT EXAMINATION

25   BY MS. MARSHALL:
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 1       Q    Ms. Daley, in the preceding -- the note that

 2   was preceding yours in the file, was there any other

 3   notes from nurses regarding Mr. Destefano being in bed

 4   with his mother --

 5       A    I'd have to look at the --

 6       Q     -- on November 9th, 1999?

 7       A     I'd have to look at the --

 8       Q    I believe the nurses' notes are in the back.

 9       A    You said November 9th?

10       Q    Correct.

11       A    Yes.

12       Q    Do you -- whose note is that?

13       A    It looks like Kathy Wagner's note.

14       Q    Is that somebody that you worked with?

15       A    Yes.

16       Q    And was she on the shift prior to you?

17       A    Yes, she was.

18       Q    Okay.   In cross-examination Mr. Osborne asked

19   you about a harassment situation with Rachel Bean.

20       A    Yes.

21       Q    Could you tell us about that, please?

22       A     Rachel had told me about while she was

23   dealing --

24            MR. OSBORNE:    Object, hearsay.

25            THE COURT:   Sustained.
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 1   BY MS. MARSHALL:

 2       Q      Okay.    Ms. Daley, you testified about Rachel

 3   Bean being removed from the facility or from your unit,

 4   correct?

 5       A      Correct.

 6       Q      Okay.    Do you recall what the situation was?

 7       A      Yes.

 8       Q      And without telling us what -- any discussion

 9   between you and Rachel, just tell us what happened.

10              MR. OSBORNE:   Object, unless I can voir dire

11       the witness as to the source of her information,

12       Your Honor.

13              THE COURT:   Sustained.

14   BY MS. MARSHALL:

15       Q      Ms. Daley, you testified about Ms. Bean being

16   removed from your unit, is that correct?

17       A      Yes.

18       Q      Was she transferred to another unit or what?

19       A      No.

20       Q      What happened?

21       A      As far as I can recall, she basically was

22   just -- she just basically stayed home.

23       Q      For a couple of days?

24       A      Right.   She was just told just to stay away

25   for a little while.
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 1       Q    Okay.     And was that -- what was that due to?

 2            MR. OSBORNE:    Objection.   Same objection.

 3            THE COURT:    Sustained.

 4   BY MS. MARSHALL:

 5       Q    Did that occur -- this situation, this

 6   harassment situation occur at the same time as her

 7   mother was in -- Mr. Destefano's mother was at Vitas or

 8   sometime after that?

 9       A    My recollection is that it was after.

10       Q    Okay.     Thank you.   No further questions.

11            THE COURT:    Nothing from you, Counsel?

12            MR. EVANS:    No, Your Honor.

13            THE COURT:    Ladies and Gentlemen of the Jury,

14       do any of you have a question for this witness?

15       Seeing no questions, Ms. Daley, you are excused.

16       Thank you.     Defense will call your next witness.

17            MS. MARSHALL:    Our next witness is Alexa

18       Parker Clark.

19            THE COURT:    Say that name again, please.

20            MS. MARSHALL:    Alexa Parker Clark.

21                      ALEXA PARKER CLARK,

22     having been first duly sworn testified as follows:

23                       DIRECT EXAMINATION

24   BY MS. MARSHALL:

25       Q    Could you please state your name?
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 1       A      Alexa Clark.

 2       Q      And what is your occupation?

 3       A      I'm a registered nurse.

 4       Q      And how long have you been a registered nurse?

 5       A      Since -- 1966 is when I was first licensed.

 6       Q      And what type of work do you do?

 7       A      Currently I do a variety of things.    I do

 8   consulting and I also do some hands-on care.      I work in

 9   acute rehab units in acute care hospitals in Largo,

10   Florida.

11       Q      When you say acute care, what does that mean?

12       A      Well, I differentiate acute being hospital

13   based as opposed to long-term care or more subacute-type

14   care.

15       Q      Okay.   And what is your educational

16   background?

17       A      Excuse me.   I initially did my nurse's

18   training, which is the word they used to use, I don't

19   think they do that anymore, at a hospital-based,

20   three-year diploma program, of which I'm not sure there

21   are really any of those left.   Got a nursing diploma

22   and -- which qualified you to take the state board,

23   which I did and passed, and became a registered nurse.

24              I then went on to additional schooling at the

25   University of Pennsylvania and got my Bachelor of
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 1   Science degree in nursing from Penn.

 2       Q    Do you have any professional designations?

 3       A    I'm also a certified rehabilitation nurse and

 4   a nursing -- and a licensed nursing home administrator

 5   in the state of Florida.

 6       Q    Are all of these licenses and certificates --

 7   certifications current and in good standing with the

 8   State of Florida?

 9       A    Yes.

10       Q    Are you the member of any professional

11   associations?

12       A    Yes, several.     The American Nurses'

13   Association and, therefore, the Florida Nurses'

14   Association, the Association of Rehabilitation Nurses,

15   the Florida Council on Aging, Florida Health Care

16   Association, and the Wound Continence -- or Wound,

17   Ostomy and Continence Society.    It's a bizarre name

18   but --

19       Q    Do you sit on any committees or boards within

20   those organizations?

21       A    Not within those organizations.     Well,

22   actually I do.   I'm sorry, I apologize.   At the Florida

23   Health Care Association, I'm on the risk management

24   committee.

25       Q    What does that mean?
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 1       A    It's a committee that reviews current issues,

 2   sometimes regulatory issues that they receive, sometime

 3   queries from the membership or are there new regulations

 4   being proposed.    And we as a group review those make

 5   recommendations sometimes to the licensure body,

 6   sometimes back to the membership.

 7       Q     Okay.    Can you briefly describe your work

 8   experience for the Jury?

 9       A    When I graduated from nursing school, for the

10   first half of my career before I moved to Florida, I

11   worked essentially in acute care.    I was a head nurse in

12   a pre and post-op surgical unit at the Medical College

13   of Pennsylvania in Philadelphia.    And I also taught at

14   several different schools of nursing in med/surg, which

15   has been my area, which is basically adult -- the care

16   of the adult at the University of Michigan in Ann Arbor

17   and the University of South Carolina in Columbia, South

18   Carolina, and also another three-year diploma program in

19   Wilkes Barre, Pennsylvania.

20       Q    Do you have any experience working with

21   Alzheimer's patients?

22       A    Yes.     Once I came -- moved to Florida in about

23   the mid-'80's I guess, from that point on my work

24   experience has been almost entirely in long-term care

25   working with geriatric patients and have worked in a
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 1   variety of long-term care skilled nursing facilities,

 2   nursing homes.

 3               And several of those have had specialized

 4   dementia care units, in addition to the fact that a

 5   large part of that geriatric population had a diagnosis

 6   of Alzheimer's and other types of dementia.

 7       Q       What is a skilled nursing facility?

 8       A       Skilled nursing facility is probably what the

 9   public refers to as a nursing home, provides, you know,

10   skilled nursing, physical therapy to an adult

11   population.

12       Q       Okay.   Have you ever worked as a director of

13   nursing?

14       A       Yes, probably -- I first became a director of

15   nursing I think was in 1986 and continued to be a

16   director of nursing until about 1988 in five different

17   facilities in the Pinellas County area.

18       Q       What does a director of nursing usually do?

19       A       Director of nurses is in charge of the nursing

20   department, which means you hire and fire all staff.

21   You provide for any in-service education that's

22   required.    You take care of getting all the supplies for

23   the staff, any disciplinary action.    You're responsible

24   for the care provided to the residents by that nursing

25   staff.
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 1       Q     Okay.    Do directors of nursing usually provide

 2   hands-on care?

 3       A     No.

 4       Q     Are you required to be familiar with rules and

 5   regulations imposed by the State on health care

 6   facilities?

 7       A     Yes.    There are very specific federal and

 8   state regulations that are specific to skilled nursing

 9   facilities and the care of the impaired elderly, if you

10   will.   And if you are the director of nurses in the

11   nursing home, you are intimately familiar with those

12   regs.

13       Q     Have you ever testified in court before?

14       A     Yes.

15       Q     Approximately how many times?

16       A     I'd say about six times.

17       Q     And have you been accepted by a court of law

18   as an expert witness regarding skilled nurse facilities?

19       A     Yes.

20       Q     Approximately how many times?

21       A     A number of times I've testified.    I've never

22   not been qualified when I've testified.

23       Q     Okay.    And in what area have you been

24   qualified?

25       A     I've testified usually and qualified in the
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 1   standards of professional nursing practice.

 2       Q    Okay.   Have you ever been employed for -- by

 3   Rollins Bedford Corporation or any other Adventist

 4   Health System facility?

 5       A    No.

 6       Q    Have you ever worked as an expert on behalf or

 7   from an attorney that worked for Adventist or one of

 8   its --

 9       A    I believe that I've been hired by attorneys in

10   the past, probably on less than a handful of occasions,

11   to provide some litigation support in reviewing those

12   records, but those cases involved necessarily never went

13   to -- never entailed my having to testify.

14       Q    Okay.   Have you ever testified in a

15   administrative proceeding?

16       A    Yes.

17       Q    In what capacity?

18       A    Several different things.   I've testified, for

19   example, in front of a State Board of Nursing on behalf

20   of a nurse whose license was in jeopardy.     I've also

21   testified in front of an administrative hearing for the

22   process whereby a nursing home can appeal a survey

23   deficiency decision.

24            THE COURT:    Counsel, approach the Bench.

25            (Whereupon a discussion was held at the Bench
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 1       outside the hearing of the Jury.)

 2            THE COURT:   Are you going to ask her to opine

 3       and give expert opinions?

 4            MS. MARSHALL:    Yes.

 5            MR. OSBORNE:    Yes.

 6            THE COURT:   Okay.      Go ahead, go ahead.

 7            (Whereupon the discussion at the Bench was

 8       concluded, after which the following proceedings

 9       were had.)

10   BY MS. MARSHALL:

11       Q    Now, getting back to your familiarity with the

12   rules and regulations imposed by the State on health

13   care facilities.   Can you tell me specifically what

14   your -- what your familiarity with those rules and

15   regulations are?

16       A    Well, one of the responsibilities you have as

17   the director of nurses, for example, would be to

18   implement those rules and regulations as they apply to

19   the skilled nursing facility.     So you're responsible to

20   see that those regulations are in fact implemented

21   appropriately.

22            And on an -- at least an annual basis you are

23   surveyed by the State.   And they come in and they

24   inspect your facility to make sure you are, in fact, in

25   compliance with those rules and regulations.     So if
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 1   you're not --

 2       Q     Okay.    Are you familiar with the regulations

 3   regarding the protection of elderly and vulnerable

 4   adults?

 5       A     Yes.    There's a specific -- that's also

 6   addressed in the federal guidelines, but it's also a

 7   specific Florida Administrative Code that addresses the

 8   same issue.    I'm familiar with those.

 9       Q     Okay.    And as a DON, why are -- why do you

10   have to be familiar with that act or with that -- those

11   regulations?

12       A     Well, you're really charged with -- I think a

13   good part of the purpose of those regulations is to

14   provide for the protection of what are largely

15   vulnerable and impaired adults who are really not able

16   to speak for themselves and communicate, so that it's

17   your responsibility to speak for them essentially.

18             So that you have to be aware of what those

19   regulations are, what you're reporting responsibilities

20   are and be familiar -- and I've had to utilize those

21   regulations on numerous occasions actually as director

22   of nurses.

23       Q     Are there any special concerns with an

24   Alzheimer's patient in regards to the protection of

25   elderly or vulnerable adults?
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 1       A    I think one of the -- I think that I sort of

 2   alluded to one of the primary things with any patient

 3   with Alzheimer's or dementia is that they're really

 4   unable to provide consent or to speak and communicate

 5   their needs or their concerns or their complaints or

 6   their discomfort to anybody, so that you have to be

 7   particularly vigilant and observant to make sure that

 8   they aren't being mistreated or abused or in any way

 9   mishandled.

10       Q    Can you describe for us what -- within your

11   profession what kind of protections vulnerable adults

12   are provided with?

13       A    Well, the definition of -- in both the federal

14   and the state regulations there are definitions of the

15   term abuse; physical, mental, sexual, et cetera,

16   whatever that entails, what that description is and what

17   your responsibilities are should there be a suspicion of

18   abuse of that nature.

19            And also probably a lot of people are familiar

20   with the term resident's rights.   And that is also

21   incorporated into both state and federal regulations as

22   they apply to nursing homes, which spell out the rights

23   that residents of nursing homes are entitled to the

24   right to privacy, for example, the right to adequate and

25   appropriate health care, the right to dignity, the right
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 1   to communicate with family, all of those -- there's a

 2   very long list.

 3            And we're very familiar with those.    And it's

 4   our responsibility to make sure we have policies and

 5   procedures in place to support those rights and to see

 6   that they are available to all the residents.

 7       Q    Okay.    You were talking about suspicion of

 8   abuse in the reporting requirements.

 9       A    Yes.

10       Q    Can you tell us about that?

11       A    Well, it identifies in the regulation specific

12   to abuse that there are mandatory reporters.

13       Q    What does that mean?

14       A    That means those are people who -- if they

15   personally observe or have a suspicion of abuse, that

16   they are required to report that.   And nurses and

17   employees of health care facilities are mandatory

18   reporters.

19       Q    Okay.    And based on your experience, what kind

20   of things rise to the level of a suspicion of abuse?

21            MR. OSBORNE:   Your Honor, may we approach on

22       this point?

23            (Whereupon there was had a discussion at the

24       Bench outside the hearing of the Jury.)

25            THE COURT:    I've already ruled on this case.
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 1        MR. OSBORNE:    Judge, my objection --

 2        THE COURT:   You just tell me what your

 3   objection is.

 4        MR. OSBORNE:    This is the -- whether or not

 5   under these facts or similar facts a report should

 6   be made is a legal question for the Court to decide

 7   and give the Jury instruction.    And if you look at

 8   this case, I think where we're going with this is

 9   to have this witness look at these facts and say

10   under these facts, this gave rise to a duty to

11   report.

12        And that simply is not the province of a

13   witness to opine on that issue.    It is only for the

14   Court to determine what the statute says and for

15   the Jury to decide.    And if you look at the

16   highlighted part coming up in there, Judge, you'll

17   see that that's exactly what they're saying on

18   this -- in this First District case, that you can't

19   look at regulations and codes as an expert and

20   opine that under these facts the duty to report

21   arose.

22        MS. MARSHALL:    I haven't asked her that.    I've

23   asked her in her experience what rises to the level

24   of suspicion.

25        THE COURT:   Overruled as to this question.
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 1              (Whereupon the discussion at the Bench was

 2       concluded, after which the following proceedings

 3       were had.)

 4   BY MS. MARSHALL:

 5       Q      In your experience, Mrs. Clark, what rises to

 6   the level of suspicion of abuse?

 7       A      Largely what happens -- I mean, I've reported

 8   a huge variety of kinds of things myself personally.       I

 9   would say one of the things that would particularly

10   raise a level of suspicion would be something for which

11   you don't have a cause.   For example, a large bruise

12   that you can't relate back to a specific incident, that

13   type of thing.

14              Behavior that would be clearly outside the

15   norm, either staff to resident or resident to resident,

16   that type of thing could be -- it could be considered

17   abusive.   Failure to provide care, the complaint by a

18   resident or a family member regarding the lack of care

19   or harm to a patient or resident, unnecessary

20   restraining of a resident, isolation of a resident,

21   those kinds of things.

22       Q      Okay.   And have you had to personally report

23   suspicions of abuse?

24       A      Yes.

25       Q      Okay.   Tell us what kind of -- what kinds of
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 1   things you have reported as a suspicion of abuse.

 2       A      Unexplained bruises is one thing that I

 3   probably reported a fair amount of.     Some unusual

 4   behaviors.   I had, for example, a staff member who

 5   looked a resident in a bathroom as a form of punishment

 6   was reported.      Residents who have complained that a

 7   staff member was either rough or physically mishandled

 8   them, that kind of thing I have reported.

 9       Q      Approximately how many times have you reported

10   a suspicion of abuse?

11       A      Hard to know, but I would say probably dozens

12   at least, three or four dozen times probably at least.

13       Q      And you mentioned staff members.    Have you

14   ever reported a suspicion of abuse about a family

15   member?

16       A      Yes.

17       Q      Okay.    How many times?

18       A      Probably not as often as staff members, but

19   certainly I can think just offhand of probably at least

20   a half dozen times that I've had to report family

21   member.

22       Q      And who do you report to?

23       A      I report -- we usually call the 1-800-ABUSE

24   hotline.   That's the mode that's generally considered

25   appropriate.
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 1       Q     Okay.   In your -- in your profession and in

 2   implementing these -- the mandatory reporting

 3   requirement, do you have to have proof of abuse before

 4   you call the 800 number?

 5       A     No, not at all.   You just have to have a

 6   suspicion or something that's out of the ordinary that

 7   raises your index of concern.   And you call that in to

 8   the -- then they decide how immediate their concern is,

 9   for example, and they will send a team out.     They are

10   the -- they're the investigator, we just report.

11       Q     Okay.   Now, with -- well, let me ask you this.

12   Are you familiar with the term disimpaction?

13       A     Yes.

14       Q     What is that?

15       A     Usually it's the manual removal of fecal

16   material from the rectum.

17       Q     And is that a procedure that you have

18   performed on patients?

19       A     Yes.

20       Q     Okay.   Is that something that you have

21   performed on patients for successive months at a time?

22       A     No, that's --

23       Q     Why not?

24       A      Disimpaction is kind of like the mode of last

25   resort.   Usually you do that if something else has
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 1   failed.    Generally speaking, if a patient becomes

 2   impacted to the point that that's required, that would

 3   definitely raise my level of concern about whether the

 4   care that's being given to -- for a bowel regimen is

 5   appropriate.

 6       Q      Why is that?

 7       A      Normally patients who are either elderly or

 8   paralyzed, whatever, have loss of bowel function usually

 9   are put on what we would call bowel regimen.     That can

10   entail a combination of different kinds of drugs.     It

11   might even entail, you know, stimulants.   It depends on

12   what the patient's problem is.   And it might even entail

13   periodically using like a Fleet enema, something along

14   those lines.

15              But in my experience as a rehab nurse and as a

16   long-term -- long-term care, you know, taking care of

17   the elderly, it's never been my experience that

18   disimpaction is the method of choice for a bowel

19   regimen.

20       Q      Well, when you say method of choice, would it

21   be a usual thing for a patient to have to be disimpacted

22   for eight months every five to six days?

23       A      No.

24       Q      That would not be unusual?

25       A      Oh, I'm sorry, it would be unusual.
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 1         Q   It would be unusual?

 2         A   Yes.

 3         Q   Okay.   If a patient is constipated, what do

 4   you do?

 5         A   Usually what the facilities do is monitor very

 6   carefully.   And the rule of thumb in a facility is that

 7   if the patient goes three days without having a bowel

 8   movement, then an intervention is required.   And so all

 9   facilities that I'm familiar with have a method by which

10   they observe and record bowel movements on a daily

11   basis.

12             So that if three days go by when there isn't,

13   then there's usually a series of interventions that are

14   already pre-ordered if that were to happen.   If they

15   weren't, then the nurse would notify the physician and

16   receive an order, which would usually entail a laxative

17   or some sort of medication intervention.

18         Q   Okay.   Kind of in the steps that you would

19   take, what are they?   I mean, you said intervention is

20   required or there are certain levels of intervention you

21   do.

22         A   Yeah.   And it depends on the patient.   So you

23   can't really say this is always the way you would do it.

24   It might be something as mild as Milk of Magnesia.      That

25   is usually --
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 1         Q   And if that doesn't work, what do you do?

 2         A   Then you would probably go for a suppository.

 3   You would put the patient on a daily stool softener.

 4   You would want to encourage them to drink water, to make

 5   sure they had sufficient water, that that wasn't

 6   contributing to the cause.    You might have dietary come

 7   and take a look and make sure they have fiber, and

 8   sometimes that's also added.

 9             Sometimes -- we call it a super cereal where

10   they do bran and fiber and that sort of thing, like a

11   morning cereal.   There's lot of different things you can

12   do, sometimes by themselves or in combination, depending

13   upon what the specific issue with that specific patient

14   is.

15         Q   Have you ever experienced a patient that for

16   eight months straight had to be disimpacted every five

17   to six days?

18             MR. OSBORNE:    Object, irrelevant.

19             THE COURT:   Overruled.

20         A   No.

21         Q   Do you know what a swallow study is?

22         A   Yes.

23         Q   What is that?

24         A   Swallow study is -- usually it's a video

25   thoracoscope-type of study where the patient is --
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 1       Q       A what?

 2       A       I'm getting there.   -- where they would

 3   swallow like a radioactive material, radiopaque material

 4   so that you could see on a videoscope -- I'm not a

 5   radiologist, but where you can look and see when they're

 6   swallowing whether they're actually able to protect

 7   their airway and what they're swallowing is going into

 8   the stomach or in fact going to the lungs, what we call

 9   aspirate.

10       Q       If a patient fails a swallow study, what does

11   that mean?

12       A       That means that they're aspirating, that

13   they're not able to protect their air.    We just do that

14   automatically.   When we eat a little piece of tissue,

15   the epiglottis, automatically closes over the trachea.

16   The food goes where it's supposed to go.

17               One of the pretty typical eventual

18   complications of Alzheimer's is they would develop

19   aphagia, which is their inability to swallow normally

20   and to protect their airways.    So that the food, instead

21   of going from the, you know, mouth to the esophagus into

22   the stomach, some of it can and often does go directly

23   into the trachea and goes into the lung.    And they

24   develop what we call an aspiration pneumonia as a

25   result.
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 1       Q       What are the eventual signs of someone who

 2   can't swallow correctly or do not have those automatic

 3   reflexes?

 4       A       Well, usually you'll see the patients will

 5   choke.   Their face will get red.     They're obviously

 6   having difficulty handling that fluid because it's going

 7   to their lungs.     If it's very pronounced and progressed,

 8   they might actually be able to swallow that liquid or

 9   food directly into their lung and not really show any

10   visible signs.    The only way you would know is by a

11   video thoracoscope study.

12       Q       And is that a concern?

13       A       It's always a concern in the patients in a

14   nursing home, especially with a dementia diagnosis.

15       Q       Now, again going back to the mandatory

16   reporting and the suspicions of abuse.     You said that

17   you had called the 1-800 -- you've called the 1-800

18   number dozens of times with Department of Children and

19   Family Services, correct?

20       A       Correct.

21       Q       And what were the outcomes?

22       A       They vary.   They -- it'll end up in one of

23   three categories.      Either unfounded, which means they

24   came, they investigated, they found no evidence of

25   abuse.   Number two is that they find that there is some
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 1   reason to suspicion abuse or that they suspect abuse but

 2   they were not able to identify a perpetrator.    And

 3   number three is that, yes, there's abuse and, B, they've

 4   identified a perpetrator.

 5               I'd say the majority of times that I've

 6   reported it, at least half, if not more than half of the

 7   times, they come back unfounded.

 8       Q       Are there ramifications to nurses for filing a

 9   false report with the Department of Children and Family

10   Services?

11       A       If a report is filed with Children and Family

12   Services that results in unfounded, that's not

13   considered a false report.     The majority of reports are

14   usually ruled unfounded.    The only time that there would

15   be any repercussions was if somebody intentionally filed

16   something they knew to be untrue.

17       Q       And what are the -- if you do that, are there

18   any ramifications or any penalties?

19       A       Well, the Chapter -- the Florida

20   Administrative Code that governs nurses' licensure

21   clearly identifies that making a false report will lead

22   to disciplinary action against your nursing license.

23       Q       So any nurse that files a false report would

24   be at risk for losing their nursing license?

25       A       Yes, they would.
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 1          Q    What about placing a false statement in a

 2   patient's medical records, is it okay for a nurse to do

 3   that?

 4          A    Never.

 5          Q    Okay.    And are there ramifications for placing

 6   a false statement in a patient's medical record?

 7          A    If the nurse intentionally put false

 8   information with the intention of misleading, we're not

 9   talking an honest mistake, we're talking about something

10   that she knew to be false and put that in the record,

11   fraudulent charting, purposeful fraudulent charting

12   would certainly endanger her license and certainly her

13   job.

14               MS. MARSHALL:    I have no further questions.

15               THE COURT:   Anything from you, Counsel?

16               MR. EVANS:   Your Honor, we do not have any

17          questions.

18               THE COURT:   Cross-examination?

19                               - - - - -

20                         CROSS EXAMINATION

21   BY MR. OSBORNE:

22          Q    Good morning.

23          A    Good morning.

24          Q    You're a self-employed consultant in the

25   health care industry?
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 1       A       Yes.

 2       Q       You were retained in this matter in June of

 3   2004?

 4       A       That sounds right.

 5       Q       Okay.   About 50 percent of your time is spent

 6   on litigation versus AHCA issues?

 7       A       I'm not sure I understand -- I understand the

 8   question.

 9       Q       How much of your time is spent on litigation?

10       A       You mean --

11       Q       Just in terms of your professional practice.

12       A       In terms of working with attorneys and that,

13   what we're doing?    Okay.    I would say 30 to 50 percent.

14   I don't work full time.      So of the time that I do work,

15   I would say it's probably 40 percent or so, 30 percent

16   maybe.

17       Q       And in terms of -- at the time of your

18   deposition on August 27th of 2004, did you testify that

19   50 percent of your time was spent on lawyer-related

20   matters versus health-related matters?

21       A       Yeah, based on a full-time schedule.    Normally

22   my answer to that question would be 50 percent, give or

23   take ten percent.    And when I sat down to actually

24   calculate, I realized I don't work 40 hours a week so I

25   sort of downgraded it.    So it's still probably 50
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 1   percent of the time I work, but I don't work a full-time

 2   schedule.

 3       Q       Okay.   You also do risk management assessments

 4   for skilled nursing facilities, don't you?

 5       A       Yes, occasionally.

 6       Q       And you have made presentations on legal

 7   defenses, protect your residents, your facilities, your

 8   license --

 9       A       Correct.

10       Q       -- in Tampa?

11       A       I think the one you're referring to is the

12   all-day long seminar.      I gave four different seminars.

13       Q       Tampa, Ft. Lauderdale, Panama City and

14   Tallahassee?

15       A       That's correct.

16       Q       Is that an all-day seminar on behalf of

17   Florida Health Care?

18       A       Actually they provided a full-day program.

19   They selected the title, and I spoke for two to three

20   hours at those seminars.

21       Q       You've been deposed, at least at the time of

22   your deposition, 53 prior times, correct?

23       A       That is probably true.

24       Q       And only four of those times did you ever

25   testify for a plaintiff, correct?
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 1       A    That's correct.

 2       Q    How much are you being paid for your time here

 3   today?

 4       A    $125 an hour.

 5       Q    Two-thirds of your income is lawsuit oriented

 6   or related, isn't it?

 7       A    That is probably true.

 8       Q    And you previously had worked for the Grower

 9   firm, which was Ms. Marshall's predecessor in this case,

10   correct, on other cases?

11       A    Are you talking about like Grower, Ketcham?

12       Q    That's the firm, yes, ma'am.

13       A     Yes, sir, I do occasionally work for them.

14       Q    Okay.

15       A    I didn't realize Ms. Marshall used to work for

16   them.

17       Q    I didn't say she did.    I said before her firm

18   got involved in this case, the Grower firm --

19       A    Oh, I did not realize that.

20       Q    Okay.   And in terms of the swallow -- you were

21   asked about the swallow situation.   Did you know whether

22   or not Mrs. Destefano was on a puree diet?

23       A    She was on a puree diet with thick liquid.

24       Q    And did you know that as a part of the

25   comprehensive nursing assessment that she was on PO-type
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 1   of nutrition?

 2       A    Yes, she was.

 3       Q    Which is what, per mouth?

 4       A    Correct.

 5       Q    And that's versus not per mouth, correct?

 6       A    Correct.

 7       Q    NPO?

 8       A    Correct.

 9       Q    And PO means that you -- the only way

10   Mrs. Destefano was going to take in food or liquid or

11   water was through the mouth?

12       A    Correct, because --

13       Q    That was her course of treatment?

14       A    Because Mr. Destefano had signed a waiver that

15   despite her risk, he elected to maintain her on regular

16   consistency liquid.

17       Q    Right.   Because he didn't want to have any

18   tubes put in.   Isn't that the option if you go the other

19   route?

20       A    That's the alternative, yes.

21       Q    Okay.    And wasn't it also true from your

22   review of the records that speech language pathology did

23   a consult?

24       A    Yes.

25       Q    And they talk about the goal was to have --
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 1   within one week have Mrs. Destefano consume 50 percent

 2   or greater of all her meals with staff assistance?

 3            MS. MARSHALL:    I'm going to object, Your

 4       Honor.   It's beyond the scope of direct.

 5             THE COURT:   Overruled.

 6   BY MR. OSBORNE:

 7       Q    Is that correct, ma'am?

 8       A    To be honest with you, I don't really remember

 9   the specifics of the speech therapy.

10       Q     Let me show you --

11       A    Sure.

12       Q    I've got it highlighted right here.     Why don't

13   you just publish that part that I've got highlighted?

14       A    You want me to read it?

15       Q    Yes.

16       A    In one week resident will, one, consume more

17   or less 50 percent of all meals with staff assistance.

18   Two, tolerate 90 degree lemon ice all meals to increase

19   safety of PO intake.   Three, oh, speech to complete

20   caregiver education.

21       Q    Okay.     So the speech pathology was going to

22   complete the care giver education on the intake of

23   fluids, correct?

24       A    Correct.

25       Q    And in fact, you recall from your review of
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 1   the records that on the 20th of September, that it's

 2   noted that the caregiver education was given to

 3   Mr. Destefano on how to feed his mother fluids?     Do you

 4   want me to show you the document?

 5       A    Yeah.      Oh, you want me to read that?

 6       Q    No.     I just want you to confirm for me that

 7   that charting says that the speech language pathologist

 8   trained the caregiver on this intake of fluids that we

 9   just talked about.

10       A    Correct.     There's specifics here as to what

11   that entailed.

12       Q    Okay.    You have no knowledge as to what any

13   doctors in this case had previously tried in terms of

14   other methods other than disimpaction regarding

15   Mrs. Destefano, do you, in terms of other modes of

16   treatment?

17       A    Prior -- eight months prior, you mean prior

18   to --

19       Q     Prior to -- prior to the hospitalization at

20   Florida Hospital.

21       A    She wasn't in the facilities very long.     I do

22   know that post her admission to Sunbelt, they were able

23   to regulate her on oral medication and disimpaction was

24   no longer required.

25       Q    I'm asking about previous to that.     Do you
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 1   know what any doctors had previously tried in regard to

 2   the constipation?

 3       A    I don't recall that, no.

 4       Q    You would agree with me it's up to the doctor

 5   to make a decision as to what the treatment is for a

 6   patient regarding the treatment for constipation, the

 7   doctor to give orders in that regard?

 8       A    If the patient's under his care, exactly.

 9       Q    Okay.     You did say, did you not, in terms of

10   the reasonable -- the suspicion had to be a reasonable

11   suspicion before it was reported to the abuse hotline?

12       A    I think that's a matter of semantics but, yes,

13   I think that's true.

14       Q    And you certainly wouldn't condone anybody

15   intentionally filing something they knew to be untrue,

16   would you?

17       A    No, I would not.

18       Q    That would be wrong, wouldn't it?

19       A    Yes, it would.

20            MR. OSBORNE:    No further questions.

21            THE COURT:    Redirect?

22                            - - - - -

23                       REDIRECT EXAMINATION

24   BY MS. MARSHALL:

25       Q    Ms. Clark, you mentioned that you had reviewed
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 1   all of Mrs. Destefano's medical records, correct?

 2       A    Correct.

 3       Q    Okay.     And you mentioned something about --

 4   when she left Florida Hospital about disimpaction no

 5   longer being necessary.

 6       A    Yes.

 7       Q    Could you explain that to us?

 8       A    Yes.    After she left Sunbelt, she subsequently

 9   was successfully put on a bowel regimen.    I think it

10   was -- I mean, I actually remember it was Colace, Peri

11   Colace, Senokot.   And that regimen eventually was able

12   to control her bowel movements so that disimpaction no

13   longer became necessary.

14       Q    Thank you.

15            MS. MARSHALL:     No further questions.

16            THE COURT:    Ladies and Gentlemen of the Jury,

17       any of you have any questions of this witness?       No

18       questions?     Ms. Clark, you are free to go.

19            THE WITNESS:     Thank you.

20            THE COURT:    Would the Defense please call your

21       next witness?

22            MS. MARSHALL:     Our next witness is

23       Dr. Anderson.    We're going to need a few minutes to

24       set up because he has a Power Point.

25            THE COURT:    Anderson?
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 1        MS. MARSHALL:    Dr. Anderson, William Anderson.

 2        THE COURT:   Ladies and Gentlemen, you want to

 3   stretch and go into the jury room for a few

 4   minutes?   Let's do that.   Take about five minutes,

 5   please.

 6        (Whereupon the Jury exited the courtroom.)

 7        THE COURT:   This is your third witness?

 8        MS. MARSHALL:    Correct.

 9        THE COURT:   Third and final witness?

10        MS. MARSHALL:    Yes, Your Honor.

11        THE COURT:   And then you rest?

12        MS. MARSHALL:    Yes, Your Honor.

13        THE COURT:   Let's take about five minutes, get

14   your witness set up and be ready to go.

15        (Whereupon, there was had a recess from 10:23

16   o'clock a.m., to reconvene at 10:34 o'clock a.m.)

17        THE COURT:   All right.     Please be seated.

18   They're very curious about scheduling.      Those were

19   all the questions that were asking.      They wanted to

20   know if you're doing closing arguments today.        I

21   told them no.    But think about whether you're in

22   agreement, we can start at 8:00 in the morning.

23   They seem to be in favor of that.

24        And they wanted to know how long they'll have

25   to deliberate.    I said we'll take that up as is
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 1       necessary.     And we didn't talk about any of that

 2       with them.     Are you ready now?   Do you have your

 3       witness ready to come in?

 4            MS. MARSHALL:    Yes.

 5            THE COURT:    Let's bring in the Jury, please.

 6       You got your equipment set up and ready to go?

 7            MS. MARSHALL:    Yes.

 8            THE COURT:    Are you going to put your witness

 9       in the box?

10            MS. MARSHALL:    For now, yes, yes.

11            THE COURT:    Do you need to go through his

12       qualifications?    Do you want to?

13            MS. MARSHALL:    Yes.

14            (Whereupon the Jury entered the courtroom.)

15            THE COURT:    Okay.   And please be seated.

16       Ms. Marshall, your next witness is?

17            MS. MARSHALL:    Dr. William Anderson.

18                    WILLIAM ANDERSON, M.D,

19     having been first duly sworn testified as follows:

20                       DIRECT EXAMINATION

21   BY MS. MARSHALL:

22       Q    Would you please state your name?

23       A    William Robert Anderson, A-n-d-e-r-s-o-n.

24       Q    And what is your educational background, sir?

25       A    I am a physician.     I practice in the area of
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 1   pathology.   I attended medical school at the University

 2   of Miami.    I did residency at the medical school in the

 3   area of pathology, which is sort of the basic science of

 4   medicine.    We look at tissues, we do autopsies,

 5   biopsies, look at cells under the microscope.

 6               I did that training at the University of

 7   Rochester in New York and Duke at the University of

 8   North Carolina.    And when I also was at Duke I did an

 9   area of pathology study of disease, specifically of the

10   heart.   And then I did two years of laboratory medicine.

11   When you go to the laboratory and get a test done, it's

12   a pathologist that actually does the testing, reads

13   results, gives you the results and so forth.    And I did

14   that at the University of North Carolina.

15               And in addition, I did a year of medical/legal

16   or forensic pathology.   And I did that at Chapel Hill,

17   University of North Carolina as well.

18       Q       So you are a licensed medical doctor, correct?

19       A       Yes, I'm licensed in Florida and North

20   Carolina at the present time.

21       Q       Do you have any professional certifications?

22       A       In the area of pathology, which as I mentioned

23   before, I did the studies after medical school.      I'm

24   Board-certified in anatomic pathology, which is the

25   tissue part, clinical pathology, which is the laboratory
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 1   part, and forensic, which is the medical/legal, sort of

 2   the CSI part.   That's what forensic pathologists do.

 3       Q      Okay.   What does that mean to be

 4   Board-certified?

 5       A      Well, after residency training each specialty,

 6   surgery, medicine, pediatrics, all the various

 7   specialties have examinations that after you complete

 8   your training, you take an examination that is called

 9   the medical boards.     And if you pass those boards, then

10   you are called Board-certified.     So you have to go

11   through the training program.

12              First you have to go through medical school,

13   then you have to go through the training program, which

14   in my case was about six years.    And then you have to

15   take and pass the examination in the areas that you are

16   interested in taking.    I did anatomic, clinical and

17   forensic pathology.

18       Q      What is your current occupation?

19       A      Presently I'm practicing -- private practice

20   of forensic pathology in the Central Florida area.      And

21   in that I do autopsies, I do consultations in

22   medical/legal issues primarily, and some educational

23   teaching at the paramedics groups at Valencia Community

24   College.

25       Q      What is forensic pathology?
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 1       A       Well, forensic pathology is an area of

 2   pathology where we use our knowledge as pathologists to

 3   interface with issues that come before the courts.     I

 4   was for a long time medical examiner, and I'm still

 5   doing the same thing but in a private basis now.      And

 6   the medical examiner's job was to determine cause and

 7   manner and mechanism of death and injury.

 8               And in doing that we study what happened to

 9   the individual, what we find on the individual, what we

10   find on looking at the outside, items that come with the

11   individual, elements at the scene of an incident, then

12   autopsy and toxicology, which is poisons and drugs and

13   so forth, and then looking under the microscope to

14   further analyze.

15               And then we come up with what happened to the

16   individual, what diseases may have been present and so

17   forth.   And we do that basically through analyzing the

18   tissues, both with the naked eye and the microscope.

19       Q       You mentioned that you were a medical

20   examiner.    Where were you a medical examiner?

21       A       Well, I practiced forensic pathology in

22   California and Georgia, South Florida and the Orlando

23   area.    And I was with the office in Orlando from about

24   1990 'til 2002.    I practiced on the west coast in

25   Sarasota for a year, and then went into private practice
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 1   completely.

 2          Q   Can you tell us how many autopsies and

 3   clinical patient examinations you've done?

 4          A   Well, I have probably done over the years

 5   6,000, 7,000 autopsies.   When I was with the medical

 6   examiner's office, we also did the sexual assault

 7   examinations for Orange County.   We did that from about

 8   1990 to about 1997.   So we probably did several hundred,

 9   probably individually maybe 80 to 90 per year over that

10   period of time, so quite a few examinations.

11          Q   You mentioned looking at tissues and things

12   under a microscope.   How much of your work is done

13   utilizing microscopes?

14          A   Well, as far as autopsy examinations, every

15   autopsy that I do includes looking with the naked eye

16   and then taking sections of tissue to look at under the

17   microscope.   Sometimes we also take fluids.    That area

18   is called cytology, which you usually associate with PAP

19   smears, but it's also looking at any type of fluid.     And

20   I look at that under a microscope as well.

21              So I would say virtually every autopsy that I

22   do, and I'm probably now doing 150 a year, but we look

23   at complete tissue examinations on all those.

24          Q   Okay.   Have you ever testified in a court of

25   law?
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 1       A     Well, as a forensic pathologist, that is what

 2   we do.   Medical examiners are constantly testifying and

 3   usually in criminal, sometimes in civil cases.    Private

 4   practice pathologists -- which I must point out, most

 5   forensic pathologists around the country who are medical

 6   examiners also do private consulting work as well.

 7   Virtually everybody does that.    So in that -- in that

 8   situation, yes.

 9       Q     How many times have you testified in court?

10       A     Actually in court?     Well over 100 I'm sure at

11   this point with criminal case.    And we usually went to

12   court probably six, seven times a year in the medical

13   examiner's office on criminal cases and, of course, many

14   more depositions.   But that's what we do as forensic

15   pathologists, we interface what we know.    So a forensic

16   pathologist is going to do a lot of testifying.

17       Q     Was there anything in particular about your

18   experience or background or education which was helpful

19   to you, particularly helpful for you in your assignment

20   in this case?

21       A     Well, I don't know if it was an assignment.        I

22   was asked to look at the stain on the bed pad but, yes,

23   I've done clinical examinations on many autopsies.    In

24   our forensic practice in the medical examiner's office,

25   we frequently look at items of clothing or other items
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 1   that come with the people that come into the medical

 2   examiner's office.    I'm used to looking at and going

 3   through the steps of analyzing what these things might

 4   be.

 5         Q     Have you ever done any work for Florida

 6   Hospital or any of the Adventist Health affiliates?

 7         A     No, I have not done any -- as far as I can

 8   recall, I've not done any consulting work.     I do

 9   autopsies with Trans Life, which is the organ

10   procurement organization that is a branch of Florida

11   Hospital.     But as far as doing consulting work for them,

12   no, I don't believe I've done any before.

13         Q     Okay.   Now, how did you get involved in this

14   case?

15         A     Well, I was asked by your office to look at

16   this bed pad and see if we could -- if I could figure

17   out what the stain was specifically by going through

18   various methods that we use as pathologists and then

19   what my conclusions would be.

20               MR. OSBORNE:    I'd like to voir dire the

21         witness on his qualifications at this time.

22               THE COURT:   At the proper time you may do

23         that.   You may conclude your examination of his

24         qualifications.

25               MS. MARSHALL:    I think we are done with his
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 1          qualifications.

 2                               - - - - -

 3                        VOIR DIRE EXAMINATION

 4   BY MR. OSBORNE:

 5          Q    Good morning, Dr. Anderson.

 6          A    Good morning.

 7          Q    You're an expert on injury patterns, aren't

 8   you?

 9          A    Correct.

10          Q    Wrote a book on it?

11          A    Right.

12          Q    And that's -- in trauma pathology, that's

13   where you look at a body and look at the distribution of

14   injuries?

15          A    Correct.

16          Q    Could happen in automobile accidents, for

17   example?

18          A    Well, any type of trauma, correct.

19          Q    Such as impact of the human body with a

20   dashboard, that's one thing you look at?

21          A    Yes, correct.

22          Q    Or a moving head versus a stationary head in

23   terms of injuries?

24          A    Correct.

25          Q    But it's generally looking at the distribution
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 1   of injuries and then determining the mechanism of the

 2   injury or how the injury occurred, correct?

 3       A      Correct.

 4       Q      Now, blood spatter or blood pattern analysis

 5   is part of the Academy of Forensic Sciences, isn't it?

 6       A      It's part of the criminalistics section,

 7   correct.

 8       Q      And a blood spatter expert looks at the way

 9   blood is distributed following specific types of

10   situations, isn't that true?

11       A      Among other things, yes.

12       Q      And you are not an expert in blood pattern

13   analysis, are you?

14       A      No.   I do not do the criminalistics of blood

15   spatter.

16       Q      You're not an expert in that field, are you?

17       A      No.   I'd say we look at plenty of patterns of

18   blood but, no, I would say I'm not qualified as a blood

19   spatter.

20       Q      Okay.

21       A      Actually I don't think the Academy recognizes

22   that as a specific entity but it's part of

23   criminalistics.

24       Q      Well, whatever it is, you're not an expert in

25   that field, are you?
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 1       A     No.

 2       Q     You're not qualified to have any opinion as to

 3   how the blood is distributed on this pad, are you?

 4       A     Well, if -- the number one question was is

 5   this blood or not or is it something else.    That was the

 6   first thing I looked at.

 7       Q     I'm sorry, Doctor, go ahead.    I didn't mean to

 8   cut you off.

 9       A     Well, but indeed this isn't a simple blood

10   spatter pattern because we have done the analysis and

11   shown, as I'll show you in a minute with a Power Point,

12   that this isn't just blood.

13       Q     Well, my question was simpler than that,

14   Doctor.   You are not qualified to have an opinion as to

15   how this blood was distributed on the pad, are you?

16       A     Well, you asked about the blood, and I'm

17   indicating that we have shown that this is not blood.

18       Q     I'm talking about the way the blood is

19   distributed on the pad as you look at the pad.   You are

20   not qualified to have an opinion as to how this blood is

21   distributed on the pad, are you?

22       A     Well, you keep asking me about the blood.     I

23   keep telling you that it's not blood.    We'll demonstrate

24   how we went through the whole process and --

25              THE COURT:   Counsel, approach the Bench.
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 1             (Whereupon there was a had a discussion at the

 2       Bench outside of the Hearing of the Jury.)

 3             THE COURT:   Okay.   You need to sit down and

 4       wait until the question is asked before you object

 5       to whether he's qualified to answer the question.

 6             MR. OSBORNE:   Okay, Judge.

 7                            - - - - -

 8                  DIRECT EXAMINATION - CONT.

 9   BY MS. MARSHALL:

10       Q     Dr. Anderson, what did -- what did you do in

11   this case?

12       A     Well, I -- to summarize, then we'll go through

13   the Power Point together so I can show you exactly what

14   we did.   We looked at the -- with the naked eye looked

15   at it under two levels of microscope.   We looked first

16   under the dissecting microscope, which is the one you

17   see on TV with them looking -- when they look at fibers

18   or they look at items more or less you can hold in your

19   hand.

20             And then in addition, there were areas on this

21   stain that we then sampled, as we would a regular

22   cytology specimen, fluid from the chest or fluid from

23   the abdomen or anything like that.    And then we actually

24   looked at that -- or I looked at that under the

25   microscope and determined what specific findings those
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 1   were under the microscope, the regular microscope, in

 2   other words, looking up to 400 magnification.

 3            The dissection microscope allows you to look

 4   about 20 or 30 times magnification.    If you want to go

 5   higher than that, then you have to make a specific

 6   preparation, which is the way we always do histology,

 7   tissue diagnosis.     When we look at tissue we have a

 8   regular microscope.    So we did that also to determine

 9   what this material was and what its characteristics were

10   and then took photos of that.    And that's what we're

11   going to show you and explain to you this morning.

12       Q    Okay.   Do you know what -- Mr. Osborne was

13   asking you questions about a blood spatter expert.       Do

14   you recall those questions?

15       A     Correct.

16       Q    And are you familiar with what a blood spatter

17   expert does?

18       A    Well, a blood spatter expert is part of --

19   blood spatter is part of criminalistics.    Some people

20   don't really recognize it as a sub -- as a total

21   specialty but as a subspecialty clearly.    And the blood

22   spatter expert is usually involved in crime scenes

23   and -- to try to determine which way the blood has gone.

24            When somebody is hit or shot or there's

25   bleeding at the scene, that's when you have the typical
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 1   blood spatter expert, and they're looking at just the

 2   patterns basically of blood.

 3         Q   Did you -- did you believe this assignment to

 4   be a blood spatter assignment?

 5         A   No.     One of the things we needed to do was,

 6   first of all, determine what specifically it was.

 7   Because just looking at it with the naked eye, one

 8   cannot assume that it's blood.     So that was why first we

 9   examined it, and then we did the subsequent testing.

10   Because if it is other than pure blood and it's other

11   material, it's important to determine what that material

12   is.

13             And in order to do that, you have to look at

14   the cells present, the characteristics microscopically.

15   And clearly that's something a pathologist is qualified

16   to do but not a -- certainly not a criminalist or what

17   types of cells because that's what we do.    That's how

18   pathologists make diagnoses.

19         Q   Okay.    Let's go into -- first of all, what,

20   what did you review or what materials were you provided

21   when you first started your assignment?

22         A   Well, when I first started the assignment, I

23   had some photos of the bed pad, some DNA testing reports

24   and I believe some reports from -- one or two of the

25   blood spatter analysis reports on the -- on the stain
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 1   itself.

 2       Q      Did you also have -- you said that you had

 3   some DNA records?

 4       A      Right.   I had the DNA records from Reliagene

 5   where various areas of this stain in this bed pad were

 6   tested.

 7       Q      Okay.    And what -- what did the DNA reports

 8   tell you, if anything?

 9       A      Well, there was the presumptive test for

10   blood.    The TechDetect, HemDetect showed the presence of

11   blood in some of the stains.    And in some of the stains

12   there was blood.    In some of the areas of the stains

13   there was no blood.    The --

14       Q      What significance does that have?

15       A      Well, it means there's other material there.

16   And the fact of the matter is that to test positive,

17   blood has to -- there has to be some red blood cells

18   there, but they can be intermixed with other material.

19   It doesn't have to just be pure blood.    And the fact

20   that some of these areas tested negative indicated that

21   there was other material there.

22              So that certainly was something to look into.

23   And at that point I felt we needed to progress further

24   to characterize, well, is this blood or is this

25   something else or is it a combination.    And then went
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 1   about how we would do that and were there any

 2   characteristics of this that would indicate that

 3   although there may be some blood present, that there was

 4   other material present as well.

 5       Q    Now, when you were retained, were you able to

 6   start this analysis of the stain right away?

 7       A    You know, I don't recall.   I think -- I think

 8   I was contacted initially in June of '04, and we did

 9   the -- we did the testing actually somewhat later.    I

10   can't recall the exact dates we did it.   It wasn't

11   immediately.

12       Q     Okay.   Did you recall if you got -- or if the

13   attorneys got permission from the Court to actually take

14   a stain sampling from the pad?

15       A    Well, I think, yeah, that's why we -- that's

16   why we took it.   We had permission of the Court to do

17   that.

18       Q    And did you -- why was that necessary?

19       A    Why was it necessary to get the permission?

20       Q    Why was it necessary to take a sampling from

21   the bed pad itself?

22       A    Well, what we wanted to do -- when we first

23   looked at it, I wasn't sure if I was going to have to do

24   that or not because I hadn't actually seen the bed pad.

25   But I think I had asked the attorneys to go ahead and
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 1   allow us to do that if we needed to when we first looked

 2   at the pad.

 3            And in the center of the pad initially, there

 4   was a small area of particulate material which I felt

 5   needed to be sampled.    And that's what we actually took

 6   and used to prepare and put under the microscope, so we

 7   could look at the microscopic slides of that portion of

 8   the specimen.

 9       Q    Okay.   Let's stop for a moment and I'd like to

10   have you step down.

11            MS. MARSHALL:     I'm going to offer Defendant's

12       Exhibit -- since I'm going to use the boards, can I

13       have these marked with new exhibit numbers?

14       Because I think the eight-and-a-half-by-11s are the

15       ones that are pre-marked.

16            THE COURT:     Marked for identification?

17            MS. MARSHALL:     Correct.

18            THE COURT:     Yes.

19            MS. MARSHALL:     Okay.

20            MR. OSBORNE:    Your Honor, can we approach?

21            THE COURT:     Sure.

22            (Whereupon there was had a discussion at the

23       Bench outside of the hearing of the Jury.)

24            MR. OSBORNE:    Judge, since you have DV'd the

25       battery claim, I object to the relevance of this
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 1       testimony.

 2            THE COURT:    Overruled.    Go ahead.

 3            MS. MARSHALL:    These were -- do you have any

 4       objection to these?       These are the --

 5            MR. OSBORNE:    As demonstrative aids?   I don't

 6       think they were listed on the exhibit as

 7       demonstrative aids.

 8            MS. MARSHALL:    We'll just mark them as

 9       demonstratives.

10            (Whereupon the discussion at the Bench was

11       concluded, after which the following proceedings

12       were had.)

13            MS. MARSHALL:    May the witness step down, Your

14       Honor?

15            THE COURT:    Yes.

16   BY MS. MARSHALL:

17       Q    Dr. Anderson, if you could step down.       And I

18   believe what you were talking about is the observation

19   of the bed pad with the naked eye.

20       A    Yes.

21       Q    Would these exhibits be helpful for you in

22   giving this testimony?

23       A    Yes.

24       Q    Okay.     Would another easel be helpful?

25       A    Yes.
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 1       Q       Okay.    This has been marked as Plaintiff's

 2   Exhibit No. 6.      And is this the bed pad that you

 3   examined?

 4       A       Yes.

 5       Q       Okay.    Could you tell us what your first

 6   observation was or what you just did?

 7       A       Well, there's several.    First, I looked at it

 8   with the naked eye at this point.     And there are several

 9   things which became clear in particular with regard to

10   this stain.    This is smudging.   This is some smudging

11   here.   Clearly it's yellowish and it's not bloody

12   looking.

13               Now, this area -- I then took a close-up, and

14   this is a close-up photo.      And what I -- what I noticed

15   was that whereas a liquid will tend to diffuse when it's

16   put on an absorbable surface, it diffuses rather

17   uniformly.    We have here a relatively irregular border,

18   almost looking more like a smudge rather than a

19   diffuse --

20               MR. OSBORNE:   Your Honor, I would object to

21       this testimony as beyond the scope of the expert's

22       expertise as far as distribution of blood on the

23       bed.

24               THE COURT:   Overruled.

25   BY MS. MARSHALL:
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 1       Q     You may proceed.

 2       A     Now, a liquid would basically diffuse out.

 3   You put a glass of water on the table, it's going to

 4   diffuse out uniformly.   This to me looked more formed.

 5   This looked more like a smear and something that was

 6   semi-solid rather than a pure liquid.

 7             Now, in addition you notice these areas, and

 8   this is the little seam along this pad.    Where these

 9   areas had been spared, this would not be consistent with

10   a liquid because it would have filled up everything.      In

11   fact, it would follow the path of least resistance.       It

12   would tend to flow out, but here this one was spared.

13             So we know we have something that more or less

14   has some form to it rather than just a liquid.    So this

15   then led to the next step.   We had this area here and we

16   took a swab, saline swab.

17       Q     Are you showing --

18       A     We swabbed several areas here.

19       Q     Okay.

20       A     This area, this area, and we made a

21   preparation to look at it under the microscope.    In

22   addition, this small area here appeared to be

23   particulate.   It was a particle.    So that was what I

24   took.   And then we processed that, and that's what I

25   looked at under the microscope.     And I'll show you the
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 1   pictures of that.

 2              Now, so there's two elements here.    There's

 3   something here that might tell us is there something

 4   here?   What is this substance here?    If it's blood it

 5   looks a certain way.     If it's fecal material it looks a

 6   certain way.   If it's sputum it looks a certain way.      So

 7   then we analyzed to see what that was.     So we use the

 8   naked eye, then the dissection microscope and then the

 9   actual regular microscope.

10       Q      How many swabs did you actually take?

11       A      I think we took two or three swabs.    We put

12   them in fluid, we did cytology and then the cell block,

13   which is -- the little button in the bottom is then

14   processed as a biopsy would be and we look at that under

15   the microscope.   And that's what I'm going to show you

16   in a minute.

17       Q      You need to speak a little bit louder when we

18   have the boards up.    The court reporter is having a hard

19   time getting down everything that you're saying.

20              Was there anybody with you when you did the

21   testing?

22       A      I think there were attorneys from the Defense,

23   your group and this gentleman, I can't -- I'm sorry.

24              MR. CONWAY:    Mr. Conway.

25       A      Mr. Conway, right.    In fact, we showed them
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 1   exactly what we were looking at at the time.      So both

 2   the attorneys got to see the area of sparing and the

 3   smudging.    And I sort of explained to them basically

 4   what I'm explaining to you.

 5       Q       And the slides were made available to them as

 6   well?

 7       A       Well, nobody, nobody asked me for any slides.

 8   I would -- in this situation I would basically -- since

 9   it's a pathology problem, I would really -- you know,

10   I'd share them with other pathologists, we'd give them

11   pictures of everything, but no pathologist ever called

12   and asked to look at them.

13       Q       All right.   Did -- have you prepared a Power

14   Point that will assist you in walking through the next

15   steps of what you do?

16       A       Yes.

17       Q       Okay.   Let's take these down for now.

18               MS. MARSHALL:   Did the Jury -- is this going

19       to be able to -- can I have the witness talk from

20       here since it's behind him?      Thank you.

21               THE COURT:   Sure.

22   BY MS. MARSHALL:

23       Q       Can you see that or --

24       A       We might want to turn these lights down.

25               THE COURT:   Do you want to turn the lights
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 1       down a little bit?     Let's turn the lights down.

 2   BY MS. MARSHALL:

 3       Q      Can you tell us what you -- what you did to

 4   analyze the stain on the bed pad?

 5       A      Well, this is basically the sequence I went

 6   through and the methods I used to finger it out.      Here

 7   we looked at the bed pan -- the bed pad and took photos

 8   of it.   We took photos at various distances.   And

 9   what -- it appeared to be localized, as I said, a

10   smaller smudge, and then this area which seemed to have

11   some form to it.

12              So at this point, after looking at it with the

13   naked eye, I felt that we needed to do, you know, some

14   more to determine what specifically this was, not just

15   assume it's blood or assume it's fecal material or

16   assume anything.    Part of what we do is to, you know,

17   get the -- do as many studies as we can to see if we can

18   come up with some factual data regarding the process.

19       Q      Okay.    And what did you do next?

20       A      Well, an examination.    We showed this

21   tadpole-shaped area, which as I indicated on the photo

22   we just looked at, the board we just looked at has some

23   form.    It does not diffuse out.   And it's important to

24   look at the edges of that.     You can see it's not

25   diffusing out.     It's more or less --
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 1       Q       Let's use the board that you have 'cause I

 2   think it's a little clearer than the Power Point.        What

 3   do you mean by not diffusing out?

 4       A       Well, as we went through before, a liquid is

 5   going to diffuse out uniformly.       And here we have areas

 6   of sparing really all the way through here, and that's

 7   not consistent with a liquid.     You have this area along

 8   the seams.   That's clearly not consistent with a liquid

 9   diffusing outward.

10       Q       Let me show you what has been marked as

11   Plaintiff's Exhibit 12, which are from Mr. Stuart's

12   testimony.    And you had a photo -- these photographs

13   when you did your work, correct?

14       A       I had -- yeah, I had the black-and-whites

15   actually.    I didn't have the color photos.

16       Q       Okay.    Can you tell us what you mean by

17   diffusing out?      Just explain that a little better.

18               MR. OSBORNE:   Object, no predicate.

19               THE COURT:   Overruled.

20       A       Well, diffusion simply means the process of

21   spreading, if you will.     If you put a drop of water onto

22   cotton, it's going to -- it's not going to just stay in

23   a single area.      It's going to get wet around.   Now, if

24   you look at the difference here, this is -- the margins

25   here are very well confined.
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 1              So this indicates that there's some form to

 2   this material and it's not doing what this one is doing.

 3   Look at this.      See how it's diffusing out and filling up

 4   everything?   It's sort of a feathery moving out.    We

 5   don't see the sharp margins.      We certainly don't see

 6   anything close to this.     This is diffusing out here.     So

 7   it's sort of a feathery -- and you see it's lighter and

 8   lighter as it goes out, but this has pretty clear

 9   margins.

10       Q      Okay.    What did you do next?

11       A      So that was what -- it didn't look like just

12   simple blood, okay, so -- but it could be.      So the next

13   thing we did was we took the -- this is a close-up

14   showing what we just showed you actually, how this is

15   confined to this area.     It's well formed.   But, you

16   know, to be sure, maybe something strange happened and

17   it was -- there was some blood in there.

18              But when you do a scientific evaluation,

19   there's some things you got to do.     And you got to look

20   at the characteristics as we did with the naked eye.

21   Then we looked at it under the low-powered microscope to

22   look at areas that are not apparent to the naked eye.

23   And then we did the samples and analyzed those to see if

24   we could tell what this material actually was.

25       Q      Now, when you examine it to see what this
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 1   material actually is, are you -- you're looking at it

 2   under a microscope?

 3       A     Right.   Now, this is under the dissecting

 4   microscope.

 5       Q     What does that mean?    What's a dissecting

 6   microscope?

 7       A     Well, as I explained, it's a microscope that

 8   you see in the TV when they're looking at -- when

 9   they're putting an object underneath it so they can get

10   a close-up view.   It's not at microscope that you look

11   at a tissue sample under.   It's not higher powered.

12   It's a medium-type microscope.    So it's giving you a

13   better view than just the naked eye.

14            So it's a -- magnifying probably up to 40

15   times magnification.   This is about ten to 20 times

16   magnification.   And we can see very clearly that these

17   areas that look like they were spared really are.   So

18   there's areas along that seam that are not involved.

19       Q    Okay.

20       A    Again, characteristically when you have a

21   liquid, it'll spread uniformly.   It doesn't appear that

22   we have that.    Now, I did tests also with the blood and

23   you can see what happens, it feathers out.   First of

24   all, the coloration is significantly different from this

25   which does not feather out, and it's an area of sparing.
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 1              And you can see there's no sparing here.     It

 2   just diffuses out and becomes less and less, but that's

 3   because you're running out of the fluid as it goes

 4   further out.    In fact, this creates a much more sharp

 5   margin and to me indicates that there's actually form to

 6   this process, form to this substance that's on the bed

 7   pad.

 8          Q   Okay.

 9          A   Now, I'm going to show it under the

10   microscope.    This is a tissue sample in an area of a

11   different patient, this is a trauma patient, but this

12   shows you what blood actually looks like.   This is

13   blood, pure blood.   There are a few white cells.   They

14   are rare when you look at it under the microscope.      And

15   you can see this red coloration is uniform red blood

16   cell content.

17              Now, the red blood cells -- actually when you

18   do DNA testing, you don't actually use the red blood

19   cells because they don't have a nuclei.   The nucleus of

20   the cell is where the DNA is.   So when you're doing DNA

21   on, quote, blood, you're doing it on the white cell

22   nuclei that are present or anything else that happens to

23   be present.    So you may see a few white cells here,

24   small basically circular-type cells.

25              Now, this is a section of intestine from the
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 1   same part.    And I wanted to show you that because look

 2   at -- these are the glands that line the bowel.        These

 3   are called epithelium.    The epithelium is similar to the

 4   skin, although it's on the inside of the tract, and it's

 5   a gland-type epithelium.    These are glandular

 6   structures.

 7              And you can see there's a little bit of

 8   cytoplasm in these blood stain nuclei, which are the

 9   nucleus of those glandular cells.

10       Q      Now, you say that there's also epithelial

11   cells on the outside on your skin?

12       A      Well, they're the same type of cells.      Any

13   lining or covering is called epithelium.      So

14   epithelium -- skin is an epithelium.       Inside of your

15   mouth is an epithelium.    There's just different types.

16   Inside the bowel is epithelium.    Stomach, respiratory

17   tract is all lined by epithelium, anything that opens to

18   the outside essentially.

19       Q      Do they look different under the microscope?

20       A      Definitely.   These are glandular.      Each area

21   has different looks to it, but they have this same

22   pattern in that they're cells with nuclei that are

23   present at these various areas.

24       Q      Okay.   Then what did you do?    What did you

25   look at?
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 1       A    Then I took the -- remember, I said when we

 2   took the sample, we put it in a preparation and made a

 3   microscopic section so we could look at it under the

 4   microscope, and that is what we see.   Now, in pure

 5   blood, you are only going to see the red blood cells and

 6   a few scattered white blood cells from time to time.

 7   White blood cells are small and round.

 8            One of the things we looked at here was this

 9   was distinctly not blood.   These are those

10   epithelial-type cells that we saw in the section of

11   bowel wall and these are large numbers of them.     They're

12   cigar-shaped.   We have an enormous material that these

13   are within, just some degenerated cells and also yellow

14   stain material, which is very consistent -- in my

15   experience in looking at many gastric --

16   gastrointestinal biopsies, this is fecal material.    And

17   that's what that stain looks like.

18             So we have all these cigar-shaped cells which

19   in my estimation represent epithelial cells, which means

20   this is not -- there may be some red blood cells in

21   here, but this is the primary make-up of this material.

22   Now, I believe that this is fecal material and that

23   these are epithelial cells.   And you can see the

24   difference.   These are almost all red cells.

25       Q    So --
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 1       A       And here we have -- virtually all of these

 2   cells are epithelial cells scattered through this

 3   material.

 4       Q       The bottom is all blood, a blood --

 5       A       Correct.   That was blood from another patient

 6   and this is the Destefano case, tissue that we took at

 7   the --

 8       Q       That's -- the top is the swabbing from the bed

 9   pad, the material from the bed pad?

10       A       Right, and the cell blocking we prepared.

11   Now, you can see comparison now between the blue nuclei

12   and pink cytoplasm and the shape of these cells.    And

13   see how some of them come out into the fecal material?

14   This is very characteristic of a bowel biopsy or at

15   autopsy.    And here we see these same cells.

16               And this simply is not blood, it's -- my

17   opinion is it's fecal material with epithelial cells

18   very prominent within the material.    And I think the

19   fecal material was probably semi-liquid when it was --

20   when it got on to the bed pad and -- but it definitely

21   is not pure blood.

22       Q       All right.   And what was -- what was your

23   conclusions?

24       A       It was pretty much what we just went through,

25   epithelial cells most likely from the GI tract.     It's
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 1   fecal material.     All those cells are there.   It means

 2   it's not blood.     And the other characteristics of the

 3   stain were basically what led me to keep looking to see

 4   if we could figure out what it actually was.     And my

 5   opinion is it was semi-liquid, semi-solid fecal

 6   material.

 7       Q       Okay.   Is there also blood in with that

 8   material?

 9       A       Oh, probably.   Anybody that's had any

10   irritation to the gastrointestinal tract, I believe

11   there was history of impactions with this patient, is

12   going to have some blood in there.    But the issue is --

13   one of the things I was asked, well, is this pure blood

14   that's just been put on there like when we did -- like I

15   did with my experiment, the blood spatter gentleman did

16   with his, was it pure blood put on to the material?       And

17   it's clearly not, it's fecal material.

18       Q       All right.   If you could -- is that the end of

19   your Power Point?

20       A       That's it.

21       Q       Okay.   Why don't you take your -- do you want

22   to shut that down first?

23               If a stain was -- on a bed pad was created by

24   taking blood from an arm and putting it in a syringe and

25   then placing it on the bed pad, would it have fecal
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 1   matter in it?

 2       A    No, there would be -- obviously there would be

 3   no fecal matter in blood.    There would be no epithelial

 4   cells in blood.    Epithelial cells are the lining.   And

 5   blood doesn't have any epithelial cells in it clearly

 6   because it's from the inside of the blood vessels.    And

 7   the epithelial cells are the lining cells so we don't

 8   have any of that.

 9            Now, another possibility was, well, could

10   there have been a piece of fecal material there and

11   blood put on it?    But we don't have that diffusion that

12   took place, and that spreading still would have taken

13   place even -- if you can imagine that on any of those

14   samples either I did or the other gentleman did, if

15   there was any material there and the blood was put on

16   top of it, we would see that same diffusion, and we

17   don't see that.

18            In fact, we see similar coloration and similar

19   pattern throughout the whole stain.    So in my opinion

20   the whole stain had some substance to it.   It wasn't

21   just liquid blood.

22       Q    Okay.     Is it possible that there were layers

23   or there were traces of fecal matter on the bed cell

24   (sic) and cells from the skin, and that's what you were

25   looking at when you looked under your microscope?
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 1       A    Well, as I just indicated, that's a

 2   possibility.    And to rule that out, then we have to go

 3   back and look at the character of the stain.     And the

 4   stain shows that it's not a liquid material because it's

 5   not diffusing out into that area.

 6       Q    Okay.     Is there anything that you observed

 7   about the stain that would indicate that it was

 8   artificially placed there?

 9            MR. OSBORNE:    Object, no predicate.

10            THE COURT:    Sustained.

11   BY MS. MARSHALL:

12       Q    Let me ask it a different way.    Dr. Anderson,

13   after you observed the stain and looked at it under the

14   microscope, did you come to a conclusion as to whether

15   or not this stain could be blood taken from a syringe

16   and deposited on a bed pad?

17            MR. OSBORNE:    Same objection.

18            THE COURT:    Overruled.

19       A    No.     This was not blood from a syringe for the

20   reasons we -- the many reasons we went through,

21   including the microscopic, including the characteristics

22   of the stain.

23            MS. MARSHALL:    I have no further questions.

24            THE COURT:    Counsel for ORHS, do you have any

25       questions of this witness?
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 1            MR. TOWNSEND:     No, ma'am.

 2            THE COURT:    Cross?

 3            MR. OSBORNE:    Miss Marshall, may we move the

 4       apparatus out of the way, please?

 5            MS. MARSHALL:     Sure.

 6                            - - - - -

 7                        CROSS EXAMINATION

 8   BY MR. OSBORNE:

 9       Q     Hang with me a second, Doctor.

10       A    I can't see through all this.

11       Q    That's correct.    Doctor, as a part your

12   review, you were not provided any medical records to

13   review before formulating your opinions, were you?

14       A    No, my, my -- basically what I was asked to do

15   was to see if we could evaluate that stain to tell what

16   its origin was.   And that's basically what I did through

17   looking at the characteristics and both -- all tests.

18       Q    And your opinion is that this substance,

19   whatever it was, came from the rectal area?    That's your

20   opinion, isn't it?

21       A     I believe that's most likely.    It was on a bed

22   pad, it had -- certainly had epithelial cells.    I don't

23   think we should completely rule out that it came from

24   some heavy mucus in the respiratory tract, but it

25   certainly came from a tract that's lined by epithelial
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 1   cells.

 2          Q   Would you agree with me, Dr. Anderson, that

 3   the best way to determine a source of bleeding is to

 4   examine the patient?

 5          A   Well, the best source -- best way to tell a

 6   source of bleeding clinically would be to examine the

 7   patient.

 8          Q   Okay.   That's my question.   You never -- this

 9   is an obvious question, but you never examined Carolina

10   Destefano to determine the source of this bleeding, did

11   you?

12          A   No.

13          Q   And you were never provided any medical

14   records of Carolina Destefano before formulating your

15   opinions to see if anybody else had done an examination

16   to determine if there was rectal bleeding, did you?

17          A   No.

18          Q   Okay.   You don't know if any doctor examined

19   Mrs. Destefano to determine if she had rectal bleeding

20   contemporaneous to the time that this stain was found on

21   this pad that's in evidence as Plaintiff's 6, is that a

22   true statement?

23          A   No, I did not review medical records.   I

24   looked primarily at the characteristics of the stain, as

25   we have gone through.
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 1       Q    Well, my question was you don't even know if

 2   any doctor ever examined Mrs. Destefano to see if she

 3   had any rectal bleeding, do you?

 4       A    No.

 5       Q    And would you agree with me, Dr. Anderson,

 6   that if a doctor had timely examined Mrs. Destefano

 7   after this blood was found, that you would have to defer

 8   to that doctor as to whether or not Mrs. Destefano had

 9   blood coming out of her rectum, wouldn't you?

10       A    Well, that was not the issue.   Whether or not

11   she was clinically bleeding, yes.

12       Q    Okay.    You would have to defer to a doctor who

13   examined her as to whether or not she had blood coming

14   out of her rectum, would you not?

15       A    Yes.    I mean, I didn't do any clinical

16   evaluation of the patient.   We just simply looked at the

17   stain to determine what it was.

18       Q     Now, you would also have to agree with me,

19   Dr. Anderson, that examining a patient contemporaneously

20   to blood being found is a much better means of

21   determining a source of bleeding than looking at slides

22   through a microscope years after the event, isn't that

23   true?

24       A    No, I would say that's not necessarily true.

25   If you're talking about the stain itself --
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 1       Q       No, I'm talking about the patient.

 2       A       Well, as I indicated, I didn't -- I'm not

 3   evaluating the patient, I'm evaluating the stain.        And

 4   once that's preserved, it's preserved.      I mean, it

 5   was -- the microscopic section of those cells are going

 6   to look the same two hours afterwards or two years

 7   afterwards.    The results are there in the epithelial

 8   cells.

 9       Q       My question was this, Doctor.   You would agree

10   with me, would you not, that examining a patient by a

11   physician contemporaneously to blood being found is a

12   much better means of determining a source of bleeding

13   than looking at a slide through a microscope years

14   later?

15       A       I don't understand that question.    We're

16   talking about apples and oranges.   We're talking about

17   looking at the stain under a microscope of material that

18   came from somewhere.   And I'm not sure where that came

19   from, but I can tell you it's not just blood, it's fecal

20   material and -- probably with some blood.

21       Q       I know you've been saying that, but your

22   opinion that you're giving the Jury here today, this,

23   whatever you call it, came from Mrs. Destefano's rectal

24   area?    That's your opinion, is it not, more probably

25   than not?
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 1       A      No, my opinion is that the material there is

 2   not blood.    Now, the DNA from that stain was consistent

 3   with Mrs. Destefano, although hers actually wasn't

 4   tested.    Her blood was not tested.   The son's blood was

 5   tested.    It would be consistent with that from the DNA.

 6   But as to where that came from clinically, I don't know.

 7   I wasn't --

 8       Q      In your deposition you talked about you had an

 9   opinion that this blood came from her rectal area, did

10   you not?

11       A      I had said it came from a rectal area because

12   of the -- not because it was hers necessarily but -- it

13   helps the DNA matches, but the fact that we have the

14   epithelial cells intermixed with fecal material is going

15   to come from the gastrointestinal tract.    That's what I

16   believe I said.

17       Q       All right.   That's the rectal area, is it not?

18       A      The gastrointestinal tract is the whole tract,

19   and the cells are shed throughout the whole thing.    As

20   we saw in the picture I showed you, that little -- that

21   was not the rectal area, it was further up in the GI

22   tract, but the cells are being shed.

23              And I demonstrated that to show you that those

24   cells indicate that this is where this is from, a source

25   that has these epithelial cells.    That can be the lining
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 1   of the rectum, the lining of the gastrointestinal tract,

 2   lining of the respiratory tract, so forth.

 3       Q    All right.   Doctor, you would agree with me

 4   that the exit area for anything of the gastrointestinal

 5   tract is the rectum, correct?   That's the escape chute

 6   for the tract?

 7       A    Correct.

 8       Q    You would also agree with me that an anoscope

 9   is an appropriate device to evaluate a patient where

10   rectal bleeding is suspected, would you not?

11       A    Well, if it's rectal bleeding.   I would leave

12   that to the clinician because I'm not the best one to

13   determine it.

14       Q    'Cause you're not a clinician, are you, in

15   terms of that?

16       A    Right.

17       Q    You don't treat patients?

18       A    No.

19       Q    You don't examine patients to determine a

20   source of rectal bleeding?

21       A    Not usually.

22       Q    You usually deal with dead people?

23       A    Well, there's very little difference in the

24   site before someone dies and after they die.   So really

25   we're looking -- we're talking about -- we're talking
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 1   about a site.    It occurred somewhere in the

 2   gastrointestinal tract in my opinion.   Looking at those

 3   cells and that material, that is where that material

 4   came from.

 5          Q   Now, Dr. Anderson, wouldn't it be helpful to

 6   you if you were provided medical records before forming

 7   your opinion to see what the clinical picture was of

 8   Mrs. Destefano as to whether she was found to have

 9   rectal bleeding?   Wouldn't that be helpful to you?

10          A   Not really.   If we're looking at the specimens

11   to see where it came from and what the characteristics

12   of the specimen are, then you -- history isn't that

13   critical, unless you're going to try to match up this

14   patient had this going on.    But that wasn't what I was

15   asked to do.    I was asked to determine is this material

16   from a syringe that's been put on to the bed pad or is

17   it something else, and it's something else.

18          Q   You're a forensic scientist, aren't you?

19          A   Yes, sir, correct.

20          Q   You're Board-certified in forensics, aren't

21   you?

22          A   Correct.   That's why I went through the

23   process that I went through and not just look at the

24   stain and say, okay, it's blood.

25          Q   And as a forensic scientist, wouldn't it be a
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 1   good idea to have the medical records to determine what

 2   the context was in terms of this stain, to see what the

 3   total picture was before you did your analysis?

 4       A    Well, I mean, if that was what I was asked to

 5   do, if the idea was to put it in some context as to how

 6   that got there, the answer is yes.   But if the question

 7   was is this just blood dropped from a syringe or not or

 8   is it something else then, no, the fact -- the only

 9   reason we know it probably belongs to Mrs. Destefano is

10   because of the DNA that was done as well.    Otherwise --

11   but that wasn't the issue.   The issue was was this

12   somebody's blood or somebody's fecal material, and it's

13   somebody's fecal material.

14       Q    Well, we know that the testing of the blood

15   from Mr. Destefano was a 99 point something certainty

16   that this was his mother's blood, correct?

17       A    Well, that's what I indicated.     That's what I

18   said, that that's how we know.   And so if you want to

19   use that, then that probably came from her.    But the

20   issue was is this pure blood on this bed pad or is it

21   something else.   And the fact of the matter is after we

22   did the analysis, it turns out it was something else.

23            MR. OSBORNE:    Any objection, Counsel?

24            MS. MARSHALL:    No objection.

25            MR. TOWNSEND:    No objection.
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 1             MR. OSBORNE:   I'd like this moved in as

 2       Plaintiff's next numbered exhibit.

 3             THE CLERK:   27.

 4             (Plaintiff's Exhibit No. 27 was marked.)

 5   BY MR. OSBORNE:

 6       Q     Dr. Anderson, I'm going to show you what is in

 7   evidence as Plaintiff's Exhibit No. 27, sir.   That's a

 8   letter to you, isn't it --

 9       A     Yes.

10       Q     -- from Ms. Petro, who's seated at counsel

11   table to my right?

12       A     Yes.

13       Q     And this letter -- I'm going to publish part

14   of this letter.   It states -- and you're being provided

15   some information in terms of forming your opinions here,

16   are you not?

17       A     I'm sorry?

18       Q     You're being provided some information that

19   accompanied this letter about the photo of the bed pad,

20   the Amended Complaint, the DNA report, those types of

21   things?

22       A     Yeah, I was given that in -- when they sent me

23   that information, yes.

24       Q     Now, the other thing that's on here I'm going

25   to publish to the Jury is it says, "The other two
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 1   reports show what type of testing has already been done

 2   to the bed pad.     The opinion regarding the possible

 3   contaminant in the blood came from a different blood

 4   spatter expert so you will not find any reference to it

 5   in Mr. James' report."

 6               Do you read that?

 7          A    Yes.   And I took that to mean there was

 8   some --

 9               MR. OSBORNE:   Judge, Your Honor, there's not a

10          pending question.   Dr. Anderson, just wait for the

11          question.   If I could, could I have an instruction

12          to that effect?

13               THE WITNESS:   I was explaining my answer.

14               THE COURT:   You'll have an opportunity to

15          explain when counsel for the Defense gets back up.

16          Just answer the question as posed.

17          A    I'm sorry, the question again?

18          Q    I think you answered it quite fully, thank

19   you.    The question I have for you now is that this

20   reference here is to a blood spatter expert that's

21   different than Stuart James, is that right?

22          A    Yes, I believe so.

23          Q    And that would have been a blood spatter

24   expert hired by the Defendants in this case, wouldn't

25   it?
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 1       A    Well, I don't know.     I would assume that's a

 2   possibility but --

 3       Q    Okay.      Did you ever have access to that other

 4   blood spatter expert to determine what his or her

 5   opinion was?

 6       A    No.

 7       Q    Have you ever seen a written report from this

 8   other blood spatter expert that was hired by the

 9   Defendants?

10       A    No.

11       Q    All right.     Weren't you curious about what

12   findings or opinions the other blood spatter expert had

13   to see if that -- if that person agreed or disagreed

14   with Stuart James?

15       A    You know, I normally don't even read other

16   experts' reports.    I did James' because it was related

17   to some of the testing he did.     And I didn't read the

18   whole thing.   But my approach was to look at the

19   specimen and figure out what it was without -- I mean,

20   usually I'm a guy that's more or less a second opinion.

21   There was some confusion so they got a second opinion.

22   They asked me to look at it.

23            There clearly had not been the testing done

24   that I did, so I decided we needed to do that in order

25   to fully evaluate what that was.     And you saw the
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 1   results of what I did.

 2       Q     Doctor, my question was a lot simpler than

 3   that.   I just asked you if you were curious about what

 4   the opinion was of the other blood spatter expert hired

 5   by the Defendants.   Were you curious or not?

 6       A     I believe I answered that and said I don't

 7   even usually read blood spatter expert's reports or

 8   anybody's expert's reports when I'm dealing with a case.

 9   And, no, I mean, they both could be wrong.      In fact,

10   it's not blood.   It's really out of the province of a

11   blood spatter expert because it's fecal material.     I

12   probably had more experience doing rectal exams and

13   seeing this sort of thing occur than any blood spatter

14   expert has.

15             MR. OSBORNE:   Your Honor, I'm going to object

16       to this witness testifying about his expertise

17       versus other witness' expertise.

18             THE COURT:   Sustained.   Doctor, please just

19       answer the question that's asked.

20   BY MR. OSBORNE:

21       Q     Doctor, and your opinion is that whatever you

22   evaluated probably came from the rectal area because you

23   did know that there was a constipation issue with this

24   lady and this disimpaction took place, isn't that true?

25       A     I indicated that I knew that there had been
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 1   episodes of fecal impaction, and that if -- unless this

 2   came from an endoscopy where a tube is put up higher,

 3   that the sample itself probably came from the rectal

 4   area being expunged in some ways.

 5         Q   And my question was that you knew -- your

 6   opinion, that's based in part upon the assumption that

 7   there was a disimpaction that took place on

 8   Mrs. Destefano, isn't that true?

 9         A   No.    My opinion is based on the fact that --

10   what I see under the microscope and observe of that

11   stain.

12         Q   Let me ask you to -- page 26, line -- starting

13   at line 11.   And I've got to do the whole thing to put

14   it in context.   And I'm going to read a little bit of

15   it.

16         A   Can I have a copy to follow along?

17         Q   No.    Just hear me out, Doctor.   I don't have a

18   copy for you.    Question, "Okay."   Answer, "So they're

19   not -- they're not in the blood.     They don't -- the

20   veins are lined by totally different type of cells.       And

21   when you look at a clot, you don't see this.    So we know

22   that this material is probably from one of the tracts,

23   and probably the gastrointestinal tract, with fecal

24   material in it, and that it was uniform mixture,

25   indicating that it wasn't a stain and that something was
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 1   put on top of it where we would see then a clump of

 2   epithelial cells of blood underneath it.     Here we see

 3   everything that's mixed uniformly."

 4              And we're getting to the point right now,

 5   Doctor.   "So this probably came from -- at one point

 6   from the rectal area in which -- and I do know that she

 7   was -- there was a constipation issue with this lady and

 8   there was necessarily disimpaction and so forth.

 9   Frequently you'll get some mucosal bleeding with a

10   disimpaction, and that would -- that would explain the

11   blood, mucus, fecal material and epithelial cells all

12   together because there was -- as disimpaction took

13   place, they were mixed up.   The epithelial cells would

14   come off of the fingertips at that point."

15             So you did assume that the mechanism for this

16   blood coming out was at the time a disimpaction took

17   place, didn't you?

18       A     I think -- I can't remember the question

19   specifically, but there were many questions asked many

20   different ways.   But, yeah, I think it's a good

21   possibility.   There's several -- actually nobody had

22   asked me yet about how I thought it might get there, but

23   it could have been during the disimpaction.

24             It could have been flatus or passing of gas

25   with some stimulant stool projected.   It could have been
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 1   with her lying flat.   It could have been on her side.

 2   There's just a number of different ways.   That wasn't

 3   really part of the evaluation.   The evaluation was to

 4   try to determine what that material was and what that

 5   stain was.

 6       Q    Dr. Anderson, you just testified by deposition

 7   that this probably came from the rectal area because of

 8   the disimpaction taking place.   That's what you just

 9   said under oath in your deposition, didn't you?

10       A    Well, I think I have said that about five or

11   six times.   The other possibility -- as I pointed out

12   earlier, the other possibility is it came from another

13   tract lined by the epithelium.   It has to be epithelium,

14   and the respiratory tract is the only other possibility.

15   I said it could have been sputum, but probably --

16   considering where it was, it most likely came from the

17   gastrointestinal tract.

18       Q    Doctor, you weren't shown any medical records,

19   we know that, right?

20       A    Right.

21       Q    So the only means you had of knowing that

22   disimpaction took place is from these lawyers, isn't

23   that true?

24       A    Well, I think I was given some information

25   about the fact that -- and I think it was in some of the
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 1   pleadings or whatever it is they sent that there was

 2   some -- there was some question, but I didn't really get

 3   into that, whether or not she had been disimpacted or

 4   not.       The question and the answer was is this blood or

 5   fecal material.

 6                  MR. OSBORNE:   Your Honor, I'm going to move to

 7          strike his answer.      He's going off -- beyond the

 8          scope of my question.

 9                  THE COURT:   Overruled.

10   BY MR. OSBORNE:

11          Q       Go ahead, Doctor, continue your answer.

12          A       I'm fine.

13          Q       You further assumed that this disimpaction

14   caused some type of injury in order to have bleeding

15   occur, didn't you?

16          A       No.

17          Q       You haven't had any training or clinical

18   experience with the results of what can occur with

19   disimpacting since medical school, have you?

20          A       That is probably -- that is probably true, but

21   things haven't changed too much since then.

22          Q       And you finished medical school in 1968,

23   didn't you?

24          A       Correct.

25          Q       So your last experience with whether or not
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 1   bleeding can occur during disimpacting was in 1968, 37

 2   years ago, wasn't it?

 3       A    It's probably true.

 4       Q    You hold staff privileges at Orlando Regional

 5   Health Center, don't you?

 6       A    No, I do not.

 7       Q    Have you ever held staff privileges?

 8       A    I believe at the time we were doing the sexual

 9   battery exams that I was on the pathology staff, but

10   that was -- that was all.

11       Q    Okay.   Dr. Anderson, isn't it true that you

12   did not microscopically test any other part of the bed

13   pad other than the tadpole-shaped stain?

14       A    That's correct.    That was the issue, and that

15   was really the only area that I saw any particulate

16   material that we could test.

17       Q    You would agree with me, would you not,

18   Dr. Anderson, that this is not a clean pad?

19       A    That's not clean.

20       Q    It's well soiled, isn't it?

21       A    Well, not terribly soiled, but there certainly

22   is some smudging on it.

23       Q    Okay.   In your knowledge of this case, do you

24   know how long this bed pad was in use before it was

25   removed from Mrs. Destefano's bed?
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 1       A      No, I don't.

 2       Q      Are you familiar with a term of art used by

 3   blood spatter experts called overlay?

 4       A      Well, I presume it means layering of

 5   substances one on top of the other.

 6       Q      And that would mean that overlay occurs when

 7   liquid blood is placed on a fabric that is contaminated

 8   with other substances already on the host material,

 9   isn't that true?

10       A      That's true.   And I think that's what -- if

11   you'll recall back a little while ago when we were

12   talking about assuming that that possibility existed,

13   then looking back to the stain and whether or not this

14   is a liquid or a semi-solid material, if it had been a

15   liquid placed over a previously-existing portion of

16   fecal material, then we would have seen the same

17   diffusion or spreading that we see in the blood samples

18   but not in the sampling to the bed pad.

19       Q      And that was based upon your naked eye

20   examination of this pad and how the blood diffused on

21   the pad, the distribution of the blood on the pad,

22   correct?

23       A      Right.

24       Q      And you're not an expert on determining how

25   blood distributes on any material, are you?   You're not
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 1   a blood analysis expert, are you?

 2       A    No, only that I've seen blood on gauze

 3   millions of times, hundreds of times.

 4       Q    That doesn't make you an expert in blood

 5   pattern analysis, does it?

 6       A    No, but we don't have -- we don't have blood

 7   in this case, we have fecal material.

 8       Q    So if I dropped a drop of blood on this floor

 9   in the courtroom, Dr. Anderson, that would become mixed

10   with whatever microscopic materials were found in this

11   carpet, wouldn't it?

12       A    Correct.

13       Q    Dust?

14       A    Whatever is on the carpet.

15       Q    Chemicals?

16       A    Whatever is on the carpet.

17       Q    So when blood is dropped on a dirty, soiled

18   pad, it also is going to interact with whatever is found

19   on that pad, isn't it?

20       A    Correct.   But as was demonstrated by

21   Mr. James, I believe it was his own blood stain, it

22   diffused out in a pattern that is distinctly different

23   than what we see on this stain.   And that, combined with

24   the fact that we observed fecal material in that,

25   indicated to me that this is a fecal -- this is fecal
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 1   material and not blood.

 2         Q   Let me ask you this.    Epithelial cells are the

 3   coverings of the surfaces of our inner linings and our

 4   outer linings of our body, correct?

 5         A   That's correct.

 6         Q   The outer skin has epithelial cells, correct?

 7         A   Correct.

 8         Q   You have epithelial cells in your respiratory

 9   system?

10         A   Correct.

11         Q   Your gastrointestinal system?

12         A   Correct.

13         Q   And these epithelial cells that you saw under

14   the microscope were so degenerated or deteriorated for

15   you that you don't know where they came from, do you?

16         A   No.   I think the only thing we can say for

17   sure about those -- and if we can, do you want to put

18   this picture up again?    I can explain to you --

19         Q   No, sir, I just want you to answer me yes or

20   no.

21         A   We can't tell if it came from the respiratory

22   tract or the gastrointestinal tract.    The yellow

23   staining in my experience is very characteristic of

24   fecal material, but we couldn't completely rule out that

25   it came from the gastrointestinal tract.
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 1             Now, as far as skin goes, the surface skin is

 2   a distinct difference.   It's almost cells with very

 3   small or no nuclei, the surface of skin.   So these are

 4   larger nuclei.    So this was not from the surface of the

 5   skin.   If we went down many layers in the skin we would

 6   find nuclei this size, but it's clearly -- what we call

 7   the keratinized layer of skin is not in the sections

 8   that I took.

 9             So we know it's not from skin, from surface

10   skin.   Could be from a deep scrape of a wound possibly,

11   but that's unlikely because there was no injury that I

12   know of to other parts of the skin.   So most likely it

13   came from the respiratory or gastrointestinal.   And

14   because of the look of that material, I think it was

15   fecal material.

16       Q     Doctor, isn't it a fact that those epithelial

17   cells were so degenerated, you could not tell where they

18   came from?   Isn't that true?

19       A     I think I answered that as best we can.      We

20   can say because of size of those cells they did not come

21   from skin.   And I would venture that if you showed that

22   slide to a hundred pathologists, everybody would agree

23   it was epithelial cells, not from the skin.    Possibly

24   respiratory, possibly gastrointestinal.

25             MR. OSBORNE:   Move to strike the last part of
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 1       the answer as being unresponsive and also trying to

 2       bolster his opinion through unknown experts.

 3            THE COURT:   Insofar as the reference to

 4       unknown experts, I would grant that motion.     In all

 5       other respects it is denied.   The court -- the Jury

 6       will disregard any reference to any experts

 7       referenced in the testimony.

 8   BY MR. OSBORNE:

 9       Q    Doctor, a human being sloughs off tens of

10   thousands of dead skin cells or epithelial cells every

11   day, don't they?

12       A    Correct.

13       Q    And they shed frequently and they're

14   constantly being replenished by the human body, aren't

15   they?

16       A    Correct.

17       Q    And you would expect someone who lies in a bed

18   to leave skin epithelial cells in the bed, correct?

19       A    Correct.

20       Q    In fact, the reason that patients get

21   bedsores, if they're not moved frequently enough, is

22   because the skin sloughs off so much that it eventually

23   gets to the tissue and blood and the like, correct?

24       A    Well, actually the bedsore -- if you want to

25   get into the physiology of the bedsore, it has really
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 1   nothing to do with the skin but the pressures and the

 2   circulation to the skin and the soft tissues.      So the

 3   bedsore analogy, we don't see anything resembling what

 4   we would see in a bedsore, severe inflammation, other

 5   tissue, dead tissue.

 6            But as I indicated before, the surface cells

 7   have very, very small nuclei and a lot of what we call

 8   keratinized cytoblasts.   We don't see that in this

 9   section that I took so it's not surface skin.

10       Q    Do you know whether or not Carolina Destefano

11   wore underwear when she was in her bed?

12       A    No, I don't.

13       Q    Do you know whether or not Carolina

14   Destefano's gown was open in the back?

15       A    No.

16       Q    Do you know whether or not Carolina Destefano,

17   in the course of lying in a cachectic state, would have

18   deposited any fecal material on this pad in the course

19   of her lying there over a number of hours?

20       A    I don't know.    It's possible she did.    Maybe

21   she did, maybe she didn't.   I don't know.

22       Q    So it's certainly possible or probable that if

23   a person was lying here without underwear, without a

24   back on her gown and she was lying on this bed for a

25   number of hours that she would deposit fecal material on
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 1   the pad?

 2       A       It depends on the status of her bowel

 3   function.

 4       Q       It's possible?

 5       A       Sure, it's possible.

 6       Q       Probable?

 7       A       I don't know.    It depends on the status of

 8   her -- did she have -- is she impacted, does she have

 9   liquid stool, is she losing some of it, how often she is

10   losing it.

11       Q       In terms of your opinion that this fecal

12   material came through the gastrointestinal tract,

13   wouldn't it be helpful to determine through analysis if

14   any other part of this pad had fecal material on it?

15       A       Well, I mean, I believe that there is fecal

16   material from the yellow staining on -- the yellow

17   smudging that there is some remnants of fecal material.

18   We're looking specifically at that stain, as to whether

19   or not it was blood or if it was some other substance.

20       Q       Wouldn't it be helpful to look on another part

21   of the pad to see if there was fecal material on any

22   other part of the pad other than the stain that you

23   looked at?

24       A       As far as determining whether or not that's

25   fecal material in the stain I looked at, it doesn't
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 1   really matter whether it's there or it isn't there.     The

 2   fact of the matter is what we looked at and analyzed is

 3   fecal material.

 4       Q    Wouldn't it be helpful for you to look at

 5   other parts of the pad to see if there were epithelial

 6   cells in another part of the pad other than what was

 7   found in the tadpole-shaped stain?

 8       A    Well, it's going to be difficult unless

 9   there's -- the reason we sampled that area was because

10   there was a particulate aggregate of material and that

11   allowed us to look at that.     Just taking cells off of

12   the surface of a bed pad would have not -- I don't

13   believe we would have found anything.

14       Q    Well, you would agree with me that Carolina

15   Destefano as a normal person would have been sloughing

16   off epithelial cells from her skin on that pad?

17       A    Sure.

18       Q    And you'd expect to be able to find them

19   microscopically if you were looking -- if you did a

20   microscopic examination somewhere on that the tadpole

21   shape?

22       A    Well, possibly.     It would have meant basically

23   destroying the entire pad.    And we were sort of told to

24   minimize the amount of alteration we did, although we

25   didn't destroy anything.     We just moved it to a
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 1   different venue, if you will, put it under the

 2   microscope instead of on the pad.

 3       Q      Your opinion is that the blood and the other

 4   materials were mixed together at the same time and this

 5   came out on the pad, correct?

 6       A      No, that wasn't your question.    The question

 7   was could the blood have been put on top of the

 8   material, and the answer to that is no.     In my opinion

 9   the way the blood did not diffuse out indicates that it

10   was all a conglomerate, if you will, when it was on the

11   bed pad.   And that's why it held the shape, that's why

12   it didn't diffuse out.   And as a matter of fact, that is

13   why we found the material consistent with fecal material

14   in it because it was a semi-solid fecal material.

15       Q      Doctor, your opinion that these epithelial

16   cells most likely came from the gastrointestinal tract

17   is because of the presence of fecal material, correct?

18       A      Correct.

19       Q      Because the cells themselves are too

20   degenerated for you to determine that microscopically,

21   correct?

22       A      Well, yes, but that's basically what the

23   problem is.   But there -- the nuclei are sufficiently --

24   preserved in sufficient numbers to determine that they

25   are epithelial cells.    But as I indicated, it's a
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 1   possibility they came from the respiratory tract.    But

 2   the fecal material intermixed with that yellow stain

 3   material, which in my experience is fecal material, that

 4   is what it looks like under the microscope, is

 5   consistent with gastrointestinal origin.

 6          Q    Doctor, if the fecal material had already been

 7   on the bed pad and the overlay occurred where blood went

 8   on the bed pad, would you agree with me that you don't

 9   know where the epithelial cells came from?

10          A   Well, that's why we don't just take one issue.

11   We look at the entire process.    If -- well, I've

12   answered this, this is about the fifth time, but if the

13   blood was put over a particle of fecal material, it

14   would have diffused out, just like the blood does in my

15   demonstration and Mr. James' demonstration.    It diffuses

16   out, it doesn't stay.

17              So we don't just take one -- sort of like

18   putting a piece of the puzzle together.    We don't just

19   look at one thing.   We just didn't look with the naked

20   eye.    So that doesn't really alter my opinion.

21          Q   Didn't Mrs. Destefano have a healing wound on

22   her coccyx?

23          A   I don't know.

24          Q   You don't know that, do you?

25          A   I don't know.
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 1       Q       Wouldn't a healing wound on a coccyx of a

 2   person also be a potential contaminator of a clean pad?

 3       A       Well, there are a number of potential

 4   contaminators.   There could be a fistula where fecal

 5   material was coming out of different orifices, for

 6   instance.    But the issue was is this fecal material or

 7   was this blood basically out of a syringe.    And again,

 8   this is consistent with fecal material.

 9       Q       You mentioned -- you had mentioned a couple of

10   times now that you did an experiment and put blood on a

11   pad, correct?

12       A       Correct.

13       Q       Did you have a -- did you take a pad and soil

14   it and put other contaminants on it or did you have a

15   clean pad?

16       A       I used a clean pad.

17       Q       So in terms of your clean pad analysis, would

18   you agree with me that if you put blood on a clean pad

19   without fecal material or epithelial cells or other

20   contaminants, that that's not the same as putting blood

21   on a -- let me start over.

22               If you used a clean pad and not a pad that has

23   other contaminants on it, would you agree with me that

24   the -- there's a difference in how that would occur, in

25   terms of how the blood would diffuse, if there were
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 1   other elements on the pad, not having a clean pad?

 2          A   I think the blood as a liquid would diffuse.

 3   And actually if you want to go to Mr. James' pictures,

 4   they actually show the same diffusion, probably even a

 5   little bit better than mine did.

 6          Q   He used a clean pad, too, didn't he?

 7          A   I guess he felt that was --

 8          Q   No, just --

 9          A   -- that was sufficient to -- as far as I know,

10   he used a clean pad.

11          Q   All right.    No further questions.   Thank you.

12              THE COURT:    Redirect?

13                             - - - - -

14                      REDIRECT EXAMINATION

15   BY MS. MARSHALL:

16          Q   Dr. Anderson, when you looked at the blood

17   under the microscope, did it -- or I should say the

18   material under the microscope, did it appear to you that

19   there was layering?

20          A   No.   As I indicated, it appears that it's a

21   single substance, a mixture which included everything

22   we've described under the microscope.

23          Q   Okay.   Was it uniformly mixed?

24          A   I would say it was fairly uniformly mixed,

25   yes.
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 1         Q    And would -- the fact that it was uniformly

 2   mixed, does that have any impact on your opinion of

 3   whether it was -- there was layering of fecal material,

 4   cells and then blood on top of that?

 5         A    Well, that was -- that was part of it.      In

 6   fact, the fact that it was evenly mixed indicated that

 7   it had occurred before it was put on the pad, the

 8   mixture.   But the other -- as far as what -- if there

 9   was liquid placed on -- liquid blood placed on top of an

10   already present fecal material, then -- and clearly

11   there wasn't any right around it.

12              If you look at it, there's none right around

13   it.   So it wasn't a -- and it held its shape.     So that

14   was probably more important is the fact that there

15   wasn't blood, that it didn't do that diffusion but

16   stayed pretty much in its form.    There was form to it.

17              MS. MARSHALL:   No further questions.

18              THE COURT:   Ladies and Gentlemen of the Jury,

19         do any of you have a question for this witness?

20         Yes, I see that there are questions.   I would ask

21         counsel to approach the Bench.   Anybody else?    We

22         got everybody now?   Okay.

23              (Whereupon there was had a discussion at the

24         Bench outside the hearing of the Jury.)

25              THE COURT:   Could the stain on the bed pad
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 1   ever have been bright red?    The example of Power

 2   Point of blood stain you did, was it on the same

 3   type of pad?    Was any other material such as

 4   lubricant or Vaseline found in the stain?

 5        MR. OSBORNE:    No problem.

 6        THE COURT:   No objections to those?   Hold on a

 7   second.    Witnesses have stated that, quote, bright

 8   red blood, close quote, was seen on the pad.      If

 9   fecal material is coming from the rectum, wouldn't

10   the color -- colorization be different?

11        MR. OSBORNE:   That is okay.

12        THE COURT:   Were you hired to determine the

13   contents of the stain or how it got there?       Please

14   clarify.

15        MR. OSBORNE:   That's fine.

16        (Whereupon the discussion at the Bench was

17   concluded, after which the following proceedings

18   were had.)

19        THE COURT:   Okay.   Doctor, I'm going to ask

20   you a number of questions that are from the Jury.

21   I'll ask the question, ask that you direct your

22   answers to the Jury.

23        THE WITNESS:   Okay.

24        THE COURT:   Could the stain on the bed pad

25   ever have been bright red?
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 1          THE WITNESS:   Yeah, it would have -- I don't

 2   believe because of fecal material it would have

 3   been a bright red.     There is some coloration

 4   change, though, over a period of time.       So the

 5   coloration, if at some point it appeared bright

 6   red, is because I believe there was blood mixed in

 7   with that fecal material.        I don't believe it was

 8   pure fecal material, as I've indicated.

 9          THE COURT:   The example in your Power Point of

10   blood stain you did, was it on the same type of

11   pad?

12          THE WITNESS:   Yes, it was.    The seams were a

13   little different, the stitching, but it was the

14   same type of bed pad.

15          THE COURT:   Excuse me.    Was any other

16   material, such as lubricant or Vaseline, found in

17   the stain?

18          THE WITNESS:   No.   I don't believe we would be

19   able to tell that.

20          THE COURT:   Witnesses have stated that, quote,

21   bright red blood, close quote, was seen on the pad.

22   If fecal material is coming from the rectum,

23   wouldn't the colorization be different?

24          THE WITNESS:   It would be -- it could be red

25   but not probably not bright red.
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 1            THE COURT:    Were you hired to determine the

 2       contents of the stain or how it got there?     Please

 3       clarify.

 4            THE WITNESS:    Well, basically the content.

 5            THE COURT:    Any other questions, Ladies and

 6       Gentlemen of the Jury, for this witness?

 7       Ms. Marshall, do you have any follow-up questions

 8       for the witness?

 9            MS. MARSHALL:    Just one.

10                            - - - - -

11                  REDIRECT EXAMINATION- CONT.

12   BY MS. MARSHALL:

13       Q    Dr. Anderson, you said that you were hired to

14   figure out the content of what was on the pad, correct?

15       A    Right, the character of the stain and what it

16   was in that stain.

17       Q    Does the character of the stain allow you to

18   come to any conclusions as to where it came from or any

19   possibilities as to where it came from?

20       A    Well, I think we've been through that.    I

21   believe it came from the gastrointestinal tract.

22       Q    Okay.     Thank you.

23            MS. MARSHALL:    No further questions.

24            THE COURT:    Mr. Osborne, anything further?

25            MR. OSBORNE:    Nothing further, Your Honor.
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 1        MR. TOWNSEND:    Nothing further, Judge.

 2        THE COURT:   Doctor, you are excused.

 3        THE WITNESS:    Thank you, Your Honor.

 4        THE COURT:   Ladies and Gentlemen of the Jury,

 5   I believe your lunch has arrived.    I'll ask you to

 6   step into the jury room, and we'll be with you just

 7   as soon as we can.

 8        (Whereupon the Jury exited the courtroom.)

 9        THE COURT:   Okay.   You are going to play the

10   videotape on the return?

11        MS. MARSHALL:    Correct.

12        THE COURT:   And you expect that to be two --

13        MS. MARSHALL:    I think the combination of the

14   three tapes, it's three hours -- I mean two hours.

15   I'm sorry, two hours.

16        THE COURT:   Okay.   My intention at that point

17   is to ask that you announce that the Defense rests

18   from both of you, you put on any rebuttal

19   witnesses, should you need to, and I would excuse

20   the Jury at that point.    We'll discuss jury

21   instructions and then probably conclude early

22   today.   I'll hear any additional motions at that

23   point as well.

24        MR. TOWNSEND:    The only thing was the

25   publishing of the --
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 1         THE COURT:   Yeah.   Any incidental matters,

 2   also, we won't forget that.      If I do, remind me.

 3   That sounds like a schedule we can adhere to now?

 4         MS. MARSHALL:    Yes, Your Honor.

 5         MR. OSBORNE:    Yes, Your Honor.

 6         THE COURT:   Anything before we break for half

 7   hour?   Those tapes will go into the record as

 8   evidence?    You don't want the court reporter to

 9   take down the -- you don't want her to transcribe

10   the contents of the tape?

11         MS. MARSHALL:    I don't believe that's

12   necessary.    I think the tapes themselves will go

13   into evidence.

14         THE COURT:   That's fine with everyone?

15         MR. OSBORNE:    That's fine.

16         THE COURT:   I agree.

17         MS. MARSHALL:    Other than if we have some -- I

18   think on one of the tapes there's two places where

19   I think there's some objectionable hearsay.     But

20   other than that, I would want the court reporter to

21   take that down.

22         THE COURT:   Does Mr. Osborne know what that

23   is?

24         MR. OSBORNE:    I don't.

25         THE COURT:   Well, maybe you can discuss it.
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 1        MS. MARSHALL:    Okay.

 2        THE COURT:   I don't know if that can be

 3   resolved in advance.   Otherwise, that's fine, we'll

 4   get it on the transcript and I'll rule.   All right.

 5   We'll be in recess.

 6        (Whereupon, there was had a recess from 11:58

 7   o'clock a.m., to reconvene at 12:33 o'clock p.m.)

 8                      * * * * *

 9              Continued to Volume XIX

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 1                       C E R T I F I C A T E

 2   STATE OF FLORIDA)

 3   COUNTY OF ORANGE)

 4        I, SHARON L. TRAMONTE, R.M.R., certify that I was

 5   authorized to and did stenographically report the

 6   foregoing proceedings and that the transcript is a true

 7   and accurate record.

 8        Dated this 2nd day of June, 2006.

 9

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                          ___________________________________
12                                   SHARON L. TRAMONTE, R.M.R.

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CENTRAL FLORIDA REPORTERS, INC.

				
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