1338 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 XI 14 The transcript of the proceedings held on Friday, 15 October 21, 2005, beginning at 7:47 o'clock a.m., at the 16 Orange County Courthouse, Orlando, Florida, Courtroom 17 19-D, before the Honorable Renee A. Roche, Judge of the 18 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 CENTRAL FLORIDA REPORTERS, INC. 1339 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 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 1340 1 I N D E X - VOLUME XI 2 TESTIMONY OF STUART JAMES 3 Direct Examination by Mr. Osborne 1346 Cross Examination by Ms. Marshall 1376 4 Redirect Examination by Mr. Osborne 1400 5 VIDEOTAPED DEPOSITION OF DR. STEELY - CONT. 6 Direct Examination by Mr. Glick - Cont. 1408 Cross Examination by Ms. Marshall 1428 7 Redirect Examination by Mr. Glick 1440 8 VIDEOTAPED DEPOSITION OF DR. LYNN WILSON 9 Direct Examination by Mr. Glick 1452 Cross Examination by Mr. Grower 1489 10 Cross Examination by Mr. Townsend 1495 Redirect Examination by Mr. Glick 1496 11 12 E X H I B I T S 13 Plaintiff's Exhibit No. 12 1366 Plaintiff's Exhibit No. 13 1374 14 Plaintiff's Exhibit No. 14 1447 15 16 17 18 19 20 21 22 23 24 25 CENTRAL FLORIDA REPORTERS, INC. 1341 1 THE COURT: Please be seated. Thanks for 2 getting here early this morning. I smelled coffee 3 as I walked by the jury room. I'm sure they're 4 happy and appreciative. Now, let's see, do we have 5 our realtime back up? Is there anything to address 6 before we begin? 7 MR. OSBORNE: No, Your Honor. 8 MS. MARSHALL: No, Your Honor. 9 MR. EVANS: No, ma'am. 10 MR. OSBORNE: Larry, you might want to tell 11 her about Lillian Folley. 12 MR. TOWNSEND: You asked me to call 13 Ms. Folley, and I did not get ahold of her until 14 10:30. 15 THE COURT: You did get ahold of her? 16 MR. TOWNSEND: I did, and she had already made 17 plans for the day and requested that she be allowed 18 to stay on the plan for Monday. 19 THE COURT: Well, let's see how we -- 20 MS. MARSHALL: I was able to get ahold of 21 Michelle Fetters, and she will be here so she can 22 testify. 23 MR. OSBORNE: I think we'll be okay, Judge. 24 THE COURT: Do you? 25 MR. OSBORNE: If we get the depos back of CENTRAL FLORIDA REPORTERS, INC. 1342 1 Kelly Pipkin and Dr. Krop, that's probably three 2 hours right there. 3 THE COURT: Okay. 4 MR. TOWNSEND: If we get all that in, we're in 5 pretty good shape. 6 MR. OSBORNE: I think we'll be doing pretty 7 well on time. 8 MS. MARSHALL: Then on Monday what's the 9 agenda? 10 MR. OSBORNE: I'll tell you all -- 11 THE COURT: I'll address that in a moment 12 unless there's some reason you need to know about a 13 particular witness, Ms. Marshall. 14 MS. MARSHALL: No, Your Honor. The end of the 15 day is fine. 16 THE COURT: Okay. Do you want to go ahead and 17 get the television? 18 MR. OSBORNE: Judge, we have a live witness. 19 THE COURT: Oh, you're going to do that? 20 You're going to break that up? 21 MR. OSBORNE: Well -- 22 THE COURT: All right. I'll tell them what 23 you're doing. 24 MR. OSBORNE: And then what we're going to do, 25 Judge, is bring the TV back in and finish up CENTRAL FLORIDA REPORTERS, INC. 1343 1 Dr. Steely and then we've got -- 2 THE COURT: That's fine, Bill, that's fine. 3 MR. MCCOLLOUGH: Because I have to pull that 4 out. I'll need just a minute or two, Judge, to 5 pull that out. 6 THE COURT: That's fine, Terry, that's good. 7 Let's see how we're going this morning before we 8 see if we're going to have to give them a short 9 lunch today. We'll try to address that around 10 mid-morning. And if we're really doing well and 11 you guys feel confident, then I'll think about 12 whether we need to ask them to cut their lunch 13 short. I'd like to get this done, but I don't want 14 us all to be damaged in the meantime. 15 (Off the record discussion was had.) 16 THE COURT: Talk with your clients and see how 17 long we're going to wait. 18 MR. OSBORNE: This is the alternate, right? 19 THE COURT: Yes, it is. 20 MR. OSBORNE: Judge, our vote over here is 21 that if she's not here by 8:15 we move on without 22 her. 23 THE COURT: What do you guys say? 24 MR. TOWNSEND: Your Honor, we would prefer to 25 give her a little longer, maybe 'til 8:30 and CENTRAL FLORIDA REPORTERS, INC. 1344 1 readdress it. It's a little scary going on without 2 an alternate. We've got this much invested in the 3 trial and -- 4 MR. OSBORNE: That's fine. 5 MR. TOWNSEND: We can pick up 30 minutes 6 somewhere. 7 THE COURT: We're already picking up three and 8 a half hours. 9 MR. TOWNSEND: It will be up to us to shorten 10 our deal to make it a -- 11 MR. OSBORNE: Judge, I can tell you the east 12 side of the Expressway was closed this morning. 13 THE COURT: I'm sorry, Bill, I didn't hear 14 you. 15 MR. OSBORNE: East-West coming in eastbound 16 was closed. 17 THE COURT: Yeah, that's what I heard. 18 MR. OSBORNE: There was an accident last 19 night. 20 THE COURT: Well, I see that you're here. 21 MR. OSBORNE: I come from the west. 22 THE COURT: Oh, it's on the east side? 23 MR. OSBORNE: Yeah, it's the eastbound. 24 MS. PIERCE: Bumby and 408. 25 THE COURT: It looks like she would have CENTRAL FLORIDA REPORTERS, INC. 1345 1 called but -- 2 (Whereupon, there was had a recess from 8:00 3 o'clock a.m to reconvene at 8:15 o'clock a.m., in 4 the presence of the Jury.) 5 THE COURT: And please be seated. Good 6 morning. Mr. Osborne, are you prepared to call 7 your next witness? 8 MR. OSBORNE: Yes, Your Honor. 9 THE COURT: Ladies and Gentlemen, just for 10 your information, these lawyers have worked very 11 hard and are doing an excellent job at trying to 12 take advantage of all the time that we have. Now, 13 as part of that, Mr. Osborne yesterday began with a 14 videotaped deposition of Dr. Steely which was not 15 completed. 16 We're not going to go immediately back to 17 that, he's going to call a live witness, and then 18 we're going to finish Dr. Steely's deposition. So 19 just get that straight in your mind. We're just 20 trying to accommodate our time constraints and we 21 will go back to that videotaped deposition next. 22 Call your next witness. 23 MR. OSBORNE: Thank you, Your Honor. Call 24 Stuart James. 25 STUART JAMES, CENTRAL FLORIDA REPORTERS, INC. 1346 1 having been first duly sworn testified as follows: 2 MR. OSBORNE: Madam Clerk, could I have 3 Plaintiff's S for identification, please? 4 DIRECT EXAMINATION 5 BY MR. OSBORNE: 6 Q State your full name for the Court and the 7 Jury, please. 8 A Yes. Can you all hear me okay? Yes. My full 9 name is Stuart, middle initial H., and my last name is 10 James. My first name is spelled S-t-u-a-r-t. 11 Q And where are you from, Mr. James? 12 A I currently live in Ft. Lauderdale. 13 Q Tell the Jury what your profession or 14 occupation is. 15 A I am a consulting forensic scientist, and I 16 have been a private consultant since 1981. And I 17 examine physical evidence. I primarily concentrate on 18 blood stain pattern analysis, which is the study of the 19 size, shape and distribution of blood stains that occur 20 during various bloodshed events. 21 Q How long have you been doing this? 22 A I've been a forensic scientist for 23 approximately 32 years. 24 Q Give the Jury the benefit of your educational 25 background in this field, please, or just generally what CENTRAL FLORIDA REPORTERS, INC. 1347 1 your educational background is. 2 A Yes. My formal education includes a BA degree 3 in chemistry and biology which I received from Hobart 4 College, which is in Upstate New York, in 1962. In 1963 5 I completed a one-year resident internship at St. Mary's 6 Hospital in Tucson, Arizona, and ultimately became 7 licensed as a medical technologist, one who perform 8 various types of clinical laboratory procedures. And I 9 actually worked as a medical technologist for several 10 years. 11 Ultimately I took some graduate courses at 12 Hobart College located in Upstate New York, and those 13 courses involved homicide investigation, forensic 14 microscopy as far as a basic -- which was a graduate 15 level course at the time, blood stain pattern analysis. 16 That was between 1977 and 1981. And that's my formal 17 education, which has been supplemented over the years 18 with regular -- what I would call, you know, ongoing 19 training by participation in various conferences in the 20 forensic science, including my membership in the 21 American Academy of Forensic Sciences and other 22 organizations. 23 And I've completed probably four or 500 hours 24 of training in forensic science and death investigation, 25 as well as basic and advanced blood stain pattern CENTRAL FLORIDA REPORTERS, INC. 1348 1 analysis. 2 Q You said four or 500 hours? 3 A Yes. 4 Q Where did you get that training? 5 A In various locations. I'll give you a few 6 examples. And these are institutions that offer these 7 courses, whether they be two-day, three-day, five-day 8 courses. John Jay College of Criminal Justice in New 9 York, Colby College, New York University School of 10 Medicine and other institutions around the country. And 11 sometimes they'll -- you know, in conjunction with the 12 Academy of Forensic Science or other forensic science 13 groups. 14 Q What is the Academy of Forensic Science? 15 A It's an organization that began in 1948, 16 comprised presently of probably eight or nine sections, 17 which defines an area of specialty for individuals in 18 the group. They have pathology, they have 19 criminalistics, they have jurisprudence, which is a 20 group of lawyers in our group. We have a general 21 section. We have one for forensic dentistry and the 22 various aspects of forensic science. 23 Q What does the -- just the term forensics mean 24 in terms of your profession when you say forensic 25 science? CENTRAL FLORIDA REPORTERS, INC. 1349 1 A Well, science, you know, is the application of 2 the principles of science. And when you say forensic 3 science, it means you take the knowledge and the facts 4 you derive from science into a court of law. Forensic 5 from the Latin actually means debate. And forensic 6 science is, you know, science and the law combined. 7 Q Give the Jury a flavor for your -- what type 8 of professional employment and experience you've had in 9 your 32 years in the profession. Is it blood spatter or 10 blood stain analysis? How do you refer to yourself? 11 A In the general science, blood stain pattern 12 analysis. 13 Q And tell the Jury -- give us a flavor of what 14 your professional employment and experience has been in 15 that field, please. 16 A Well, I began doing blood stain pattern 17 analysis back in the mid '70's, and I had taken my first 18 course in '70, first formal course in it. And at the 19 time I was a supervisor of a crime laboratory up in 20 Binghamton, New York, and held that position for four 21 years until the labs became part of the New York State 22 Police Laboratory System. 23 And during that period of time myself and the 24 people in my laboratory, we provided scientific support 25 to approximately 65 agencies in Upstate New York, which CENTRAL FLORIDA REPORTERS, INC. 1350 1 comprised about 13 or 14 counties, most of them being 2 rural. And so we did a lot of work with the state 3 police and with the local sheriff departments and in 4 some cases, you know, local police departments in terms 5 of crime scene analysis, which often included 6 interpretation or analysis of blood stains on both, you 7 know, objects at a scene, as well as on clothing and 8 other materials that may be become bloody. 9 Q What other professional employment and 10 experience have you had since then just in terms of -- 11 A Well, since 1981 I've been in the private 12 sector. And I've been, you know, providing my knowledge 13 and my, you know, analysis of crime scenes to attorneys, 14 you know, throughout the country and actually abroad as 15 well. And I've been consulting on primarily homicide 16 cases since 1981. Currently I'm running about 60 to 62 17 per year. 18 Q 62 -- 60 to 62 investigations that you're 19 working on? 20 A Death investigations and homicides. 21 Q In terms of criminal versus civil, what's 22 generally the mix of that in terms of investigations 23 that you get involved in? 24 A Well, it's not really a mix. I do an 25 occasional civil case. Most of the time -- I'd say well CENTRAL FLORIDA REPORTERS, INC. 1351 1 over 90 percent of my cases are criminal in nature. 2 Many are capital cases, you know, where death penalty is 3 an issue. Occasionally a civil case such as this. 4 Q Do you have any teaching experience in the 5 blood stain analysis field? 6 A Yes, I do. 7 Q Give the Jury an idea of what you've done in 8 terms of teaching. 9 A Well, I have been involved in the instruction 10 in the blood stain pattern analysis, both in the basic 11 level and advanced level, for probably the past 15 or 20 12 years. And more recently I had been teaching with a 13 fellow from New York State, Paul Kich. And we teach 14 basic and advanced courses to law enforcement 15 pathologists in various locations throughout the 16 country. 17 We've also been invited and have taught in the 18 Netherlands, in England twice and Canada and again other 19 places around the U.S. 20 Q Are you published in this field? 21 A Yes, I am. 22 Q Give the Jury an idea of what types of 23 publications you've done. 24 A Well, I've been involved as a co-author and 25 also as a co-editor in several books in forensic science CENTRAL FLORIDA REPORTERS, INC. 1352 1 with particular reference to blood stain pattern 2 analysis. I co-authored a book entitled Interpretation 3 of Blood Stain Evidence at Crime Scenes back in 1988. 4 That book carried through to its second edition, and 5 just this year has been replaced with a brand-new book 6 which includes two new co-authors, Paul Kich and 7 Paulette Sutton. 8 Paulette Sutton is at the medical examiner's 9 office in Memphis, and Paulette I mentioned is from New 10 York. And that book is called Principles of Blood Stain 11 Pattern Analysis Theory and Practice. And it came out I 12 believe in May. 13 And I'm also co-editor of a second edition 14 book now of Introduction to Forensic Science, which is 15 used by numerous colleges as their introductory forensic 16 science course. 17 Q Do you hold any license or certifications? 18 A Currently I don't have any licenses. Over the 19 years I have been in a position, such as at the crime 20 laboratory, to be licensed as a legal blood alcohol 21 analyst. I'm actually still licensed as a medical 22 technologist, although I don't practice laboratory 23 medicine at the present time. But there are no licenses 24 or specific certifications for blood stain pattern 25 analysis. CENTRAL FLORIDA REPORTERS, INC. 1353 1 Q Have you made formal scientific presentations 2 over the course of your 32 years in the field of blood 3 stain analysis? 4 A Yes, on numerous occasions. 5 Q And again, what type of topics would you be 6 addressing in those? 7 A Well, over the years I've addressed various 8 groups from -- actually I taught at the college level 9 forensic science courses for probably over a period of 10 ten or 12 years in Upstate New York, in Binghamton. But 11 in terms of giving presentations, I've been invited to 12 speak to various bar associations, you know, legal, 13 seminars. I've been invited to teach at various police 14 agencies, as well as even groups of nurses and 15 paramedics. 16 Q Give the Jury an idea of the kind of cases 17 that you are called in on, a few examples of the types 18 of analysis that you do, the factual settings that you 19 confront. 20 A Well, the usual -- I guess there's no usual 21 case, but the types of cases that I get involved in and 22 consulted -- that I consult on are usually cases of 23 violent death. That is where there's been issues of 24 beatings, stabbings, you know, shootings, some vehicular 25 accidents, things of that sort, where I'm asked to give CENTRAL FLORIDA REPORTERS, INC. 1354 1 an opinion on the nature, the size, shape and 2 distribution of blood stains at the scene where blood 3 was shed as a means or a tool, along with other forensic 4 evidence, to reconstruct events that took place. 5 And this also includes examination of 6 clothing, bloody clothing of the victim as well as, you 7 know, potential suspects and persons who are being 8 questioned. And that also involves analysis of blood 9 stains on clothing to determine what mechanism may have 10 produced them. Is it something significant, that they 11 were involved in the beating or shooting, or did they 12 come by later and just cradle the person, things of that 13 sort. We try to answer questions ultimately that come 14 up in a court of law. 15 Q How many times do you think you've testified 16 in court? 17 A Totally probably over 300 times. 18 Q And in the state of Florida as well, been 19 qualified as an expert in the state of Florida? 20 A Yes, I have. I've testified in probably seven 21 or eight counties in Florida, including Orange County. 22 Q What's the last case you testified about in 23 Orange County? 24 A The last case I appeared in Orange County 25 actually was the Tommy Ziegler hearing back in December. CENTRAL FLORIDA REPORTERS, INC. 1355 1 Q And what were the blood stain facts in that 2 case that you were called in to testify about? 3 A Well, that was a case involving a lot of blood 4 stains. There were four victims in the case, happened 5 back in '76 I believe. At any rate, that was an issue 6 of, you know, analyzing, reanalyzing, since I wasn't 7 involved in the case when it occurred, blood stains at 8 the scene. Blood stains on Mr. Ziegler's clothing came 9 into issue. 10 Q Were you asked to evaluate a blood stain 11 pattern in this case? 12 A Well, I was asked to examine essentially a 13 couple of blood stains. I wouldn't call it a pattern. 14 A pattern usually is comprised of numerous stains in a 15 particular area. 16 Q Okay. Now, you're not a medical doctor, are 17 you? 18 A No, sir. 19 Q If I call you Dr. James by accident, will you 20 correct me? 21 A I certainly will. 22 Q Thank you. What materials were provided to 23 you that you utilized in formulating your opinions which 24 resulted in your report in this case? 25 A Well, essentially back in 2004 my involvement CENTRAL FLORIDA REPORTERS, INC. 1356 1 was really to examine a bed pad that was brought, you 2 know, to my office on August 29th actually of 2002. The 3 report was prepared in 2004. That was a few years ago. 4 And I examined that bed pad and ultimately performed 5 some experiments to see if I could come to a reasonable 6 conclusion as to the mechanism that may have been 7 responsible for producing that particular blood stain. 8 Q If you don't mind, Mr. James, why don't you 9 come on down front and let's talk a little bit about the 10 pad? 11 MS. MARSHALL: Your Honor, may I stand in the 12 corner so I can see? 13 THE WITNESS: May I step down, Your Honor. 14 THE COURT: Certainly. 15 BY MR. OSBORNE: 16 Q Do you have a pointer on you, there? 17 A Yes, I do. 18 Q Okay. I guess it's more of a laser pointer, 19 right? 20 A Yes. 21 Q I've got the old-fashioned one here. Tell the 22 Jury what you -- what stain it was that you examined. 23 A Well, this is the actual bed pad that I 24 examined initially. And of interest to me was this 25 elongated stain here, which we haven't talked much about CENTRAL FLORIDA REPORTERS, INC. 1357 1 the classification of blood stains, but there are two 2 primary classifications. And simply they're called 3 passive, meaning not a lot of energy required to produce 4 them; such as a drop of blood falling on the floor, my 5 bloody hand touching this bar here, pooling of blood, 6 saturation of blood on a mattress. We call those 7 passive stains. 8 And on the other side of the tree we have what 9 we call spattering stains. And spatter stains are 10 defined as, you know, small droplets that have broken 11 away from a larger volume of blood due to an impact or 12 force, such as exhalation of blood producing many tiny 13 droplets. Beatings and shootings produce tiny droplets 14 which may deposit on walls, even cast-off coming off a 15 weapon in motion and flipping blood up on the ceiling. 16 We call it spatter, okay? 17 In this case we're dealing with passive 18 stains. And the objective is to determine, well, let's 19 look at the size and shape and distribution or character 20 of the stain. And you have a central area here with 21 kind of a tailing down, and it's definitely a passive 22 stain. There's -- very little energy was utilized to 23 produce that. 24 There's another small passive stain over here 25 and there's a discoloration here. In fact, there's a CENTRAL FLORIDA REPORTERS, INC. 1358 1 lot of discoloration here. And this being a bed pad, 2 the history of this particular pad, it's not surprising 3 that it's soiled, you know, with body materials. 4 Now, there's also a -- I have to find this. 5 It's been awhile since I've seen this. 6 Q Do you want to take the plastic off? 7 A It's in my photograph here -- hold on. It'll 8 turn up. At any rate, this was the major area of stain 9 that we were concerned with. 10 Q Okay. And tell me a little bit about -- in 11 terms of the pad being soiled, tell the Jury what the 12 significance is of blood on a host material that is 13 soiled when you're doing an analysis. 14 A Well, any time -- I mean, there are very few 15 blood stain analyses that I've ever performed at a crime 16 scene on or clothing that are in pristine condition. 17 The only time you'll seen that is at our schools where 18 we have students produce blood stains. We have 13, 14 19 experiments they do. 20 They drip blood, they spatter blood. They go 21 through the whole series of experiments. And the target 22 source is like cardboard so those are pristine, but 23 that's not what a crime seen is. And bloody clothing, I 24 mean, the clothing worn by people that get involved in 25 bloody incidents, they may be mechanics, they may be CENTRAL FLORIDA REPORTERS, INC. 1359 1 cooks, they may be anything. The clothing is not always 2 clean. 3 The same goes for the environment that the 4 stains are produced; greasy floors, dirty walls, black 5 walls, green walls. So the background you have to deal 6 with. In this case, I mean, with -- the history of this 7 would certainly indicate that there could be fecal 8 material, there could be urine, epithelial cells that 9 slough off the person lying on it. So these are not 10 unexpected things to occur. 11 Q Is it common in your practice when you're 12 looking at clothing, for example, to find epithelial 13 skin cells in the clothing when you're doing an 14 examination? 15 A Yeah, that's the DNA issue. But I will say 16 that I've been involved in many cases where the wearer 17 of the clothing or the wearer of the shoes or the socks, 18 whatever type of clothing is important, has been 19 identified by what they call the habitual wearer DNA. 20 And that is the clothing of that wearer contains 21 epithelial cells to one extent or another. And in many 22 case it's identified as this being my shirt or my shoes. 23 Q Is there a thought or a doctrine in blood 24 stain analysis about overlay? 25 A Yes. CENTRAL FLORIDA REPORTERS, INC. 1360 1 Q What is overlay? 2 A Well, overlay is simply -- in terms of what 3 we're talking about is consider the surface that the 4 stain is on, and there may be other materials present. 5 If you're interested in what -- you know, how unique 6 those materials are, you take a control sample where 7 it's not blood stained and see if you have the same 8 materials. 9 But in this particular case, I mean, the 10 character of the shape of the stain does not affect the 11 contents of the stain. It may contain epithelial cells 12 and mucus, et cetera, but also you would expect the 13 other -- you must check the other areas of the pad to 14 make sure that that particular stain is not unique in 15 that area. It's called a control sample. It's done in 16 DNA testing. It's done in virtually every form of 17 forensic science testing. 18 Q I'd like you to assume that there's been 19 testimony in this case, Doctor, that -- 20 A I'm not a doctor. 21 Q Thank you. I knew I was going to do it. 22 A I'd like to be, but I certainly am not. 23 Q All right. Mr. James, I'd like you to assume 24 there's testimony in this case that Carolina Destefano 25 had been lying on this pad for hours prior to the pad CENTRAL FLORIDA REPORTERS, INC. 1361 1 being removed from the bed. Would you expect, in terms 2 of this overlay, to find that the blood was overlaying 3 upon other materials found on the pad if that were the 4 case? 5 A Yes. I mean, it would be expected. 6 Q Okay. And I think you said sloughing off of 7 epithelial skin cells. What did you mean by that? 8 A Just simply the friction removal of the upper 9 layer of the skin, the epithelial cells by contact, 10 they're removed. I mean, it happens typically in our 11 line all the time. 12 Q You can take the stand and we'll talk for a 13 few minutes, then we'll come back down here. 14 A Thank you. 15 Q Have you ever investigated cases, Mr. James, 16 where someone attempted to give a false trail or planted 17 blood to throw off the investigator by leaving blood in 18 a certain manner? 19 A Yes, I have. 20 Q Tell the Jury about that type of experience 21 you've had. 22 A Well, I can recall two incidents that I was 23 involved in, one more than the other. The first was 24 quite a while ago. It turned out to be a medical 25 technologist, such as myself, who proceeded to spray CENTRAL FLORIDA REPORTERS, INC. 1362 1 blood around her kitchen with a syringe and needle 2 and -- in an effort to, you know, provide some -- 3 something -- some boyfriend issue that she was involved 4 in, which then became a police matter because they 5 investigated. 6 And she finally, you know, after the analysis 7 was completed admitted that she had done this herself. 8 And it was able to be determined because of the location 9 of the stains and the nature of them, you know, no 10 source of blood, you know, being available at the time. 11 The second was a psychologist who proceeded to 12 spray his blood with a squirt gun around his house in an 13 attempt to collect some insurance or something. But 14 they were both sort of non-criminal but they became 15 misdemeanors, you know, afterwards. 16 Q So in terms of your training and experience, 17 you are trained to look for that type of thing, too, if 18 somebody -- if it's not a naturally-occurring blood 19 stain, you are trained to detect that as well, correct? 20 A Well, I mean, you do it based on the history 21 of your case and where the blood stains are located. In 22 the case of the psychologist, I mean, he had sprayed, 23 you know, just blood everywhere. And it certainly was 24 something that wouldn't have been done by a normal 25 bleeding event, and it was a clue right away. CENTRAL FLORIDA REPORTERS, INC. 1363 1 Q Mr. James, this is a case where there are 2 medical records that talk about rectal bleeding of 3 Carolina Destefano. Tell the Jury what you would expect 4 to see in a blood stain pattern when somebody is 5 bleeding from the rectum and is lying in a bed. 6 A Well, I mean, I can base that on my own 7 experiences, you know, criminal investigations involving 8 sexual assault, for example. But a person is either -- 9 you know, living victims or deceased have been involved 10 in some penetration activity, either, you know, 11 vaginally or rectally where bleeding has occurred. And 12 I've examined, you know, bedding in these cases over the 13 years. 14 And you generally see -- of course, the amount 15 of bleeding is an issue, too. But in the area of 16 bleeding, you can generally tell what part of that 17 person was on top of that blood stain because of the 18 impression and the way the blood would conform around 19 that part of the body. 20 So it's sometimes the position of the people 21 based upon the fact that when someone is lying on 22 something and with blood beneath or bleeding down, that 23 the pressure of the body is going to, you know, spread 24 it in a certain direction. But here we have a pristine 25 stain. I mean, there's no alteration of that stain CENTRAL FLORIDA REPORTERS, INC. 1364 1 whatsoever. 2 Q What would you expect to see, Mr. James, if 3 this was a true compression stain? What would you 4 expect to see if it was truly something that had come 5 out of Mrs. Destefano's rectum and she was lying in that 6 area? What would you expect to see in terms of the 7 shape of that stain? 8 A Well, what I would expect to see, I mean, if 9 she were lying on it, you would expect it to be a little 10 more diffused out and not looking so pristine. 11 Q What do you mean by pristine? 12 A Pristine means undisturbed basically. For 13 lack of a better world, sometimes pristine is referred 14 to as clean or, you know, unaltered. 15 Q And in terms of these compression stains, have 16 you had experiences where you can actually see the shape 17 of the person's buttocks or the shape of another body 18 part by looking at the stain? 19 A Yes, it's not really that uncommon. In fact, 20 in my book I've got at least one example of an entire 21 body, outline of a body that has been removed from the 22 floor. I mean, you can tell exactly where each part of 23 the body was just the way the stain looks. 24 Q Now, as a part of your work that you did in 25 this case, did you try -- did you make an attempt to try CENTRAL FLORIDA REPORTERS, INC. 1365 1 to recreate this stain to opine about what might have 2 placed this stain on this bed pad? 3 A Yes. I conducted just a series of simple 4 experiments using different instruments just to see, you 5 know, what it would take to produce that type of stain. 6 I started with the simplest mechanism and just went on 7 from there. 8 MR. OSBORNE: I'm going to move into evidence 9 Plaintiff's Exhibit S for identification. 10 BY MR. OSBORNE: 11 Q First I'll ask the Doctor to -- 12 A Doctor again. 13 Q There, I did it again. Thank you. Ask 14 Mr. James to tell me if those appear to be the pictures 15 of the experiments that you were conducting. 16 A Yes, there's two pictures of -- there's 17 actually three images of the original stain, and then 18 the rest are images of the experiments that I ran. 19 MR. OSBORNE: I would move Exhibit S into 20 evidence. 21 THE COURT: Objection? 22 MS. MARSHALL: No objection. 23 MR. TOWNSEND: No objection. 24 THE COURT: It will be admitted. 25 THE CLERK: Plaintiff's 12. CENTRAL FLORIDA REPORTERS, INC. 1366 1 (Plaintiff's Exhibit No. 12 was marked into 2 evidence.) 3 BY MR. OSBORNE: 4 Q Come on down here if you would, Mr. James. 5 Let's talk about your experiments, what you did. Feel 6 free to use your pointer again, and make sure you don't 7 block the Jury view there. Thank you. Tell the Jury 8 what the first exhibit is here. 9 A Okay. This first exhibit is a bed pad that I 10 utilized. And you'll see the numbers, one, two, three, 11 four. Those numbers refer to the type of instrument 12 that I used to create the stain. Number one -- and this 13 is true throughout, but I'll repeat them as we go 14 further. 15 Number one is a narrow-aperture pipette stain. 16 And what I mean by that is like a medicine dropper. In 17 the laboratory we call them pipettes. They come in 18 different length and widths, et cetera. Number two is a 19 wide-aperture pipette. And what that does essentially 20 is change the blood volume. The smaller aperture would 21 be a smaller drop. 22 Number three is I used a syringe with a 23 22-gauge needle. And, of course, the needle has a 24 smaller aperture than the pipette so you get even a 25 smaller stain. And number four is a syringe without the CENTRAL FLORIDA REPORTERS, INC. 1367 1 needle, so it's just the stub of the syringe where the 2 needle attaches. 3 Q Why did you -- and what's the 90 degrees mean 4 up there? 5 A Well, the 90 degrees, that simply represents 6 the fact that I dripped the blood, one drop each, from a 7 three-inch height. And I had the surface flat so the 8 blood is dripping at 90 degrees. 9 Q Okay. 10 A That's to give me a baseline and how is blood 11 going to react on the fabric. 12 Q This is just a baseline you're trying to get 13 here? 14 A Yes, yes. 15 Q Okay. What is the second photograph of? 16 A Okay. The second again utilizes the same four 17 mechanisms; one being the small-aperture pipette, two 18 being the wider aperture, three being the syringe with 19 the 22-gauge needle, and number four being the syringe 20 without the needle. So nothing changed along there. I 21 used the same dropping height of three inches. 22 However, this time I dripped the -- I 23 positioned the pad at a 45-degree angle, meaning that 24 with 90 degrees I had it like this and the blood is 25 dripping down. At 45 it was about like this, you know, CENTRAL FLORIDA REPORTERS, INC. 1368 1 approximately 45 degrees for the four drops. 2 Q And why do you use different angles when 3 you're doing these baselines? 4 A Well, I know from the original stain that we 5 were questioning here that it's an elongated stain. 6 And, you know, the angle of impact determines the 7 elong -- how much the stain will elongate. So I wanted 8 to see with this fabric what would 45 degrees look like. 9 You get a little bit more elongation here, but you get 10 the skipping effect, which is an effect of the droplet. 11 And this is when the drop has fallen from a 12 height above. And I didn't do any further inches 13 higher, but I really didn't need to. I got the 14 information I needed. 15 Q And what information was it that you got that 16 you needed from these first two? 17 A Well, that the stains -- the stain in question 18 was not -- at this point in my experiment, I could not 19 reproduce it by dripping blood on the surface at an 20 angle. 21 Q Okay. What is the third picture of? 22 A The third one, I call it contact volume, again 23 using the same four mechanisms; number one being the 24 small-aperture pipette, number two the wide-aperture 25 pipette, three the syringe with needle, and four the CENTRAL FLORIDA REPORTERS, INC. 1369 1 syringe without the needle. 2 Q And how did you put -- how did you apply the 3 blood on each of these four examples? 4 A Well, in this case it's greater than a drop of 5 blood. I estimated I believe it was like four or five 6 drops, probably a little more than that required. And 7 what I did, I put the tip of the pipette just in contact 8 and just kind of ran it down in a -- more or less of a 9 straight line. 10 And I did the same thing with the other three 11 mechanisms. And over here, this may have been caused by 12 a little fold in the material. But at any rate -- 13 Q And this is at 90 degrees again? 14 A No, there's no degrees involved because I'm in 15 contact with it, okay? There's no distance falling from 16 either 90 or 45 or anything. This is contact with the 17 particular apparatus and just coming down like this. 18 Q Is this an elongated -- would you call it an 19 elongated blood stain? 20 A Yes. 21 Q And is that also a passive blood stain? 22 A Yes, that is a passive blood stain. There's 23 very -- there's no impact energy, no exhalation energy, 24 no cast-off energy applied to it. It's simply a passive 25 stain. CENTRAL FLORIDA REPORTERS, INC. 1370 1 Q Now, are you starting to approximate here by 2 doing this experiment the blood stain that's found on 3 the bed pad? 4 A In terms of its overall characteristic, yes. 5 And that would apply to number one and number four more 6 than it would two and three. 7 Q I'll show you your next picture here. And 8 tell the Jury what this one is. 9 A Okay. This one, it's essentially the same. 10 But what I did here was I did give it an angulation 11 because I wanted to see if the gravity flow would cause 12 any difference than simply without. The 45 degrees does 13 not apply to distance falling at 45 degrees but simply 14 to allow gravity to, you know, also accompany the 15 movement. 16 I did the same way as the prior one using, 17 number one, the narrow-aperture pipette, two, the 18 wide-aperture, three the syringe with needle, and four 19 the syringe without and again, applying it lightly here 20 and just having it run down. And here we also have -- 21 like one and four have more features of the original 22 stain than two and three. 23 Q And just so we can look at that side-by-side, 24 tell me what the features are you're talking about. 25 A Well, the features are the large central area CENTRAL FLORIDA REPORTERS, INC. 1371 1 at the top and the elongation flow that comes down 2 below. I mean, it's not going to be reproduced exactly, 3 that wasn't my intent, but just to tell me, well, what 4 type of mechanism are we dealing with? Does it involve 5 contact, is it a dripping, you know, and some of these 6 questions I've been able to address. 7 Q Okay. Let's talk about another picture you 8 got here. What is this? What were you doing on this 9 particular experiment? 10 A Well, just to sum up what I had already done, 11 I wanted to apply a few more mechanisms that are 12 commonly encountered. One is a transfer, that is any 13 object wet with blood touching a second surface that is 14 free of blood, it will leave a transfer. And sometimes 15 it's recognizable, sometimes it wasn't. That goes back 16 to, you know, someone bleeding in a criminal matter on a 17 surface and being able to recognize the type of transfer 18 that we're dealing with. 19 And here I just simply used my own finger. By 20 the way, this is all human blood. I know because it's 21 my own that I had drawn. And just created a transfer 22 stain with the flat side of my finger, as well the side. 23 Q Okay. So in terms of looking at the finger 24 and comparing it to the pad, do you have an opinion 25 about whether that stain was caused by somebody putting CENTRAL FLORIDA REPORTERS, INC. 1372 1 blood on their finger and wiping it on the pad? 2 A Well, this wasn't a wipe. This is just, you 3 know, contact. 4 Q Okay. 5 A But, no, this does not look at all like the 6 stain in question. 7 Q And what about this particular one? 8 A Now, this is what we call a wipe. In blood 9 stain analysis we have wipes and swipes, which is kind 10 of like -- you know, a little bit too much detail. But 11 a swipe is if I had a bloody hand and I just moved it 12 across the surface, that's a swipe. A wipe is when you 13 wipe something up. 14 In this case blood is already on the surface 15 and you wipe through it to alter it. And you can see I 16 was able to create a small alteration in the downward 17 direction but nothing that would look anything like the 18 stain in question. 19 Q Okay. You can -- 20 A These were just, you know, basic common 21 mechanisms that I utilized. 22 Q Okay. And did you come up with an opinion as 23 to what the type of mechanism was that caused this blood 24 stain? 25 A Yes. Well, essentially the mechanism is a CENTRAL FLORIDA REPORTERS, INC. 1373 1 small aperture, okay? It's not a large volume of blood. 2 And in my conclusions here I said it was able to be 3 reasonably duplicated utilizing a pipette and syringe 4 without needle by contact and drawing out a volume on to 5 the fabric is my basic conclusion. And I went on to say 6 not consistent with drainage, you know, from the rectum. 7 Q Go ahead and let's talk about that. You can 8 take your chair again back over there. Why is this not 9 consistent with blood drainage of an individual laying 10 on a bed pad? 11 A Well, I believe for the reasons I stated. 12 One, laying on a bed pad would have an opportunity for 13 that stain to be compressed and to be altered. And as I 14 said before, that stain is pristine. 15 Q Doctor, I'd like you to -- I did it again. 16 Mr. James, I'm going to publish something that's in 17 evidence. This is in the Florida Hospital records, and 18 it's a triage form from -- excuse me. 19 MR. OSBORNE: I need to move into evidence the 20 Orlando Regional records, which are No. 3. 21 THE COURT: No objection? 22 MR. TOWNSEND: No objection, Your Honor. 23 THE COURT: No objection? 24 MS. MARSHALL: No objection, Your Honor. 25 THE COURT: It'll be admitted. CENTRAL FLORIDA REPORTERS, INC. 1374 1 MR. OSBORNE: D, sorry. 2 THE CLERK: It's D. D will be No. 13. 3 (Plaintiff's Exhibit No. 13 was marked into 4 evidence.) 5 BY MR. OSBORNE: 6 Q All right. Now I can talk about the Orlando 7 Regional records, Mr. James. And this is a report about 8 using an endoscope where there's a finding of no blood, 9 fissure. No obvious source of bleeding, no hemorrhoids 10 and talks about diagnostic endoscopy. Patient was 11 placed on left side and a scope lubricant was inserted. 12 No obvious source of bleeding. No internal or external 13 signs of trauma. Patient tolerated well. 14 And I'd also like you to assume, Doctor -- or 15 Mr. James, that Dr. Black testified from Florida 16 Hospital that he did an examination of Mrs. Destefano 17 and found no evidence of rectal bleeding. Are these 18 facts consistent with your opinion that the -- that this 19 blood did not come from the rectum and bleeding of 20 Carolina Destefano? 21 MS. MARSHALL: Objection, Your Honor. He's 22 not a doctor. 23 THE COURT: Approach the Bench. 24 (Whereupon there was had a discussion at the 25 Bench outside the hearing of the Jury.) CENTRAL FLORIDA REPORTERS, INC. 1375 1 MR. OSBORNE: I'm only talking about the fact 2 that he's determined this is not rectal bleeding 3 I'm just asking if the evidence is also that there 4 was no medical record of -- 5 THE COURT: Sustained. 6 (Whereupon the discussion at the Bench was 7 concluded, and following proceedings were had in 8 the hearing of the Jury.) 9 BY MR. OSBORNE: 10 Q Do you have an opinion, Doctor, we've talked 11 about your opinion about that was not caused from blood 12 from the rectum, as to the probable source or mechanism 13 of this blood that became on the pad? I think we've 14 already talked about it. Can you just summarize again 15 for us what that is? 16 A Yeah. Basically a small aperture with a 17 relatively small volume making contact. And I guess I 18 can't comment about the medical findings. 19 Q No, no. So in terms of what you did, what you 20 showed the Jury, you artificially created the blood 21 stain on the pad? 22 A Yes. 23 Q Do you have an opinion that that's how that 24 the blood stain got on there, it's artificially created? 25 A That certainly is consistent with that, yes. CENTRAL FLORIDA REPORTERS, INC. 1376 1 MR. OSBORNE: All right. No further 2 questions. 3 - - - - - 4 CROSS EXAMINATION 5 BY MS. MARSHALL: 6 Q Now, Mr. James, you don't have a medical 7 degree, correct? 8 A Although I've been called doctor many times 9 this morning, I do not. 10 Q Okay. You're not a pathologist, are you? 11 A No. I would be required to be a doctor to be 12 a pathologist. 13 Q You don't do autopsies, do you? 14 A Not presently, no. I have done them in the 15 past under supervision. 16 Q Under supervision of a medical doctor, 17 correct? 18 A Correct. 19 Q And you're not qualified to do any kind of DNA 20 analysis of blood, are you? 21 A No. I'm not a DNA analyst, no. 22 Q And you don't have any advanced degrees beyond 23 your BA in biology and chemistry, do you? 24 A Just a degree in medical technology. 25 Q And that was -- and that's something that you CENTRAL FLORIDA REPORTERS, INC. 1377 1 received at -- in Arizona? 2 A Right, after 12 months, yes. 3 Q That's the license that you talked about 4 that's not current anymore, is that correct? 5 A No, I'm still registered as a medical 6 technologist. The license that's not current I believe 7 is the -- when I talked about it -- about legal blood 8 alcohol analyst. 9 Q Okay. Now, most of your work involves 10 criminal matters, correct? 11 A That's correct. 12 Q Generally you work for attorneys who 13 represent -- who are representing people who have been 14 accused of a crime? 15 A Yes. 16 Q And in the Ziegler case that you testified, 17 were you representing or working for the attorneys that 18 represented Mr. Ziegler? 19 A Yes, I was hired by them, but I was also -- 20 not ordered, but I was asked to be here by the 21 prosecution as well as it turned out. 22 Q Okay. You were hired by Mr. Ziegler to look 23 at -- 24 A By his attorney. 25 Q Okay. Look at evidence to get him off of CENTRAL FLORIDA REPORTERS, INC. 1378 1 death row, is that originally what you were hired for? 2 A Well, that's a big jump. I mean, if you look 3 at it in the practical matter, I was asked to look at 4 the evidence in conjunction with some other DNA evidence 5 at the time, to see if the version of events that 6 Mr. Ziegler had given early on had more credibility than 7 they did at the trial. That's basically it. But 8 ultimately that was -- Mr. Ziegler's objective was to 9 get off death row. 10 Q And most of the cases that you deal with are 11 violent assaults, beatings, stabbings, shootings and 12 fatal vehicle accidents where blood stain pattern 13 analysis will assist with the possible reconstruction of 14 events, correct? 15 A I think that's a fair statement. 16 Q And is it fair to say that these murders and 17 assaults are generally characterized by large amounts of 18 blood? 19 A Sometimes. I mean, often but not always. 20 Q Most of the time though, right? 21 A It depends. I mean, if you're talking about a 22 scene in a blunt beating or a stabbing, you may have 23 significant amount of blood. A lot of it may be pooling 24 of blood where the equation gets imbalanced. The amount 25 of blood on an assailant's clothing can vary from none CENTRAL FLORIDA REPORTERS, INC. 1379 1 to a little to a lot. And that's an equally important 2 aspect of the examination. 3 Q You haven't testified in any civil cases in 4 the past five years, have you? 5 A Geez, I really don't remember. I may have. I 6 know I've been involved in a few, but I don't -- none 7 comes to mind. If you can refresh my memory but -- 8 Q And you haven't testified in any case where 9 one party was alleging that the other party planted 10 blood, have you? 11 A No. Not anything like this case at all, no. 12 Q And you said that you're a blood stain pattern 13 interpretation expert, correct? 14 A No, I said -- well, that's the same thing. I 15 refer to it as blood stain pattern analyst. But 16 interpretation is a word that, you know, with our study 17 group at the FBI we're trying to get away from. So 18 we're -- but essentially that's true. 19 Q And you've testified that you have authored or 20 co-authored a few books, is that right? 21 A Correct. 22 Q And Principles of Blood Stain Pattern 23 Analysis, is this one of the books that you've authored? 24 A Yes. That's the most recent. 25 Q Co-authored? Now, that book is about reading CENTRAL FLORIDA REPORTERS, INC. 1380 1 the pattern of blood primarily at crime scenes, correct? 2 A No, actually it's got quite a bit more 3 information than that. It talks about anatomic sites of 4 injuries, a chapter done by a pathologist. It's got 5 theory of -- in the physics of blood stain pattern 6 analysis. It's got a chapter on Luminol, you know, the 7 chemical that makes blood glow in the dark. 8 It's got a chapter on chemical enhancement, 9 fingerprint and footwear impression. It's got a 10 computer analysis chapter. It's got a lot of things in 11 it. Whereas blood stain pattern analysis at crime 12 scenes is an integral but not a total part of the book. 13 Q Okay. The chapters on chemical analysis, 14 those are not chapters that you authored, were they? 15 A On the chemical, no, they weren't. 16 Q 'Cause you're not qualified to do that, are 17 you? 18 A To do what? 19 Q The chemical analysis of blood. 20 A Well, sure, certainly I am. I do Luminol all 21 the time. I just had someone else write the chapter who 22 had more experience than I did. 23 Q That's not primarily what you do, is it? 24 A What? 25 Q Chemical analysis of blood. CENTRAL FLORIDA REPORTERS, INC. 1381 1 A No. It's something I do when needed. And 2 when you say chemical analysis, what I'm -- what I think 3 you mean from my perspective is the chemical 4 enhancement, okay, looking for blood that has been wiped 5 up or cleaned. That's when you use Luminol or use Amido 6 Black or other enhancement chemicals to make it more 7 visible. That is not exactly chemical analysis of 8 blood. I've done that before in toxicology. That's a 9 different subject. 10 Q Isn't it true, Mr. James, that the temperature 11 of the environment affects the flow and the speed of 12 drying blood? 13 A Of drying blood? 14 Q Yes. 15 A The temperature affects the -- 16 Q The temperature of the environment affects the 17 flow and the speed of drying blood? 18 A Well, it would affect more the drying of 19 blood, the flow of blood. It would affect the flow of 20 blood if the temperature was extreme. I've had two or 21 three cases where homicides have occurred in freezers of 22 fast-food restaurants. And the blood, you know, freezes 23 quite quickly because it's in, you know, freezing 24 temperature. So that extreme will certainly affect 25 flow, yes. CENTRAL FLORIDA REPORTERS, INC. 1382 1 Q So it affects both flow and speed of drying 2 blood, correct? 3 A Depending on -- the two may not be 4 co-existing, but those are two factors that can affect 5 drying. Heat will accelerate drying, cold will retard 6 it. But cold will also retard flow. If it's cold 7 enough it'll freeze. 8 Q So the answer to my question is yes? 9 A It's a two-fold question and I thought I just 10 explained it. 11 Q Well, I want you -- I'd like for you to answer 12 the question. Does the temperature of the environment 13 affect the flow and the speed of drying blood? 14 A It can, yes. 15 Q Thank you. And would you agree with me that 16 the estimation of degree of clotting and drying time of 17 blood at crime scenes should be reproduced 18 experimentally using freshly drawn human blood of 19 similar volume, placed on an identical surface with 20 similar environmental conditions existing during the 21 experiment as were observed at the scene? 22 A Yes. 23 Q Okay. So you should have same type of blood, 24 same blood, identical surface and similar environmental 25 conditions? CENTRAL FLORIDA REPORTERS, INC. 1383 1 A Yes. 2 Q Did you take any temperature readings from the 3 nursing home that Mrs. Destefano was staying at? 4 A No. Well, you're referring to the drying of 5 blood. I didn't get involved with any experiments with 6 the drying of blood. I was just trying to reproduce a 7 pattern. 8 Q Well, do you know what the -- well, the 9 pattern is affected by how the blood was dried, isn't 10 it? 11 A No. 12 Q Well, this is dried blood, is it not? 13 A Yes, but the pattern looks the same as it did 14 when I produced it. It's just dry. 15 Q And the way that it's shaped? This is dried 16 blood? 17 A Now it is, yeah. 18 Q And that's going to be affected by things such 19 as temperature and environment? 20 A Yeah, but to what purpose? I mean, it looks 21 the same as it did when it was wet. 22 Q Were you there when it was wet? 23 A I made it myself, yes. 24 Q No, I'm talking about this, sir. 25 A Oh, that? No. I thought you were talking CENTRAL FLORIDA REPORTERS, INC. 1384 1 about the experiment. 2 Q No, I'm talking about this. 3 A No. The stain is there. It's pristine and it 4 dried eventually, sure. 5 Q And so -- but you don't know one way or the 6 other what the temperature was from -- at the nursing 7 home from where this bed pad was removed? 8 A I don't know the temperature, no. 9 Q And do you know anything about the lighting at 10 the nursing home? 11 A The lighting? No. 12 Q So you weren't really able to recreate the 13 same environmental conditions because you don't know 14 what the environmental conditions were at the nursing 15 home? 16 A I don't know what they were, no. 17 Q Now, isn't it true that blood from anemic 18 people will generally be diluted, have different 19 properties than somebody who's not anemic? 20 A In experiments they've done it requires 21 extremely anemic people, people who would otherwise not 22 be ambulatory or able to move around much. 23 Q And this is your blood, correct, that you did 24 on your experiments? 25 A Correct. CENTRAL FLORIDA REPORTERS, INC. 1385 1 Q And you're not anemic, is that correct? 2 A No, I'm not currently. No, I never was. 3 Q Okay. So if Mrs. Destefano was anemic, then 4 using your blood wouldn't really be using the same -- 5 blood with the same properties as what was on this bed 6 pad, correct? 7 A Well, I mean, no, but I can look at that stain 8 and say that that blood is not diluted so that's a moot 9 question. 10 Q Now, you also did not find a bed pad that was 11 identical to this bed pad, did you? 12 A Correct. I asked if I could use a portion of 13 that and it was denied. 14 Q Okay. 15 A But I did make the attempt. 16 Q If you look at this bed pad, it looks almost 17 like a flannely surface, doesn't it? 18 A Yes, ma'am. 19 Q And the bed pad that you used is sort of a 20 gauzy surface, is it not? 21 A Right. That's the only one I could find. 22 Q So even though you're supposed to reproduce 23 using the same environmental conditions on the identical 24 surface, you didn't do either of those two things in 25 this particular experiment, did you? CENTRAL FLORIDA REPORTERS, INC. 1386 1 A I wasn't permitted to. 2 Q Now, you didn't perform any tests on the 3 actual stain to determine any of the properties of the 4 blood, did you? 5 A I didn't do any testing whatsoever. 6 Q So you didn't swab the blood and look at that 7 under the microscope in any way, did you? 8 A No. In fact, that was something else I was 9 forbidden to do so I couldn't do it. 10 Q Well, sir, you're aware, are you not, that our 11 expert did do that, correct? 12 A Well, that's probably why I wasn't allowed to. 13 You had control over the material. 14 Q Okay. And did you request permission to do 15 that? 16 A I did. 17 Q And you were denied that by the Plaintiff? 18 A I don't know. I just -- I was told I could 19 not alter the stain. 20 Q Okay. 21 A No destructive testing. 22 Q But did you look at the blood stain under the 23 microscope, a microscope, right? 24 A A stereomicroscope, just on the fabric itself. 25 Q And that was about a 30 magnitude? CENTRAL FLORIDA REPORTERS, INC. 1387 1 A Magnification. 2 Q Magnification? 3 A Correct. 4 Q Okay. And is this, Mr. James, approximately 5 what a 30 magnification would reveal? 6 A I'm not even sure what I'm looking at here. 7 Q Well, it's a dime that's been blown up or 8 looked at at a magnitude of 30. 9 A It looks like it's got some website on here, 10 www.niceice.com. 11 Q Correct. 12 A I have no idea what that is. 13 Q Well, let me just ask you whether looking at 14 something under a 30 magnitude, does that allow you to 15 see cells? 16 A No. 17 Q Does that allow you to see any properties of 18 the blood itself? 19 A Properties? 20 Q Composition of the blood itself? 21 A No, it doesn't. 22 Q And basically something that's magnified at 30 23 percent, that's not much better than what you could see 24 with the naked eye, is it? 25 A Oh, it sure is much better. It's 30 times CENTRAL FLORIDA REPORTERS, INC. 1388 1 better. 2 Q And there's magnifiers that go up in the 3 thousands, right? 4 A Well beyond that if you're talking about 5 scanning electron microscopy. You can get up into the 6 100,000 magnification if you wanted to. 7 Q And you didn't use any high-powered microscope 8 to look at this blood stain on this bed pad, did you? 9 A Again, I was forbidden. I mean, in order to 10 do that, it would require some destructive testing and 11 removal of the sample to put it on a glass slide, to 12 mount it. You're removing material. I was not 13 permitted to do that. In fact, I would defer that to a 14 pathologist anyway. 15 Q 'Cause that's not something you'd be qualified 16 to do? 17 A Correct. 18 Q All right. Now, since you didn't take any 19 swabs, you weren't able to determine if there was 20 anything consistent with mucus in this blood stain, did 21 you? 22 A Correct. 23 Q Okay. And isn't it true that mucus in blood 24 can leave strands within the pattern? 25 A We occasionally see mucus mixed with blood, CENTRAL FLORIDA REPORTERS, INC. 1389 1 especially aspirated blood and coughing of blood. Yes, 2 I've seen it before. 3 Q Now, before you had performed your experiments 4 in this case, you had talked to the Defendant's (sic) 5 attorneys regarding the case, correct? 6 A Yeah. They called me and made an appointment 7 to bring the pad to my office basically, right. 8 Q And they asked you to determine what 9 mechanisms could have produced the stain, is that 10 correct? 11 A Essentially, yes. I think I may have used the 12 word mechanism when I was talking to him, but how did 13 this happen, that was essentially the question. 14 Q Well, Mr. James, you didn't do any experiments 15 as to whether this stain could have been produced by 16 something other than a pipette, a syringe or smearing 17 blood on the pad, did you? 18 A No, you're seeing the results of my 19 experiments. I did it -- I went as far as I needed to 20 to show that it could be produced by an artificial 21 mechanism. There could be 50 or 100 other objects or 22 devices that can do that. 23 Q That's correct. You looked at all artificial 24 mechanisms? 25 A No, I didn't look at all, I just looked at CENTRAL FLORIDA REPORTERS, INC. 1390 1 some. And I was able to reproduce it with the syringe 2 and the pipette basically. 3 Q Let me rephrase that. Of the mechanisms that 4 you looked at, they were all artificial? 5 A Well, yeah. If you want to use that term, 6 yes. They were mechanical production, yes. 7 Q And you didn't cut yourself and see if your 8 blood on it could also reproduce the same pattern on the 9 bed pad, did you? 10 A Well, I did actually, you know, place blood on 11 there and then try to wipe it down with my finger, which 12 I didn't cut my finger, but I had my blood drawn 13 previously and put it on there. 14 Q My question is is you didn't do any 15 experience -- any experiments with whether this pattern 16 can also be reproduced by a naturally-occurring event, 17 did you? 18 A Well, I gave it as much thought as I could. 19 And for reasons I have testified to, I didn't think I 20 would be able to reproduce it in any other reasonable 21 manner. I'm not saying it can't be done, but I think 22 that the fact that -- the compression of someone lying 23 on a bed pad, you know, kind of comprises any kind of 24 experiment that you'd expect it to look different than 25 pristine, that's all. CENTRAL FLORIDA REPORTERS, INC. 1391 1 Q Sir, I'd -- 2 MS. MARSHALL: If I could request the Court to 3 have the witness answer the question that I asked. 4 THE WITNESS: I thought I did. 5 THE COURT: Ask another question, Counselor. 6 BY MS. MARSHALL: 7 Q Isn't it true, Mr. James, that you did not do 8 any experiments to look at -- verify one way or the 9 other whether the pattern on this bed pad could be 10 reproduced through natural means? 11 A You mean a bleeding person? 12 Q Correct. 13 A No. 14 Q Now, you were told by Mr. Destefano's attorney 15 that the position of Mrs. Destefano on the bed pad was 16 that she was lying directly on it, correct? 17 A My understanding she was lying on the bed pad. 18 Q On her back in a supine position, is that 19 correct? 20 A Yes. 21 Q And you didn't consider any other positions, 22 possible positions, did you? 23 A Any other possible positions? It was my 24 understanding that she was bleeding from the rectum. 25 And in order to get the blood where it is, she'd have to CENTRAL FLORIDA REPORTERS, INC. 1392 1 have that part of her body in proximity to the surface. 2 If not, then there would be more blood around. 3 Q All right. Mr. James, my question is you were 4 told that she was lying on her back in a supine 5 position, correct? 6 A Yes. 7 Q And you didn't look at any other possibilities 8 about what her positioning might be? 9 A No. 10 Q You didn't look at whether she could have been 11 on her stomach, did you? 12 A Well, in bleeding from the rectum and leaving 13 blood under her body, it doesn't make any sense. 14 Q And you didn't look at whether she could have 15 been on her side, did you? 16 A No. 17 Q And you didn't look at whether her feet could 18 have been propped up, did you? 19 A No. 20 Q Do you agree that it is important to observe 21 the evidence without a preconceived notion or 22 objection -- or objective? 23 A Could you repeat that, please? 24 Q Well, when you go into an assignment, you 25 should go in there without any preconceived notions or CENTRAL FLORIDA REPORTERS, INC. 1393 1 objectives of what it is that you're looking at? 2 A I don't do that. In fact, I teach people not 3 to do that. And I didn't do it in this case. 4 Q So you would agree that that is something that 5 you should -- you should not do? You shouldn't go in 6 there with a preconceived notion or objective? 7 A Yeah. You want to get the most unbiased 8 opinion you can get, and that's what I believe I did. 9 Q Isn't it true that in this case, Mr. James, 10 that you started with an assumption from Mr. Destefano's 11 attorneys that this blood had been planted, and your 12 assignment was to see if you could reconstruct this 13 stain? 14 A It's totally incorrect. 15 Q Now, you said -- 16 A I went into this case -- he asked me how did 17 the stain get here. I went in with no -- I had no -- I 18 mean, it was going to be a very interesting experiment 19 for me to do. And I don't like being accused of things 20 like that when they're not true. 21 Q All right. Well, Mr. James, we just 22 established that you didn't do any experiments that 23 would look at whether this pad -- or this blood pattern 24 could be produced by a naturally-occurring event, 25 correct? CENTRAL FLORIDA REPORTERS, INC. 1394 1 A I did no experiments in that regard. 2 Q Okay. So you only did experiments that used 3 artificial mechanisms, correct? 4 A Yes. 5 Q And isn't it true that you don't have an 6 opinion about whether or not these stains were a result 7 of a naturally-occurring event or not? Your testimony 8 is limited to what you've been able to do mechanically 9 to get a stain that's similar in appearance to the one 10 that's on the bed pad? 11 A That's what I did, yes. 12 Q So it's true you don't have an opinion about 13 whether or not these stains are a result of a 14 naturally-occurring event? 15 A Yes. I mean, I wasn't there. 16 Q Okay. Your answer is yes -- 17 A Yes. 18 Q -- correct? You have no opinion on that? 19 A No opinion to the extent that you're asking, 20 yes. 21 Q Okay. Now, let's look at -- I notice that you 22 haven't blown -- do you have a picture or anything where 23 you've blown the blood on the bed pad up to be the same 24 size as your pictures of your experiment? 25 A No, I didn't do those. I didn't make those up CENTRAL FLORIDA REPORTERS, INC. 1395 1 so I don't know. That's all there is. 2 Q Okay. Is -- let me just get the one that you 3 said is most like the bed pad. Is that this one, the 4 one without the needle? 5 A Well, that's one of them, yes. That shows the 6 mirror image where the material is folded when the blood 7 was still wet. 8 Q Okay. Tell me what's on the -- is it this 9 one, number four? This is the one that you said looks 10 the most like -- 11 A Well, that's similar, yes. 12 Q Is that the one that you've testified in your 13 opinion was the one that was most -- 14 A Yes, one and four that are more similar than 15 two and three. 16 Q Okay. Now, and you would agree, would you 17 not, that this -- do you have a copy of those in your 18 file? 19 A Of the pictures? 20 Q Yes. 21 A Yes. 22 Q Okay. Okay. Would you agree that number four 23 on your -- on your exhibit, that the color is pretty 24 uniform throughout the stain? 25 A On number four? CENTRAL FLORIDA REPORTERS, INC. 1396 1 Q Yeah, the one that you've testified to was the 2 most like the one that was on the bed pad. 3 A Yes, I'd say it is. 4 Q And if you look at the bed pad -- and you can 5 step down if you want. 6 A Sure. 7 Q If you look at the bed pad, isn't the tip here 8 much darker than the tail? 9 A It appears to be a little darker. It's more 10 concentrated, yes. 11 Q More concentrated, more similar to a 12 saturation there? 13 A Well, there's saturation on both my 14 experiments and both saturation. 15 Q And on the bed pad, the outside around the 16 edge, it's very well defined, is it not? It's not 17 spreading? 18 A Not very much, no. 19 Q Okay. And then over here on this one where 20 you've reproduced, you have a whole bunch of feathering 21 or spreading, do you not? 22 A Yes, there's more on that. It's not the same 23 material, so it's a function of the fabric. 24 Q So it could be a function of the composition 25 of the blood, couldn't it? CENTRAL FLORIDA REPORTERS, INC. 1397 1 A I'd say more fabric. 2 Q Well, you've looked at blood that has mucus in 3 it, have you not? 4 A I've looked at blood patterns that have mucus 5 strands among them, yes. 6 Q Okay. And in fact, in your book on page 166, 7 you have patterns with mucus strands within an expirated 8 blood pattern? 9 A That's exactly what I'm talking about. You 10 have blood stains and you also have mucus strands, which 11 are distinct from the blood stains. 12 Q And on the actual blood stain itself that's 13 right here, the edges of it are very well defined, are 14 they not? 15 A That's not a consistent feature that often, 16 but in that particular case it is. 17 Q And those are kind of tadpole shaped patterns, 18 are they not? 19 A Not to be compared to this but they're actual 20 strands. They're not tadpole shaped. You use that with 21 a larger volume of blood. 22 Q They're elongated? 23 A They're strands, they're mucus strands. 24 Q With well-defined edges? 25 A If you want to call it well defined, yes. I CENTRAL FLORIDA REPORTERS, INC. 1398 1 think they're just normal. 2 Q Now, right up here, again on the head of this 3 stain, doesn't it look like there's -- that part of the 4 blood stain is thicker than the rest of it? 5 A It looks a little darker. It may have 6 saturated in a little more, I don't know. 'Cause, see, 7 what we don't know here in either case is what the 8 volume is that may have soaked in the pad. So that may 9 reflect itself in a more dense area so I don't know. 10 Q And -- you can sit down. 11 A Thank you. 12 Q And actually in your -- I believe in your 13 book, that's one of the things besides getting -- having 14 consistent environmental factors, having the same 15 material that you do the experiment on, you're supposed 16 to use the same volume of blood, correct? 17 A Not if you don't know what it is. 18 Q Well, that's what you try -- 19 A The only way I could have even estimated that 20 volume was to have been -- to cut up that original bed 21 pad, which again that was not allowed. So you have to 22 kind of go with what you can do. And the volume in this 23 case to me was not a big issue. 24 Q So you didn't know the volume? 25 A There's no way to know. CENTRAL FLORIDA REPORTERS, INC. 1399 1 Q Now, Mr. James, would it surprise you that 2 there is only one sentence in your book that has to do 3 with rectal bleeding? 4 A Not at all. There's a lot more in there than 5 that, believe me. 6 Q There's one sentence that has to do with 7 rectal bleeding, is that -- 8 A Well, that's not unusual. 9 Q Okay. 10 A It's not often a fatal condition as far as 11 that goes. 12 Q And how much are -- what kind of compensation 13 are you receiving for being here today? 14 A Well, I haven't made up a bill yet, but I'll 15 probably charge half a day's worth of court time, which 16 is 850. 17 Q $850 for today? 18 A Correct. 19 MS. MARSHALL: Thank you. I have no further 20 questions. 21 THE COURT: Mr. Townsend? 22 MR. TOWNSEND: No questions, Your Honor. 23 THE COURT: Redirect? 24 MR. OSBORNE: Yes, Your Honor. 25 - - - - - CENTRAL FLORIDA REPORTERS, INC. 1400 1 REDIRECT EXAMINATION 2 BY MR. OSBORNE: 3 Q Mr. James, do you have an opinion as to 4 whether or not this was -- you said this was an 5 elongated passive blood stain, correct? 6 A Correct. 7 Q Whether or not that elongated passive blood 8 stain is consistent with drainage of blood from the 9 rectum of an individual lying on a bed pad? 10 A Yes. Based on my work it's not consistent 11 with that for the reasons I stated. Again, I wasn't 12 there. 13 Q What do you mean, you weren't there? What 14 does that mean? 15 A I wasn't there at the time the blood was shed, 16 so I can't be that definitive. 17 Q You can't say 100 percent 'cause you'd -- to 18 say 100 percent you'd have to be there to see it, 19 correct? 20 A Right. When I said no opinion, you have to 21 take my findings with other -- the findings of others to 22 get the total picture here. I'm only providing you part 23 of the data. 24 Q But is your finding -- your opinion that this 25 blood stain is not consistent with blood coming from the CENTRAL FLORIDA REPORTERS, INC. 1401 1 rectum of an individual lying on a bed based upon 2 reasonable scientific probability based upon your 3 training and experience? 4 A Yes. In my opinion, yes. 5 Q So what you're saying is that to get the whole 6 picture, that you have to look at the medical evidence 7 to see if there's any source of the bleeding? 8 A Correct. That's the bottom line. 9 Q Take the two of those together? 10 A Correct. 11 Q And your other opinion -- so the one opinion 12 is is that within reasonable scientific probability this 13 blood stain did not come from the rectum of an 14 individual lying in the bed, correct? 15 MS. MARSHALL: Objection, Your Honor. 16 THE COURT: Grounds? 17 MS. MARSHALL: He's not a medical doctor. 18 THE COURT: I'll allow him to answer. 19 Overruled. 20 BY MR. OSBORNE: 21 Q Go ahead, Mr. James. 22 A Yeah. Based upon my experience and based upon 23 the experiment, my experience and experiment, it's 24 inconsistent. It's not consistent with rectal 25 bleeding -- CENTRAL FLORIDA REPORTERS, INC. 1402 1 Q And was it -- 2 A -- or from that particular source. 3 Q Okay. And let's go back to your basis for 4 that. Because when rectal bleeding occurs with someone 5 lying in bed there's a different pattern, correct? 6 A Yeah. In my experience if someone is on a 7 surface, the blood coming out of an orifice, you can 8 generally, you know, see it from the patterns what that 9 orifice is. 10 Q Well, let me give you another example. If 11 you're lying on your side and you have rectal bleeding 12 and the blood runs down the side of your buttocks, it's 13 still going to have a compression -- you're going to 14 have a compression stain, aren't you? 15 A Yes. 16 Q So it doesn't matter where the body is, what 17 position the body is in? If it pools under the body, 18 it'll pool under the body no matter what the position 19 is, correct? 20 A Yeah, depending upon, you know, the folds of 21 the skin and et cetera. 22 Q And you're still going to have a compression 23 stain versus pristine stain no matter what position the 24 body is in? 25 A Yeah, as long as the stain is still wet. Once CENTRAL FLORIDA REPORTERS, INC. 1403 1 it dries, you can't alter the stain by compressing it. 2 Q And you also have the opinion that this -- 3 based upon your training, experience and the experiments 4 you did, that this particular pristine blood stain was 5 created artificially and not naturally, correct? 6 A Well, based on my experiments it's easily, 7 easily duplicated artificially, yes. 8 MR. OSBORNE: No further questions, Your 9 Honor. 10 THE COURT: Ladies and Gentlemen of the Jury, 11 do any of you have question for this witness? Just 12 write your question down and our court deputy 13 sheriff will retrieve it. Counsel, approach the 14 Bench. 15 (Whereupon there was had a discussion at the 16 Bench outside the hearing of the Jury.) 17 THE COURT: Could a blood stain in such a 18 shape/pattern possibly be caused by open wound or 19 sore on the body and when moving or kicking the 20 blood was dragged on the pad? Is it possible 21 this -- that's the first question. Is it possible 22 this stain could have come from an open wound on a 23 heel? 24 MR. OSBORNE: That's fine. 25 MS. MARSHALL: That's fine. CENTRAL FLORIDA REPORTERS, INC. 1404 1 THE COURT: Hold on. Your Honor, the pictures 2 shown in the book I could not see. Was I supposed 3 to? 4 MS. MARSHALL: Can I give -- can I publish 5 that to the Jury? 6 THE COURT: Are you -- it's not admitted into 7 evidence. 8 MS. MARSHALL: Yeah. 9 THE COURT: No. 10 MR. OSBORNE: I think you should answer that 11 for her, Judge. 12 THE COURT: Okay. One, what orientation was 13 Mrs. Destefano -- this is confusing. I'll show it 14 to you in a minute. What orientation was 15 Mrs. Destefano in reference to the pad? Let me 16 start again. Up at the top it says not necessarily 17 for the witness, but I would like to know. One, 18 just -- yeah, I think that pretty much ends it. 19 MR. OSBORNE: Yeah, I think that does, too. 20 THE COURT: I will answer this. Could we see 21 the bed pad up close? It's going back with them 22 for deliberations, I would tell them that, no 23 problem. 24 MR. OSBORNE: That's fine. 25 MS. MARSHALL: Um-hum. CENTRAL FLORIDA REPORTERS, INC. 1405 1 THE COURT: Okay. 2 (Whereupon the discussion at the Bench was 3 concluded, and the following proceedings were had 4 in the hearing of the Jury.) 5 THE COURT: All right. Ladies and Gentlemen, 6 I'm going to start with the easy part first, then 7 I'll ask the witness the question. The pictures 8 shown in the book, you were not supposed to see 9 those. Those were part of the examination of the 10 witness. 11 With respect to the questions not necessarily 12 for the witness, that's not a proper question. The 13 question is do you have a question for this 14 witness. If so, you need to ask it. What I will 15 tell you out of those three questions, though, is 16 the bed pad is in evidence and you're going to take 17 it back to the jury room to deliberate, just as you 18 will with all pieces of evidence. So you will see 19 that up close. 20 Now, I'm going to pose these two questions to 21 the witness. These are from the Jury. If you 22 would respond by turning and answering to the Jury. 23 THE WITNESS: Correct. 24 THE COURT: Could a blood stain in such a 25 shape/pattern possibly be caused by open wound or CENTRAL FLORIDA REPORTERS, INC. 1406 1 sore on the body and when moving or kicking the 2 blood was dragged on the pad? If you'd answer the 3 question, please. 4 THE WITNESS: Well, certainly a blood flow can 5 be produced by a sore or other bleeding part of the 6 body, but in this case I don't see any alteration 7 of the stain where that portion of the body could 8 have come off. It looks very pristine, if that 9 answers your question. 10 I don't know the medical issues. It's my 11 understanding there was no -- there was no injuries 12 on the victim, on her -- the rest of her body 13 allegedly that had any bleeding episode, but if 14 there were it certainly can be -- produce a blood 15 stain. But in this case I don't see one that's 16 been altered in that fashion that you would expect. 17 THE COURT: Were you finished? 18 THE WITNESS: Yeah, I'm sorry. 19 THE COURT: Is it possible the stain could 20 have come from an open wound on a heel? 21 THE WITNESS: On a heel? Possibly. If it 22 were -- if it were bleeding slowly and then -- just 23 slowly, if you have a small aperture bringing it 24 down, possibly. I would say it's possible. 25 THE COURT: Any other questions from the Jury? CENTRAL FLORIDA REPORTERS, INC. 1407 1 Any follow-up questions on that, anything further? 2 Are you all writing down questions or are you 3 writing -- no questions? If you'd just indicate to 4 me. Thank you. Any follow-up questions, beginning 5 with you, Mr. Osborne? 6 MR. OSBORNE: Your Honor, excuse me. 7 THE COURT: Do you have any follow-up 8 questions for the witness? 9 MR. OSBORNE: I do not. 10 MS. MARSHALL: No, Your Honor. 11 THE COURT: Mr. Townsend, I take it you do 12 not? 13 MR. TOWNSEND: No, Your Honor. 14 THE COURT: Mr. James, you are free to go. 15 Thank you very much, sir. 16 THE WITNESS: Thank you, Your Honor. 17 MR. OSBORNE: We're going to need a moment to 18 set up the television. 19 THE COURT: Why don't we take a real fast 20 break, five minutes or so. Let's try to keep it to 21 five if we possibly can. 22 (Whereupon, there was had a recess from 9:43 23 o'clock a.m., to reconvene at 9:50 o'clock a.m., in 24 the presence of the Jury.) 25 THE COURT: And be seated. Ladies and CENTRAL FLORIDA REPORTERS, INC. 1408 1 Gentlemen, we're now going to continue with the 2 deposition -- video deposition of Dr. Steely. I 3 would ask you to be thinking, and we'll take a 4 short break and I'll get your thoughts about this 5 during the break after Dr. Steely's deposition, 6 whether you would like to conduct as you did 7 yesterday, have lunch brought in, take a very short 8 lunch break and get right back at it at 12:30, or 9 if you prefer to have an hour lunch. And just 10 think about that, and I'll get with you during the 11 break at 11:00 o'clock or so. Go ahead. 12 (Whereupon the playing of the videotaped 13 deposition of Dr. Steely was resumed.) 14 DIRECT EXAMINATION - CONT. 15 A And the swallow, to note, that she should 16 remain NPO. 17 Q And did she also demonstrate the dragging of 18 the mother? 19 A I don't recall. 20 Q Okay. That's something that she just told 21 you? 22 A Correct. All of this is what she -- what I 23 recall her telling me. 24 Q But at that time, Doctor, as you wrote your 25 weekend note, but you didn't write down those specific CENTRAL FLORIDA REPORTERS, INC. 1409 1 allegations? 2 A Correct. At the time I didn't feel that they 3 were a concern. 4 Q Okay. All right. Doctor, have you had an 5 opportunity to review the Sunbelt Nursing Home records 6 of Mrs. Destefano? 7 A No. 8 Q All right. And let me ask you, first of all, 9 before we take a look at those, have you had any -- did 10 you have any contact with Sunbelt during this time 11 period? 12 A No. 13 Q And did you know or speak to Rachel Bean 14 during this time period? She was the director of 15 nursing there. 16 A At Sunbelt? 17 Q At sunbelt. 18 A No. 19 Q And how about Mary Thornton, the nurse manager 20 over there? Did you know her or ever speak to her? 21 A No, not as first-year interns, we didn't have 22 any contact with Sunbelt. 23 Q And did you know anyone who worked at Sunbelt? 24 A No. 25 Q All right. Now, have you had an CENTRAL FLORIDA REPORTERS, INC. 1410 1 opportunity -- you said you haven't read the Sunbelt -- 2 you have read none of the Sunbelt records? 3 A No. 4 Q Have you read Rachel Bean's statement at all 5 that was in the Sunbelt records? 6 A No. 7 Q All right. Let me show you that, Doctor, if I 8 can. And just for the record, we have marked as Exhibit 9 3 your stand-alone 9/17/99 note just so the record's 10 clear. 11 All right. Doctor, let me show you now part 12 of Rachel Bean's note, which I have marked as Exhibit 13 No. 5 to this deposition. There's a skip there. I 14 skipped Exhibit No. 4. We haven't discussed it and I'm 15 probably not going to refer to it. 16 This was a note, Doctor, and your counsel can 17 correct me if I'm wrong or if she feels I'm wrong, a 18 note written by Rachel Bean after she had an incident 19 with Mr. Destefano. And I want you to just take a look 20 at the bottom portion of the letter, of the note of 21 Rachel Bean's. That's Exhibit 5 that I have 22 highlighted, and trust me that everybody in this case 23 has read this many times, so I'm going to try to read it 24 rather than you drying to decipher her handwriting. 25 It says I received a call from Dr. Black at CENTRAL FLORIDA REPORTERS, INC. 1411 1 approximately 1:00 p.m. in re: inappropriate behavior at 2 the hospital from the son. Dr. Steely had passed on 3 that the resident's son was kneeing her in the back, 4 telling her to stand up, and was literally dragging her 5 across the room, telling her to walk, causing the 6 dressing to come off. Do you see where that's written? 7 A Yes. 8 Q All right. Now, I also want to hand you what 9 I have marked as Exhibit No. 6, and I'll give your 10 counsel a copy of that. Actually this is my only copy 11 so I'll -- if you can maybe take a look at that first, 12 Tracy. I'm just going to ask him about the highlighted 13 portion. 14 Exhibit No. 6, the highlighted portion, says 15 he then put water in his mother's mouth. He was holding 16 her head and kept telling her to swallow and was kissing 17 her face. 18 Now, Doctor, this note was clearly written on 19 September 21st, 1999. I want you to assume that 20 Mrs. Bean, the director of nursing at Sunbelt, wrote 21 both of these notes. They're part of one long note on 22 September 21st, 1999. 23 MS. MARSHALL: Can you refer to them by the 24 exhibit number, please, for the record? 25 MR. GLICK: Yes, sure. It's Exhibits Nos. 5 CENTRAL FLORIDA REPORTERS, INC. 1412 1 and 6. 2 BY MR. GLICK: 3 Q Now, I want you to also note here that 4 Mrs. Bean alleges kneeing in the back and literally 5 dragging her across the room and telling her to walk, 6 causing the dressing to come off. And then in Exhibit 6 7 she notes putting water in his mother's mouth, holding 8 her head and kept telling her to swallow. 9 And, Doctor, would you agree with me that 10 these allegations are strikingly similar to the 11 allegations that are noted in your September 22nd, 1999 12 letter that we have marked as Exhibit No. 1? 13 A They're similar, yes. 14 Q Okay. As a matter of fact, your note of 15 September 22nd, 1999, would in fact corroborate the note 16 written by Rachel Bean? 17 A I mean, they're similar. 18 Q Okay. That would support her version of the 19 facts? 20 A I believe so. I mean, she's saying that they 21 heard it from me so -- 22 Q Okay. And your note, however, Dr. Steely, was 23 written after Rachel Bean's and contains allegations 24 that do not appear anywhere in the Florida Hospital 25 chart, except for what you have written? CENTRAL FLORIDA REPORTERS, INC. 1413 1 A Correct. 2 Q Okay. Doctor, I want to ask you about the 3 gagging notation that you made in your September 22nd, 4 1999 letter. And I want to ask you, Doctor, if the 5 gagging note actually came from either a conversation 6 with Rachel Bean or review of anything that she wrote? 7 A I don't know who Rachel Bean is. 8 Q You never spoke to Rachel Bean and you never 9 reviewed any of her records? 10 A Correct. 11 Q You're absolutely positive of that? 12 A Absolutely positive. 13 Q Doctor, isn't it a fact that Frances Wiegand 14 from risk management or anyone -- or somebody from risk 15 manage for sure came to you, and you've already told us 16 that they told you to write the letter of September 17 22nd, 1999? And as a matter of fact, the reason that 18 they came to you was because Rachel Bean had already 19 written these notes and wanted you to write your letter 20 to support her allegations? 21 A Like I said, I don't -- I was just asked to 22 write a note. I didn't know what the context or the 23 reason was at the time. 24 Q All right. Let's take a look at Ms. Bean's 25 note a little further then. She says in the note that CENTRAL FLORIDA REPORTERS, INC. 1414 1 she got a call from -- I'm going back now to Exhibit 5. 2 She got a call from Dr. Black at approximately 1:00 p.m. 3 in re: inappropriate behavior at the hospital from the 4 son. 5 Dr. Steely had passed on that resident's son 6 was kneeing her in the back, telling her to stand up, 7 and was literally dragging her across the room, telling 8 her to walk, causing the dressing to come off. You see 9 that, Doctor, right? 10 A Yes. 11 Q I'm going to ask you again, Doctor, did you 12 tell this directly to Rachel Bean? 13 A No. 14 Q All right. Did you tell this to Dr. Black? 15 A It may have been in our discussion on rounds. 16 Q You say it may have been in your discussion on 17 rounds. Are you absolutely positive that you told this 18 to Dr. Black? 19 A I don't recall. 20 Q Okay. If Dr. Black has testified that you did 21 not advise him in September of 1999 of any inappropriate 22 behavior visited by Mr. Destefano upon his mother, such 23 as kneeing in the back, dragging her or force feeding 24 her, if he has testified that you did not advise him of 25 any of that, would you have any reason to quarrel with CENTRAL FLORIDA REPORTERS, INC. 1415 1 Dr. Black's testimony on that? 2 A I guess my only question would be that he 3 states here that he got a call from Dr. Black where this 4 had been passed on by me. 5 Q Well, that's what Rachel Bean writes here. 6 A Right. 7 Q This is Rachel Bean's writing. 8 A Okay. But it says it's a call from Dr. Block. 9 Q Dr. Black? 10 A Black, I'm sorry. 11 Q Right. 12 A That Dr. Steely had passed on the resident's 13 son was kneeing her in the back. 14 Q Right. 15 A My interpretation is that that's what 16 Dr. Black told her. 17 Q Okay. But what I'm asking you to assume is, 18 assume that Dr. Black has testified that you didn't tell 19 him anything about that and that he didn't tell Rachel 20 Bean anything about that. Would you have any reason to 21 disbelieve or to quarrel with Dr. Black's testimony? 22 MS. MARSHALL: Form objection. 23 A Like I say, I mean, this is four or five years 24 ago. I can't really make any kind of speculation on 25 whether or not he remembers what we said or what we CENTRAL FLORIDA REPORTERS, INC. 1416 1 didn't say. I can't really comment on it. 2 Q All right. Do you have any knowledge, 3 specific knowledge of Dr. Black speaking to Rachel Bean? 4 A No. 5 Q Do you have any reason to believe that 6 Dr. Black would falsely state that you never told him 7 anything about Mr. Destefano displaying inappropriate 8 behavior toward his mother? 9 MS. MARSHALL: Object to the form. 10 A Yeah. Like I said, I mean, this happened four 11 or five years ago. I mean, you know, I don't know if I 12 told Dr. Black or not. I can't really speculate on what 13 he is thinking or what he might remember or might not 14 remember. 15 Q You're not sure what -- you're not sure if you 16 told Dr. Black anything back in September of '99? 17 A Like I said, I just reported everything that 18 occurred, what I recall is everything that occurred on 19 rounds, that we had talked about on rounds. 20 Q Okay. 21 A But I don't have any recollection specifically 22 telling Dr. Black or just my rounding team is the only 23 thing I discussed the case to. 24 Q Was Dr. Black present on rounds at that time 25 when you discussed this? CENTRAL FLORIDA REPORTERS, INC. 1417 1 A I don't know. I don't recall. 2 Q Okay. Now, who was on the rounding team? 3 A I don't remember -- 4 Q All right. 5 A -- who the attending exactly was, it was 6 admitted to Dr. Fleming, but I don't recall whom the 7 attending was. 8 Q Are you able to tell us specifically what you 9 said, if anything, regarding Larry Destefano and 10 Carolina Destefano to the rounding team? 11 A No. 12 Q All right. Doctor, you had stated earlier 13 that when you wrote your note of 9/17/99 -- which I've 14 forgotten what exhibit that is. It's the weekend note. 15 Do you see that? 16 A Exhibit 3? 17 Q Yes. You referred to it, you said nursing 18 believes son providing inappropriate care. But you 19 didn't at that time give specific examples of the 20 inappropriate care of the kneeing or the dragging or the 21 force feeding, correct? 22 A Correct. 23 Q And then later when risk management asked you 24 to write a letter describing what you knew about Larry 25 and Carolina Destefano, you did decide to go ahead and CENTRAL FLORIDA REPORTERS, INC. 1418 1 write specific examples. 2 A Uh-huh. 3 Q Can you please tell us why at that time you 4 decided to for the first time put in specific examples 5 of kneeing in the back, dragging his mother across the 6 room and force feeding her? 7 A I don't recall. I think they asked for 8 specifics. 9 Q Okay. So risk management asked for specifics 10 of any abuse that was visited upon Mrs. Destefano? 11 A I don't know if the word abuse was used. I 12 don't recall. 13 Q Do you remember if risk management asked for 14 any examples of inappropriate care? 15 A Could have been, but I don't really recall. 16 Q Okay. Because that kind of brings m